Beruflich Dokumente
Kultur Dokumente
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KAMALA D. HARRIS
Attorney General of California
JOHN P. DEVINE
Supervising Deputy Attorney General
State Bar No. 170773
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5522
Fax: (415) 703-5480
E-mail: John.Devine@doj.ca.gov
Attorneys for Defendant Victoria Henley
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TANYA NEMCIK,
Plaintiff,
v.
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5:16-cv-00322-BLF
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
CJBNS.ORG
TABLE OF CONTENTS
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
TABLE OF AUTHORITIES
Page
CASES
Adams v. Johnson
355 F.3d 1179 (9th Cir. 2004) ................................................................................................ 4
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TABLE OF AUTHORITIES
(continued)
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Doe v. Lawrence Livermore Natl Lab.
131 F.3d 836 (9th Cir. 1997) ................................................................................................ 10
Durning v. Citibank, N.A.
950 F.2d 1419 (9th Cir. 1991) ................................................................................................ 9
Fayer v. Vaughn
649 F.3d 1061 (9th Cir. 2011) ................................................................................................ 4
Flint v. Dennison
488 F.3d 816 (9th Cir. 2007) ................................................................................................ 10
Hafer v. Melo
502 U.S. 21 (1991)............................................................................................................... 10
Hart v. Alameda County
76 Cal.App.4th 766 (1997) ................................................................................................... 12
Huffman v. Pursue Ltd.
420 U.S. 592 (1975) ............................................................................................................... 7
In re Burrus
136 U.S. 586 (1890) ............................................................................................................... 5
Kougasian v. TMSL, Inc.
359 F.3d 1136 (9th Cir. 2004) ................................................................................................ 7
MacKay v. Pfeil
827 F.2d 540 (9th Cir. 1987) .................................................................................................. 8
Manzarek v. St. Paul Fire & Marine Ins. Co.
519 F.3d 1025 (9th Cir. 2008) ................................................................................................ 4
Marshall v. Marshall
547 U.S. 293 (2006) ............................................................................................................... 5
McCarthy v. United States
850 F.2d558 (9th Cir.1988) .................................................................................................... 4
McIntyre v. McIntyre
771 F.2d 1316 (9th Cir. 1982) ................................................................................................ 5
Mitchum v. Foster
407 U.S. 225 (1972) ............................................................................................................. 10
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
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TABLE OF AUTHORITIES
(continued)
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Monroe v. Pape
365 U.S. 167 (1961) ............................................................................................................. 10
Munoz v. State of California
33 Cal.App.4th 1767 (1995) ................................................................................................. 12
Noel v. Hall
341 F.3d 1148 (9th Cir.2003) ................................................................................................. 7
Pena v. Gardner
976 F.2d 469 (9th Cir. 1992) (per curiam) .............................................................................. 9
Pennhurst State School & Hosp. v. Halderman
465 U.S. 89 (1984)................................................................................................................. 9
Porter v. Jones
319 F.3d 483 (9th Cir. 2003) .................................................................................................. 9
Rooker v. Fidelity Trust Co.
263 U.S. 413 (1923) ............................................................................................................... 6
Savage v. Glendale Union High Sch.
343 F.3d 1036 (9th Cir. 2003) ................................................................................................ 3
Shaw v. Hahn
56 F.3d 1128 (9th Cir. 1995) .................................................................................................. 4
Shwarz v. United States
234 F.3d 428 (9th Cir. 2000) .................................................................................................. 4
State of California v. Superior Court (Bodde)
32 Cal.4th 1234 (2004) ........................................................................................................ 13
Steel Co. v. Citizens for a Better Env't
523 U.S. 83 (1998)................................................................................................................. 4
Thompson v. Thompson
789 F.2d 1547 (9th Cir. 1986) ................................................................................................ 5
Weisbuch v. Cnty. of L.A.
119 F.3d 778 (9th Cir. 12 1997) ............................................................................................. 5
Will v. Mich. Dept of State Police
491 U.S. 58 (1989)............................................................................................................... 10
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
TABLE OF AUTHORITIES
(continued)
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Worldwide Church of God v. McNair
805 F.2d 888 (9th Cir. 1986) .................................................................................................. 7
STATUTES
United States Code, Title 42
1983.................................................................................................................................... 1
CONSTITUTIONAL PROVISIONS
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
Case 5:16-cv-00322-BLF
Document
59 Filed
05/05/16
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CALIFORNIA
JUDICIAL
BRANCH
NEWS
SERVICE
CJBNS.ORG
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NOTICE IS HEREBY GIVEN that on Thursday, August 18, 2016, at 9:00 a.m., before the
Honorable Beth Labson Freeman, located in Courtroom 3 (5th Floor) at 280 South First Street,
San Jose, California, Defendant Victoria Henley will and does hereby move this Court to dismiss
this action pursuant to Rules 12(b)(1), 12(b)(6), and 12(e) of the Federal Rules of Civil Procedure
because this Court lacks subject-matter jurisdiction and plaintiff's complaint fails to state a claim
against Defendant Victoria Henley upon which relief can be granted, in that:
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1.
The claims are barred by the domestic relations exception to federal jurisdiction;
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2.
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The claims against Defendant Henley in her official capacity are barred by the
Eleventh Amendment and 42 U.S.C. section 1983;
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The claims against Defendant Henley fail to state any claim for relief;
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The claims against Defendant Henley are so vague and ambiguous that they deprive
her the opportunity to frame a responsive pleading; and
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6.
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Defendant Henley requests that the motion to dismiss be granted and that this Court issue
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The state law claims are barred by Plaintiffs failure to comply with the California
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request for stay, and the accompanying memorandum of points and authorities, the pleadings and
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papers on file herein, and such oral and written material as may be presented at the hearing of this
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motion.
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
Case 5:16-cv-00322-BLF
DocumentNEWS
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SERVICE
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PRELIMINARY STATEMENT
I.
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against numerous individuals and the Department of Child Support Services. All are allegedly
involved in her family law matter in Santa Clara County Superior Court, which now centers on
Performance (CJP) in San Francisco, is sued in her personal and official capacities. Pl. FAC
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12, 15. In the prolix First Amended Complaint, Plaintiff files three separate claims for relief
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against Defendant Henley (i.e., 42 U.S.C. section 1983, Intentional Infliction of Emotional
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Distress, and Negligent Infliction of Emotional Distress). These are the Eighth, Thirteenth, and
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Fourteenth claims for relief in the First Amended Complaint. Pl. FAC 117-36, 191-96, 197-
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207.
Plaintiff asserts that she has a due process right to have the CJP review her complaint [to
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the CJP based upon Commissioner Mills yelling at her and setting her support order
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unreasonably high] and make a proper finding and then to hold the judge [sic] to account for
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their unlawful malicious acts. Pl. FAC 118, 129. Plaintiff also alleges that Commissioner
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Mills colluded with Defendant Henley, who removed the complaint against him, and ultimately
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did not submit the complaint for review. Pl. FAC 126. Despite these allegations, Plaintiffs
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First Amended Complaint attaches a July 2015 letter from the CJP indicating that the complaint
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was considered at a meeting of the commission, where it determined not to take further action
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apparently seeks the amount of child support in arrears, which is $82,597 as of February 29,
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
II.
Several jurisdictional impediments preclude this lawsuit and the requested relief sought by
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the Plaintiff.
The lawsuit is barred by both the domestic relations exception to federal jurisdiction
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(precluding jurisdiction where the dispute would deeply involve the district court in
adjudicating domestic matters) and the Rooker-Feldman doctrine (preventing federal district
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Amended Complaint fails to state a claim. This district court can look to the allegations
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concerning Defendant Henley, and then immediately see that they are wholly contradicted by
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which is a condition precedent for any state law claims for relief.
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As a result of these barriers to jurisdiction, Defendant Henley requests that the Plaintiff's
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claims for relief against her be summarily denied, and that her First Amendment Complaint be
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III.
LEGAL STANDARDS
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A.
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A defendant may move to dismiss an action for lack of subject matter jurisdiction pursuant
Rule 12(b)(1)
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to Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) motion to dismiss tests whether a
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complaint alleges grounds for federal subject matter jurisdiction. A motion to dismiss for lack of
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subject matter jurisdiction will be granted if the complaint on its face fails to allege facts
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sufficient to establish subject matter jurisdiction. See Savage v. Glendale Union High Sch., 343
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F.3d 1036, 1039 n. 2 (9th Cir. 2003). In considering a Rule 12(b)(1) motion, the Court is not
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restricted to the face of the pleadings, but may review any evidence, such as affidavits and
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks
subject matter jurisdiction, and the case must be dismissed. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 10102 (1998). Once a party has moved to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the opposing party bears the burden of establishing the court's
jurisdiction. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th
Cir.2010).
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B.
Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an
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action for failure to allege enough facts to state a claim to relief that is plausible on its face.
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the
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plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
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probability requirement, but it asks for more than a sheer possibility that a defendant has acted
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unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). For
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purposes of ruling on a Rule 12(b)(6) motion, the court accept[s] factual allegations in the
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complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving
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party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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Nonetheless, the court need not accept as true allegations contradicted by judicially
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noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the [C]ourt may
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look beyond the plaintiffs complaint to matters of public record without converting the Rule
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12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.
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1995). Nor is the court required to assume the truth of legal conclusions merely because they
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are cast in the form of factual allegations. Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.
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2011) (per curiam) (quoting W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere
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conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to
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dismiss. Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
Case 5:16-cv-00322-BLF
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Furthermore, a plaintiff may plead [him]self out of court if he plead[s] facts which establish
that he cannot prevail on his . . . claim. Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th
Cir. 1997) (quoting Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir. 1995)).
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ARGUMENT
I.
courts from adjudicating domestic relations claims. This principle has long been recognized. In
re Burrus, 136 U.S. 586, 593-94 (1890) (The whole subject of the domestic relations of husband
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and wife, parent and child, belongs to the laws of the States and not to the laws of the United
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States). More recently and specifically, the United States Supreme Court has recognized an
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exception to federal jurisdiction for child custody decrees. Marshall v. Marshall, 547 U.S. 293,
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308 (2006) (recognizing that, under the domestic relations exception, divorce, alimony, and
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A few opinions from the Ninth Court of Appeals have further illuminated the contours of
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the domestic relations exception. If the status of parent and child or husband and wife is the
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primary issue in a case, a federal court must decline jurisdiction. McIntyre v. McIntyre, 771 F.2d
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1316, 1317 (9th Cir. 1982) (citing Buechold v. Ortiz, 401 F.2d 371, 372 (9th Cir. 1968)). The
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McIntyre opinion went on to clarify: It follows that the exception to jurisdiction arises in those
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cases where a federal court is asked to grant a decree of divorce or annulment, or to grant custody
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or fix payments for support, the rationale being that those actions are close to the historical
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concept of an ecclesiastical action and peculiarly within the province of the state courts. Id. at
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1317-18 (citing Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982)) (emphasis added).
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As a significant additional point about the domestic relations exception, the Ninth Circuit
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Court of Appeals has held that the exception applies equally in cases arising under federal
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question jurisdiction where the dispute would deeply involve the district court in adjudicating
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domestic matters. Thompson v. Thompson, 789 F.2d 1547, 1558 (9th Cir. 1986).
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
It becomes evident from reviewing Plaintiffs First Amended Complaint that she seeks the
deep involvement of the federal courts in her ongoing child support issues. Indeed the very first
allegation is the following: This case seeks monetary damages and equitable relief for an
ongoing and complex family law case where plaintiff is being abused. Pl. FAC 1. Among
other things, the First Amended Complaint extensively addresses the manner in which child
support orders and calculations were made. Pl. FAC 43-56. Plaintiffs First Amended
Complaint also makes repeated allegations against various defendants about the ongoing nature of
the child and custody support issue. For example, Defendants [DCSS, Barth, Secrest, and
Stevens] in [sic] colluded and thereby denied Plaintiff due process for the purpose of creating
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permanent child support orders even though the custody orders were not final. Pl. FAC 61.
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For another example, Plaintiff has the fundamental right of due process to be allowed the right to
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provide evidence and facts to support child support calculations. Pl. FAC 106. For yet another
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example in the claim for relief against Defendant Henley Plaintiff asserts that she has a due
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process right to have the CJP [Commission for Judicial Performance] review her complaint [to
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the CJP based upon Commissioner Mills yelling at her and setting her support order
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unreasonably high] and make a proper finding and then to hold the judge [sic] to account for
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Given the entirety of the allegations in the First Amended Complaint, it is apparent that
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Plaintiff is primarily concerned with the child support issues in her ongoing family law matter.
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As a result, the domestic relations exception applies in this case and bars Plaintiffs claims
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in federal court.
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II.
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Superior Court of the State of California, 871 F.2d 887, 890-91(9th Cir. 1989); Rooker v. Fidelity
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Trust Co., 263 U.S. 413, 415 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-87
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(1983).
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
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A federal court has no jurisdiction over issues that are inextricably intertwined with
allegations underlying the judgment of a state court. Feldman, supra, 460 U.S. at 486-87.
The doctrine that district courts have no authority to review final determinations of state
courts judicial proceedings applies even when the challenge to the state court decision involves
constitutional issues. Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986).
This is because state courts are as competent as federal courts to decide constitutional issues. Id.;
see also, Huffman v. Pursue Ltd., 420 U.S. 592, 611 (1975) (rejecting the argument that state
The RookerFeldman doctrine instructs that federal district courts are without jurisdiction
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to hear direct appeals from the judgments of state courts. Cooper v. Ramos, 704 F.3d 772, 777
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(9th Cir. 2012). The doctrine bars a district court from exercising jurisdiction not only over an
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action explicitly styled as a direct appeal but also the de facto equivalent of such an appeal.
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Id. (Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir.2003)). The purpose of the doctrine is to protect
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state judgments from collateral federal attack. Doe & Assocs. Law Offices v. Napolitano, 252
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F.3d 1026, 1030 (9th Cir. 2001). The Rooker-Feldman doctrine applies where a party is: [1]
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assert[ing] as her injury legal error or errors by the state court and [2] seek[ing] as her remedy
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relief from the state court judgment. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir.
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doctrine applies, the doctrine will not only prohibit the Plaintiff from litigating the de facto
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appeal, but also any issue that is inextricably intertwined with the state courts judgment.
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Cooper, 704 F.3d at 778-79. The inextricably intertwined test is only applied if the Court has
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already determined that Rooker-Feldman applies because the plaintiff is seeking a prohibited de
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facto appeal. See id. at 778 (citing Noel, 341 F.3d at 1158). A claim is inextricably intertwined
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with a state court judgment if the federal claim succeeds only to the extent that the state court
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wrongly decided the issues before it, i.e. [w]here federal relief can only be predicated upon a
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conviction that the state court was wrong. Id. at 779 (quoting Pennzoil Co. v. Texaco, Inc., 481
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U.S. 1, 25 (1987)); see also Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003) (providing
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
that claims are inextricably intertwined with the state courts decision if the adjudication of
This doctrine is applicable in this lawsuit, where the Plaintiff seeks to attack the legitimacy
of various judicial actions. Pl. FAC passim. As the lawsuit appears to relate to Defendant
Henley, she allegedly failed to hold judicial officers to account for their unlawful malicious
acts. Pl. FAC 129 (8th claim for relief 42 U.S.C. 1983). Defendant Henley also allegedly
caused Plaintiff emotional distress because [t]here were multiple hearings where Plaintiff would
verbally ask for accommodation to minimize her disability and would bring to Defendants
attention that their specific actions were causing her harm. Pl. FAC 193 (13th claim for relief
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Henley was negligent in her duty to ensure that proper accountability occurred with
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Commissioner Mills to ensure that he would be able to cause harm to Plaintiff. Pl. FAC 202
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(14th claim for relief Negligent Infliction of Emotional Distress). Against the backdrop of all
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these allegations, Plaintiff seeks in her prayer for relief [t]the amount of the arrears, which is
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If as here, in order to grant the relief sought, the district court must determine the state court
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judgment was erroneously entered or must take action that would render the judgment ineffectual,
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the Rooker-Feldman doctrine applies. MacKay v. Pfeil, 827 F.2d 540, 545 (9th Cir. 1987)
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(holding Rooker-Feldman doctrine bars federal court review if the relief requested requires the
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"mere revision of errors and irregularities" or asks the federal court to determine "the legality and
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Thus, where the claims brought in an action are tantamount to a challenge of state court
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decisions, the federal district court lacks subject matter jurisdiction and dismissal is the
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
III.
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[T]he judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
citizens of another state . . . .
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The Eleventh Amendment bars suits that seek damages against a state, an arm of the state,
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its instrumentalities, its agencies, or its pubic officials. Durning v. Citibank, N.A., 950 F.2d 1419,
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1422-23 (9th Cir. 1991). The Eleventh Amendment is a specific constitutional bar against
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hearing even federal claims that otherwise would be within the jurisdiction of the federal courts.
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Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).
Plaintiffs First Amended Complaint alleges, All Persons named as Defendants herein are
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sued in their individual capacities. All Persons who are public entities or officials are also sued in
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While the Eleventh Amendment allows a lawsuit against Defendant Henley in her
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individual capacity, an action for damages against Defendant Henley in her official capacity is
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barred by the Eleventh Amendment.1 Given the bar of Eleventh Amendment immunity, this
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IV.
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Another procedural obstacle prevents suit against Defendant Henley. Typically, claimed
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incursions into federal constitutional rights can only be vindicated through the statutory remedy
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The Eleventh Amendment does not bar suits seeking damages against state officials in
their personal capacity. See Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003); Ashker v. Cal.
Dept of Corr., 112 F.3d 392, 394-95 (9th Cir. 1997); Pena v. Gardner, 976 F.2d 469, 472 (9th
Cir. 1992) (per curiam).
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
provided in 42 U.S.C. 1983. Monroe v. Pape, 365 U.S. 167, 172 (1961); Mitchum v. Foster,
407 U.S. 225, 242 (1972). Section 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510
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Against this legal backdrop, Plaintiff avers that her constitutional and civil rights have been
violated by Defendant Henley in her official capacity. Pl. FAC 15, 117-36.
State officials sued in their official capacity for damages are not persons for purposes of
1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997); Hafer v. Melo,
502 U.S. 21, 27 (1991); Will v. Mich. Dept of State Police, 491 U.S. 58, 71 (1989); Flint v.
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Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007); Doe v. Lawrence Livermore Natl Lab., 131
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F.3d 836, 839 (9th Cir. 1997); Aguon v. Commonwealth Ports Auth., 316 F.3d 899, 901 (9th Cir.
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2003); DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992).
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Thus, the Court should dismiss Plaintiffs Eighth Cause of Action in the First Amended
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V.
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Plaintiff has failed to state a claim under Rule 8, Federal Rules of Civil Procedure.
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The Supreme Court explained in Twombly and Iqbal that conclusory statements that merely
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recite the elements of a claim are insufficient for the purpose of 12(b)(6). See Iqbal, 556 U.S. at
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678 (Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.); Twombly, 550 U.S. at 555 (a plaintiffs obligation to provide the
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grounds of his entitle[ment] to relief requires more than labels and conclusions, and a
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formulaic recitation of the elements of a cause of action will not do). Additionally, to survive a
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Rule 12(b)(6) motion, the complaint must state a claim to relief that is plausible on its face.
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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Dismissal can be based on the lack of a
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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.
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Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.1990).
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
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In this lawsuit, Plaintiff makes threadbare recitals and conclusory statements against
Defendant Henley. See Pl. FAC 117-136. No mention is made of any dates. Ibid.
Plaintiff alleges that she has a due process right to have the CJP [Commission on Judicial
Performance] review her complaint [to the CJP based upon Commissioner Mills yelling at her
and setting her support order unreasonably high] and make a proper finding and then to hold the
judge [sic] to account for their unlawful malicious acts. Pl. FAC 118, 129. But Plaintiff also
alleges, quite correctly in this instance, that [r]emoving a Judge from a case is not a remedy that
the CJP may administer. Pl. FAC 132; see Cal. Const., art VI, 18(b)(authority of CJP to
disqualify a judge from acting as a judge while a notice of formal proceedings is pending
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against that judge); see also Cal. Const., art. VI, 18(d). (CJP authority to remove judges from
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office).
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What remains startling is that Plaintiff alleges that Commissioner Mills colluded with
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Defendant Henley and removed his complaint and by choice did not review the complaint. Pl.
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FAC 126. But attached to the First Amended Complaint is Exhibit O a letter from the
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Commission on Judicial Performance dated July 16, 2015 stating the following:
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Your complaint dated May 19, 2015 about the conduct of a court commissioner was
considered by the Commission on Judicial Performance at its July meeting. At that
time, the commission determined not to take further action with respect to your
complaint.
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Federal Rules of Civil Procedure Rule 8(a) requires, in pertinent part, that a complaint
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VI.
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contain a short and plain statement of the claim, while Rule 8(d)(1) requires [e]ach allegation
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must be simple, concise and direct. As already discussed, a dismissal is warranted under Rule
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
12(b)(6) because the pleading fails to state a claim. Separately, dismissal is warranted under Rule
12(e) if pleadings are so vague and ambiguous such as to deprive the opponent of the reasonable
Plaintiffs complaint is so vague and ambiguous that it precludes Defendant Henley from
framing a responsive pleading or raising additional legal issues that might subject this lawsuit to
dismissal.
As a result, Defendant Henley moves for dismissal, or alternatively for a more definite
statement in the event that the Eighth Claim for Relief in Plaintiffs First Amended Complaint is
not dismissed.
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she did not timely comply with the California Government Claims Act. See Pl. FAC 191-207
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One of the starting points for the Government Claims Act is California Government Code
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section 911.2. It provides: A claim relating to a cause of action for death or for injury to person
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shall be presented as provided in Article 2 (commencing with Section 915) not later than six
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months after the accrual of the cause of action. Cal. Gov. Code 911.2.
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According to precedent concerning the Government Claims Act, no suit for money or
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damages may be brought until a written claim has been presented to the public entity and the
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claim either has been acted upon or is deemed to have been rejected; a suit for money or
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damages includes all actions where the plaintiff is seeking monetary relief, regardless whether
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the action is founded in tort, contract or some other theory. Hart v. Alameda County (1999) 76
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commencement of suit against the public entity. Munoz v. State of California (1995) 33
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Against this legal backdrop, Plaintiffs First Amended Complaint nowhere alleges that she
submitted the statutorily required claim to the State of California.
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
Case 5:16-cv-00322-BLF
Document 59
Filed SERVICE
05/05/16 Page CJBNS.ORG
19 of 19
CALIFORNIA
JUDICIAL BRANCH
NEWS
Plaintiffs failure to allege that she presented a claim to the State of California before
bringing this suit means that she has failed to state facts sufficient to constitute a cause of action.
A plaintiff must allege facts demonstrating or excusing compliance with the claim presentation
requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts
sufficient to constitute a cause of action. State of California v. Superior Court (Bodde) (2004)
32 Cal.4th 1234, 1243. In Bodde, the Plaintiff, an inmate in the California State prison system,
attempted to sue the State of California as well as various State agencies for lack of adequate
medical care. Id. at 1237. Instead of sending a claim to the State Board of Control, as required
by section 911.2, the Plaintiff only sent a complaint to the Office of the Attorney General. Id. at
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1238. The Court found that there was overwhelming case law and history showing that a
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Again, Plaintiff has failed to allege compliance with the presentment requirement.
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Not complying with the Government Claims Act necessarily subjects Plaintiffs First
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CONCLUSION
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For the foregoing reasons, Defendant Henley requests that her motion to dismiss be
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granted, and all the claims for relief against her (i.e., 8th , 13th, and 14th) be dismissed with
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prejudice.
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Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
JOHN P. DEVINE
Supervising Deputy Attorney General
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SF2016200544
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Amended Amended Notice of Motion to Dismiss; Motion to Dismiss; Memorandum in Support (5:16-cv-322-BLF)
CJBNS.ORG