United States District Court, N.D. California
November 2, 2005.
PAUL TALCOTT CURRIER, et al., Plaintiffs,
ROBERT CHOW, et al., Defendants.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING MOTIONS TO DISMISS BY DEFENDANTS HOLZ, DEMERLY,
HAAS AND METROFI
Now before the Court are motions to dismiss brought by
defendants Otto Holz, Paul Demerly, Chuck Haas and MetroFi, Inc.
All defendants seek dismissal of plaintiffs' Third Amended
Complaint, without leave to amend. Pursuant to Local Rule 7-1(b),
the Court finds the motions suitable for resolution without oral
argument and therefore VACATES the hearing set for November 4,
2005. For the reasons set out below, the Court GRANTS defendants'
On August 12, 2004, plaintiffs*fn1 filed this action
against ten named defendants and an unknown number of "Doe"
defendants. The original complaint was 88 pages long, and
consisted of 500 paragraphs of allegations in support of its
eighteen causes of action. By order dated January 26, 2005, the
complaint was dismissed with leave to amend on the grounds, inter alia, that it violated Rule
8 of the Federal Rules of Civil Procedure.*fn2 Plaintiffs'
First Amended Complaint was filed on February 11, 2005 and their
Second Amended Complaint was filed July 15, 2005. On August 12,
2005, plaintiffs filed their Third Amended Complaint, which is
the subject of the current motion.
The Third Amended Complaint names twenty-three defendants. It
is 81 pages long and contains 409 paragraphs of allegations in
support of twenty-one causes of action. It alleges forty-six
separate RICO conspiracies involving the worldwide
telecommunications industry. Its conspiracy allegations span the
entire globe, and include, among numerous others, allegations
involving "the manufacture of a cutting-edge technology Trimaran
boats [sic]," the "plunder" of the Philippine treasury by former
president Ferdinand Marcos, and "marriage fraud" committed by
Currier's ex-wife. See Pl. Compl. at ¶¶ 87, 74, 73. In addition
to the twenty-three named defendants, plaintiffs have named
sixteen "relevantnon-parties," all of whom are former defendants
to the action. In a representative example of the sheer magnitude
of plaintiffs' claims, plaintiffs request permission to sue on
behalf of the people of the United States, because "the Attorney
General clearly will not do so." Pl. Compl. at ¶ 13.
The complaint is long, rambling, and extraordinarily difficult
to follow. The gist of the complaint appears to be that, in 1995,
Currier developed a method of wireless internet voice
communications that would have been faster and less expensive
than what was then available. Pl. Compl. at ¶ 66-69. Currier
believed this new invention had the potential to provide
affordable wireless internet and telephone products to the entire
world, including to remote areas of developing nations. Id. In
1999, he founded corporate plaintiff Communication Bridge Global,
Inc. ("CBG"), conceivably to carry out his plan, although the
complaint does not make this clear. Id. at ¶ 70-71. Currier's other company, Communication
Bridge USA, Inc. ("CBUSA"), was later formed as a subsidiary of
CBG. Id. The complaint then describes a vast network of
conspiracies involving the Philippine government, Currier's
ex-wife, and the entire telecommunications industry, the goal of
which was to prevent Currier's idea from coming to fruition, to
destroy his companies, and to steal his intellectual property.
Four of the defendants have now brought motions to dismiss the
Third Amended Complaint. They all contend that the complaint's
lengthy and rambling allegations fail to comply with the minimal
pleading standards established by the Federal Rules of Civil
Procedure. The Court agrees.
Federal Rule of Civil Procedure 8(a) requires that a complaint
contain "(1) a short and plain statement of the grounds upon
which the court's jurisdiction depends . . ., (2) a short and
plain statement of the claim showing that the pleader is entitled
to relief, and (3) a demand for judgment for the relief the
pleader seeks." Fed.R.Civ.P. 8(a). Under Rule 8(e), "each
averment of a pleading shall be simple, concise, and direct." The
purpose of these requirements is to "give the defendant fair
notice of what the plaintiff's claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 47,
78 S. Ct. 99, 103 (1957). In practical terms, the requirements of Rule 8
ensure that a defendant will be able to respond to the
allegations against him. Edwards v. N. Am. Rockwell Corp.,
291 F. Supp. 199, 211 (C.D. Cal. 1968) ("Rule 8(a)(2) envisions the
presentation of factual allegations of sufficient clarity and
certainty to enable defendants to determine the basis of
plaintiff's claim and to formulate a responsive pleading."). They
also help frame the lawsuit to guide case management and
discovery. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir.
The Court finds that plaintiffs' complaint is not well-pled.
Its convoluted allegations against a litany of defendants and
"relevant non-parties," which span 81 pages and 409 paragraphs,
are simply too confusing to give the defendants fair notice of
the claims against them. Although the complaint provides a fair
amount of detail concerning the telecommunications industry, the
failure of the federal government to protect consumers from
monopolies, and other "background" facts, the complaint fails to
provide any detail when it discusses the actual wrongs the named defendants allegedly committed. Instead,
it resorts to sweeping, conclusory allegations of vast
conspiracies. In short, the Ninth Circuit's description of a
complaint in a similar case applies fully here: "Despite all the
pages, requiring a great deal of time for perusal, one cannot
determine from the complaint who is being sued, for what relief,
and on what theory, with enough detail to guide discovery."
McHenry, 84 F.3d at 1178.
Plaintiffs concede that the complaint is lengthy, but argue
that the length is necessary because the factual background of
this case is complicated. In defense of their complaint,
plaintiffs cite to Washington v. Baenziger, 673 F. Supp. 1478
(N.D. Cal. 1987), and Velasquez v. Senko, 643 F. Supp. 1172
(N.D. Cal. 1986). Neither of these cases can save the current
Washington involved a professional baseball player who sued
his investment advisor for fraud, negligence, and breach of
fiduciary duty, among other claims. His original complaint was 86
pages long, contained 33 causes of action against 21 defendants,
and attached fifteen pages of exhibits. See Washington v.
Baenziger, 656 F. Supp. 1176, 1177 (N.D. Cal. 1987). After this
complaint was dismissed under Rule 8(a), the plaintiff filed an
amended complaint. In the amended complaint, the plaintiff
"divided the defendants into relevant groups and specified the
causes of action against each group. He also added dates to the
allegations of fraud, and provided greater specificity to the
alleged fraudulent acts of each defendant or group of
defendants." Washington, 673 F. Supp. at 1482. Based upon these
changes, the court held that the complaint complied not only with
Rule 8(a), but also with the heightened pleading requirement of
Rule 9(b). Id.
Unlike in Washington, plaintiffs here have not taken steps to
clarify the allegations in their complaint. They have not
"divided the defendants into relevant groups," nor have they
"provided greater specificity to the alleged fraudulent acts."
Rather, plaintiffs have continued to indiscriminately bring vague
and conclusory allegations against the defendants as a single
Plaintiffs also cite Velasquez v. Senko, 643 F. Supp. 1172
(N.D. Cal. 1986), for the proposition that a complaint may
include a great amount of detail and still be in compliance with
Rule 8. Velasquez concerned a civil rights lawsuit against the
Immigration and Naturalization Service, Border Patrol, and local
police. Id. at 1174. The court rejected a motion to dismiss
under Rule 8(a), finding that "the instant Complaint in no way compares to . . . amorphous pleadings; it describes in
considerable detail seven separate operations of the INS and
Border Patrol that were allegedly planned or executed by certain
of the defendants and that allegedly violated specified statutory
and constitutional rights." Id. at 1178-79.
Plaintiffs' reference to Velasquez misses the deficiency in
their complaint. Unlike the complaint in Velasquez, plaintiffs'
complaint does not contain "considerable detail" about any of the
charges against the defendants. The only details in the complaint
are its juggling of myriad names as it describes in almost no
detail the forty-six conspiracies it alleges. The substance of
plaintiffs complaint consists of only conclusory allegations made
with broad brushstrokes against the defendants. It is wholly
lacking in the details that the parties, and the Court, need to
understand the precise nature of the claims against the
As the following discussion demonstrates, none of the
allegations against Holz, Demerly, Haas, or MetroFi suffices to
provide them with fair notice of the claims against them.
1. Claims against Otto Holz
Plaintiffs' claims against Otto Holz do not satisfy the
standard for notice pleading under Rule 8. The complaint contains
twenty-one causes of action, nineteen of which are brought
against "all defendants," including Holz. The charges against
Holz are based upon the Sherman Act, the Clayton Antitrust Act,
the California Cartwright Act, the Racketeer and Corrupt
Organizations Act, and other California statutory and common law.
It is extremely difficult to divine the precise allegations
that apply to Holz, however, because not a single one of
plaintiffs' enumerated causes of action specifically mentions his
name. In addition, many of plaintiffs' claims against Holz simply
have no relation to the complaint's factual allegations against
him. For example, the complaint alleges that Holz violated the
antitrust laws, and breached written, oral, and implied
contracts. See, e.g., Pl. Compl. at ¶¶ 218-53, 313-35. Yet the
factual allegations against Holz contain nothing that would
support these claims.
The breadth of the complaint, along with its vague and
conclusory allegations against Holz, simply do not provide Holz
with proper notice of the charges against him.*fn3 For this
reason, the Court GRANTS Holz's motion to dismiss.
2. Claims against Paul Demerly
For similar reasons, the Court GRANTS defendant Demerly's
motion to dismiss. Plaintiffs' complaint specifically names
Demerly in only three paragraphs:
31. Defendant PAUL DEMERLY ("DEMERLY") is a resident
of California and a member of the Golden Gate
University faculty and a participant with ROBERT CHOW
in a fraud on the California Public Utilities
* * *
103. A further distinct Seventeenth (17th) RICO
Conspiracy committed by both of the CHOWs, the WONG
FAMILY REVOCABLE TRUST, DEMERLY, SCHNEIDER, and
SPOHN, involved fraud of the California Public
Utilities Commission ("CPUC"), as documented
then-CPUC staff lawyer, Carol Dumond and forensic
auditor Kevin Nakamura. The fraud on the CPUC began
in January of 2001, and was detected by the CPUC in
the Chapter 11 proceedings, which CHOW and McINTOSH
initiated by their False US Bankruptcy filing for
CBUSA before Judge Montali.
* * *
168. . . . CHO was a part of the RICO Conspiracy No.
17 to defraud the CPUC, along with DEMERLY, the named
WONG defendants, and other on the Golden Gate
University telco educational faculty, as well as key
venture capitalist who Plaintiffs believe funded HAAS
and METROFI with 150 million USD.
Pl. Compl. at ¶ 31, 103, 168.
From these bare allegations, plaintiffs bring nineteen causes
of action against Demerly, none of which refer to him in any way.
Plainly, these broad and conclusory allegations are insufficient
to provide Demerly with notice of the charges against him. Thus,
the Court GRANTS Demerly's motion to dismiss.
3. Claims against Chuck Haas and Metrofi
According to the complaint, Chuck Haas is "the founder of both
defendant COVAD and defendant METROFI." Pl. Compl. at ¶ 20. The
complaint describes MetroFi as "a Delaware corporation doing
business in California, providing wireless telecom services." Pl.
Compl. at ¶ 21.
The motion of these defendants presents a closer question than
the motions of Holz and Demerly, because there are some
allegations against Haas and MetroFi that are somewhat
decipherable. Although the vast majority of references to Haas
and MetroFi are only passing commentary, Paragraphs 115 and 180
appear to allege that MetroFi was established, with the help of
Haas, as a vehicle to misappropriate intellectual property that Currier had developed:
115. In May of 2002, the executive team of COVAD
[which apparently includes Haas] continued in an
ongoing continuity of conduct and action and executed
Rico Conspiracy Number Thirty (30), whereby they
incorporated a new California corporation known as
METROFI in order to execute the business plans,
designs, and technical processes taught by CURRIER to
CHOW, who in turn, illegally breached his (CHOW's)
contract with Plaintiffs and divulged all this
intellectual property of Plaintiffs to the COVAD
executive team and operations groups, as a component
to this conspiracy.
* * * *
180. May of 2002, METROFI incorporated and sought to
execute CBUSA and CBG's wireless VoIP [Voice over IP]
design. CHOW was involved in the founding of METROFI
to misappropriate the intellectual property of CBUSA,
CBG, and CURRIER. HAAS, founder of COVAD, BROBECK,
COVAD CO., COVAD, INC., FISH, SPOHN and LAZEROW were
all similarly involved in the attempt to
misappropriate the intellectual property of
Plaintiffs, in continuity of ongoing acts from 1999
forward, which continues to this day, and included
funding by SBC.
Pl. Compl. at ¶ 115, 180. In addition, plaintiffs' twelfth,
thirteenth, fourteenth, and fifteenth causes of action explicitly
name Haas and MetroFi. These causes of action all involve breach
of contract or intentional interference with economic
relationship, and all allege that "[t]hese breaches of contract
were done at the direction and/or with the assistance of HAAS and
Thus, in divining plaintiffs' claims against Haas and MetroFi,
there is slightly more substance than in the case of Holz or
Demerly. Nonetheless, "[t]he propriety of dismissal for failure
to comply with Rule 8 does not depend on whether the complaint is
wholly without merit." McHenry, 84 F.3d at 1179. Dismissal
under Rule 8 is not a commentary on the merits of a complaint,
but a recognition of the practical necessities of litigation. As
the Ninth Circuit noted in McHenry:
The judge wastes half a day in chambers preparing the
"short and plain statement" which Rule 8 obligated
plaintiffs to submit. He must then manage the
litigation without knowing what claims are made
against whom. This leads to discovery disputes and
lengthy trials, prejudicing litigants in other case
[sic] who follow the rules, as well as defendants in
the case in which the prolix pleading is filed.
McHenry, 84 F.3d at 1180. The complaint in McHenry was only
fifty-three pages long, consisting, as does the complaint in this
case, of "`narrative ramblings' and `storytelling or political
griping.'" Id. at 1176. Other courts have found similar
complaints deserving of dismissal. See, e.g., Ciralsky v. CIA,
355 F.3d 661
, 669 (D.C. Cir. 2004) (district court's decision to
strike a 119-page, 367-paragraph complaint was "hardly a harsh
judgment," and district court did not err in dismissing 61-page,
105-paragraph first amended complaint); Lonesome v. Lebedeff,
141 F.R.D. 397 (E.D.N.Y. 1992) (dismissing 63-page, 452-paragraph
complaint under Rule 8).
The allegations plaintiffs seem to be bringing against Haas and
MetroFi do not appear to be particularly complicated. They could
have been brought in a far simpler complaint of much more limited
scope. Instead, plaintiffs have chosen to bring those claims in a
sweeping indictment of the global telecommunications industry and
of the individuals against whom Currier appears to hold a grudge.
Such pleading is simply not consistent with the requirements of
the Federal Rules of Civil Procedure. Cf. McHenry,
84 F.3d at 1178 (expressing disapproval of complaint that seemed "designed
to provide quotations for newspaper stories").
4. Leave to Amend
Plaintiffs request leave to amend their complaint to correct
the deficiencies identified by the Court. This action, however,
has proceeded for over a year, and plaintiffs have already had
four opportunities to submit an adequate complaint. It is
abundantly clear to the Court that plaintiffs are not interested
in formulating their claims in a simple, concise fashion. Rather,
they are more interested in lengthy ramblings and conspiracy
theories about all those who have wronged them in the past.
In this Court's August 9, 2005, order granting plaintiffs leave
to file a third amended complaint, the Court explicitly informed
plaintiffs that no further amendments would be allowed.
Plaintiffs have given the Court no reason to depart from this
decision. Thus, plaintiffs' request for leave to amend is DENIED. CONCLUSION
For the foregoing reasons and for good cause shown, the Court
hereby GRANTS Holz's, Demerly's, and Haas's and MetroFi's motions
to dismiss with prejudice (Docket Nos. 194, 197, and 208).
IT IS SO ORDERED.
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