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Phan v. Hammersmith Management, Inc.

United States District Court, D. Colorado

April 3, 2019

KENT VU PHAN, Plaintiff,


          Michael E. Hegarty United States Magistrate Judge.

         Before the Court is Defendant Hammersmith Management, Inc.'s Motion to Dismiss. ECF No. 19. In the Motion, Defendant seeks to dismiss Plaintiff's claims under the Americans with Disabilities Act (“ADA”), claims for “environmental harassment, ” and Colorado tort claims alleged in the “Amendment Complaint and Jury Demand Continuing Violation, Continuing Claim Cases: 16-cv-03111, 17-cv-02830” (“Amended Complaint”). Defendant argues that Plaintiff's ADA claims have already been dismissed with prejudice by Senior Judge Lewis T. Babcock, and that Plaintiff's “environmental harassment” and Colorado tort claims are barred by the doctrine of res judicata and the applicable statute of limitations. Additionally, at the Tenth Circuit's direction, I address the issue of whether Plaintiff has alleged plausible claims for premises liability or breach of contract under Colorado law. Ultimately, I conclude those claims fail as well. For the reasons that follow, I respectfully recommend that the Motion be granted.


         I. Statement of Facts

         Plaintiff proceeds in this action pro se, and his Amended Complaint is vague, prolix, and at times difficult to discern. The following factual allegations, liberally construed, are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Plaintiff first detected contamination and air pollution under the bedroom of his condominium on June 18, 2015. ECF No. 14 at 5. “Red Sky Condominium Building Manager” Dale Smith (“Smith”) and “Red Sky Condominium Director” Henry Hipple (“Hipple”) visited Plaintiff's unit after he discovered the contamination. Id. Plaintiff made requests to the “HOA[1]Director” and the “HOA's Manager” for the contamination to be removed, but no action was taken to address the problem. Id. Plaintiff waited until the end of July, but when the contamination remained, he filed a lawsuit, apparently in Arapahoe County District Court.[2] Id. at 5-6.

         After Plaintiff filed that lawsuit, the “HOA” stopped cleaning the trash in the hallway between units “H-106 and H-108” and around the staircase. Id. at 6. This occurred sometime in 2015. See Id. at 9. In January 2017, Defendant entered into a contract, apparently with the HOA, for Defendant to maintain the public space in the complex. Id. at 10. But Defendant breached the contract and never swept around Plaintiff's unit or the staircase. Id. Plaintiff claims he has suffered reduced property value and loss of enjoyment of life as a consequence of the breach. Id. Both the “contamination” and the trash accumulation remain at Plaintiff's condominium. See Id. at 6, 11. On May 16, 2018, Plaintiff spoke by telephone with an unidentified representative of Defendant who “affirmed” that Plaintiff's race (Asian-American) “was the motivator for disdain.” Id. at 9.

         II. Procedural History

         Plaintiff filed this suit on June 1, 2018. ECF No. 1. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), the Honorable Lewis T. Babcock issued an Order to Dismiss in Part and Draw Case on July 31, 2018. ECF No. 5. In that Order, he identified the following four causes of action in the Complaint: (1) ADA claims, (2) 42 U.S.C. § 1981 retaliation, (3) claims for “environmental harassment, ” and (4) “Colorado state tort[s].”[3] Id. at 3. He dismissed with prejudice Plaintiff's ADA claims as legally frivolous. Id. at 6. He also noted that Plaintiff's “environmental harassment” and Colorado tort claims may be barred by the doctrine of res judicata, due to Plaintiff's previous lawsuits that were premised on the alleged contamination of his condominium. Id. at 3-4. But Judge Babcock declined to dismiss those claims, because he could not determine whether privity existed between Defendant here and the defendants in the previous suits. Id. at 4. He further found it inappropriate to rule on the merits of Plaintiff's 42 U.S.C. § 1981 claim. Id. at 8. Accordingly, Judge Babcock dismissed the ADA claims with prejudice, dismissed the claims of “environmental harassment” and “Colorado torts” without prejudice, and ordered assignment to the Honorable R. Brooke Jackson. Id. at 8.

         Plaintiff filed the operative Amended Complaint on September 17, 2018, reasserting the same four causes of action. See ECF No. 14 at 3-4. I construe the allegations to state an injury to himself by the “contamination” and to his property from the trash. Defendant filed the present Motion to Dismiss on October 9, 2018, ECF No. 19, which was fully briefed on December 7, 2018, see ECF No. 39.


         I. Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A Rule 12(b)(1) motion to dismiss must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Accordingly, Plaintiff in this case bears the burden of establishing that the Court has jurisdiction to hear his claims.

         Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted). The present motion launches a facial attack on this Court's subject matter jurisdiction; therefore, the Court will accept the truthfulness of the Amended Complaint's factual ...

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