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 ...