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United States District Court, N.D. California

June 18, 2004.

CLAUDIA BRISSON, et al., Defendants.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Before the Court are three separately-filed motions to dismiss the above-titled action. The first motion was filed December 17, 2003 by defendants Edwin J. Wilson, Jr. ("Wilson"), Allison D. Daniels ("Daniels"), and Steve Navarro ("Navarro") (collectively, "Navarro defendants"), and scheduled to be heard on February 20, 2004. The second motion was filed January 20, 2004 by defendant Claudia Brisson ("Brisson"), and noticed for hearing on February 20, 2004. The third motion was filed by defendant Rogers Trucking on February 27, 2004, and noticed for hearing on March 26, 2004. The Court, having considered the papers filed in support of and in opposition to the motions, finds the motions appropriate for decision without a hearing, see Civ. L.R. 7-1(b), and hereby VACATES the February 20, 2004 and March 26, 2004 hearings on the matters. For the reasons set forth below, the Court GRANTS the motions and dismisses the action, with prejudice. BACKGROUND

The instant action is one in a series of actions filed by plaintiff Kenneth R. Kinnard ("Kinnard") in both state and federal court, and before various administrative agencies, all relating to alleged wrongs committed by various contractors associated with San Francisco's Minority Business Enterprise ("MBE") program and alleged wrongs committed during the course of litigation arising therefrom.

  The initial complaint in this action was filed on July 3, 2003. On November 14, 2003, the Court dismissed the complaint, with leave to amend, pursuant to Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure. The Court stated:

As currently pleaded, it is impossible to determine the basis for Kinnard's claims against each defendant. It is also impossible to determine, from the allegations of the complaint, how this complaint differs from the many other complaints Kinnard has previously filed.
(See Order Dismissing Complaint With Leave to Amend, filed Nov. 14, 2003, at 3.) The Court also denied the Navarro defendants' request, in their motion to dismiss, that Kinnard be declared a vexatious litigant because the Court was unable to determine the merits of Kinnard's claims. (See id.)

  On December 4, 2003, Kinnard timely filed a First Amended Complaint, asserting five causes of action. The First, Second, Fourth and Fifth Causes of Action, alleging, respectively, "Conspiracy," "Obstruction and Interference with a Federal Lawsuit," violation of 42 U.S.C. § 1985, and violation of 42 U.S.C. § 1981, are brought against all six of the defendants named in the First Amended Complaint, specifically, Kinnard's former attorneys Brisson and Frank DeBenedetto ("DeBenedetto"), Navarro, Navarro's attorneys Wilson and Daniels, and Rogers Trucking. An untitled Third Cause of Action, alleged against Wilson and Daniels, is for "introduc[ing] in The Court a fraudulently produced Superior Court judgment." (See First Amended Complaint ("FAC") ¶ 38.)

  As noted, three motions to dismiss are pending, filed, respectively, by the Navarro defendants, Brisson, and Rogers Trucking. DeBenedetto has not responded to the First Amended Complaint. LEGAL STANDARD

  A motion to dismiss under Rule 12(b)(6) cannot be granted 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." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

  Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any material beyond the pleadings. See Hal Roach Studios, Inc. v. Richard Feiner And Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Material that is properly submitted as part of the complaint, however, may be considered. See id. Documents whose contents are alleged in the complaint, and whose authenticity no party questions, but which are not physically attached to the pleading, also may be considered. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). In addition, the Court may consider any document "the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies," regardless of whether the document is referred to in the complaint. See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). Finally, the Court may consider matters that are subject to judicial notice. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

  In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court may disregard factual allegations if such allegations are contradicted by the facts established by reference to exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).

  In addition, as this action was brought in forma pauperis, the Court has an independent duty, pursuant to 28 U.S.C. § 1915(e)(2), to "dismiss the case at any time" if the Court determines that the complaint "fails to state a claim on which relief may be granted." See 28 U.S.C. § 1915(e)(2).


  A. Scope of Complaint

  Kinnard's First Amended Complaint contains numerous factual allegations that he has alleged previously in his other lawsuits. In Kinnard's opposition to the Navarro defendants' motion to dismiss, however, Kinnard states that "[t]he issues in this action deal with the OBSTRUCTION OF JUSTICE BY DEFENDANTS IN CASE NO C99-4565 PRESENTLY BEFORE THE HONORABLE JUDGE CHESNEY." (See Plaintiffs Opposition to Defendants Motion to Dismiss, filed Jan. 30, 2004, at 2.)

  The Court accepts Kinnard's statement of his intent in filing the instant action, and construes the causes of action set forth in the First Amended Complaint as based solely on defendants' alleged obstruction of justice in Case No. C-99-4565. The Court considers all other factual allegations in the First Amended Complaint as background information and not the basis for any causes of action alleged in the First Amended Complaint.

  B. Third Cause of Action

  In Kinnard's opposition to the Navarro defendants' motion to dismiss, he states that he "made an error in referring to this as a cause of action and will drop this 3rd cause, that is being pursued in a State court of equity." (See Plaintiff's Opposition to Defendants Motion to Dismiss, filed Jan. 30, 2004, at 8.)

  According, Kinnard's Third Cause of Action is DISMISSED, with prejudice.

  C. First, Second, and Fourth Causes of Action

  Kinnard's First, Second, and Fourth Causes of Action all allege a conspiracy among the defendants to obstruct justice by unlawfully interfering with Kinnard's federal lawsuit. The Court is unaware of any civil cause of action for conspiracy to obstruct justice, other than that set forth in 42 U.S.C. § 1985(2). Accordingly, the Court construes all three causes of action as an attempt to state a claim for violation of § 1985(2). Section 1985(2) contains two clauses that give rise to separate causes of action, only the first of which addresses conspiracies to obstruct justice in federal courts. See Portman v. County of Santa Clara, 995 F.2d 898, 908-09 (9th Cir. 1993). The first clause of § 1985(2) provides:

If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror[.]
See 42 U.S.C. § 1985(2). "The civil remedy for a violation of any one of the subsections of [§ 1985] is found at the end of § 1985(3)." Kush v. Rutledge, 460 U.S. 719, 724 (1983). Section 1985(3), in relevant part, provides: "[I]n any case of conspiracy set forth in [§ 1985], if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, where another is injured in his person or property, . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." See 42 U.S.C. § 1985(3).

  Kinnard alleges that Rogers Trucking, Navarro, Wilson, and Daniels conspired to prevent Case No. C-99-4565 "from going forward" by "recruiting" DeBenedetto and Brisson "to join the conspiracy by committing intentional violation of the rules and intentional filing documents late," (see FAC ¶ 25), and that DeBenedetto "intentionally filed documents with the Court late and although admonished by the Court and given a road map on how to cure deficiencies, DeBenedetto refused to cure the deficiencies." (See id.) Defendants' lawyers allegedly inquired of the Court, in letters and pleadings, "why the Court would continue to allow `plaintiff' to violate Court orders and requesting that the complaint be dismissed," (see id. ¶ 26), and DeBenedetto allegedly erred intentionally in filing motions for leave to amend, (see id. ¶ 27). Kinnard further alleges that Brisson "employed a campaign of obstruction and interference with plaintiff's lawsuit, FALSELY representing to attorney Craig Martin . . . that plaintiff did not have a case and later . . . met with an attorney Robert Kane, who was willing to work on the case `if he had help' and FALSELY advised Mr. Kane that plaintiff had no case." (See id. ¶ 28.) Brisson also allegedly threatened to quit if Kinnard did not drop his case against Navarro, and told Kinnard that "Allison Daniels `doesn't give a — about you,' and [made] statements like `your not gonna make it' . . . also disparaging plaintiffs Family members in an effort to force plaintiff to drop case C99-4565." (See id. ¶ 29.) Rogers and Navarro are alleged to have instructed Wilson and Daniels "to attempt to get plaintiff to drop suit or in the alternative to obstruct the suit by refusing to file documents, file documents late and intentionally violate the Courts Rules and local orders." (See id. ¶ 34.)

  Finally, Kinnard alleges, without further elaboration, that "[d]efendants conspired and did prevent by force, intimidation, or threats, lawyers from discharging their duties in representing plaintiff[.]" (See id. ¶ 39.) The Court disregards this final allegation because, for purposes of ruling on a motion to dismiss, conclusory allegations, unsupported by the facts alleged, need not be accepted as true, see Holden, 978 F.2d at 1121, and, accordingly, the Court turns to the remaining relevant allegations.

  Essentially, Kinnard is alleging that defendants engaged in a conspiracy to commit legal errors in Kinnard's federal action, and also conspired to persuade Kinnard to drop his lawsuit. Such alleged acts do not state a claim for violation of § 1985(2). The intent of Congress in adopting § 1985(2) was "to insulate witnesses, parties and grand or petit jurors from conspiracies to pressure or intimidate them in the performance of their duties[.]" See Brawer v. Horowitz, 535 F.2d 830, 839 (3rd Cir. 1976). Conspiracies to influence parties, witnesses, or jurors must be "by force, intimidation, or threat" that "directly affects or seeks to affect parties, witnesses or grant or petit jurors." See id. at 840; see also Nealy v. Hamilton, 837 F.2d 210, 212 (5th Cir. 1988) (noting § 1985(2) "is designed to combat coercion and intimidation levied directly against participants in a case").

  To the extent Kinnard contends that defendants engaged in a conspiracy to cause him to give up his lawsuit, Kinnard has not stated a claim under § 1985(2) because Kinnard has not alleged any acts of "force, intimidation or threat." In addition, Kinnard cannot show damages as a result of the alleged conspiracy to coerce him into giving up his lawsuit because he has not alleged that he abandoned any of the claims of his lawsuit as a result of the alleged conspiracy. See § 1985(3) (stating plaintiff must show he was "injured in his person or property" in order to bring § 1985(2) claim). Indeed, the Court notes that Kinnard has continued to litigate the action vigorously.

  To the extent Kinnard contends that defendants engaged in a conspiracy to commit legal errors that affected the outcome of his case, he likewise fails to state a claim for violation of § 1985(2), because such actions do not constitute the sort of direct threat against a party, witness, or juror that falls within the scope of § 1985(2). The Court is unaware of any case in which conspirators have been held liable under § 1985(2) based on their own conduct of the litigation, as opposed to threats or similar acts intended to preclude others from testifying or participating in a lawsuit. See, e.g., Dooley v. Reiss, 736 F.2d 1392, 1396 (9th Cir. 1984) (holding conspiracy to withhold from discovery document containing names of relevant witnesses failed to state a claim under § 1985(2) because "the alleged actions did not influence or seek to influence a juror by force, intimidation, or threat"); Nealy v. Hamilton, 837 F.2d 210 (5th Cir. 1988) (holding allegations that plaintiff's former counsel conspired to give false and confidential testimony while testifying as witnesses against plaintiff failed to state claim for violation of § 1985(2)); McLean v. International Harvester Co., 817 F.2d 1214, 1218 (5th Cir. 1987) (holding allegations that defendants gave false testimony, and failed to disclose information or produce documents to plaintiff, did not state claim for violation of § 1985(2)); Brawer, 535 F.2d at 840 (holding alleged conspiracy between federal prosecutor and cooperating witness to influence verdict by using perjured testimony of cooperating witness and concealing exculpatory evidence was "too remote to fit within the intended ambit of § 1985(2)").

  Consequently, Kinnard fails to state a claim for violation of § 1985(2). Leave to amend would be futile because the acts in which Kinnard contends defendants engaged cannot constitute a violation of § 1985(2). Accordingly, Kinnard's First, Second, and Fourth Causes of Action are DISMISSED, with prejudice.

  D. Fifth Cause of Action

  Kinnard's fifth cause of action is for violation of 42 U.S.C. § 1981. Kinnard alleges that defendants conspired "to deprive plaintiff of his right secured by the Constitution and laws of the United States" and that "[d]efendants lawyers and plaintiffs lawyers have joined aided and abetted conspiracy by obstruction justice and preventing plaintiffs from prosecuting his case timely." (See FAC ¶ 43.)

  Section 1981 provides: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." 42 U.S.C. § 1981. Although the vast majority of cases interpreting § 1981 address the right to "make and enforce contracts," the statute also expressly protects the right "to sue, be parties, [and] give evidence." See id. The Supreme Court, however, has stated, albeit in dicta, that "one cannot seriously contend" that the right to "sue, be parties [and] give evidence" as set forth in § 1981 "accomplishes anything other than the removal of legal disabilities to sue, be a party, [or] testify." See Patterson v. McLean Credit Union, 491 U.S. 164, 178 (1989) (emphasis in original). Section 1981 "was designed to remove obstacles to the full participation of blacks in the legal system." See Palmer v. Board of Education, 46 F.3d 682, 687 (7th Cir. 1995). As the Seventh Circuit has noted, if the state


affords tort remedies to whites, it must afford equal remedies to blacks. If it prosecutes crimes against whites in order to protect their persons and property, it must prosecute crimes against blacks. And it must use the same rules when assessing `punishment, pains, penalties, taxes, licenses, and exactions of every kind.' The law is designed, in contemporary language, to forbid disparate treatment.
See id.; see also Williams v. Mississippi, 608 F.2d 1021, 1022 (5th Cir. 1979) (recognizing that § 1981 protects right to have grand jury selected without regard to race); see also Phelps v. Washburn University of Topeka, 632 F. Supp. 455 (D. Kansas 1986) (denying motion to dismiss § 1981 claim based on university's alleged denial of access to grievance procedure because of plaintiff's race). As Kinnard does not, and cannot, allege that defendants imposed a similar legal barrier to his right to sue, be a party, or give evidence in court, Kinnard cannot state a claim against defendants for violation of § 1981.

  Accordingly, Kinnard's Fifth Cause of Action, for violation of § 1981, is DISMISSED, with prejudice.*fn1

  E. Vexatious Litigant Status

  The Navarro defendants, joined by Brisson and Rogers Trucking, argue that Kinnard should be declared a vexatious litigant. Defendants argue that Kinnard has filed at least one state court action and three federal actions, all based on the same facts, and that the instant complaint is frivolous, incomprehensible, and has no purpose other than to harass the litigants and their attorneys.

  To date, however, Kinnard's lawsuits have not been entirely duplicative of each other. Although the Court has granted defendants' motions to dismiss some of the causes of action in Case No. C-99-4565, based on the doctrine of res judicata, other claims remain to be litigated. The instant complaint is not duplicative of Case No. C-99-4565 because it relies solely on allegations that defendants interfered with the litigation of that action. Kinnard's other federal action, Kinnard v. Wilson, C-01-0078, was limited to claims relating to the litigation of his prior state court action.

  Should Kinnard file new actions that are based on allegations that have already been litigated, defendants may move again to declare him a vexatious litigant. At this time, however, Kinnard, although highly litigious, has not filed an excessive number of claims that have already been dismissed in prior actions. "An injunction cannot issue merely upon a showing of litigiousness. The plaintiff's claims must not only be numerous, but also patently without merit." Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). Accordingly, defendants' request that the Court declare Kinnard to be a vexatious litigant is DENIED, without prejudice to their raising the issue again if Kinnard files a new complaint in this Court raising issues that have already been resolved in prior actions.

  F. DeBenedetto

  DeBenedetto has not moved to dismiss the First Amended Complaint. The Court "may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants or where claims against such defendants are integrally related." See Silverton v. Department of the Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). Moreover, as the instant action is brought in forma pauperis, the Court must "dismiss the case at any time" if the Court determines that the complaint "fails to state a claim on which relief may be granted." See 28 U.S.C. § 1915(e)(2).

  As all of the analysis set forth above applies equally to DeBenedetto, the Court DISMISSES all claims against DeBenedetto, with prejudice.


  For the reasons set forth above, the motions to dismiss are GRANTED, and the above-titled action is hereby DISMISSED, with prejudice. Defendants' request to declare Kinnard a vexatious litigant is DENIED, without prejudice to their raising the issue again if Kinnard files a new complaint in this Court raising issues that have already been resolved in prior actions.

  The Clerk shall close the file and terminate any pending motions.


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