United States District Court, N.D. California
March 24, 2004.
KEVIN PAUL WOODRUFF, Plaintiff,
ROBERT MUELLER III et al, Defendants
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
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
concludes that plaintiff has failed to discharge the court's order
to show cause.
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
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."). //
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.
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
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).
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
"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.
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.
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
to access legal research materials to research the basis for the
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).
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
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.
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
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.
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
Accordingly, the court finds that plaintiff has not demonstrated good
cause and DISMISSES the complaint against the remaining defendants.
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.
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
In sum, the court DENIES plaintiff's motion for reconsideration (Doc #
27) and plaintiff's petition for entry of
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.
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