Minichino v. Piilani Homeowners Ass'n

MARIE MINICHINO, Plaintiff, v. PIILANI HOMEOWNERS ASSOCIATION, et al., Defendants.

CIVIL NO. 16-00461 DKW-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI`I

September 30, 2016

ORDER: (1) GRANTING IFP APPLICATION; (2) DENYING EMERGENCY MOTION; (3) GRANTING AMENDED MOTION TO ADD DEFENDANTS; AND (4) DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

INTRODUCTION

On September 7, 2016, Plaintiff Marie Minichino, proceeding pro se, filed an Emergency Motion (Dkt. No. 11) and an Amended Motion to add Defendants (Dkt. No. 13). Thereafter, Plaintiff filed an Application to Proceed in District Court Without Prepaying Fees and Costs ("IFP Application") (Dkt. No. 19), followed by an Amended Complaint ("First Amended Complaint" or "FAC") (Dkt. No. 21).

While Plaintiff's IFP Application is GRANTED, she once more fails to meet the standard required for emergency injunctive relief. Accordingly, Plaintiff's Emergency Motion is DENIED. Further, because Plaintiff fails to state a claim under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., the Court DISMISSES the First Amended Complaint with leave to amend pursuant to 28 U.S.C. § 1915(e). Any amended complaint must be filed no later than October 31 2016.

DISCUSSION

I. The IFP Application is Granted

Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates she is unable to pay. See 28 U.S.C. § 1915(a)(1). "An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life." Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (The affidavit must "state the facts as to affiant's poverty with some particularity, definiteness and certainty.") (internal quotation omitted).

When reviewing an application filed pursuant to § 1915(a), "[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty." Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). While Section 1915(a) does not require a litigant todemonstrate absolute destitution, Adkins, 335 U.S. at 339, the applicant must nonetheless show that she is "unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a).

Here, the IFP Application indicates that Plaintiff is not employed and supports one dependent in the amount of $200 per month. Plaintiff's income consists of social security payments, which total approximately $896.75 per month. See Dkt. No. 19. In addition, she owns a "1995 Jeep Country." Based on the IFP Application, Plaintiff's income falls below the poverty threshold identified by the Department of Health and Human Services ("HHS") 2016 Poverty Guidelines. See 2016 HHS Poverty Guidelines, https://www.federalregister.gov/articles/2016/01/25/2016-01450/annual-update-of-the-hhs-poverty-guidelines. Accordingly, the Court finds that Plaintiff has made the required showing under Section 1915 to proceed without prepayment of fees, and GRANTS her IFP Application.

II. The Emergency Motion is Denied

Plaintiff's suit appears to arise from fines imposed on her by the Piilani Village Homeowners Association ("Association") in Kihei, Hawai'i for various violations of the Association's rules. In her First Amended Complaint, Plaintiff disputes the validity of the fines and alleges that the Association violated the FDCPA when it attempted to collect them.

Plaintiff's Emergency Motion essentially seeks to stay any attempt by the Association to enforce the collection of its fines, including through transfer or foreclosure of the real property owned by Plaintiff within the Association, pending a decision of the Court on the merits of this lawsuit. Dkt. No. 11 at 2-3. Although styled as an Emergency Motion, Plaintiff's filing is a motion for a temporary restraining order, or alternatively, a motion for a preliminary injunction.

The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. See, e.g., Hawaii v. Gannett Pac. Corp., 99 F. Supp. 2d 1241, 1247 (D. Haw. 1999). The Court articulated the standard in its August 22, 2016 Order, but to reiterate, a "plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). "That is, 'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Winter emphasized that plaintiffs seeking preliminary relief must demonstrate that "irreparable injury is likely in the absenceof an injunction." 555 U.S. at 22; see also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).

Plaintiff does not come close to meeting this standard. First, the Court is not persuaded that Plaintiff is likely to prevail on the merits of her claims. As set forth below, there are a number of deficiencies contained in Plaintiff's FAC that cast serious doubt on the merits of this action. Among other things, it remains unclear how an accounting of the fines at issue, as requested by Plaintiff, can halt an otherwise valid foreclosure. Second, it is entirely unclear what enforcement efforts, if any, are even being made by Defendants and, therefore, whether the harm surmised by Plaintiff is imminent, irreparable, real or imagined. See Dkt. No. 11 at 2; Smallwood v. Federal Bureau of Invest., CV. NO. 16-00505 DKW-KJM, 2016 WL 4974948, at *2 (D. Haw. Sept. 16, 2016). Lastly, the allegations in the Emergency Motion present no serious question that the balance of equities tips in her favor or that an injunction is in the public interest. See Alliance for Wild Rockies, 632 F.3d at 1135. Accordingly, Plaintiff's Emergency Motion is DENIED.

III. The First Amended Complaint is Dismissed with Leave to Amend

A. Standard of Review

The Court subjects each civil action commenced pursuant to Section 1915(a) to mandatory screening and can order the dismissal of any claims it finds"frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners").

Because Plaintiff is appearing pro se, the Court liberally construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) ("The Supreme Court has instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants.") (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that "[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).

The Court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted[.]" A Rule 12(b)(6) dismissal is proper when there is either a "'lack of a cognizablelegal 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. 1990)). A plaintiff must allege "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)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Accordingly, "[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); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.").

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the Court to infer "the mere possibility ofmisconduct" do not show that the pleader is entitled to relief as required by Rule 8. Id. at 679.

B. Fair Debt Collection Practices Act

In its August 22, 2016 dismissal order, the Court directed Plaintiff to clearly state the...