United States District Court, N.D. California
March 19, 2004.
DARRELL D. FOLEY, Plaintiff,
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
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
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.
Plaintiff Darrell Foley filed this complaint on May 27, 2003 against 16
defendants. Four of these
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.
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
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.
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
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,
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.
1. Plaintiff has not alleged a viable cause of action against federal and
California state judges, because judges are entitled to judicial
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.
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
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
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 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).
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
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
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.
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
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,
IT IS SO ORDERED.