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
(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).
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 ...