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Bade v. Black Hawk Security LLC

United States District Court, D. Hawaii

December 7, 2018

JOHN SITKI BADE, Plaintiffs,
v.
BLACK HAWK SECURITY LLC; HAWAIIAN PROPERTIES LIMITED; KAPIOLANI MANOR ASSOCIATION, Defendants.

          ORDER GRANTING HAWAIIAN PROPERTIES, LTD. AND THE ASSOCIATION OF APARTMENT OWNERS OF KAPIOLANI MANOR, INC.'S MOTION TO DISMISS COMPLAINT AND REQUEST FOR INJUNCTION FILED ON MAY 8, 2018

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         The instant action arises out of purported violations of the Clean Water Act and regulatory standards UL 2034 and UL 1418. Defendants Hawaiian Properties, Ltd. (“HPL”) and the Association of Apartment Owners of Kapiolani Manor, Inc. (“AOAO”) (collectively “Defendants”) request dismissal of pro se Plaintiff John Sitki Bade's (“Plaintiff”) Complaint and Request for Injunction. The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice for the U.S. District Court for the District of Hawaii. After careful consideration of the submission and the applicable law, the Court GRANTS the Motion for the reasons articulated below.

         BACKGROUND

         Plaintiff commenced this action on May 8, 2018, asserting violations of the Clean Water Act (“CWA”) and UL Standards for Safety regarding gas and carbon monoxide. According to Plaintiff, drain lines in Kapiolani Manor, where he resides, are producing methane gas and carbon monoxide. Compl. at 20. Plaintiff alleges that Defendants hired Defendant Black Hawk Security LLC (“Black Hawk”)[1] to “use these resources to cause physical injury and or [sic] death to anyone they choose.” Id. Included with the form Complaint are 13 notices from Kapiolani Manor regarding water shut down and the replacement of drain pipes for the period May 2-25, 2018.

         On September 18, 2018, Plaintiff filed a Motion for Temporary Restraining Order. Doc. No. 21. The Court denied the motion on September 20, 2018. Doc. No. 23.

         LEGAL STANDARDS

         A. Federal Rule of Civil Procedure 12(b)(1)

         Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) motions challenge the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal courts are presumed to lack subject matter jurisdiction, and the plaintiff bears the burden of establishing that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). FRCP 12(b)(1) jurisdictional attacks may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, as here, “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction, ” id., and the court's inquiry is confined to allegations in the Complaint. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). By contrast, a factual attack involves disputes to “the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. The court may look beyond the complaint in such instances. Savage, 343 F.3d at 1039 n.2.

         B. Federal Rule of Civil Procedure 12(b)(6)

         FRCP 12(b)(6) authorizes dismissal of a complaint that fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a Rule 12(b)(6) motion to dismiss, “‘the court accepts the facts alleged in the complaint as true,' and ‘[d]ismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)) (alteration in original). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Nat'l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000). Furthermore, the court need not accept as true allegations that contradict matters properly subject to judicial notice. Sprewell, 266 F.3d at 988.

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The tenet that the court must accept as true all of the allegations contained in the complaint does not apply to legal conclusions. Id. As such, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (citing Fed.R.Civ.P. 8(a)(2)) (some alterations in original).

         C. Pro se Pleadings

         Courts liberally construe complaints when a plaintiff is proceeding pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. (citation and quotations omitted). If dismissal is ordered, the plaintiff should be granted leave to amend unless it is clear that the claims could not be saved by amendment. Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir. 2007); Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure ...


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