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Turner v. Hawaii First Inc.

United States District Court, D. Hawai'i

October 15, 2012

Charles J. TURNER, individually and as a Personal Representative of The Estate of Dae'Vid Lei Guevara, Deceased, Plaintiffs,
HAWAII FIRST INC., A Corporation; Does 1-30, Defendants.

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[Copyrighted Material Omitted]

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Stephen M. Shaw, Honolulu, HI, for Plaintiff.

John D. Zalewski, Michael G. Kozak, Case Lombardi & Pettit, Honolulu, HI, for Defendant.


ALAN C. KAY, Senior District Judge.


Plaintiffs' First Amended Complaint (" FAC" ) was filed on May 7, 2012. (Doc. No. 44).

Defendant's Motion To Dismiss the First Amended Complaint (" Motion" ) was filed on May 14, 2012. (Doc. No. 46.) The Motion To Dismiss was supported by a Concise Statement of Facts, declarations by counsel and by Albert Denys, Defendant's Chief Operating Officer, and various exhibits. (Doc. No. 47.) Plaintiffs filed an Opposition to the Motion To Dismiss (" Opp'n" ) on September 17, 2012, which incorporated by reference the Concise Statement of Facts, declarations, and exhibits that Plaintiffs filed in support of their Motion for Summary Judgment. (Doc. No. 58; Opp'n at 2.) [1] Defendant filed a Reply in support of its Motion To Dismiss on September 25, 2012. (Doc. No. 60.)

Counsel clarified during the hearing on the Motion conducted before this Court on October 9, 2012, that despite its title the Motion was both a motion to dismiss and, in the alternative, a motion for summary judgment. The Court notes that both parties filed Concise Statements of Facts in support of their papers and that, although its title was lacking, the body of the Motion discussed Federal Rule of Civil Procedure 56 and the standard of review for summary judgment motions. The Court finds that Plaintiffs had sufficient notice that Defendant was moving for summary judgment in the alternative, and therefore will treat Defendant's Motion as a motion to dismiss the complaint, or in the alternative for summary judgment on Plaintiffs' claims.


This case concerns fees assessed against Plaintiffs as members of a condominium

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association, which Defendant as managing agent of the condominium project attempted to collect.

Plaintiff Charles J. Turner appears on his own behalf and as representative of the estate of his domestic partner, Dae'vid Lei Frank Guevara, who died on December 18, 2011. (FAC ¶¶ 2, 79.) In October 2006, Plaintiffs purchased a condominium in Ewa Colony Estates and thus became members of the Association of Apartment Owners of Ewa Colony Estates (" Association" ). ( Id. ¶ 10.) The governing documents of the Association require members to pay various assessments for communal expenses. ( Id. ¶¶ 11-13 & Exs. A, 10, A.25.)

Defendant Hawaii First, Inc. is a managing agent for condominium associations and collects both delinquent and nondelinquent bills on the Association's behalf. ( Id. ¶¶ 14, 26, 27 & Exs. 45a-46.)

In late February or early March, 2010, Plaintiffs filed in state court a request for a temporary restraining order against the president of the Association and two family members, alleging that the president and family members had physically attacked and harassed Mr. Guevara. ( Id. ¶ 16.) On March 15, 2010, a hearing was held regarding Plaintiffs' request, at which Plaintiffs spoke to the Association's attorney and " verbally repudiated their obligation to pay all attorney's fees for legal services related to the condominium project including the subject injuries and harassment." ( Id. ¶¶ 17-18.)

On March 30, 2010, the Association's counsel billed the Association $247 for work relating to the alleged attack on Plaintiff Guevara. ( Id. ¶ 23.) On May 21, 2010, the Association paid its counsel $258.64, which amount included the $247 for the work billed on March 30. ( Id. ¶ 24.)

Sometime after May 21, 2010, Defendant " acquired" this legal debt from the Association. ( Id. ¶ 25.) On May 25, 2010, Defendant sent a bill to Plaintiffs which included a charge of $258.64 labeled " Legal 04/30/10 St: 5" . ( Id. ¶ 28 & Ex. A.47.) This charge was the debt at issue in this case (" Debt" ).[3]

In their First Amended Complaint, Plaintiffs bring fourteen [4] claims under the Federal Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. §§ 1692e-h, alleging at least four kinds of FDCPA violations: making false or misleading representations; employing unfair practices; failing to give required notices; and applying a payment to a debt still in dispute. (FAC ¶¶ 35-68.) Plaintiffs also bring three claims under Hawaii state law for unfair or deceptive acts or practices, intentional infliction of emotional distress, and wrongful death. ( Id. ¶¶ 69-87.)


As a preliminary matter, Defendant characterizes its Motion To Dismiss as, in part, one for lack of subject matter jurisdiction under Federal Rules of Civil Procedure 12(b)(1) (" Rule 12(b)(1)" ), while Plaintiffs argue that it is a motion to dismiss for failure to state a claim under Federal Rules of Civil Procedure 12(b)(6) (" Rule 12(b)(6)" ). ( See Motion at 5; Opp'n at 3.) When deciding a " factual" Rule 12(b)(1) motion, the burden is on the nonmoving party to prove that the court has

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jurisdiction, see Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n. 2 (9th Cir.2003); the court may consider evidence outside the pleadings and should not presume that the allegations of the complaint are true, see White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). In contrast, when deciding a 12(b)(6) motion, the court generally may only consider the face of the complaint and any documents attached to or referenced in it; the court should presume that the allegations of the complaint are true and should construe those allegations in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (citing Enesco Corp. v. Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir.1998)).

Defendant's attempt to challenge the Court's subject matter jurisdiction is unavailing. Defendant argues that the Court does not have jurisdiction over Plaintiffs' FDCPA claims because Defendant is not a " debt collector" under the FDCPA's meaning, and therefore is not subject to its provisions. But the Ninth Circuit, ruling on this same jurisdictional argument under the FDCPA, held that " whether [Defendant] is a ‘ debt collector’ under the meaning of the FDCPA is not a jurisdictional fact, but rather an element of [Plaintiffs'] claim under the FDCPA." Bennett v. Am. Med. Response, Inc., 226 Fed.Appx. 725, 727 (9th Cir.2007) (unpublished) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514-15, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)); see Fitzpatrick v. Ass'n of Apartment Owners of Kai Malu, No. Civ. 10-00569, 2011 WL 197222, at *1 (D.Haw. Jan. 19, 2011) (" [Defendants] argue that they are not ‘ debt collectors' under the meaning of the FDCPA.... Notwithstanding the asserted jurisdictional basis of the motion, these Defendants are actually arguing that statutory requirements are not satisfied, not that there is no federal jurisdiction question. Therefore, this motion is more properly viewed as a motion to dismiss for failure to state a claim." )

In Arbaugh, the Eastern District of Louisiana granted a post-trial motion to dismiss for lack of subject matter jurisdiction in a Title VII sexual harassment case, on the grounds that Title VII defines an " employer" as " a person ... who has fifteen or more employees," and the defendant in that case employed fewer than fifteen people; the Fifth Circuit affirmed. 546 U.S. at 508-09, 126 S.Ct. 1235. The Supreme Court reversed and remanded, pointing out that Congress could have made Title VII's employee-numerosity requirement jurisdictional, but did not: the definition " does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Id. at 515, 126 S.Ct. 1235 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). The Court held that " when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." 546 U.S. at 515, 126 S.Ct. 1235.

Like the employee-numerosity requirement in Arbaugh, the FDCPA's definition of " debt collector" in 15 U.S.C. § 1692a(6) " does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." 546 U.S. at 515, 126 S.Ct. 1235. Under Arbaugh, courts must therefore treat the FDCPA's definition of " debt collector" as " nonjurisdictional in character." Id.; see Daley v. Provena Hosps., 88 F.Supp.2d 881, 885 (N.D.Ill.2000) (deciding that " [b]ecause the defendants in this case are questioning the ...

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