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Diaz v. Gaura

United States District Court, D. Hawaii

February 3, 2016

MARK ANTHONY DIAZ (SECURED PARTY), Plaintiff,
v.
JENNIFER GAURA, ET AL., Defendants.

ORDER: (1) DISMISSING FIRST AMENDED COMPLAINT WITH PREJUDICE; (2) DENYING PLAINTIFF’S SECOND MOTION FOR TEMPORARY RESTRAINING ORDER; AND (3) DENYING SECOND IFP APPLICATION AS MOOT

J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Before the court are Plaintiff “Mark Anthony Diaz (Secured Party)’s” (“Plaintiff”) (1) “First Amended Complaint for Permanent Injunction and Other Relief” (“FAC”), Doc. No. 7; (2) second “Motion for Temporary Restraining Order and Preliminary Injunction Against Lock-Out, ” (“Second Motion for TRO”), Doc. No. 9; and (3) second Application to Proceed in District Court Without Prepaying Fees and Costs (“Second IFP Application”), Doc. No. 8. For the reasons discussed below, the FAC is DISMISSED with prejudice, the Second Motion for TRO is DENIED, and the IFP Application is DENIED as moot.

II. BACKGROUND

On January 28, 2016, Plaintiff filed a Complaint alleging violations of the Hawaii Custodial Trust Act, the Hawaii Residential Landlord Tenant Code, and the U.S. Constitution (“Freedom of movement under the Privileges and Immunities Clause”), and naming as Defendants (1) “Kevin House, Shayne House and Elizabeth House, individually and officially for DBA House’s Home Investment LLC”; (2) “Jennifer Gaura and Hal Brown Individually and officially for Hawaiian Properties Management Ltd.” (“HPM”); and (3) “Christopher Shea Goodwin Attorney.” Doc. No. 1, Compl. at 1. Also on January 28, 2016, Plaintiff filed an Application to Proceed in District Court Without Prepaying Fees and Costs (“IFP Application”), Doc. No. 2, and a “Motion for Temporary Restraining Order and Preliminary Injunction Against Lock-Out” (“Motion for TRO”). Doc. No. 3.

This court determined that Plaintiff failed to establish subject matter jurisdiction, and therefore (1) denied the Motion for TRO, Doc. No. 5 (“Order Denying TRO”), (2) dismissed the Complaint with leave to amend, Doc. No. 6 (“Order Dismissing Complaint”), and (3) denied the IFP Application as moot. Id. More specifically, the court explained that Plaintiff failed to establish subject matter jurisdiction based on diversity of citizenship because “at least one Defendant -- attorney Christopher Goodwin -- has the same citizenship as Plaintiff.” Order Denying TRO at 7-8; see also Order Dismissing Complaint at 7. The court further explained that Plaintiff failed to establish federal question subject matter jurisdiction:

[A]lthough the Complaint attempts to allege a violation of the U.S. Constitution, it is well-established that there is no cause of action for a civil rights violation unless a Defendant acts under “color of state law.” That is, there must be “state action.” This requirement “excludes . . . merely private conduct, no matter how discriminatory or wrongful.” Plaintiff has not alleged that any Defendant was a state actor, or acted under color of state law (and nothing in the Complaint could be construed as such).

Order Denying TRO at 8 (internal citations omitted); see also Order Dismissing Complaint at 7-8.

On February 2, 2016, Plaintiff filed the instant FAC, Second Motion for TRO, and Second IFP Application. The FAC re-names only some of the initial Defendants: (1) “Jennifer Gaura and Hal Brown Individually and officially for [HPM]”;[1] and (2) “Christopher Shea Goodwin Attorney.” FAC at 1. And the FAC asserts only federal question subject matter jurisdiction pursuant to 28 U.S.C.§ 1331.[2]

As alleged in the FAC, Plaintiff and unspecified family members are engaged in a dispute over Plaintiffs occupancy and possession of a residential unit in Hawaii, which is or has been owned by an unnamed trust for which Plaintiff is a trustee and director. Id. ¶¶ 2, 5. Plaintiff resides in the unit pursuant to a “lease agreement from the former owners.” Id. ¶ 5. On “January 16, 2016, ” “former owners of my unit, family members arrived from California . . . and attempted to forcibly remove my family and I . . . from the property by . . . kicking the doors down, assault and battery . . . and making terroristic threats.” Id.6. By “impersonating the site manager, ” these family members had Plaintiffs “vehicle illegally towed.” Id. Defendant HPM “locked [Plaintiff] out of the building . . . by deactivating [his] entry fob and garage key, ” id ¶ 7, and, along with “Jennifer Gaura, et al, ” has violated his movement by “ignoring . . . basic rights of passage into the building, vehicle towing[, and r]eporting [Plaintiff] as a trespasser, unauthorized to 3rd parties and other tenants.” Id.9. The FAC asserts one Count titled “Blocking Freedom of Movement, ” alleging that such conduct violated the Privileges and Immunities Clause in Article IV, Section 2 of the United States Constitution. Id. at 4. Plaintiff seeks damages, restitution, injunctive relief, and legal costs. Id. ¶ 11.

The Second Motion for TRO seeks virtually the same relief as the first -- to (1) enjoin “Defendants or its agents” from “locking out the plaintiff from the building, towing of personal vehicle and slandering to 3rd parties, ” Mot. at 2, and (2) an order requiring “defendants (sic) [HPM] to ‘reactivate’ plaintiffs’ (sic) fob and garage entry keys to estoppel the blocking to ‘freedom of movement’ into his residence and property.” Id.

III. STANDARDS OF REVIEW

A. Sua Sponte Dismissal for Lack of Subject Matter Jurisdiction

The court may dismiss sua sponte a complaint for lack of subject matter jurisdiction. Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); Belleville Catering Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003) (“[I]nquiring whether the court has jurisdiction is a federal judge’s first duty in every case.”); Fed.R.Civ.P. 12(h)(3). “Federal courts are courts of limited jurisdiction, ” possessing “only that power authorized by Constitution and statute.” United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008) (quoting Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Plaintiff bears the burden of establishing subject matter jurisdiction. Kokkonen, 511 U.S. at 377. At the pleading stage, Plaintiff must allege sufficient facts to show a proper basis for the court to ...


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