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FOLEY v. KENNEDY

May 27, 2004.

DARRELL D FOLEY dba HOME COACH REALTY, Plaintiff
v.
J GRANT KENNEDY, CALIFORNIA STATE BAR, RICHARD WHITEHURST, GEORGE S LOUIE and AMERICANS WITH DISABILITIES ADVOCATES, Defendants



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

ORDER

Pro se plaintiff Darrell D Foley is a small-business owner whose business, Home Coach Realty, defendants George S Louie, Richard Whitehurst and Americans with Disabilities Advocates (AWDA) sued in a previous lawsuit for alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. See Americans with Disabilities Advocates v. Home Coach Realty, 03-2127-VRW (Home Coach). Now Foley has filed the instant action, Foley v. Kennedy, 03-2203-VRW (Foley), which is a separate lawsuit against Louie, Whitehurst and AWDA, as well as their attorney, J Grant Kennedy, and the California State Bar.

Currently pending on the court's docket in Foley are several motions: (1) Kennedy and his clients' motion to dismiss pursuant to FRCP 12(b)(6); (2) Foley's motions for summary judgment; and (3) Foley's motions for sanctions. The court finds these matters suitable for determination without oral argument, so the hearing scheduled for May 20, 2004, is VACATED. See Civ LR 7-1(b). Because Foley's complaint fails to state a federal claim upon which relief could be granted, the court GRANTS in part the motion to dismiss (Foley Doc # 12) and declines supplemental jurisdiction over the remaining state law claims. The court also TERMINATES Foley's motions for summary judgment (Foley Docs ## 8, 24) as an administrative matter and DENIES Foley's motions for sanctions (Foley Docs ## 15, 24).

  I

  Plaintiff Foley is a California resident who is the sole proprietor of the "proposed business" known as Home Coach Realty. Foley Compl (Foley Doc #1) at 3 ¶ 5. Defendants Louie and Whitehurst are physically disabled individuals who belong to defendant organization AWDA. Id at 5-6 ¶¶ 8-10. Defendant Kennedy is an attorney licensed in California who represents Louie, Whitehurst and AWDA. Id at 3 ¶ 6. In a nutshell, Foley alleges that Kennedy, Louie, Whitehurst and AWDA conspire to file frivolous lawsuits against small business owners like Foley. Id at 7 ¶ 10. Foley also names the California State Bar, alleging that the State Bar is "grossly deficient in its enforcement and oversight functions" and is "more concerned with preserving its membership than policing its members." Id at 4 ¶ 7.

  With respect to his own business, Foley alleges that he has a pending application for a license to conduct a real estate brokerage business and that he is in the process of securing a valid lease on suite 301, 1760 Solano Avenue, Berkeley, California. Id at 8 ¶¶ 13, 14. Foley, however, has no present ownership interest in the building at that address and has no relationship or association with the building's owners. Id at 8 ¶¶ 15, 16. Foley is conducting the negotiation of his prospective lease with a sublessor, RTC Industries, and not the actual owners of the property. Id at 9 ¶ 17. Furthermore, Foley has not yet opened Home Coach Realty for business and is still in the process of planning his office. Id at 9 ¶¶ 18, 19.

  On May 6, 2003, Louie, Whitehurst and AWDA, through attorney Kennedy, filed the complaint in Home Coach, naming Home Coach Realty, the 1760 Solano Professional Building and Arnold and Dorothy Intorf as defendants. Home Coach Doc # 1; see also Foley Compl, Exh A. The Home Coach complaint alleged that the defendants failed to comply with the requirements of the Americans with Disabilities Act Accessibility Guidelines (ADAAG), based on a lack of accessible signage and the number of steps leading into the facility at 1760 Solano Avenue in Berkeley. Home Coach Compl (Home Coach Doc #1) at 6 ¶ 12. Based on these alleged defects, Louie, Whitehurst and AWDA claimed that the defendants had violated the ADA and also included related state law civil rights claims, unfair business practices claims and a negligence claim. Id at 7-12 ¶¶ 19-58. On behalf of Home Coach Realty, Foley filed an answer and counterclaim on May 20, 2003. Home Coach Doc # 3. The counterclaim named Louie, Whitehurst and AWDA, as well as attorney Kennedy and the State Bar, as counter-defendants. The counterclaim stated claims against those counter-defendants for: (1) common law fraud and civil conspiracy; (2) intentional infliction of emotional distress; (3) injunctive & declaratory relief; (4) violation of due process; (5) professional negligence; (6) harassment; and (7) defamation.

  On July 28, 2003, Kennedy and his clients filed a motion to dismiss Home Coach Realty's counterclaims. Home Coach Doc #5. A hearing on the motion was set for October 16, 2003. Home Coach Realty evidently did not make a response to the motion to dismiss, so on October 7, 2003, the court issued an order to show cause why the motion to dismiss should not be considered unopposed. Home Coach Doc # 11. Home Coach Realty did not file a response to that order to show cause.

  On October 21, 2003, the court related the Home Coach case, along with a group of ADA case filed by Louie, Whitehurst and AWDA, to another such case pending on the court's docket. Home Coach Doc #15. A case management conference for all those related cases was set for December 16, 2003. Home Coach Doc # 16. On December 15, 2003, Louie, Whitehurst and AWDA filed a notice of voluntary dismissal of their claims in Home Coach. Home Coach Doc #17. Meanwhile, in addition to the counterclaims filed in Home Coach, Foley had filed the instant action against Louie, Whitehurst, AWDA, Kennedy and the State Bar. On May 12, 2003, eight days before filing the counterclaim in Home Coach, Foley filed the complaint in the instant action. Foley Doc # 1. The Foley complaint is virtually identical to Foley's counterclaim filed in Home Coach. Summons was issued to defendant Kennedy, who appears to have accepted service on behalf of himself and his clients, but no summons was issued to the State Bar. Kennedy and his clients filed a motion to dismiss on June 3, 2003. Foley Doc # 3. That motion to dismiss is substantially identical to the unopposed motion to dismiss Kennedy and his clients filed in the Home Coach case.

  The Foley case was originally assigned to Magistrate Judge Zimmerman, but the undersigned related Foley to Home Coach on July 10, 2003. Foley Doc # 5. Subsequently, on February 23, 2004, Foley filed a motion for summary judgment. Foley Doc # 8. Kennedy and his clients refiled their motion to dismiss on March 8, 2004. Foley Docs ## 12, 13. Foley then filed a motion for sanctions on March 12, 2004. Foley Doc # 15. The court clerk continued the hearing date on all motions to May 20, 2004. Foley Doc # 17.

  Foley filed an opposition to the motion to dismiss on March 25, 2004. Foley Doc # 18. Kennedy and his clients filed oppositions to Foley's motions for summary judgment and for sanctions on April 30, 2004. Foley Docs ## 21, 22. On May 5, 2004, Foley filed another motion for summary judgment and for sanctions, noticing the motion for the May 20 hearing date. Foley Doc # 24.

  Accordingly, the court must decide: (1) whether Foley's claims should be dismissed pursuant to Rule 12(b)(6); (2) whether Foley is entitled to summary judgment; and (3) whether sanctions against defendants are warranted.

  ...


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