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FOLEY v. MARQUEZ

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 ...


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