Beruflich Dokumente
Kultur Dokumente
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
TABLE OF CONTENTS
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CONCLUSION ......................................................................................................... 16
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
TABLE OF AUTHORITIES
CASES
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5
8
9
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11
Chol/a Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th Cir. 2004) ............................... 13
12
13
Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026 (9th Cir. 2001) ................. 11
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Edwards v. Marin Park, Inc. 356 F.3d 1058 (9th Cir. 2004) ..................................... 15
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Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ...................... 11
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Lee v. City ofLos Angeles, 250 F.3d 668 (9th Cir. 2001) .......................................... 13
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2
3
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Nevijel v. North Coast Life Ins. Co., 651F.2d671 (9th Cir. 1981) ......................... 2, 7
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Salstrom v. Citicorp Credit Services, Inc., 74 F.3d 183 (9th Cir. 1996) ...................... 8
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Simmons v. Sacramento Superior Court, 318. F.3d 1156 (9th Cir. 2003) ................. 14
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17
Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997)
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19
! ...............
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Vess v. Ciba-Geigy Corp., 317 F.3d 1097 (9th Cir. 2003) ........................................ 16
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STATUTES
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iv
3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
Pursuant to the court's order [Doc. 107], this omnibus motion is brought on
behalf of all defendants in order to ease the burden on the court and parties imposed by
plaintiffs' prolixity.
Amended Complaint ["F AC" Doc. 90] that was filed after the court granted prior
motions to dismiss for failure to comply with Federal Rule of Civil Procedure 81 and
issued a thorough Order allowing plaintiffs leave to amend with instructions that
plaintiff, a former member of the California State Bar, comply with Rule 8 and
10
coherently identify his claims "without unnecessary verbiage, argument, and rhetoric."
11
[Doc. 88.] The FAC is even worse than the original complaint. It is 76 pages longer,
12
adds new defendants and new claims, and is unreasonably convoluted, confusing, and
13
incomprehensible.
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1) pursuant to Rule 41 (b) for failure to comply with Rules 9(b ), 8(a), 8(e) and
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granted.
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III
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III
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III
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III
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III
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III
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All references to Rules are to the Federal Rules of Civil Procedure unless otherwise
indicated.
1
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
II
4
5
A complaint that fails to comply with Rules 8(a) and 8(e) may be dismissed with
prejudice pursuant to Rule 41(b). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,
673-674 (9th Cir. 1981). Rule 41(b) provides that defendants may move for dismissal
due to plaintiffs' failure to comply with the rules or any order of the court. Plaintiffs
have failed to comply with the rules governing pleadings, as well as other rules, and
10
have failed to comply with this court's Order filed December 23, 2013 [Doc. 88.]
11
12
13
Rule 8(a) states a pleading "shall" contain a "short and plain statement of
14
the grounds on which the court's jurisdiction depends" ... and a "short and plain
15
statement of the claim showing that the pleader is entitled to relief. ... " Rule 8(e)
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be exhibits but are not readily identifiable, indexed, marked, or organized. (Deel.
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23
24
Colbern C. Stuart III, appearing pro se, and California Coalition For Families and
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III
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III
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III
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
represented by Dean Browning Webb, pro hac vice. 2 Local Counsel, Eric Ching, has
moved to withdraw as counsel in this case, which would again leave California
Bar Association, numerous judges, the San Diego Superior Court, the City and the
County of San Diego, other officials, officers, the Sheriff, and numerous individuals
and firms related to the family law system. [Doc. 90 at pp. 2-14.] The FAC caption
page identifies only four claims, but it actually contains over 130 "titled" claims and
many of those contain multiple sub-claims alleged shotgun style in one long sentence
10
11
contract, covenant of good faith and fair dealing against Stuart Assault Coordinator
12
13
by Stuart for wrongful inducement to breach contract, breach of covenant of good faith
14
and fair dealing, wrongful interference with prospective contractual relations, and
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defamation against all Stuart Assault Coordinator Defendants under California State
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law and 42 U.S.C. 1983 and Cal. Const. art.I, 26." [Id. at
17
claims has its own set of elements and cannot be combined in one claim under Rule 8.
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20
United States
21
(7th Cir. 2003) [dismissal with prejudice of 155-page "sprawling" complaint was
22
proper so the court and parties "need not try to fish a gold coin from a bucket of mud"].
23
This is on point here: each defendant is forced to comb through pages of verbose,
ex.rel.
Garst v.
Lockheed-Martin Corp.,
~319.]
Each of these
378
24
25
26
27
28
Defense counsel located orders by California District Courts denying and reversing
attorney Webb's pro hac vice appointments, but was unable to locate a database that
would show whether his appointment in this case is improper because, for example, he
has applied pro hac vice in other cases within the past year. (See Mendoza v. Golden
West Savings Assoc. Services Co., 2009 WL 2050486 and Uribe v. Countrywide
Financial, 2009 WL 1953413.)
2
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
convoluted material to try to find any facts supporting any claim against them.
Multi-theory combination claims exist throughout the FAC and make it impossible for
716, 761.)
~~349,
541, 545,
wrongdoers they allegedly belong to, there are allegations that "all defendants"
10
impossible to determine who is being sued for what. [See, e.g., FAC Doc. 90 at p. 125
11
Count 6; p. 147 Count 9; p. 157 Count 10; p. 172 Count 12, and p. 175 Count 13.]
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15
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Many claims fail to provide clear notice as to who is being sued. For
example, Racketeering Claim 3.2 provides:
"Racketeering Claim For Relief 3.2
Kidnapping
Cal.Pen. C. 207(a)
Against City Attorney Defendants, Groch, Gore"
"~1049.
22
23
The SDCBA is not named in the title, but is identified in the paragraph
24
beneath the title, which appears to be a tactic to force all 58 defendants to read through
25
every page and line of this manifesto to try to figure out who is suing whom for what.
26
Also, it is unclear who is claiming damages. Many of the claims state they
27
are brought "by Stuart" and appear to stem from one of his individual claims related to
28
his arrests or divorce or his personal problems with Dr. Doyne, but then the claim
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
concludes with the allegation that "plaintiffs" were injured. [F AC Doc. 90 at Claims 1.1
to 1.12.] Such plural damage allegations are especially defective here because the FAC
still contains allegations about Lexevia, even though it is no longer in the caption,
making it unclear whether it is still attempting to recover. [FAC Doc. 90 at if~lOl, 102.]
To the extent these plural damage claims are intended to include the
California Coalition, they must be dismissed because that corporation was not formed
until the day before the complaint was filed and therefore did not exist at the time these
In addition, as discussed more fully below, Rule 9(b) requires many of the
10
claims alleged here to be pled with heightened particularity because they are based
11
upon fraud.
12
The FAC so utterly defies the law set forth in Rules 8 and 9 that a
13
dismissal with prejudice is proper, especially given this is not a case where a layperson
14
plaintiff might be unfairly prejudiced by poor lawyering out of his control. Plaintiff
15
was a lawyer, he represents himself pro se, he is the president and CEO of the
16
corporation he formed the day before filing suit, he knows the rules and chose to violate
17
them. A dismissal with prejudice is proper here. McHenry v. Renne, 84 F.3d 1172,
18
19
B.
20
Rule 41 (b) grants discretion to dismiss the FAC for failure by the plaintiff
21
to comply with the rules or any order of the court. Plaintiffs' original complaint
22
violated Rule 8 and was dismissed on that ground with clear instructions to comply
23
with Rule 8 and state claims "without unnecessary verbiage, argument, and rhetoric."
24
25
Plaintiffs' FAC is even worse than the original. It is pages longer, adds
26
new defendants, and contains a whole new set of claims for "obstruction of justice"
27
against those who demanded plaintiffs remove the publication of judges' personal
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addresses, and contains facts indicating plaintiff failed to comply with the demand to
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
remove the information after receiving a proper demand to do so pursuant to Cal. Gov't
The FAC so totally fails to comply with the court's Order that it reflects a
measure of disrespect for the court and the law. The court has discretion to dismiss
with prejudice under these circumstances. Metzler Inv. GMBH v. Corinthian Coils.,
rules since day one. The original complaint was filed on behalf of corporations with no
10
attorney as required by law, and Lexevia was not even a valid corporation with the
11
12
The title page of the original complaint indicated Dean Browning Webb as
13
attorney for the corporations ''pro hac vice pending." [Doc. 1 at p. 1.] However, the
14
Pro Hae Vice Application for Dean Browning Webb was not submitted to the court
15
until January 2014, over five months after the representation it was "pending."
16
[Doc. 94.]
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plaintiffs were told to remove this information from the internet pursuant to
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law. He then sued the parties who requested removal of this information. [FAC p. 101,
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Count 4.]
23
attachments to the FAC) states it is a violation of the Southern District General Orders
24
The demand letter from court counsel Nesthus (which is among the
25
Plaintiffs next filed a motion for preliminary injunction on the same day of
26
the court hearing for a case management conference [Doc. 102.] that was rejected for
27
violation of the rules requiring the motion to be filed within three days of receipt of the
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III
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
hearing date and noting it was not signed by counsel on behalf of the corporate
rules, oral orders, and minute orders. Yourish v. California Amplifier, 191 F.3d 983,
987 (9th Cir. 1999); World Thrust Films, Inc. v. International Family Entertainment,
D.
court has discretion to dismiss for Rule 8 and 9 pleading failures without leave to
10
amend, and that discretion is particularly broad where, as here, plaintiff has previously
11
amended the complaint. Metzler Inv. GMBH v. Corinthian Colts., Inc., 540 F.3d 1049.
12
1072 (9th Cir. 2008). The denial of leave to amend is proper where there is undue
13
prejudice to defendants, bad faith by the plaintiffs, and futility. Cafasso, US. ex rel. v.
14
General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011).
15
On point here, in Nevijel v. North Coast Life Ins. Co., 651 F.2d 671
16
(9th Cir. 1981) the court also looked at the plaintiffs history of alleging conspiracies
17
and repeated failures to comply with the Rules of Civil Procedure. (Id. at pp. 674-675.)
18
The plaintiffs history in other cases supported the conclusion that dismissal with
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20
Applying this law, the court would be well within its discretion in denying
21
leave to amend. Plaintiffs' prior amendment defiantly violated the court's Order and
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Rule 8 by adding parties, claims, and pages of verbose argument and rhetoric, which
23
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inordinate amount of time and resources needed to review the FAC and respond.
25
Stuart and his counsel have engaged in a pattern of violating the Rules
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futile. In addition to the violations thus far in this case, attorney Dean Browning Webb
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has been engaged in similar conduct for over 15 years despite being sanctioned by the
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
74 F.3d 183 (9th Cir. 1996) [sanctions against Dean Browning Webb affirmed for bad
faith based on number and length of pleadings, timing of the filings, and substance of
Stephens v. Marino, White, O'Farrell & Gonzalez, 2011 WL 4747920, stating: "Many
courts in this district and elsewhere have consistently and repeatedly warned Webb that
his litigation practices are improper and problematic." The Stephens court cites several
cases involving Webb's history of defective pleadings and prior warning he may be
10
Kauhi v. Countrywide Home Loans, Inc., 2008 WL 5191343; Presidio Group, LLC v.
11
12
limerick about him. Presidio Group, LLC v. GMAC Mortg. LLC, 2008 WL 2595675.
See also,
This case is proof that Webb has ignored repeated warnings which shows
13
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Rule 12(b)(6).
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III
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III
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III
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III
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III
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
III
PLAINTIFFS' CLAIMS ARE BARRED
BY THE STATUTE OF LIMITATIONS
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3
4
A motion to dismiss under FRCP 12(b)(6) can be granted where the facts and
dates in the complaint show the claims are barred by the statute of limitations.
Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969
Stuart admits a "central subject of this litigation" occurred on April 15, 2010 at
the San Diego County Bar Association seminar where he was allegedly forcibly
~~109,
10
11
claims brought under 42 U.S.C. 1983 and 1985, all of which are barred by the
12
two-year statute of limitations. Action Apartment Assoc. v. Santa Monica Rent Control,
13
509 F.3d 1020, 1026 (9th Cir. 2007) [1983 claims borrow the forum State's statute of
14
limitations for personal injury claims and in California that is two years]; McDougal v.
15
County of Imperial, 942 F.2d 668, 673-674 [1985 and 1983 governed by the same
16
statute of limitations]. The statute begins to run when plaintiff knows or has reason to
17
18
The complaint was filed August 20, 2013, more than three years after the
19
seminar.
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21
SDCBA's insurance carrier, Chubb. Stuart alleges that after the seminar, he made a
22
claim for damages by letter to the SDCBA and in response Chubb threatened that if he
23
moved forward with a claim, Chubb and the SDCBA would prosecute him for
24
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claim would be false, but that as a result of this threat, he was intimidated and
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at ~~353-368.] He alleges this duress and fear caused him to cease pursuing his claim
28
and operates to toll the running of the statute of limitations. [Id. at ~466.]
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
seminar, the statute of limitations on that trespass charge expired one year after the date
of the event pursuant to California Penal Code section 802(a). (See Cal. Pen. Code
limitations on the threatened charge expired April 15, 2011, the alleged "tolling event"
concluded, yet he still did not file the instant complaint for over two years after that -
10
the running of the limitations period while the tolling event is occurring and the statute
11
begins to run again when the tolling event is concluded. Lantzy v. Centex Homes,
12
13
14
15
16
unjust technical forfeiture of causes of action, where the defendant would suffer no
17
prejudice." (Id.) Also, as an equitable principle, the court must balance the equities and
18
consider the important public policy expressed by the statutes of limitations. (Id. at
19
p. 371.)
20
Applying this law to the facts here, the equities do not tip in Stuart's favor. The
21
SDCBA seminar was almost four years ago. Memories fade, making it more difficult
22
to defend against old claims, and in this case Stuart is trying to sue dozens of people
23
related to this event, many of whom are alleged to be conspirators of some kind making
24
25
26
case, the fact the majority of claims are plainly time barred on the face of the complaint
27
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III
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
IV
assert focused pleading attacks, Stuart alleges at several points that he has been the
victim of illegal court orders issued by the San Diego Superior Court as well as arrests
and incarcerations by San Diego authorities that were all unlawful. [F AC Doc. 90 at
~~373-374,
de facto appeals from state court judgments and orders. Federal district courts do not
10
have jurisdiction to hear de facto appeals from state court judgments or to review
11
alleged errors in state court decisions. Dist. of Columbia Court of Appeals v. Feldman,
12
460 U.S. 462, 476; Carmona v. Carmona, 603 F.3d 1041, 1050-1051 (9th Cir. 2010).
13
14
15
court judgments .... " Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
16
284 (2005), and this rule applies not only to final state court orders and judgments but
17
to interlocutory orders and non-final state court judgments as well. Doe & Assoc. Law
18
19
Stuart alleges he is the victim of the unlawful orders and judgments of the state
20
court and that numerous (or possibly all) defendants including the SDCBA are
21
22
p. 14 7.] Putting aside the implausible nature of the allegations that the SDCBA and
23
many other private individual/entity defendants are all conspirators against Stuart in the
24
state court orders and actions - some of which occurred before the SDCBA seminar
25
took place, each claim related to the unlawful orders and judgments against Stuart
26
should be dismissed for lack of jurisdiction. (Request for Judicial Notice, Exhs. 1, 2.)
27
Ill
28
Ill
~462
and Count 9 at
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3: 13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
The Eleventh Amendment bars suit against a state or its agencies, such as the
superior court, for all types of relief, absent unequivocal consent by the state.
Pennhurst v. Halderman, 465 U.S. 89, 98-99 (1984); Greater L.A. Council on
Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 n.10 (9th Cir. 1987) [Eleventh
Amendment bars suit against California State Superior Court for damages, injunctive
As stated, many of Stuart's claims allege unlawful orders by the state court for
10
which he alleges many other private party defendants are somehow jointly liable. [See
11
e.g., FAC Doc 90 at pp. 14-15, ,-r,-r462-464.] All these claims are barred by the Eleventh
12
Amendment.
13
VI
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15
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The court should dismiss each claim alleged in the FAC under FRCP 12(b)( 6) for
17
failure to state a claim, especially given the more recent 12(b)(6) pleading standards
18
authorized by the United States Supreme Court allowing district courts to dismiss
19
claims earlier by analyzing whether the plaintiff has pled a claim that is plausible, and
20
in making that determination the court is to look at the context of the case and draw on
21
the judge's judicial experience and common sense. Ashcroft v. Iqbal, 556 U.S. 662
22
23
24
556 U.S. at 676. For example, as in this case, conclusory statements that defendants
25
conspired to violated plaintiffs rights are not sufficient. Twombly, 550 U.S. at 557.
26
In ruling on a Rule 12(b)( 6) motion, the court may consider material not attached
27
28
necessarily relies on them, and may consider matters of public record. Lee v. City of
12
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
Los Angeles, 250 F.3d 668, 688-689 (9th Cir. 2001). Accordingly, filed here in the
Request For Judicial Notice are records showing there was an arrest warrant issued for
Because the FAC is too difficult to understand as far as exactly who is asserting
what claim against which defendant, the following may not cover every 12(b)(6) defect.
A.
SDCBA And Numerous Others Because They Are Not State Actor~.
Almost all plaintiffs' claims are alleged violations of their civil rights
10
11
prior allegations). [F AC Doc. 90 at Counts 1-8, 11-15.] Section 1983 does not create a
12
cause of action, but is a vehicle by which plaintiffs can bring federal constitutional
13
challenges to actions by state and local officials. Challa Ready Mix, Inc. v. Civish,
14
382 F.3d 969, 978 (9th Cir. 2004). The purpose of section 1983 is to deter state actors
15
from using the badge of their authority to deprive individuals of the federally
16
guaranteed rights. McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000).
17
18
facts, and not mere "boiler-plate-conclusory statements" showing the SDCBA and
19
other defendants were state or local officials acting under color of state law or had
20
conspired with state officials to violate plaintiffs' rights. West v. Atkins, 487 U.S. 42,
21
22
23
at ,-rs.]
24
25
26
showing an agreement between all these private parties and any state actor acting under
27
color of law. Count 3 for "Malicious Prosecution, Obstruction of Justice" on page 70,
28
simply lumps together City Attorney defendants with the SDCBA and numerous
13
3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
private party defendants for deprivation of rights "under color of law" with no facts
pleading, the occasional conclusory phrase can be found to the effect that defendants all
conspired with each other. Such conclusory allegations are insufficient to state a claim.
Twombly, 550 U.S. at 557; Simmons v. Sacramento Superior Court, 318 F.3d 1156,
1161 (9th Cir. 2003) [conclusory allegations that private attorney conspired with state
officer insufficient to support Section 1983 claim]; Schucker v. Rockwood, 846 F.2d
1202,1205 (9th Cir. 1988) [conclusory allegations of conspiracy between judge and law
10
firm insufficient for Section 1983 claim]; see also, Moss v. US. Secret Service,
11
572 F.3d 962, 970 (9th Cir. 2009) [conclusory allegations that Secret Service removed
12
13
State ofNevada ex.rel. Bd ofRegents, 616 F.3d 963, 969 (9th Cir. 2010) [allegation that
14
police officers knew or should have known statements about plaintiff leading to her
15
16
Applying the plausible test, and drawing upon the court's judicial
17
experience and common sense, the court can determine plaintiffs cannot state claims
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B.
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III
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
or good will. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139
which plaintiffs must show they actually and directly compete with the defendants.
Jurin v. Google, Inc., 695 F.Supp.2d 1117, 1122 (E.D. Cal.2010) [12(b)(6) motion
This claim is also subject to the heightened pleading standard for fraud
under FRCP 9(b); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066
(9th Cir. 2004) [plaintiff must allege the time, place and specific content of false
10
representations].
11
The fatal flaw here is plaintiffs' allegation at FAC paragraph 912 that
12
''plaintiffs compete with defendants for provision of legal services. ... " As a matter
13
of public record, Stuart has been disbarred or suspended from practicing law in every
14
state where he was admitted. (See Request for Judicial Notice, Exs. 4, 5, 6, 7, 8, 9.),
15
16
not a law firm or otherwise licensed to practice law and did not even exist until one day
17
before the complaint was filed. (Request for Judicial Notice, Exs. 3, 10.)
Accordingly, Count 15 must be dismissed with prejudice under Rules 8,
18
19
9, and 12(b)(6).
20
c.
21
There are about 31 RICO claims alleged against the SDCBA and over
22
23
including "Enticement into slavery," "Sale into involuntary servitude," and "Service on
24
25
In addition to the gross violation of FRCP 8 set forth above, there is a total
26
lack of specificity as to each defendant and the predicate acts as required by law. For
27
28
FRCP 9(b) must be met. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066
15
3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FffiST AMENDED COMPLAINT
(9th Cir. 2004). The FAC alleges RICO claims against multiple defendants based upon
the standards of pleading under 9(b ). Vess v. Ciba-Geigy Corp., 317 F .3d 1097, 1107-
claims are deficient under Rule 12(b)(6) for failing to state facts, as opposed to
conclusory statements, that would support relief. Twombly, 550 U.S. 544, 557.
CONCLUSION
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Based on the foregoing, defendants respectfully request the court dismiss the
FAC with prejudice.
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Respectfully submitted,
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sf Stephen D .. Lucas
STEPHEN D. LUCAS
Attome_ys for Defendant SAN DIEGO
COUNTY BAR ASSOCIATION
slucas@lucashaverkamp.com
By:
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3:13-cv-1944-CAB-BLM
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' OMNIBUS MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT
PROOF OF SERVICE
business address is 4350 Executive Drive, Suite 260, San Diego, California 92121.
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will be served or was served on the interested parties in the form and manner required
by this Court pursuant to controlling General Orders: via NEF on the Electronic Mail
List to receive NEF transmission in .this matter. I declare under penalty of perjury
under the laws of the United States of America that the foregoing is true and correct.
Dated March 28, 2014 at San Diego, California.
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ls/Janis Moore
Janis Moore
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111739.DOC
3:13-cv-1944-CAB-BLM