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WOODRUFF v. MUELLER

United States District Court, N.D. California


March 24, 2004.

KEVIN PAUL WOODRUFF, Plaintiff,
v.
ROBERT MUELLER III et al, Defendants

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER

Before the court are plaintiff's motion for reconsideration (Doc # 27), plaintiff's petition for entry of default (Doc # 41), a motion to dismiss (Doc # 33) filed by Robert Mueller III, J W Lawrence, Craig Jacobsen, Stephen Meagher, Barbara Valliere and the United States (collectively, the "federal defendants") and plaintiff's response (Doc ## 29-30) to the court's order to show cause (Doc # 26). According to the analysis below, the court DENIES plaintiff's motion for reconsideration (Doc # 27), DENIES plaintiff's petition for entry of default (Doc # 41) and GRANTS the federal defendants' motion to dismiss (Doc # 33) and Page 2 concludes that plaintiff has failed to discharge the court's order to show cause.

I

  A

  On March 26, 2003, the court dismissed plaintiff's complaint in the above-captioned case. Doc # 26. The court dismissed with prejudice all claims based on defendant's conduct in plaintiff's criminal prosecution. The court dismissed without prejudice any claims based on defendant's administrative or investigative conduct. The court further dismissed without prejudice any tort claims unrelated to plaintiff's criminal conduct. Plaintiff was given leave to file an amended complaint on or before May 15, 2003. Finally, the court ordered plaintiff to show cause why the action should not be dismissed for failure to serve a number of the defendants.

  Plaintiff filed a first amended complaint ("FAC") on July 18, 2003. FAC (Doc # 32). The court notes that plaintiff failed to name each of the defendants in the caption to the complaint, but merely wrote "Robert S. Mueller, III et al." Naming each party in the caption of the complaint is required under the Federal Rules of Civil Procedure. See FRCP 10(a). In broadly construing plaintiff's pro se complaint, the court looks to the body of the complaint to determine whom the plaintiff intended to name as defendants. See Haines v. Kerner, 404 OS 519, 520 (1972) ("We [hold] allegations of the pro se complaint * * * to less strict standards than formal pleadings drafted by lawyers."). // Page 3

  The federal defendants move the court to dismiss plaintiff's FAC on three grounds. First, the federal defendants argue that plaintiff's failure to file the FAC within the time period described by the court suffices for dismissal with prejudice for failure to prosecute under FRCP 41(b). Defs Mot (Doc # 33) at 3. Second, the federal defendants argue that plaintiff has not alleged unlawful conduct, or in other words, plaintiff has failed to state a claim upon which relief may be granted. Id. at 4. Finally, the federal defendants contend that plaintiff has not alleged that plaintiff complied with the administrative claim presentation requirements of 28 U.S.C. § 2675(a) in order to proceed with a tort claim against the federal government and its employees. Id.

  Because the court finds the second ground sufficient to dismiss plaintiff's FAC, the court does not reach the other two grounds.

  B

  Under FRCP 12(b)(6), dismissal is proper if the complaint fails "to state a claim upon which relief can be granted." The court must accept the factual allegations as true and construe them in the light most favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir 2003). Although a plaintiff is not held to a "heightened pleading standard," the plaintiff must provide more than mere "conclusory allegations." Swierkiewicz v. Sorema NA, 534 U.S. 506, 515 (2002) (rejecting heightened pleading standards); Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir 2002) (rejecting conclusory allegations). A Page 4 motion to dismiss must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  "[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." Lopez v Smith, 1122, 1127 (9th Cir 2000). The district court has broad discretion, however, to deny leave to amend after the first amendment of the complaint. See Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1111 (9th Cir 2003).

  C

  The court agrees with the federal defendants that "it is difficult to construe the claims set forth in the amended complaint." Defs Mot (Doc # 33) at 4:6-7. The court, however, must attempt to construe the FAC to determine whether a claim for which relief can be granted has been stated and thus begins its task.

  Plaintiff pleads three causes of action in his FAC. The first cause of action appears to have two primary factual components. The first is the existence of a "lien" and the second is the creation of a "fictitious business entity." See FAC (Doc # 32) at II 24-26. Plaintiff appears to claim that the federal defendants obtained a "lien" on plaintiff's liberty and property during plaintiff's criminal prosecution, conviction and incarceration. Id. at II 24-26, 33 & Prayer II 1-2. Plaintiff also claims that the federal defendants created a fictitious entity Page 5 "Woodruff, Kevin Paul" that is separate from the "real natural living human being, Kevin Paul surnamed Woodruff." Id. at ¶¶ 25-26.

  Using these two factual components, plaintiff makes the following legal claim. See FAC (Doc # 32) at ¶¶ 24-26. Plaintiff claims that the government and its agents can take property and liberty only from fictitious legal entities. Plaintiff claims that the government attempted to convert plaintiff into a mere fictitious entity named "Woodruff, Kevin Paul" when the government criminally prosecuted plaintiff. Id. at ¶ 25. Plaintiff argues that such an attempted conversion was improper because plaintiff is not a mere fictitious legal entity but is a "real natural living human being, Kevin Paul surnamed Woodruff." Id. at ¶ 26. From this, plaintiff concludes that he should be released from prison, that all property taken from him should be restored and that he should be awarded a substantial damages award.

  Because plaintiff failed to oppose the motion to dismiss (Doc # 32) filed by the federal defendants, the court can only speculate what legal authority plaintiff would introduce to attempt to prove his unconventional argument. It is clear to the court, however, that the government does have the power to take both property and liberty from real individuals so long as the government does so within the confines of the constitution and the laws enacted thereunder.

  Accordingly, the court DISMISSES with prejudice plaintiff's first cause of action as to the federal defendants. Page 6

  D

  The court has had a more difficult time understanding plaintiff's second cause of action. Plaintiff seems to contend that the federal government is a corporation that has not filed a corporate charter in the state of California. From this, plaintiff concludes that the government cannot take any actions within California. See FAC (Doc # 32) at II 27-29, 41. Plaintiff supports this conclusion with the further allegation that the government is bankrupt and has given "total Control of the United States to international Bankers, which is a paramount and totally "permanent Lien" on the Citizens of the Several (50) States and their assest [sic]." Id. at ¶¶ 28-29.

  Again, because plaintiff did not respond to the federal defendants' motion to dismiss (Doc # 32), the court can only speculate what legal authority plaintiff would offer. It is clear to the court, however, that the government can take actions in California so long as it does so within the confines of the constitution and the laws enacted thereunder.

  Accordingly, the court DISMISSES with prejudice plaintiff's second cause of action as to the federal defendants.

  II

  On April 14, 2003, plaintiff filed a document titled a motion for reconsideration (Doc #27) related to the court's March 26, 2003, order. Plaintiff did not address the merits of his motion for reconsideration, but merely requested an enlargement of time until June 5, 2003, in which to file the motion. He stated that his prison had been in lock-down and that he was thus unable Page 7 to access legal research materials to research the basis for the court's decision.

  Although nine months have passed since June 5, 2003, plaintiff has not yet filed a memorandum of points and authorities to support his motion. It appears to the court that plaintiff has abandoned his motion for reconsideration. Accordingly, the court TERMINATES plaintiff's motion for reconsideration as an administrative matter (Doc # 27).

  III

  As mentioned above, the court ordered plaintiff to show cause why the court should not dismiss a number of defendants for lack of proper service. Order (Doc # 26) at 12-13, 15-16. These defendants are William Lockyer, Harriet Ross, Arthur Pirelli and Stan Brandon (collectively, the "remaining defendants"). Plaintiff did not rename Alvaro Herrera, Henry Birks & Sons, Mark Areias, Sam Bloch or Arthur Oppenheimer in the FAC and thus these persons are no longer defendants in the above-captioned action.

  Plaintiff responded to the court's order to show cause. See Doc ## 29-30. Plaintiff argues that he properly served the remaining defendants but that a court clerk in the Northern District of California, R Martinez, did not file the proofs of service. Pl Resp (Doc ## 29-30). After responding to the court's order to show cause, plaintiff filed a motion for default with the clerk and a petition for default with the court. See Doc ## 36, 41. Plaintiff attached copies of the documents used in plaintiff's attempt to serve the remaining defendants as exhibits to the motion and petition for entry of default. Page 8

  The attachments to plaintiff's petition for default fail to demonstrate that service has been effected.

  Plaintiff provides evidence that he mailed requests for waiver of service under FRCP 4(d) to all of the remaining defendants except Brandon. See Doc # 36. Plaintiff has filed with the court copies of the requests for waiver of service that he mailed. Id. But merely mailing a request for waiver of service does not suffice to effect service; instead, the defendant to whom the waiver of service is addressed must sign and return the waiver. FRCP 4(d). Moreover, plaintiff failed to provide even an unsigned waiver of service sent to Brandon. Accordingly, plaintiff has failed to provide proofs of service as required by the court in its order to show cause. See Order (Doc # 26) at 12-13, 15-16.

  The court's discretion in determining whether to dismiss the action for failure to serve the summons and complaint is governed by FRCP 4(m), which reads:

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court * * * shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Id. If the court finds that a plaintiff has shown good cause why service was not made within 120 days after filing the complaint, then the court must extend the time period. In re Sheehan, 253 F.3d 507, 512 (9th Cir 2001). The court also has the discretion to "direct that service be effected within a specified time period," even if good cause is not shown. FRCP 4(m); In re Sheehan, 253 F.3d at 512. Page 9

  The complaint in this action was received by defendants on June 10, 2002, and removed on July 10, 2002. See Not of Removal (Doc # 1). Accordingly, well more than 120 days have elapsed.

  Further, plaintiff has failed to demonstrate good cause for failure to serve. Plaintiff merely places blame on the court clerk even though the documents that plaintiff has subsequently furnished to the court demonstrate that plaintiff failed properly to serve the remaining defendants.

  Accordingly, the court finds that plaintiff has not demonstrated good cause and DISMISSES the complaint against the remaining defendants.

  IV

  Only two defendants remain in plaintiff's FAC. First, it appears that plaintiff attempted to rename Ronald Tyler in the FAC. See FAC (Doc # 32) at ¶ 6. Although plaintiff writes "Robert Tyler," the court's prior order noted that plaintiff intended to sue Ronald Tyler. See Order (Doc # 26) at 16-18.

  Although Tyler has not moved the court to dismiss the above-captioned action, the court finds it unnecessary to entertain a formal motion from Tyler. The factual allegations against Tyler are identical to those against the federal defendants. Compare FAC (Doc #32) at ¶ 6 (allegations against Tyler), with Id. at ¶ 3 (allegations against Mueller). The court's basis for dismissing the claims against the federal defendants applies with equal force to Tyler. Accordingly, the court DISMISSES with prejudice plaintiff's claim in the FAC against Tyler. Page 10

  Second, plaintiff's FAC added a third cause of action against a new defendant. Id. at ¶ 8. Plaintiff's third cause of action is based on the alleged misconduct of a court clerk in the Northern District of California described above. Plaintiff alleges that a clerk, R Martinez, violated plaintiff's rights by "not serving upon the court Plaintiff's request for Judicial Notice." Id. at ¶ 31. As explained in detail above, plaintiff appears to claim that the clerk failed to file proofs of service and that this caused plaintiff's motion for default to be denied.

  Plaintiff's addition of Martinez was improper because plaintiff did not obtain leave of court. A plaintiff has a right to amend his pleading "once as a matter of course at any time before a responsive pleading is served." FRCP 15(a). "`Neither the filing nor granting of such a motion [a motion to dismiss] before answer terminates the right to amend.'" Doe v. United States, 58 F.3d 494, 497 (9th Cir 1995) (quoting Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir 1986)). But leave to amend must be obtained to add a new defendant, even before a responsive pleading has been served. See Moore v. Indiana, 999 F.2d 1125 (7th Cir 1993).

  Because plaintiff did not obtain leave to add Martinez to his complaint and Martinez is the only defendant named in plaintiff's third cause of action, the court DISMISSES plaintiff's third cause of action against Martinez.

  V

  In sum, the court DENIES plaintiff's motion for reconsideration (Doc # 27) and plaintiff's petition for entry of Page 11 default (Doc # 41). The court GRANTS the federal defendants' motion to dismiss (Doc # 33). The court finds that plaintiff has failed to discharge the court's order to show cause (Doc # 26) and DISMISSES the claims of the "remaining defendants." The court DISMISSES the claims against Ronald Tyler. Finally, the court DISMISSES plaintiff's third cause of action because plaintiff failed to obtain leave to amend. Because this order disposes of all claims and all defendants, the clerk is DIRECTED to terminate all pending motions and close the file.

  IT IS SO ORDERED.

20040324

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