Sastin 2 LLC v. Hemingway Association Inc

Filing 26

ORDER directing Plaintiff to submit a brief on the issue of subject matter jurisdiction no later than 7/10/2018. Defendant shall respond no later than 7/24/2018. Signed by Honorable Timothy D. DeGiusti on 6/28/2018. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SASTIN 2, LLC,

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Plaintiff,
v.
HEMINGWAY ASSOCIATION, INC.,
Defendant.

Case No. CIV-17-1252-D

ORDER
At issue is whether the Court has subject matter jurisdiction under 28 U.S.C. § 1331.
On November 21, 2017, Plaintiff initiated this action seeking declaratory and injunctive
relief from two provisions of Defendant’s Rules and Regulations. [Doc. No. 1]. Plaintiff
is an Oklahoma LLC, which owns condominiums at the Hemingway Condominiums.
Defendant is an Oklahoma not-for-profit, non-stock corporation (homeowner’s
association) charged with managing the condominiums and their common elements.
Specifically, Plaintiff asserts that the provision prohibiting the installation of outside
satellite dishes to condominium units violates § 207 of the Telecommunications Act of
1996 and 47 C.F.R. § 1.4000. Plaintiff also asserts that Defendant’s assessment of fines
and penalties amounts to a state action that violates the Fourteenth Amendment of the
United States Constitution. Plaintiff asserts that the Court has jurisdiction pursuant to 28
U.S.C. § 1331 (federal question jurisdiction).
Without citing to any authority, Defendant asserts in the Joint Status Report [Doc.
No. 11 at 3] and in its response in opposition to Plaintiff’s second motion to compel [Doc.

No. 21 at 11] that subject matter jurisdiction is lacking. The dispositive motion deadline
is not until September 6, 2018 [Doc. No. 24 at 1].
“[W]henever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” Tuck v. United
Services Auto. Ass’n, 859 F.2d 842, 844 (10th Cir. 1988); see also FED. R. CIV. P. 12(h)(3).
The Court may sua sponte raise the question of whether there is subject matter jurisdiction
at any time before a final judgment has been entered. 1mage Software, Inc. v. Reynolds
and Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006).
Based on Defendant’s representations and the Court’s review, the Court has
determined that subject matter jurisdiction may be lacking. See e.g., Loren v. Sasser, 309
F.3d 1296, 1303 (11th Cir. 2002) (quoting Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001)) (holding that a property owners’ association’s
denial of the homeowners’ request to post “For Sale” signs in their front yard to expedite
the sale of their homes did not constitute state action); Ross v. Hatfield, 640 F. Supp. 708,
710-712 (D. Kan. 1986) (requisite state action lacking where homeowner’s association had
restrictive covenant that barred the plaintiffs from installing satellite television antennas
outside their residence); Boughton v. Kristek, Case No. CIV-16-202, 2016 WL 10538355,
at *5 (D.N.M. April 12, 2016) (court concluded that Section 207 of the Federal
Telecommunications Act of 1996 and 47 C.F.R. § 1.4000 do not give rise to a private cause
of action).

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Accordingly, the Court directs Plaintiff1 to submit a brief on the issue of subject
matter jurisdiction by July 10, 2018. Defendant shall file its response brief by July 24,
2018. The briefs should focus on two questions of law: (1) whether § 207 of the
Telecommunications Act of 1996 or 47 C.F.R. § 1.4000 provide for a private right of
action; and (2) whether the requisite state action has occurred.
IT IS SO ORDERED this 28th day of June 2018.

1

As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013).
3