Holmstrand v. Dixon Housing Investors, LP et al
Filing
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MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 6/29/11 ORDERING Defendants' Motions to Dismiss 32 37 Plaintiff's Second Amended Complaint 31 are GRANTED without leave to amend. The Clerk is ordered to close the case. CASE CLOSED. (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SUE ELLEN HOLMSTRAND,
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Plaintiff,
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No. 2:10-cv-01751-MCE-GGH
v.
MEMORANDUM AND ORDER
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DIXON HOUSING PARTNERS, LP;
SIMPSON HOUSING, LLLP; MCA
HOUSING PARTNERS, LLC;
FOUNDATION FOR AFFORDABLE
HOUSING, INC.; FPI MANAGEMENT,
INC.; and DOES ONE through
TWENTY,
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Defendants.
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This action arises from the previous tenancy of Plaintiff
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Sue Ellen Holmstrand (“Plaintiff”) at an apartment complex
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allegedly owned and operated by Dixon Housing, LP (“Dixon”), MCA
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Housing Partners, LLC (“MCA”), the Foundation for Affordable
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Housing, Inc. (“FAH”), and FPI Management, Inc. (“FPI”)
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(collectively, “Defendants”).
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Plaintiff seeks redress for Defendants’ alleged refusal to allow
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her to form a tenants association, in violation of the First and
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Fourteenth Amendments, and for Defendants’ alleged unauthorized
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entry into her apartment and destruction of her personal
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property, in violation of the Fourteenth Amendment.
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also seeks redress for intentional infliction of emotional
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distress under California state law.
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separate motions to dismiss Plaintiff’s Second Amendment
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Complaint for failure to state a claim upon which relief may be
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granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).1
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(ECF Nos. 32-1, 37.)
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Defendants’ Motions to Dismiss are granted.2
Plaintiff
Defendants have filed
For the reasons set forth below,
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BACKGROUND3
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Plaintiff is legally disabled, and was a resident of the
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Second Street Senior Apartments in Dixon, California from October
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2007 to May 2008.
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under the Low Income Housing Tax Credit program, which is
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designed to increase the availability of affordable housing by
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encouraging private investment in such housing.
The Second Street Apartments were developed
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Dixon, MCA and FAH filed a Motion to Dismiss on April 13,
2011. (ECF No. 32-1.) FPI filed its Motion to Dismiss on
May 12, 2011. (ECF No. 37.)
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Because oral argument will not be of material assistance,
the Court orders this matter submitted on the briefs. E.D. Cal.
Local Rule 230(h).
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The factual assertions in this section are based on the
allegations in Plaintiff’s Second Amended Complaint unless
otherwise noted.
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The “encouragement” is a tax credit to the private investors.
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Defendant DHA is the owner of the property, and Defendant FAH is
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the general partner of Defendant DHA.
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property management company.
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is unknown as regards to the Second Street Apartments.
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Defendant FPI is a
The true capacity of Defendant MCA
In November 2007, the manager of the Second Street
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Apartments, Carolyn Kennedy, gave notice to the tenants that the
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building was being sold and that there would be frequent
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inspections of individual apartments.
Ms. Kennedy informed
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tenants that they would be given no further notice before
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management could enter apartments, and further informed tenants
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that they could be evicted for dirty apartments or other breaches
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of their leases.
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allow inspection of her apartment without forty-eight hours’
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notice.
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Plaintiff objected, stating that she would not
In November 2007, Plaintiff asked Ms. Kennedy for permission
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to use the Second Street Apartments’ clubhouse to hold a meeting
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for tenants to inform them of their legal rights.
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denied Plaintiff use of the clubhouse.
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use of the clubhouse in November and December 2007, and January
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2008.
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were threatened with eviction if they supported a tenants
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association.
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advocate for additional handicapped parking spots at the Second
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Street Apartments, to no avail.
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Ms. Kennedy
Plaintiff again requested
Ms. Kennedy denied Plaintiff’s request each time.
Tenants
In April and May 2008, Plaintiff attempted to
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On May 30, 2008, Defendants served Plaintiff with an
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unlawful detainer action.
Plaintiff agreed to move out of her
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apartment by July 31, 2008.
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detainer proceedings were pending, Defendants entered Plaintiff’s
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apartment and removed and destroyed Plaintiff’s personal
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property.
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management of the Second Street Apartments regarding the
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destruction of her property, but her calls were never returned.
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No property was returned to Plaintiff.
On July 15, 2008, while the unlawful
Plaintiff made repeated attempts to contact the
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STANDARD
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A.
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Lack of Subject Matter Jurisdiction
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Federal courts are courts of limited jurisdiction, and are
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presumptively without jurisdiction over civil actions.
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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
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burden of establishing the contrary rests upon the party
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asserting jurisdiction.
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involves a court’s power to hear a case, it can never be
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forfeited or waived.
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(2002).
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raised by the district court sua sponte.
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Oil Co., 526 U.S. 574, 583 (1999).
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independent obligation to determine whether subject matter
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jurisdiction exists, even in the absence of a challenge from any
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party.”
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to dismiss the action if subject matter jurisdiction is lacking).
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Id.
Kokkonen
The
Because subject matter jurisdiction
United States v. Cotton, 535 U.S. 625, 630
Accordingly, lack of subject matter jurisdiction may be
Ruhrgas AG v. Marathon
Indeed, “courts have an
Id.; see Fed. R. Civ. P. 12(h)(3) (requiring the court
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B.
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Failure to State a Claim
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On a motion to dismiss for failure to state a claim under
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Federal Rule of Civil Procedure 12(b)(6),4 all allegations of
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material fact must be accepted as true and construed in the light
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most favorable to the nonmoving party.
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Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
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requires only “a short and plain statement of the claim showing
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that the pleader is entitled to relief” in order to “give the
Cahill v. Liberty Mut.
Rule 8(a)(2)
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defendant fair notice of what the [...] claim is and the grounds
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upon which it rests.”
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555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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complaint attacked by a Rule 12(b)(6) motion to dismiss does not
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require detailed factual allegations.
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obligation to provide the grounds of his entitlement to relief
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requires more than labels and conclusions, and a formulaic
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recitation of the elements of a cause of action will not do.”
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Id. (internal citations and quotations omitted).
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required to accept as true a “legal conclusion couched as a
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factual allegation.”
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(2009) (quoting Twombly, 550 U.S. at 555).
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must be enough to raise a right to relief above the speculative
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level.”
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Bell Atl. Corp. v. Twombly, 550 U.S. 544,
However, “a plaintiff’s
A court is not
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
“Factual allegations
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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur
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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)
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(stating that the pleading must contain something more than “a
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statement of facts that merely creates a suspicion [of] a legally
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cognizable right of action.”)).
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Furthermore, “Rule 8(a)(2)...requires a showing, rather than
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a blanket assertion, of entitlement to relief.”
Twombly,
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550 U.S. at 556 n.3 (internal citations and quotations omitted).
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Thus, “[w]ithout some factual allegation in the complaint, it is
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hard to see how a claimant could satisfy the requirements of
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providing not only ‘fair notice’ of the nature of the claim, but
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also ‘grounds’ on which the claim rests.”
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Alan Wright & Arthur R. Miller, supra, at § 1202).
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must contain “only enough facts to state a claim to relief that
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is plausible on its face.”
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have not nudged their claims across the line from conceivable to
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plausible, their complaint must be dismissed.”
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“[a] well-pleaded complaint may proceed even if it strikes a
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savvy judge that actual proof of those facts is improbable, and
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‘that a recovery is very remote and unlikely.’”
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(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
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Id. at 570.
Id. (citing 5 Charles
A pleading
If the “plaintiffs...
Id.
However,
Id. at 556
A court granting a motion to dismiss a complaint must then
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decide whether to grant leave to amend.
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“freely given” where there is no “undue delay, bad faith or
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dilatory motive on the part of the movant,...undue prejudice to
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the opposing party by virtue of allowance of the amendment, [or]
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futility of the amendment....”
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Leave to amend should be
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Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC
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v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the
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Foman factors as those to be considered when deciding whether to
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grant leave to amend).
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weight.
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party...carries the greatest weight.”
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Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987).
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without leave to amend is proper only if it is clear that “the
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complaint could not be saved by any amendment.”
Not all of these factors merit equal
Rather, “the consideration of prejudice to the opposing
Id. (citing DCD Programs,
Dismissal
Intri-Plex
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Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007)
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(citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir.
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2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160
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(9th Cir. 1989) (“Leave need not be granted where the amendment
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of the complaint...constitutes an exercise in futility....”)).
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ANALYSIS
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A.
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Lack of Subject Matter Jurisdiction
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Plaintiff’s first cause of action asserts that Defendants
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violated her right to “peacefully assemble, speak and petition
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for redress of grievances, and otherwise address rights under
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both the laws of the State of California and the Constitution of
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the United States” by denying Plaintiff the use of the Second
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Street Apartments’ clubhouse for a tenants meeting.
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Am. Compl., 12:13-17, ECF No. 31.)
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that tenants were threatened with eviction if they supported a
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tenants association.
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(Pl.’s 2d
Plaintiff further alleges
(Pl.’s 2d Am. Compl., 12:18, ECF No. 31.)
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Plaintiff’s second cause of action alleges that Defendants
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violated her Fourteenth Amendment Right to equal protection.
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Plaintiff asserts that because she seeks redress for
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violations of her First and Fourteenth Amendment rights, the
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Court has jurisdiction over Plaintiff’s lawsuit.
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Compl., 5:11-15, ECF No. 31.)
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arises from 28 U.S.C. §§ 2201-02.
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federal court may declare a plaintiff’s rights “[i]n a case of
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actual controversy within its jurisdiction.”
(Pl.’s 2d Am.
Plaintiff claims that jurisdiction
Under 28 U.S.C. § 2201, a
28 U.S.C. § 2201
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(2006) (emphasis added).
Article III, Section 2 of the
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Constitution provides that the federal courts shall have
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jurisdiction over “all Cases, in Law and Equity, arising under
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this Constitution, the Laws of the United States, and Treaties
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made....”
U.S. Const. art. III, § 2.
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The First Amendment of the Constitution provides that
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“Congress shall make no law...abridging the freedom of speech, or
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of the press; or of the right of the people peaceably to
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assemble, and to petition the Government for a redress of
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grievances.”
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First Amendment apply to state and local government actors
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through the Fourteenth Amendment.
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310 U.S. 296, 303 (1940) (“The fundamental concept of liberty
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embodied in [the Fourteenth] Amendment embraces the liberties
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guaranteed by the First Amendment.”).
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provides in relevant part that “[n]o State shall...deny to any
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person within its jurisdiction the equal protection of the laws.”
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U.S. Const. amend. XIV, § 1.
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U.S. Const. amend. I.
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The rights enumerated in the
See, e.g., Cantwell v. Conn.,
The Fourteenth Amendment
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The United States Constitution protects individual rights,
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including those rights enumerated in the First and Fourteenth
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Amendments, from government action only.
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Edison Co., 419 U.S. 345, 349 (1974); Single Moms, Inc. v. Mont.
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Power Co., 331 F.3d 743, 746 (9th Cir. 2003).
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government is responsible for a plaintiff’s complaints are
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individual constitutional rights implicated.”
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331 F.3d at 747 (emphasis in original) (citing Brentwood Acad. v.
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Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)).
Jackson v. Metro.
“Only when the
Single Moms, Inc.,
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Thus, to state a claim for a violation of a Constitutional right,
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a plaintiff must show that the alleged violation was “fairly
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attributable to the federal or state government.”
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Edmondson Oil Co., 457 U.S. 922, 936 (1982); Mathis v. Pac. Gas &
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Elec. Co., 75 F.3d 498, 502 (9th Cir. 1996).
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Lugar v.
Accordingly, private individuals and private entities are
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not normally liable for violations of most rights secured by the
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Constitution.
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held that a private actor may be characterized as a state actor
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when there is a sufficient “nexus” between the state and the
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private entity.
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whether the action of a private entity “may be treated as that of
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the state,” courts should consider the following four factors:
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Lugar, 457 U.S. at 936.
The Supreme Court has
Jackson, 419 U.S. at 351.
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In determining
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(1) whether “the government compelled the action using its
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coercive power or provided significant encouragement, either
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overt or covert, for the action;” (2) whether the government and
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the private actor willfully participated in the joint activity;
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(3) whether the government controlled a nominally private actor;
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and (4) whether the government delegated a “public function” to
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the private actor.
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citations and quotations omitted).
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the inquiry ends.”
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Single Moms, Inc., 331 F.3d at 747 (internal
“If there is no state action,
United States v. Int’l Bhd. of Teamsters,
941 F.2d 1292, 1297 (2d Cir. 1991).
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In the present action, Plaintiff has failed to allege facts
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sufficient to establish any state action.
Plaintiff alleges that
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Defendants received a tax credit through the Low Income Housing
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Tax Credit program. (Pl.’s 2d Am. Compl., 2:4-9, ECF No. 31.)
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Plaintiff also alleges that the Solano County Tax Assessor is a
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co-owner of the Second Street Apartments.
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4:15, ECF No. 31.)
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the government used its coercive power or encouraged Defendants
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to violate Plaintiff’s rights, that the government willfully
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participated with Defendants in the joint activity of denying
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Plaintiff’s rights, that the government controlled any of the
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nominally private Defendants, or that the government delegated a
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public function to Defendants.
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establish a sufficient “nexus” between the private Defendants and
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any state actor.
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(Pl.’s 2d Am. Compl,
However, these facts do not establish that
In short, Plaintiff has failed to
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Because Plaintiff has failed to allege a government action,
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or any facts that would permit the Court to characterize the
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private Defendants as government actors, Plaintiff does not have a
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cause of action arising under the Constitution or the laws of the
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United States.
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Court’s jurisdiction as set forth by Article III of the Constitution.
As such, the present action is not within the
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B.
Failure to State a Claim Upon Which Relief Can Be
Granted
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Plaintiff alleges both federal and state causes of action
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and requests relief accordingly.
The issue before the Court is
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not the substance of these various claims, but whether Plaintiff
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has pled sufficient facts as a general matter.
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complaint does not need detailed factual allegations, it must
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still provide sufficient facts alleged under a cognizable theory.
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See supra.
While the
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C.
Plaintiff’s First and Second Causes of Action
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Plaintiff alleges that Defendants violated Plaintiff’s First
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and Fourteenth Amendment rights by refusing to allow her to form
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a tenants association, entering her home without permission, and
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destroying her personal property.
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for a plaintiff to properly bring suit against a private actor
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for violations of these Constitutional rights, the plaintiff must
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establish a sufficient “nexus” between the state and the private
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entity may establish that a private actor is properly
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characterized as a state actor.
As indicated above, in order
Jackson, 419 U.S. at 351.
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However, Plaintiff has failed to plead any facts that establish
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such a nexus between the state and Defendants in the present
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case.
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the government coerced or encouraged Defendants to violate
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Plaintiff’s rights, that the government willfully participated in
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Defendants’ activities, that the government controlled
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Defendants, or that the government delegated a public function to
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Defendants.
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747 (articulating the four factors for a court to consider).
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See supra.
Plaintiff has plead no facts that show that
See supra; see also Single Moms, Inc., 331 F.3d at
Even assuming the Court had subject matter jurisdiction over
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Plaintiff’s claims, Plaintiff has failed to plead facts
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sufficient to state a claim upon which relief can be granted.
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While a complaint attacked by a Rule 12(b)(6) motion to dismiss
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does not require detailed factual allegations, a plaintiff must
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nonetheless provide “the grounds of his entitlement to relief.”
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Twombly, 550 U.S. at 555.
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rather than a blanket assertion, of entitlement to relief.”
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at 556 n.3.
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such a showing.
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that Defendants may be properly characterized as state actors,
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and Plaintiff has likewise failed to plead facts sufficient to
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establish the requisite state action.
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failed to state a claim upon which relief can be granted.
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even were jurisdiction proper, Plaintiff’s claims would
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nonetheless fail under the standards of Rule 12(b)(6).
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Defendants’ Motions to Dismiss are therefore granted as to
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Plaintiff’s first and second causes of action.
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A plaintiff must make a “showing,
Id.
In the present case, Plaintiff has failed to make
Plaintiff has not pled facts sufficient to show
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Plaintiff has therefore
Thus,
D.
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Plaintiff’s Remaining Cause of Action
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Plaintiff’s federal claims presently dismissed, the Court
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declines to exercise supplemental jurisdiction over the remaining
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state law causes of action.
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merits of the Motions to Dismiss with respect to the remaining
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state law cause of action, as the issue is now moot.
The Court need not address the
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E.
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Leave to Amend
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Having granted Defendants’ Motions to Dismiss, the Court
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must decide whether to grant Plaintiff leave to amend.
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amend should not be granted when doing so constitutes an exercise
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in futility.
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Plaintiff has filed three complaints, and each has failed to
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properly state a cause of action.
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amendments would, at this point, constitute an exercise in
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futility.
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claims that she asserts against Defendants in this lawsuit.
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supra.
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amendment could save the complaint.
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Motions to Dismiss are granted without leave to amend.
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Foman, 371 U.S. 178, 182.
Leave to
In the present action,
Allowing Plaintiff additional
Furthermore, Plaintiff has no standing to bring the
As such, the Court fails to understand how further
See
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Accordingly, Defendants’
CONCLUSION
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As a matter of law, and for the reasons set forth above,
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Defendants’ Motions to Dismiss (ECF Nos. 32-1, 37) Plaintiff’s
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Second Amended Complaint (ECF No. 31) are GRANTED without leave
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to amend.
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The Clerk is ordered to close the case.
IT IS SO ORDERED.
Dated: June 29, 2011
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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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