Perius v. Aloha Petroleum, Ltd.

Filing 19

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT WITHOUT PREJUDICE re: 12 - Signed by JUDGE SUSAN OKI MOLLWAY on 5/10/2022. Defendants' motion to dismiss is granted. The First Amended Complaint dismissed without prejudice. Perius may file a Second Amended Complaint by May 31, 2022. (jo)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHEAL PERIUS,

)
)
Plaintiff,
)
)
vs.
)
)
ALOHA PETROLEUM, LTD.; ALOHA )
PETROLEUM, LLC
)
)
Defendants.
)
)
)
)
_____________________________ )

CIVIL NO. 22-00021 SOM-WRP

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT
WITHOUT PREJUDICE

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT WITHOUT PREJUDICE
I.

INTRODUCTION AND BACKGROUND.
According to Plaintiff Michael Perius, Defendants Aloha

Petroleum, Ltd., and Aloha Petroleum, LLC, operate a gas station
that failed to adequately accommodate Perius’s disability.

In

his First Amended Complaint, Perius alleges that, as an amputee
with substantially limited mobility, he needs “parking spaces as
near businesses’ entrances as possible” and that the “current
parking designated as accessible [at the gas station in question]
is not.”

ECF No. 7, PageID # 19.

He therefore contends that

that gas station is violating a Department of Justice regulation
that states that “[a]ccessible spaces must connect to the
shortest possible accessible route to the accessible building
entrance or facility they serve.”

ECF No. 16, PageID # 55.

On

that basis, the First Amended Complaint alleges that Defendants

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have violated 42 U.S.C. § 12182(a), which is a part of the
Americans with Disabilities Act, as well as Hawaii Revised
Statutes §§ 489-3 and 291-58.
Defendants now move to dismiss.

They contend that the

conclusory allegations in First Amended Complaint fail to state a
claim.

ECF No. 12.

This court agrees.1

The allegations in the

First Amended Complaint do nothing more than parrot the
regulation that Perius alleges Defendants violated.

The First

Amended Complaint is dismissed with leave to amend.
II.

STANDARD OF REVIEW.
Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court’s review is generally limited to the
contents of a complaint.

Sprewell v. Golden State Warriors, 266

F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d
1476, 1479 (9th Cir. 1996).

If matters outside the pleadings are

considered, the Rule 12(b)(6) motion is treated as one for
summary judgment.

See Keams v. Tempe Tech. Inst., Inc., 110 F.3d

44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934
(9th Cir. 1996).

However, the court may take judicial notice of

and consider matters of public record without converting a Rule
12(b)(6) motion to dismiss into a motion for summary judgment.
See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.

1

The court opts to decide this motion without a hearing
pursuant to Local Rule 7.1(c).
2

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2001); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.
1988).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
3

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an unadorned, the-defendant-unlawfully-harmed-me accusation”).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will
not do.”

Twombly, 550 U.S. at 555.

The complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal,

556 U.S. at 678.
III.

ANALYSIS.
The sole issue raised by Defendants’ motion to dismiss

is whether the allegations in the First Amended Complaint are too
conclusory to state a claim.

Defendants contend that the First

Amended Complaint does “little more than recite the elements of
an ADA claim, and fall[s] short of putting Aloha on notice of how
parking at Aloha’s facility prevented Plaintiff from full and
equal access to the facility.”

ECF No. 12-1, PageID # 35.

In

response, Perius argues that his allegations are sufficient
because he has “identified the specific ADA barrier of which he

4

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complains: Defendants’ designated accessible parking spaces not
being as close as possible to the business’ entrance.”

ECF No.

16, PageID # 48.
This court agrees with Defendants.

The regulation that

Perius contends that Defendants violated states that “accessible
spaces must connect to the shortest possible accessible route to
the accessible building entrance or facility they serve.”
No. 16-2, PageID # 73.
regulation.

ECF

The First Amended Complaint mirrors that

It alleges only that the parking spaces at

Defendants’ gas station are not as close to the entrance as
possible.

ECF No. 7, PageID # 19.

That “unadorned,

the-defendant-unlawfully-harmed-me accusation” is too conclusory
to survive a motion to dismiss.

Iqbal, 556 U.S. at 678.

The

First Amended Complaint neither identifies the location of the
parking space that is designated as accessible nor explains why
that space could be closer to the entrance of the gas station.
Without such allegations, this court cannot evaluate whether the
Complaint states a plausible claim.
Defendants’ motion to dismiss is granted.2

However,

because it appears that Perius may be able to amend his complaint
2

Because the First Amended Complaint fails to state a
claim, this court need not address Defendants’ alternative
argument that the First Amended Complaint fails to identify which
of the two defendants actually operates the gas station at this
time. See ECF No. 18, PageID # 78. If Perius chooses to file an
amended complaint, he may include additional allegations on this
issue.
5

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to remedy the deficiency, see ECF No. 16, PageID # 51, this court
grants Perius leave to file a Second Amended Complaint.
IV.

CONCLUSION.
Defendants’ motion to dismiss is granted.

Amended Complaint dismissed without prejudice.

The First

Perius may file a

Second Amended Complaint by May 31, 2022.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 10, 2022.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Perius v. Aloha Petroleum Ltd. et al., Civ. No. 22-00021 SOM-WRP; ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
WITHOUT PREJUDICE.

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