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FOLEY v. MARQUEZ

United States District Court, N.D. California


March 19, 2004.

DARRELL D. FOLEY, Plaintiff,
v.
JANICE MARQUEZ; EDWIN WAINSCOTT, ET UX; QUARLES & BRADY STREICH LANG; ARIZONA STATE BAR; UNITED STATES ET AL; JOHN SEDWICK; STEPHEN M. MCNAMEE; JOHN ASHCROFT; CHARLES C. PLUMMER; STEVE MONTOYA; JANET NAPOLITANO; ERNEST ANDERSON; JOHN PORTER; DAN GRIMMER; CALIFORNIA STATE BAR; GRAY DAVIS; JOHN DOES 1-10. Defendants

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

This action has been dismissed with prejudice as to defendants Wainscott et ux., Quarles & Brady Streich Lang, the Arizona State Bar, John Sedwick, Stephen M. McNamee, Janet Napolitano, John Porter, and Dan Grimmer, and has been dismissed without prejudice as to all other defendants. Judgment is entered accordingly.

IT IS SO ORDERED AND ADJUDGED.

 

ORDER GRANTING MOTION BY DEFENDANTS SEDWICK AND McNAMEE TO DISMISS; DENYING PLAINTIFF'S MOTION TO DISMISS ALL DISMISSAL MOTIONS; AND DISMISSING REMAINING PARTIES
  Now before the Court are: (1) a motion by defendants Sedwick and McNamee to dismiss for failure to state a claim; and (2) Foley's motion to dismiss all dismissal motions. The Court finds this motion appropriate for disposition without oral argument pursuant to Local Rule 7-l(b). Having carefully considered the arguments submitted, the Court hereby GRANTS the defendants' motion to dismiss for failure to state a claim (Fed.R.Civ.P. 12(b)(6)). The Court DENIES plaintiff's motion to dismiss all dismissal motions. The Court, sua sponte, DISMISSES the Arizona defendants with prejudice for lack of personal jurisdiction and DISMISSES the remaining defendants without prejudice, for failure to serve process. The entire action will be dismissed.

  BACKGROUND

  Plaintiff Darrell Foley filed this complaint on May 27, 2003 against 16 defendants. Four of these Page 2 defendants (Edwin Wainscott, et ux., Quarles & Brady Streich Lang, Arizona State Bar, and Janet Napolitano, the "Arizona defendants") were also sued by plaintiff in a case he filed March 7, 2003 (No. C-03-1010 SI). This Court dismissed the C-03-1010 SI action on October 1, 2003 for lack of personal jurisdiction, improper venue, failure to state a claim, and lack of proof of service.

  Two defendants in this suit, John Sedwick and Stephen McNamee, are U.S. District Court Judges and have filed a motion to dismiss for failure to state a claim, based on judicial immunity from suit. Foley's complaint alleges that Sedwick is biased against him and acted improperly in showing this bias during Foley's trial before Judge Sedwick. Pl's Compl. at ¶¶ 45-55. Foley alleges that Judge McNamee, in his capacity as Chief Judge, failed to adequately supervise Judge Sedwick. Pl's Compl. at ¶¶ 56, 57. In this suit, plaintiff has also sued two California judges, Family Court Judge John Porter and Alameda County Superior Court Judge Dan Grimmer. Pl's Compl. at ¶¶ 89-91. Plaintiff's accusations against Porter and Grimmer are directly related to Porter's and Glimmers' official duties as judges. Id.

  Plaintiff has not filed any proof of service of summons or complaint on any defendant in this case. No defendants, save Judges Sedwick and McNamee, have appeared in the action.

  LEGAL STANDARD

 1. Failure to state a claim

  Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).

  In answering this question, the court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). However, the court "need not automatically accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations Page 3 cast in the form of factual allegations." See U.S, v. Real Prop. Located at 9832 Riceon Aye., 234 F. Supp.2d 1136, 1137 (C. D. Cal. 2002).

  If the court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).

 2. Personal jurisdiction

  Jurisdiction must comport with the state long-arm statute, and with the constitutional requirements of due process. See Omeluk v. Langsten Slip and Batbyggeri A/S, 52 F.3d 267, 271 (9th Cir. 1995) citing Chan v. Society Expeditions. Inc., 39 F.3d 1398 (9th Cir. 1994). California's long-arm statute permits this court to exercise personal jurisdiction over nonresident defendants on anabasis not inconsistent with the California or United States Constitution. See California Code of Civil Procedure, § 410.10. Absent traditional bases for personal jurisdiction (physical presence, domicile, or consent), due process requires that the defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

  The court must determine whether sufficient minimum contacts between the moving defendants and the forum state exist to allow the exercise of personal jurisdiction over them. In this regard, courts may exercise either general or specific jurisdiction over nonresident defendants. See FDIC v. British-American Ins. Co., LTD., 828 F.2d 1439, 1442 (9th Cir. 1987).

  General jurisdiction exists when the nonresident has substantial or systematic and continuous contacts with the forum state, and the exercise of jurisdiction satisfies traditional notions of fair play and substantial justice. See Ziegler v. Indian River County, 64 F.3d 470 (9th Cir. 1995). The Ninth Circuit has established a three-step test to determine whether the court may exercise specific jurisdiction over a nonresident defendant. See British-American, 828 F.2d at 1442; see Ziegler, 64 F.3d at 473. First, specific jurisdiction requires a showing that the out-of-state defendants purposefully directed their Page 4 activities toward residents of the forum state or purposefully availed themselves of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-475 (1985). Second, the controversy must be related to or "arise out of" defendants' contact with the forum. Ziegler, 64 F.3d at 473. Third, the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. British-American, 828 F.2d at 1442. Generally, the relationship among the defendants, the forum, and the litigation is the essential foundation of personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall 466 U.S. 408, 414 (1984), citing Shaffer v. Heitner 433 U.S. 186, 204 (1977).

 3. Service of summons and complaint

  Under Federal Rule of Civil Procedure 4(1) and (m), plaintiff must serve all defendants with the summons and complaint, and file a proof thereof, within 120 days after filing a complaint. If timely service is not made, the court on its own initiative after notice to the plaintiff may dismiss the action without prejudice as to the unserved defendants.

  DISCUSSION

 

1. Plaintiff has not alleged a viable cause of action against federal and California state judges, because judges are entitled to judicial immunity.
  State and federal judges are entitled to absolute judicial immunity for judicial actions. Mireles v. Waco, 502 U.S. 9, 11 (1991). Judges are protected by judicial immunity for all of their judicial acts, unless they are acting in clear absence of jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). Jurisdiction is construed liberally when judicial immunity is at issue. Id.

  A. Judge John Sedwick is entitled to judicial immunity.

  John Sedwick, a U.S. District Court judge in the Northern District of Arizona, is entitled to judicial immunity for his judicial actions. Here, plaintiff's chief allegation is dissatisfaction with Judge Sedwick's adjudication of plaintiff's case. Plaintiff claims that Judge Sedwick is biased against plaintiff, and an "aider and abettor in the cover-up and fraudulent acts" alleged in the complaint. Pl.'s Compl. Page 5 at ¶¶ 45, 53. Plaintiff farther claims that Sedwick's "narrow-minded approach to law . . . has denied [p]laintiff his constitutional rights." Id. at ¶ 55. All of plaintiff's allegations regarding Judge Sedwick arise out of the action plaintiff filed in the Northern District of Arizona over which Judge Sedwick presided. Plaintiff's only contact with Judge Sedwick occurred during this case. Judge Sedwick was acting within the scope of his judicial duties and is therefore protected by judicial immunity. Because Judge Sedwick's official acts are protected by judicial immunity, plaintiff has failed to plead a cause of action against Judge Sedwick under which relief may be granted.

  B. Judge Stephen McNamee is entitled to judicial immunity.

  Stephen McNamee, Chief Judge of the Northern District of Arizona, is also entitled to absolute judicial immunity. Plaintiff complains that Judge McNamee failed to properly supervise Judge Sedwick, and thus failed to perform the oversight function required of a Chief Judge. Pl.'s Compl. at ¶ 56. Plaintiff's claim arises out of alleged actions of Judge Sedwick in his judicial capacity. Judge McNamee has had no actual contact with plaintiff and is only sued because of his judicial relationship to Judge Sedwick. Judge McNamee is protected by immunity from suit, and plaintiff has failed to plead a cause of action against Judge McNamee upon which relief may be granted.

  C. California Judges John Porter and Dan Grimmer are entitled to judicial immunity.

  Judge John Porter is a Commissioner of the Alameda County Superior Court and Dan Grimmer is an Alameda County Superior Court Judges; as such, they are entitled to judicial immunity for their judicial actions. Plaintiff's only allegations against Judges Porter and Grimmer are related to their duties as judges. Pl.'s Compl. at ¶¶ 89-93. As with Judges McNamee and Sedwick, Judges Porter and Grimmer only had contact with plaintiff through their judicial actions. Plaintiff has failed to plead a cause of action upon which relief can be granted against them.

 2. Lack of personal jurisdiction over Wainscott, QBSL, Napolitano and the Arizona State Bar

  Wainscott, QBSL, Napolitano and the Arizona State Bar were also defendants in the C-01-1010 Page 6 SI action; are all Arizona-residents. Order [03-1010 Docket #43] at 5. Absent traditional base for personal jurisdiction (physical presence, domicile or consent), due process requires that the defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. See International Shoe Co., 326 U.S. at 316. Plaintiff has failed to show that defendants Wainscott, QBSL, Napolitano and the Arizona State Bar meet the Ninth Circuit's three requirements for establishing sufficient minimum contacts between the moving defendants and the forum state to allow the exercise of personal jurisdiction over the defendants.

  The purposeful availment requirement is satisfied if the defendants have taken deliberate action within the forum state or if they have created continuing obligations to forum residents. See Ballard v. Savage, 65 F.3d 1495 (9th Cir. 1995). Here, the plaintiff's cause of action against Wainscott, QBSL, Napolitano, and the Arizona State Bar arise out of an alleged conspiracy surrounding plaintiff's daughter and ex-wife and licensing attorneys in Arizona. These defendants had no purposeful contact with California and maintain no continuing contact with California residents.

  The Ninth Circuit's second criterion, that the controversy must be related to or "arise out of' defendants' contact with the forum, is also not satisfied in the instant case. A claim arises out of the forum-related activities if an action would not have occurred absent contact with the forum.*fn1 See Omeluk, 52 F.3d at 271. In the present case, defendants Wainscott, QBSL, Napolitano, Montoya, and the Arizona State Bar have not taken any action relating to this case in California.

  Plaintiffs allegation that the moving defendants and other defendants are involved in a conspiracy also fails to establish jurisdiction. California does not recognize conspiracy as a basis for acquiring jurisdiction over a party. See Crea v. Busby, 48 Cal.App.4th 509, 516-517 (1996). California courts consider the forum-related acts personally committed by the individual rather than the imputed conduct of a co-conspirator. The conduct of a co-conspirator is generally too tenuous to warrant the exercise of personal jurisdiction. See Kipperman v. McCone, 422 F. Supp. 860, 873 (N.D. Cal. 1976). Page 7 In the present case, plaintiff has alleged in his complaint that the moving defendants and other-defendants conspired against the plaintiff but has made no prima facie case for conspiracy. Thus, plaintiff's allegation amounts to a bland assertion of a conspiracy and is simply insufficient to establish jurisdiction.

  The Ninth Circuit's final criterion is whether the forum's exercise of personal jurisdiction is reasonable. The court's exercise of personal jurisdiction over the moving defendants must comport with fair play and substantial justice. See Burger King Corp., 471 U.S. at 477-478.

  Here, these defendants' contacts are too attenuated to justify subjecting them to litigation in California. Requiring them to defend in California would impose an unjustifiable and unreasonable burden on them. Consequently, defendants Wainscott, QBSL, Napolitano and the Arizona State Bar are dismissed for lack of personal jurisdiction.

 

3. Lack of service and proof of service as to defendants Marquez, United States, Ashcroft, Anderson, the California Bar, Davis, Montoya and Plummer.
  Plaintiff has not filed a proof of service to the Court for any of the defendants. Plaintiff filed this complaint on May 27, 2003. Under Federal Rule of Civil Procedure 4(m) a plaintiff has 120 days from the date of filing to serve the defendants. Plaintiff had until September 26, 2003 to serve defendants. Plaintiff has not yet filed proof of service with the court. As to the claims against defendants Janice Marquez, United States et al., John Ashcroft, Ernest Anderson, the California Bar, Gray Davis, Steve Montoya and Charles Plummer, the Court dismisses this action without prejudice.

 4. Plaintiff's motion to dismiss all dismissal motions.

  Having filed suit against defendants, plaintiff may not now invoke this court's assistance in barring defendants from filing motions in their own defense. Plaintiff's motion is DENIED.

  CONCLUSION

  For the foregoing reasons, the Court GRANTS the motions by defendants Sedwick and McNamee's dismiss for failure to state a claim and DISMISSES with prejudice the claims against them Page 8 and against defendants Porter and Grimmer. The Court DISMISSES with prejudice the claims against defendants Wainscott, QBSL, Napolitano, and the Arizona State Bar for lack of personal jurisdiction and lack of service of process; and DISMISSES without prejudice the claims against defendants Marquez, United States, Ashcroft, Anderson, the California Bar, Davis, Montoya and Plummer for lack of service of process. The Court DENIES plaintiff's motion to dismiss all dismissal motions. [Docket ## 8, 12, 17.]

  IT IS SO ORDERED.


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