Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KINNARD v. BRISSON

June 18, 2004.

KENNETH R. KINNARD, Plaintiff,
v.
CLAUDIA BRISSON, et al., Defendants.



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

ORDER GRANTING MOTIONS TO DISMISS; VACATING HEARINGS (Docket Nos. 32, 37, 44)
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).

  DISCUSSION

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.