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Junior v. Dep't of Justice

April 18, 2007

PETER ROBUTKA JUNIOR, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER RE: DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT

The matter before the Court is Defendant's Motion to Dismiss. (Doc. # 27). The Court finds this matter suitable for submission on the papers and without oral argument pursuant to Local Civil Rule 7.1(d)(1).

BACKGROUND

Peter Robutka Junior (Plaintiff) filed a civil complaint against the United States Department of Justice (Defendant) in the Superior Court of California in February of 2006. On April 4, 2006, Defendant removed the case to this Court pursuant to 28 U.S.C. § 1441. (Doc. # 1). Subsequently, Defendant moved to dismiss the complaint for failure to meet the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and for failure to comply with the administrative claims requirement of the Federal Tort Claims Act (FTCA). (Doc. # 7). On August 2, 2006, the Court dismissed the complaint with leave to amend. (Doc. # 14).

On August 15, 2006, Plaintiff filed a First Amended Complaint, and Defendant again moved to dismiss for failure to comply with the pleading requirements of Rule 8 and the administrative claims requirement of the FTCA. (Docs. # 16, 18-19). On November 9, 2006, the Court granted the motion to dismiss as it had done previously, because the First Amended Complaint failed to meet the requirements of Rule 8 and the FTCA. (Doc. # 24). In its order of November 9, 2006, the Court outlined the specific problems with the First Amended Complaint, and again granted Plaintiff leave to amend.

On November 21, 2006, Plaintiff filed a Second Amended Complaint (SAC). (Doc. # 25). The SAC appears to allege theft, vandalism, and other wrongdoing by the Federal Bureau of Investigation, and seeks monetary relief in the amount of $800,000,000 plus interest, as well as an order preventing continued contact between Plaintiff and Defendant. (SAC, ¶¶ 2-6). Plaintiff also seeks return of any of his property remaining in the Defendant's possession. (SAC, ¶ 9(1)). On December 1, 2006, Defendant moved to dismiss the SAC for failure to comply with the requirements Rule 8 and the FTCA. (Doc. #27). Defendant seeks dismissal of the SAC with prejudice. (Doc. # 27).

LEGAL STANDARDS

FED. R. CIV. P. 8 requires a complaint to contain "a short and plain statement" of the grounds for the court's jurisdiction and of the claim for relief. FED. R. CIV. P. 8(a). "The Federal Rules adopt a flexible pleading policy; however every complaint must, at a minimum, give fair notice and state the elements of each claim against each defendant plainly and succinctly." Rasidescu v. Midland Credit Management, Inc., 435 F. Supp. 2d 1090, 1098-99 (S.D. Cal. 2006). When dealing with a pro se complainant, the pleadings must be construed liberally, and the plaintiff must be given the "benefit of any doubt." Abassi v. I.N.S., 305 F.3d 1028, 1032 (9th Cir. 2002) (citations omitted). However, "even pro se plaintiffs must allege, with at least some degree of particularity, overt acts taken by [the] defendant which support his claims." Rasidescu, 435 F. Supp. 2d at 1099.

In order for the Court to have subject matter jurisdiction over a tort claim against the United States, the FTCA requires a claimant to submit a claim to the appropriate federal agency before seeking judicial relief. See 28 U.S.C. § 2675; Jacobson v. U.S. ex rel. U.S. Postal Serv., 276 F. Supp. 2d 1106, 1108 (D. Nev. 2003) ("Under [the FTCA's claim presentment] rule, a district court is without subject matter jurisdiction over an FTCA action unless the plaintiff first presented the claim to the appropriate Federal agency); see also Alfrey v. U.S., 276 F.3d 557, 707 (9th Cir. 1998) ("The FTCA's waiver of sovereign immunity is strictly construed in favor of the sovereign, and we may not enlarge its waiver beyond what the statute requires."). Specifically, a plaintiff bringing suit against a federal agency in district court must show that he has previously filed with the agency "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Blair v. I.R.S., 304 F.3d 861, 865 (9th Cir. 2002).

DISCUSSION

A. COMPLIANCE WITH PLEADING REQUIREMENTS

Defendant alleges that Plaintiff's SAC violates Rule 8 because it does not include "a short and plain statement of the claim," FED. R. CIV. P. 8(a)(2), but instead is confusing and "difficult, if not impossible" to answer. (Def.'s Mem. Supp. Mot. Dismiss at 4).

After reviewing the SAC, it is not clear what wrong Plaintiff alleges Defendant to have committed. Although the SAC is captioned as a claim for "Professional Negligence - Illegal Malpractice," Plaintiff does not use these terms in the body of complaint, nor does he explain what those terms mean. (SAC, ¶¶ 1-4). The allegation that seems closest to negligence or malpractice is Plaintiff's assertion of "the Department of Justice Failure to Exercise the right, power, or authority to administer justice by hearing and determining controversies over the Act of Theft that occurred."*fn1 (SAC, ¶ 9). However this allegation is not supported or elaborated by any other allegation, and it is not clear what was stolen, where the incident took place, or if or how the Defendant was notified of it.

In a different portion of the SAC, plaintiff does allege that he talked to the "Duty Agent of Federal Bureau of Investigation San Diego Division concerning items stolen," and was denied "passage into the House located at 1759 Lemon Grove ave., Lemon Grove California 91945 to obtain ...


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