United States District Court, D. Hawaii
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
A. OTAKE UNITED STATES DISTRICT JUDGE.
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.
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”) 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.
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.
Federal Rule of Civil Procedure 12(b)(1)
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
Federal Rule of Civil Procedure 12(b)(6)
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.
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).
Pro se Pleadings
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 ...