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United States District Court, N.D. California

May 27, 2004.


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 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).


  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.



  FRCP 12(b)(6) motions to dismiss essentially "test whether a cognizable claim has been pleaded in the complaint." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir 1988). FRCP 8(a), which states that plaintiff's pleadings must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," provides the standard for judging whether such a cognizable claim exists. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir 2001). This standard is a liberal one that does not require plaintiff to set forth all the factual details of his claim; rather, all that the standard requires is that plaintiff give defendant fair notice of the claim and the grounds for making that claim. Leatherman v Tarrant County Narcotics Intell & Coord Unit, 507 U.S. 163, 168 (1993) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). To this end, plaintiff's complaint should set forth "either direct or inferential allegations with respect to all the material elements of the claim". Wittstock v. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir 2003).

  Under Rule 12(b)(6), a complaint "should not be dismissed for failure to state a claim 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." Hughes v. Rowe, 449 U.S. 5, 10 (1980) (citing Haines v Kerner, 404 U.S. 519, 520 (1972)); see also Conley, 355 US at 45-46. All material allegations in the complaint must be taken as true and construed in the light most favorable to plaintiff. See In re Silicon Graphics Inc Sec Litig, 183 F.3d 970, 980 n10 (9th Cir 1999). The court may also consider documents attached to the complaint in connection with a FRCP 12(b)(6) motion to dismiss. Parks School of Business, Inc v Symington, 51 F.3d 1480, 1484 (9th Cir 1995). The court may not, however, consider other documents outside the pleadings. Arpin v Santa Clara Valley Transp Agency, 261 F.3d 912, 925 (9th Cir 2001).


  Foley's sole federal claim against any of defendants is his claim that defendants allegedly violated his due process rights under the federal constitution. Compl at 16 ¶¶ 43-46. Although the claim is not expressly identified as such, Foley's claim that his due process rights have been violated is an action under 42 U.S.C. § 1983, since that statute is the "mechanism through which plaintiffs may bring causes of action to remedy violations of the federal constitution." Vogel v San Mateo Cty, 1999 US Dist LEXIS 1409, *17 (ND Cal) (Illston, J) (citing Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir 1995)). The two material elements of a § 1983 claim are: (1) whether the offending conduct was committed by a person acting under the color of state law; and (2) whether the offending conduct deprived plaintiff of rights secured by the constitution or laws of the United States. Parrat v. Taylor, 451 U.S. 527, 535 (1981); Azer v. Connell, 306 F.3d 930, 935 (9th Cir 2002). To survive a 12(b)(6) motion to dismiss, therefore, Foley must either state or imply in his pleadings that defendants acted under the color of state law and that such action deprived Foley of his federal constitutional or statutory rights. WMX Technol, Inc v. Miller, 197 F.3d 367, 372 (9th Cir 1999).

  Here, Foley's complaint is deficient in both respects. As a threshold matter, Foley has failed adequately to plead that defendants have acted under the color of state law. To meet the color of state law test, defendants must be fairly considered state actors. This means that defendants must either "[be] state official[s] * * *[,] ha[ve] acted together with or ha[ve] obtained significant aid from state officials, or * * * [engaged in] conduct [that] is otherwise chargeable to the state." Lugar v. Edmondson Oil Co, 457 U.S. 922, 937 (1982). Foley broadly alleges that defendants have acted "under the color of state law." Compl at 10 ¶ 26. But nowhere in his complaint or reply brief does Foley allege that Kennedy or his clients are state officials of some sort. Although private parties can become state actors for § 1983 purposes by acting together with state actors or obtaining aid from state officials, the plaintiff must allege the basis for attributing state action to such private actors. Foley's complaint must thus allege some basis for converting Kennedy and his clients into state actors under § 1983.

  The Ninth Circuit has considered three bases for finding that a private party acted under the color of state law: (1) the "joint action" test, which inquires whether the private actor is a "willful participant[] in joint action with the government or its agents"; (2) the "symbiotic relationship" test, which examines whether the "government has so far insinuated itself into a position of interdependence with a private entity that the private entity must be recognized as a joint participant in the challenged activity"; and (3) the "public function" test, which asks whether the private actor "performs functions traditionally and exclusively reserved to the States." Brunette v. Humane Society of Ventura County, 294 F.3d 1205, 1210 (9th Cir 2002), cert denied 2003 US LEXIS 691 (US Jan 13, 2003). All three inquiries are designed to test whether the decision to take the alleged discriminatory action can be fairly attributed to the state. Lugar, 457 US at 938.

  Foley's complaint does not contain a sufficient basis for demonstrating that Kennedy and his clients might be considered state actors. From reading the complaint, the court can identify two allegations that might possibly form the basis for Foley's claim that Kennedy and his clients acted under the color of state law: (1) all of the defendants, including the State Bar, have engaged in a "conspiracy"; and (2) Kennedy and his clients have filed a frivolous lawsuit "under the color of law." Neither of these allegations is sufficient to covert Kennedy and his clients into state actors under § 1983.

  First, Foley's allegations regarding a conspiracy with the State Bar to deprive Foley of his rights are insubstantial. The only mention of the State Bar in Foley's complaint seems to be the following:

Defendant California State Bar is grossly deficient in its enforcement and oversight functions. Kennedy's conduct is prima facie evidence that the Bar is more concerned with preserving its membership than policing its members. Bar members cannot be allowed to bring frivolous lawsuits without sanction. Fraudulent acts under the color of state law cannot go unpunished. The California State Bar holds itself out to the public as having an enforcement process, together with standards for maintaining competence. The California State Bar, through its [a]ttorneys like Kennedy, fraudulently induces reliance on their false representations and manipulations of the public trust.
Foley Compl at 4 ¶ 7. Stripped to its essentials, Foley's allegation regarding the State Bar is that the regulation of attorney Kennedy is inadequate to protect the public from allegedly frivolous lawsuits. Beyond that, Foley has failed to plead that any substantive connection exists between Kennedy (or his clients) and the State Bar — Foley does not even allege that the State Bar is aware of Kennedy's allegedly wrongful actions. As such, the "conspiracy" allegations in Foley's complaint do not demonstrate that Kennedy or his clients were "willful participants" in joint action with the State Bar or that they have a "symbiotic relationship" with the State Bar. Foley's conclusory allegation regarding the State Bar is wholly without support. Second, Kennedy and his clients cannot be converted into state actors by virtue of Foley's allegations that they filed a frivolous lawsuit. A private litigant's choice to file a lawsuit in federal court is not enough to convert that litigant or his lawyer into a state actor. See Edmonson v. Leesville Concrete Co, 500 U.S. 614, 627-28 (1991) (distinguishing private litigants' use of peremptory challenges from other actions taken in a civil suit and stating that "in most civil cases, the initial decision whether to sue at all, the selection of counsel, and any number of ensuing tactical choices in the course of discovery and trial may be without the requisite governmental character to be deemed state action"). The mere filing of a lawsuit certainly does not invoke the "overt, significant assistance of state officials." Id at 622 (citing Tulsa Professional Collection Services, Inc v. Pope, 485 U.S. 478, 485 (1988)). To hold otherwise would convert all plaintiffs in civil actions, no matter what the circumstances, into state actors for constitutional purposes. The court cannot agree with such a sweeping and implausible proposition.

  Irrespective of the color of state law issue, Foley's complaint also does not state a valid § 1983 cause of action because Foley fails adequately to plead that he has been deprived of his constitutional right to due process. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1979), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). To state a procedural due process claim, Foley must plead facts that establish: (1) the deprivation of a constitutionally protected liberty or property interest; and (2) the denial of adequate procedural protections. Brewster v. Bd of Educ of Lynwood Unified School Dist, 149 F.3d 971, 982 (9th Cir 1998). Nowhere in his complaint does Foley identify the liberty or property interest of which he has been deprived. Foley states that he "is obviously not responsible for maintaining a building that he does not own[,]" that he has suffered "emotional distress, humiliation, embarrassment, and monetary damages" and that defendants have engaged in "abuse of process." Foley Comp at 16 ¶ 44-46. None of those allegations identify a liberty or property interest for which Foley is entitled to due process protections. Nor do the allegations demonstrate that Foley has been deprived of such an interest. Foley's due process claim must thus fail on this ground as well.

  Accordingly, with respect to Foley's claim for a due process violation, the court GRANTS Kennedy and his clients' motion to dismiss (Foley Doc # 12). Furthermore, the State Bar has not been served and thus obviously has not moved for dismissal. Because more than 120 days have lapsed since the filing of the complaint, the complaint is subject to dismissal without prejudice against the State Bar after notice to Foley. See FRCP 4(m). Because Foley has not been provided such notice, the court will not dismiss the complaint against the State Bar on that basis. But the court will not, as it might usually do, order Foley to show cause why the complaint should not be dismissed for failure to effect timely service. Foley should note that, as he has neither articulated a liberty or property interest of which he has been deprived nor alleged any meaningful basis for the State Bar's involvement in the alleged "conspiracy" to deprive him of his due process rights, the existing complaint fails to state a claim against the State Bar. Hence, any attempt by Foley to show cause would certainly appear to be a futile exercise. There is authority under such circumstances for dismissal of the due process claim against the State Bar. See In re Colonial Mortgage Bankers Corp, 324 F.3d 12, 16 (1st Cir 2003) (stating that when dismissal was obviously warranted based on court's previous decision on an issue, the court could dismiss the claim "[e]ven without a motion"). But above all, it appears that Foley wishes voluntarily to dismiss the State Bar as a defendant. Pl CMC Stmt (Foley Doc # 23) at 3:15. Accordingly, Foley's federal due process claim is DISMISSED in its entirety.


  The court now turns to Foley's six state law causes of action. Foley's complaint does not state the basis for the court's jurisdiction over this action generally or those state law claims in particular. See Foley Compl at 3 ¶ 24 (noting under "Jurisdiction and Venue" section that venue is proper in this district but failing to make any allegations regarding jurisdiction). Foley is alleged to be a California domiciliary, and at least two of the defendants appear to also be California citizens: the State Bar (a California state agency) and Kennedy (who is alleged to be a member of the California state bar and whose address on official court filings lists his office to be in California). Thus, complete diversity does not appear to exist, and diversity jurisdiction therefore does not seem to be a viable alternative. See, e g, Caterpillar Inc v. Lewis, 519 U.S. 61, 68 (1996). The only basis for jurisdiction the court can divine from the complaint is Foley's single federal claim for a due process violation, which the court has just dismissed.

  Given that the court has dismissed Foley's single federal claim, the court declines to take supplemental jurisdiction over the remaining six state law claims, pursuant to 28 § 1367(c). In making the decision whether to decline supplemental jurisdiction over related state law claims, the court must: (1) identify "a factual predicate that corresponds to one of the section 1367(c) categories [permitting the court to decline jurisdiction]"; and (2) consider whether dismissing the pendent state law claims would accommodate the values of "economy, convenience, fairness, and comity." Executive Software North America, Inc v. United States District Court, 24 F.3d 1545, 1557 (9th Cir 1994) (citations omitted).

  First, § 1367(c) provides that the court may decline to exercise supplemental jurisdiction over pendent state claims in four circumstances: (1) when the state claim or claims raise a "novel or complex" state law issue; (2) when the state claim or claims "substantially predominate[]" over the federal claims; (3) when the court has dismissed all federal claims; and (4) in "exceptional circumstances" that provide "compelling reasons" for declining jurisdiction. Thus, as in the case at bar, the elimination of all federal claims provides a sufficient factual predicate to trigger the inquiry into the appropriateness of the court's exercising supplemental jurisdiction over the remaining state claims. See Executive Software, 24 F.3d at 1557; 28 U.S.C. § 1367(c)(3). Indeed, the general rule is that district courts should relinquish jurisdiction over pendent state law claims when all federal claims are dismissed before trial. United Mine Workers of America v Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."). Therefore, the fact that the court has dismissed Foley's sole federal claim suggests that the court should decline jurisdiction over his remaining state claims.

  As noted above, however, the inquiry does not end here. The court must also consider whether dismissal in this particular instance will serve the values of judicial economy, convenience, fairness, and comity. Executive Software, 24 F.3d at 1557; see Gibbs, 383 US at 726 (noting that pendent jurisdiction is "a doctrine of discretion * * * [and] [i]ts justification lies in considerations of judicial economy, convenience and fairness to litigants * * * *"). Since the court must avoid "[n]eedless decisions of state law as a matter of comity and to promote justice between the parties * * *," it should usually dismiss pendent state claims in situations in which all federal claims have been dismissed. Gibbs, 383 US at 726. In exceptional cases, however, the balance of factors to be considered under the pendent jurisdiction doctrine will point to federal decision of the state law claims. Wright v. Associate Ins Cos Inc., 29 F.3d 1244, 1251 (7th Cir 1994); see Carnegie-Mellon Univ v. Cohill, 484 U.S. 343, 350 (1988); Trustees of the Construction Industry and Laborers Health and Welfare Trust v. Desert Valley Landscape & Maintenance, Inc., 2003 US App. LEXIS 12634, *6-*7 (9th Cir).

  Here, the court can identify no exceptional factors that would counsel in favor of retaining jurisdiction in this case. This case is not near trial, and the court has not invested many of its own resources into handling this case. Additionally, Foley would suffer no prejudice from dismissal. Because the statute of limitations has been tolled while this matter has been in federal court, and because any dismissal would be without prejudice, Foley would be able to refile his state claims in state court. See 28 U.S.C. § 1367 (d) (providing for tolling of statute of limitation). Further, the gist of Foley's case appears to be directed at the propriety of Kennedy's conduct as a legal professional. The standard of professional conduct for lawyers is traditionally an area defined and regulated by the state. The court has not devoted sufficient attention to Foley's state law claims to warrant federal incursion into areas over which the state courts have greater expertise.

  The only possible unusual circumstance that might justify the retention of jurisdiction is the fact that Foley's claims in this case are essentially the same as the counterclaims he filed in the Home Coach case. The Home Coach plaintiffs, however, have long since filed a notice of voluntary dismissal in that case. And in light of Foley's failure to oppose the motion to dismiss and his failure to respond to the court's October 7, 2003, order to show cause, the court surmises that Foley has evidently given up his pursuit of the counterclaims in the Home Coach case. Perhaps Foley has abandoned his counterclaims in Home Coach in favor of pursuing this separate lawsuit. In any event, to the extent that the counterclaims in Home Coach remain alive, they would seem to suffer from the same infirmities that plague Foley's claims in the instant matter. In other words, the court would likely dispose of the counterclaims in Home Coach in the same manner that it has disposed of the claims in the instant matter. Thus, there seem no risk of inconsistent judgments in the two cases.

  The court can therefore identify no basis upon which to exercise its discretion to retain jurisdiction over Foley's state law claims. Accordingly, the court DISMISSES those claims without prejudice to refiling in state court and TERMINATES the remainder of Kennedy and his clients' motion to dismiss (Foley Doc #12) as an administrative matter.


  The court next turns to Foley's motions for summary judgment (Foley Docs ## 8, 24). Because the court herein has granted Kennedy and his clients' motion to dismiss the due process claim and has declined to take supplemental jurisdiction over the remaining state claims, there is no current cause of action pending upon which Foley might be entitled to summary judgment. Thus, Foley's motions for summary judgment must be terminated as moot. Even were the motion not mooted by the court's ruling on the motion to dismiss, Foley's motions for summary judgment fail to comply with Civ LR 7-2(a), which provides that "all motions must be filed, served and noticed in writing on the motion calendar of the assigned Judge for hearing not less than 35 days after the service of the motion." Foley's first motion for summary judgment (Foley Doc #8) is not noticed for a hearing date on the court's motion calendar, as is required by Rule 7-2(a). Foley's second motion for summary judgment (Foley Doc # 24) was filed only 15 days before the noticed hearing date. "Plaintiff should be aware that although he is * * * representing himself in this action, he is nevertheless obligated to follow the same rules as represented parties." See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir 1987). Lack of awareness of the applicable rules and procedures is no excuse for failure to comply with those rules. See Swimmer v IRS, 811 F.2d 1343, 1344 (9th Cir 1987). Thus, were the motions still pending, they would be denied based on failure to comply with appropriate court procedures.

  The court also notes for Foley's benefit that to prevail on such a summary judgment motion, he would have to make a much stronger showing than he makes in the motions currently on file. Foley's motions fail to identify on which claim he seeks summary judgment. Further, Foley's motions, which consist largely of his personal criticism of Kennedy, do little to demonstrate that Foley is entitled to summary judgment on any of his claims. For example, Foley fails to make any substantial legal argument regarding the merits of his underlying claims. Foley also fails to produce evidence (such as affidavits, exhibits, etc) that would demonstrate that he can make a prima facie showing on any of his claims against defendants. Additionally, Foley should be aware that, in reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Therefore, before filing a summary judgment motion, Foley should be prepared to show that the facts are undisputedly in his favor as to each element of his case against defendants.

  Accordingly, Foley's motions for summary judgment (Foley Docs ## 8, 24) are TERMINATED as moot.


  Finally, the court addresses Foley's motions for sanctions (Foley Docs ## 15, 24). FRCP 11(c) authorizes a court to assess sanctions against an attorney when he violates the rule that pleadings must, "`to the best of his knowledge, information and belief, formed after reasonable inquiry, [be] well grounded in fact and [be] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that [they] not [be] interposed for an improper purpose.'" Stewart v. American Intl Oil & Gas Co, 845 F.2d 196, 201 (9th Cir 1988), quoting Huettig & Schromm, Inc v Landscape Contractors Counc Nor Cal, 790 F.2d 1421, 1426 (9th Cir 1986). "The two problems that [FRCP 11] addresses * * * are frivolous filings and the use of judicial procedures as a tool for harassment." Stewart, 845 F.2d at 201 (citing Hudson v Moore Business Forms, Inc., 836 F.2d 1156, 1159 (9th Cir 1987)). Foley's stated ground for Rule 11 sanctions is that "defendant's prefiling inquiries in [Home Coach] were grossly inadequate, and that monetary sanctions are warranted and necessary to deter future violations." Mot Sane I (Foley Doc # 15) at 1:27-29.

  Based on numerous defects in Foley's request for sanctions, the court must deny the motions. First, the second such motion (Foley Doc # 24) was filed a mere 15 days before the noticed hearing date and thus violates Civ LR 7-2(a). Second, Foley's requests for sanctions do not appear to pertain to any filings in the present action; rather, Foley seeks sanctions on the basis of defendants' filings in Home Coach, a separate case. Foley presents no argument or authority that would authorize the court to grant sanctions against defendants for actions committed in a separately filed case. Third, Foley's requests for sanctions seem essentially to be a mechanism for obtaining part of the relief to which he believes he is entitled under the claims in the present action. As outlined above, the claims in Foley are based on defendants' filing of an allegedly frivolous lawsuit in Home Coach, and Foley seeks damages on that basis. Foley's current motions for sanctions are based on this same allegedly frivolous filing and, if granted, would effectively award Foley a portion of the relief he seeks under his substantive claims. This would clearly be an improper outcome, especially in light of the fact that the court has dismissed Foley's due process claim and declined supplemental jurisdiction over the remaining state law claims. Finally, Foley relies solely on rhetoric in his motions and provides no documentation whatsoever that would support his claim that defendants' conduct in the Home Coach case is sanctionable. Under these circumstances, the court clearly can do nothing but DENY Foley's motions for sanctions (Foley Docs ## 15, 24).


  For the foregoing reasons, the court: (1) GRANTS Kennedy and his clients' motion to dismiss (Foley Doc # 12) with respect to Foley's due process claim and DISMISSES that claim against all defendants; (2) DECLINES to take supplemental jurisdiction over the remaining state law claims, DISMISSES those claims without prejudice and TERMINATES the motion to dismiss (Foley Doc # 12) with respect to those claims; (3) TERMINATES as moot Foley's motions for summary judgment (Foley Docs ## 8, 24); and (4) DENIES Foley's motions for sanctions (Foley Docs ## 15, 24). Should Foley wish to file an amended complaint that rectifies the shortcomings identified in this order, he should do so no later than 60 days from the date of this order. With respect to any future filings, Foley is strongly advised to comply with the Federal Rules of Civil Procedure, the civil local rules and all court orders. Additionally, the hearing currently scheduled for May 20, 2004, is VACATED. The clerk is directed to close the file and terminate all pending motions.



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