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