United States District Court, D. Hawaii
ORDER DISMISSING SECOND AMENDED COMPLAINT
A. OTAKE UNITED STATES DISTRICT JUDGE.
December 10, 2017, this Court issued an 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
(“Order”). Doc. No. 27. Based on the allegations
set forth in the Complaint, the Court concluded that
Plaintiff John Bade (“Plaintiff”) failed to
establish a basis for jurisdiction, and that he failed to
state a claim upon which relief could be granted.
Id. at 6-10. However, the Court granted Plaintiff
leave to amend his Complaint. Id. at 10.
Court imposed January 7, 2019 as the deadline to file an
amended complaint and required Plaintiff to cure the
deficiencies identified in the Order. Id. at 11. In
addition, the Court cautioned Plaintiff that his failure to
timely submit an amended pleading in conformance with the
Order would result in the automatic dismissal of this action.
January 9, 2019, Plaintiff filed a First Amended Complaint
(“FAC”). Doc. No. 33.
January 22, 2019, the Court issued an Order Dismissing First
Amended Complaint (“Second Order”). Doc. No. 34.
The Court accepted the FAC despite its untimely filing in
light of Plaintiff's pro se status. Id. at 2.
However, the Court warned Plaintiff that he should not assume
that his pro se status would excuse future violations of
deadlines, orders, or rules. Id. at n.1.
Court ultimately concluded that Plaintiff failed to correct
the deficiencies identified in the Order and had not
established a basis for federal question jurisdiction.
Id. at 2-3. Specifically, Plaintiff's reference
to the Clean Water Act (“CWA”) and Toxic
Substance Control Act (“TSCA”) as bases for
federal question jurisdiction was insufficient given the
limited allegations asserted in the FAC. Id. at 2-4.
The Court determined that it was unable to ascertain whether
federal question jurisdiction exists and, at a minimum,
whether Plaintiff complied with the mandatory provisions in
the Acts cited. Id. at 4. The Court dismissed the
FAC and granted Plaintiff a final opportunity to amend the
FAC to remedy the deficiencies therein and establish the
existence of federal question jurisdiction. Id.
Plaintiff was cautioned that his failure to file an amended
pleading by February 19, 2019 addressing the identified
deficiencies would result in the dismissal of this action.
Id. at 5.
February 19, 2019, Plaintiff filed a Second Amended Complaint
(“SAC”). Doc. No. 35. The SAC contains the same
deficiencies. Plaintiffs “Statement of Claim”
Seeking Ten Million dollars for medical expense pain and
suffering and mental anguishes/loss of wages. Hawaiian
Properties and the Kapiolani Manor Association failed to fix
the air ventelation [sic] system in apartment 901 in a timely
fashion as ordered by the City and County building inspectors
office violating the Clean Air Act (“CAA”). See
Also: the defendants failed to repair the water lines causing
mold and toxic materials under the Toxic Substance Control
Act (“TSCA”) see exhibit 2.
Id. at § III. As before, Plaintiff has not
asserted facts or law establishing that the CWA or TSCA
provide a basis for federal question jurisdiction. The Court
previously explained that the CWA and TSCA contain notice
provisions. Doc. No. 34 at 3-4 (quoting 42 U.S.C. §
7604(b); 15 U.S.C. § 2619(b)). Plaintiff has offered no
facts or other information concerning his procedural
compliance with the CWA or TSCA, nor that viable claims exist
pursuant to these Acts.
to comply with the notice requirements mandates dismissal of
the action as barred by the terms of the statute. Ctr.
For Biological Diversity v. Marina Point Dev. Co., 566
F.3d 794, 800 (9th Cir. 2009) (“[T]he giving of a 60-
day notice is not simply a desideratum; it is a
jurisdictional necessity.”); cf. Hallstrom v.
Tillamook Cty., 493 U.S. 20, 33 (1989) (holding that
“where a party suing under the citizen suit provisions
of [the Resource Conservation and Recovery Act of 1976] fails
to meet the notice and 60-day delay requirements . . . the
district court must dismiss the action as barred by the terms
of the statute”).
the Court restricted amendments to the claims asserted in the
FAC and prohibited Plaintiff from expanding the scope of
allegations, Plaintiff added 46 U.S.C. § 883 as a basis
for jurisdiction, asserting that he is entitled to punitive
damages “for repair of damages to apartment and
negligence from owner/master under the Jones Act of 1920
liability/personal obligation of the employer.” SAC at
4, 6. “The Jones Act, 46 U.S.C. § 883, has, since
1920, reserved the United States domestic trade exclusively
for vessels built in this country and owned by its
citizens.” Seatrain Shipbuilding Corp. v. Shell Oil
Co., 444 U.S. 572, 574-75 (1980). The Jones Act clearly
has no applicability here.
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). If the Court lacks
subject matter jurisdiction, an action must be dismissed.
Fed.R.Civ.P. 12(h)(3). Here, Plaintiff has failed to meet his
burden of establishing that subject matter jurisdiction
exists, even construing the SAC liberally, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), and he has failed to
correct the deficiencies previously identified by the Court.
Therefore, the Court DISMISSES the SAC.
pro se plaintiff should ordinarily be granted leave to amend,
the Court has already afforded Plaintiff two opportunities to
cure the defects in his pleadings. After carefully reviewing
this third iteration of Plaintiff's complaint, dismissal
without leave to amend is appropriate because it is clear
that his claims cannot 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 the defect, ...