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Pomaville v. Finney Flats, LLC

United States District Court, D. Arizona

May 2, 2016

Kevin Pomaville, Plaintiff,
Finney Flats, LLC, et al., Defendants.



Pending before the Court is defendant NTH Property Management, LLC’s Motion to Dismiss for Failure to State a Claim (Doc. 16), filed pursuant to Fed.R.Civ.P. 12(b)(6), wherein it seeks the dismissal of four of the five claims against it. Having considered the parties’ memoranda in light of the factual allegations of the complaint, the Court finds that the motion to dismiss should be denied.


According to his complaint and the exhibits attached to the complaint, the plaintiff suffers from disabilities which, in part, substantially interfere with his daily ability to ambulate. His disabilities include PTSD, peripheral neuropathy, and osteoarthritis in both knees. He has a spinal neurostimulator implant, severe leg and foot nerve pain and permanent ambulatory damage, a left foot that is largely dysfunctional, and an inability to balance while walking and navigating uneven terrain including climbing and descending staircases. The plaintiff has had an Arizona DMV-issued disability license plate on his car for years.

The plaintiff has owned a 45-pound Boxer for three years that he has individually trained to be a service dog to assist him with his disabilities, which includes providing the plaintiff with physical support to help him walk by being “ballast” for the plaintiff and serving as his second leg. Without the dog’s help, the plaintiff has severe difficulty remaining balanced and upright to generate a center of gravity to walk and to ascend and descend stairways. The plaintiff, who lives in a mobile home, would suffer severe difficulty entering and exiting his mobile home without his dog since his mobile home is situated on a raised platform which requires that he enter and exit it through stairs.

The plaintiff rents a mobile home lot in The Village at Camp Verde Mobile Home Park (“Village”) owned by defendant Finney Flats, LLC and managed by defendant NTH Property Management, LLC. The plaintiff signed a contract with the Village in March 2015. Prior to moving into the Village in July 2015, the plaintiff informed its manager about his disabilities and the need for his service dog and requested permission to move his dog into his residence. He requested an accommodation for his dog because the Village’s manager informed him that he would be unable to have his dog reside with him inasmuch as it was, in the manager’s opinion, a pet and not a service animal, and it was over the thirty-pound weight limit for a pet dog set by Village’s rules and regulations. The plaintiff was informed by the manager that his accommodation request would be passed on to the defendants’ representatives.

The Village’s office has only a single paved parking space that is routinely occupied by Village employees’ cars which forces the plaintiff to park in a gravel lot when he visits the office that is very difficult for him to navigate with his service animal.

The plaintiff filed a civil rights complaint with the Arizona Attorney General’s office in May 2015 based on his failure to receive an accommodation for his dog. In late September 2015, the plaintiff received a letter from Mr. Haney, the designated broker for NTH Property Management, that informed him that an eviction proceeding would be immediately commenced against him unless he removed his dog from his mobile home residence within fourteen days. In response, the plaintiff sent a letter informing Mr. Haney that, as he had advised the Village’s agents on multiple occasions, he was disabled, that he had a handicap license plate, and that his dog was a service animal that assisted him with his disabilities and his day-to-day living and personal needs. Notwithstanding that the defendants had accepted the plaintiff’s rent checks for the mobile home lot for five months, Mr. Haney, in early October 2015, returned to the plaintiff his check for the October 2015 rent based on the September 2015 eviction-related letter, and told him that if he had any questions to contact NTH Property Management.

The plaintiff commenced this action on October 15, 2015. His complaint raises five claims for relief against both defendants: a violation of the federal Fair Housing Act of 1988, 42 U.S.C. § 3601, et seq. (First Cause of Action); a violation of the Arizona Service Animal Act, A.R.S. § 11-1024, et seq. (Second Cause of Action); unlawful landlord retaliation under the Arizona Landlord Tenant Act [sic], A.R.S. § 13-1381(A)(1) (Third Cause of Action); a violation of the Arizonans With Disabilities Act, A.R.S. § 41-1492 (Fourth Cause of Action); and a violation of the federal Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (Fifth Cause of Action). Defendant NTH Property Management has moved to dismiss all of the claims against it, with the exception of the federal Fair Housing Act claim, for failure to state a claim pursuant to Rule 12(b)(6). Co-defendant Finney Flats filed its answer rather than joining in the motion to dismiss, notwithstanding that both defendants are represented by the same law firm.


A dismissal for failure to state a claim is permissible “only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d 1035, 1041 (9th Cir.2010). In addition, a complaint must contain sufficient factual matter to state a facially plausible claim to relief under the Twombly/Iqbal standard in order to survive a motion to dismiss. Id.

NTH Property Management cursorily argues in part that the complaint is inadequate because it is impossible for it to understand the factual basis for the plaintiff’s specific claims against it as opposed to the claims against co-defendant Finnie Flats. The Court rejects this argument because the complaint makes clear that all of the claims are against both defendants and it adequately alleges that NTH Property Management is the property manager for the Village and that the discriminatory conduct at issue arose from the manner in which the plaintiff was treated by NTH Property Management’s agents.

NTH Property Management further argues that the Second through Fifth claims in the complaint must be dismissed because they ...

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