Edwards v. Lakewood Community Association

          ORDER

          Honorable John J. Tuchi United States District Judge.

         At issue are the Second Amended Complaint (Doc. 17), Motion for Default Judgment (Doc. 21), and “Opposition and Rule 12(c) Motion for Judgment Against the Lakewood Community (HOA)” (Doc. 22) filed by Plaintiff Stephen S. Edwards, who proceeds pro se and in forma pauperis in this matter.

         For cases such as the present one in which a party is permitted to proceed in forma pauperis-that is, the party lacks the means to pay court fees-Congress provided that a district court “shall dismiss the case at any time if the court determines” that the “allegation of poverty is untrue” or that the “action or appeal” is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Section 1915(e) applies to all in forma pauperis proceedings. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). “It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.” Id. at 1127.

         In the Second Amended Complaint (Doc. 17, “SAC”), Plaintiff raises eight claims against two Defendants: Lakewood Community Association and Maricopa County Superior Court. Under Federal Rule of Civil Procedure 8, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Even where a complaint has the factual elements of a cause of action present but scattered throughout the complaint and not organized into a “short and plain statement of the claim, ” it may be dismissed for failure to satisfy Rule 8(a). Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). A dismissal for failure to state a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted).

         I. ANALYSIS

         A. Maricopa County Superior Court is Not a Jural Entity

         In Arizona, a plaintiff may sue a government entity only if the state legislature has granted that entity the power to sue or be sued. Schwartz v. Superior Court, 925 P.2d 1068, 1070 (Ariz.Ct.App. 1996). Maricopa County Superior Court is a non-jural entity-that is, it cannot be sued-and thus the Court must dismiss Plaintiff's claims against the Maricopa County Superior Court with prejudice and deny Plaintiff's Motion for Default Judgment against Maricopa County Superior Court. See Yamamoto v. Santa Cruz Cty. Bd. of Supervisors, 606 P.2d 28, 29 (Ariz.Ct.App. 1979).

         B. Count 1 - Fair Debt Collection Practices Act (FDCPA)

         In Count 1, Plaintiff apparently tries to raise a claim under the FDCPA, 15 U.S.C. §§ 1692 et seq., and apparently bases the claim on the placement of a judgment lien on Plaintiff's property by the attorney for Defendant Lakewood Community Association (hereafter, “Defendant”). “As a threshold matter, the FDCPA applies only to a debt collector who engages in practices prohibited by the Act in an attempt to collect a consumer debt.” Mansour v. Cal-Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D. Ariz. 2009). None of Plaintiff's factual allegations plausibly gives rise to a claim that Defendant tried to collect a consumer debt from Plaintiff or engaged in prohibited practices under the FDCPA in doing so. The Court must thus dismiss this claim. Because Plaintiff may be able to cure these defects by amendment, the Court will dismiss the claim without prejudice. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

         C. Count 2 - Americans with Disabilities Act (ADA)

         In Count 2, Plaintiff apparently tries to raise a claim under the ADA, 42 U.S.C. § 12101 et seq. From the allegations in the SAC, it is not apparent under which Title of the ADA Plaintiff intends to proceed. Because Plaintiff does not appear to be Defendant's employee, the Court presumes Plaintiff is not proceeding under Title I. Nor does Defendant appear to be a public entity, so Title II is inapplicable. Title III, which applies to private entities providing public services, requires entities to make reasonable accommodations so that people with disabilities can participate in and enjoy those services. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-77 (2001).

         The allegations in the SAC are wholly insufficient to state a claim under Title III of the ADA. For example, no factual allegations address what public services Defendant provides or how Defendant failed to reasonably accommodate people with disabilities in doing so. Instead, Plaintiff's allegations are that Defendant “is operating illegally as a for profit Community, ” followed by citations to the Fair Housing Act. (SAC at 5-6.) The Court must thus dismiss this claim, but will do so without prejudice. See Lopez, 203 F.3d at 1130.

         D. Count 3 - Intentional Infliction of Emotional Distress (IIED)

         In Count 3, Plaintiff alleges that Defendant engaged in extreme and outrageous behavior by “prolonging litigation for 3 years based on Lies” by its lawyer. (SAC at 9.) Under Arizona law, the tort of intentional infliction of emotional distress requires proof of three elements: (1) “extreme” or “outrageous” conduct on the part of the defendant; (2) the defendant's intent to cause emotional distress or reckless disregard of the near certainty that such distress ...