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Cowan v. William Morris Agency


August 18, 2009


The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge



A. Factual Allegations

On March 12, 2007, Plaintiff Rennie Cowan ("Plaintiff") was discharged from her employment at Defendant William Morris Agency LLC ("William Morris"). (Compl. at 1.) Plaintiff alleges that her termination was in retaliation to discrimination claims that she filed with the Human Resources Department on September 26, 2006 and with the Equal Employment Opportunity Commission ("EEOC") on December 3, 2006. (Id. at 2-3, Ex. G.) Plaintiff further alleges that she was discharged because of her gender and her race. (Id. at 3.) Plaintiff claims that Defendants Kim Koser and Jason Hatcher, employees in the William Morris Human Resources Department, did nothing to help her after her September 26 complaint. (Id. at 4.)

Plaintiff also filed a Worker's Compensation claim against William Morris in October, 2006. (Id. at 4). Plaintiff alleges that she experienced severe abdominal pain, a hiatal hernia, and major depression after having her workstation moved to the basement by William Morris Senior Vice President of Administration David Kekst, which she claims was done to harass her. (Id at 2, 13.) Having such disabilities, Plaintiff further claims that William Morris' termination of her employment also violates the Americans with Disabilities Act ("ADA"). (Id at 6.)

Plaintiff alleges that Defendants Los Angeles District Attorney Steve Cooley and William Morris in-house counsel Mary Harding, both of whom are Jewish, retaliated against her, a Christian, by filing criminal charges against her. (Id. at 5.) Plaintiff also claims Defendant Attorneys Erin Smith and Michelle LaMar committed legal malpractice by violating the ABA's attorney-advocate witness Model Rule by "posing" as witnesses against Plaintiff in her discrimination claims. (Id. at 8.) Plaintiff further alleges that Defendant Judge Jane Johnson improperly deemed her as a "vexatious litigant," without an opportunity to be heard. (Id. at 9-10.)

Finally, Plaintiff seeks to protect her rights to her intellectual property, including manuscripts, which she claims she has been unable to copyright because Defendants have "blacklisted" her. (Id. at 17.)

B. Procedural History

Plaintiff filed a Complaint in pro se in this Court on August 13, 2008, and is proceeding in forma pauperis against Defendants William Morris, David Kekst, Steve Cooley, Mary Harding, Michelle LaMar, Erin Smtih, Jane Johnson, Kim Koser, Jason Hatcher, and Jim Wiatt ("Defendants").

This case was referred to United States Magistrate Judge Robert Block pursuant to General Order 07-02 on September 4, 2008. That court issued an order requiring plaintiff to show cause why, for various reasons, her federal civil rights claims should not be dismissed without leave to amend. Plaintiff failed to file a response to the Order to Show Cause by the deadline set by that court.


Under 28 U.S.C. § 1915(e)(2), the court may dismiss a case at any time where a plaintiff is proceeding in forma pauperis if that plaintiff (1) "fails to state a claim on which relief may be granted;" or (2) "seeks monetary relief against a defendant who is immune from such relief." As a general matter, the Federal Rules require only that a plaintiff provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). In addition, the Court must accept all material allegations in the complaint -- as well as any reasonable inferences to be drawn from them -- as true. See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005).

The allegations must be plausible on the face of the complaint. See Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citations and internal quotations omitted).

Although the scope of review is limited to the contents of the complaint, the Court may also consider exhibits submitted with the complaint, Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990), and "take judicial notice of matters of public record outside the pleadings," Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988).

Granting Leave to Amend

Federal Rule of Civil Procedure 15(a) provides that leave to amend "shall be freely given when justice so requires." The Ninth Circuit has held that "'[t]his policy is to be applied with extreme liberality.'" Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). A motion for leave to amend should be denied only on a showing of bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the plaintiff has previously amended his or her complaint. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). The Ninth Circuit has further held that "it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052.


A. Immunity

Los Angeles Superior Court Judge Jane Johnson is dismissed from this action on the basis of judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed. 2d 331 (1978); Bradley v. Fisher, 80 U.S. 335, 354, 20 L.Ed. 646 (1871) (holding that judges of courts of record of superior or general jurisdiction are not liable in civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.) (holding that such immunity applies "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff") cert. denied, 488 U.S. 995 (1988); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).

Los Angeles District Attorney Steve Cooley is dismissed from this action on the basis of prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 427, 430-31, 96 S.Ct. 984, 47 L.Ed. 2d 128 (1976) (holding that prosecutorial immunity applies even if it "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty" and that the immunity extends to all activities "intimately associated with the judicial phase of the criminal process," such as initiating a prosecution and presenting the state's case); Ashelman, 793 F.2d at 1075. The doctrine of prosecutorial immunity also bars Plaintiff's claim that District Attorney Cooley instituted the criminal action against Plaintiff in retaliation for Plaintiff's exercise of her First Amendment right to speak out against William Morris. See Hartman v. Moore, 547 U.S. 250, 262, 126 S.Ct. 1685, 164 L. Ed 2d 441 (2006); see also Fockaert v. County of Humboldt, 1999 WL 30537, at *6 (N.D. Cal. Jan. 15, 1999) (finding prosecutor entitled to immunity where plaintiff alleging violation of his First Amendment right to free speech).

B. Legal Malpractice Claims

To the extent that plaintiff is purporting to state a federal civil rights claim pursuant to 42 U.S.C. § 1983 against any of the individual defendants based on allegedly perjurious testimony given by them in connection with court proceedings, Plaintiff's claim is barred by the doctrine of witness immunity. See Briscoe v. LaHue, 460 U.S. 325, 345-46, 103 S.Ct. 1108, 75 L.Ed. 2d 96 (1983); Burns v. County of King, 883 F.2d 819, 822 (9th Cir. 1989) (holding that witnesses also are entitled to absolute immunity for statements made in an affidavit to a court); Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir. 1987), cert. denied, 485 U.S. 979 (1988); see also Franklin v. Terr, 201 F.3d 1098, 1101-02 (9th Cir. 2000) (holding that the absolute witness immunity doctrine also applies to conspiracy to provide perjured testimony).

Further, legal malpractice is a state law claim, for which "there exists no independent basis of federal jurisdiction." See Aragon v. Federated Dept. Stores, Inc., 750 F.2d 1447, 1457-58 (9th Cir. 1985).

C. Federal Civil Rights Claims Under 42 U.S.C § 1983

To the extent that plaintiff is purporting to state any federal civil rights claims pursuant to § 1983 against any of the private party defendants, such claims are dismissed without leave to amend on the ground that none of those defendants qualifies as a state actor for purposes of § 1983's "color of law" requirement. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49, 119 S.Ct. 977, 143 L.Ed. 2d 130 (1999) (holding that § 1983 "excludes from its reach merely private conduct, no matter how discriminatory or wrong" [citations and internal quotations omitted]); Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed. 2d 418 (1982) (noting that "[t]he ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights fairly attributable to the [government]?"); see also Huffman v. County of Los Angeles, 147 F.3d 1054, 1057 (9th Cir. 1998) (holding that a defendant must have acted "under color of law" to be held liable under § 1983), cert. denied, 526 U.S. 1038 (1999); Goehring v. Wright, 858 F. Supp. 989, 998 (N.D. Cal. 1994) (holding that private citizens who complained to local authorities about neighbor's alleged activities which gave rise to neighbor's arrest and prosecution were not "state actors" for purposes of § 1983 action).

D. Vexatious Litigant Status

To the extent that plaintiff is purporting to state a claim directed to the state judicial proceeding resulting in the judgment declaring her to be a vexatious litigant and purporting to seek relief from that judgment, such claim is dismissed without leave to amend pursuant to the Rooker-Feldman doctrine, which provides that federal district courts may not exercise appellate jurisdiction over state court decisions even when the challenge to the state court decision involves federal constitutional issues. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86, 103 S.Ct. 1303, 75 L.Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Noel v. Hall, 341 F.3d 1148, 1163-64 (9th Cir. 2003) (holding that Rooker-Feldman doctrine applies "[i]f a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision"); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221 (9th Cir. 1994) (holding that Rooker-Feldman doctrine applies even when the challenge to the state court decision involves federal constitutional issues); Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986) (holding that federal court has obligation to raise issue of Rooker-Feldman doctrine sua sponte, since the doctrine proscribes federal court jurisdiction over collateral challenges to state court judgments and cannot be waived).

E. Claim Under the Americans with Disabilities Act

Plaintiff alleges she was subjected to disparate treatment due to a disability which she developed, possibly referring to severe abdominal pain and major depression. Under the ADA, no "entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). "Disability" is defined as a "physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(1)(A). "Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A).

Plaintiff here fails to allege exactly what disability she suffers from and also fails to state clearly what discriminatory actions were taken against her. To the extent that her disability consists of severe abdominal pain and depression, Plaintiff has failed to show how these impair one of her major life activities. Therefore, Plaintiff's claim under the ADA is dismissed with leave to amend, so that Plaintiff can more clearly explain her disability, what actions have been taken against her, and which actors committed those actions.

F. Retaliation Claim Under Title VII of the Federal Civil Rights Act of 1964

Plaintiff alleges that her discharge was a form of retaliation against her for filing discrimination complaints with both the Human Resources Department of William Morris and the EEOC. To make out a prima facie case of retaliation, a plaintiff must demonstrate (1) she engaged in protected activity; (2) defendant subjected her to an adverse employment decision; (3) the activity and the decision were causally linked. Bergene v. Salt River Project Agricultural Improvement and Power District, 272 F.3d 1136, 1141 (9th Cir. 2001). An example of a protected activity is "opposing an unlawful employment practice." E.E.O.C. v. Luce, Forward, Hamilton, & Scripps, 303 F.3d 994, 1005 (9th Cir. 2002). An adverse employment action is one which "a reasonable employee would have found . . . materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68-69 (2006) (internal citations omitted).

Plaintiff has satisfied the first element in showing she engaged in protected activity by filing a complaint with the EEOC. Plaintiff has also satisfied the second element, having experienced an adverse employment decision by being terminated. Plaintiff's claim fails because it lacks explanation that these two circumstances are causally linked.

The discharge occurred more than five months after Plaintiff filed the complaint with the Human Resources Department and more than four months after Plaintiff filed the complaint with the EEOC. Further, Plaintiff had been convicted of crimes prior to her discharge. Plaintiff fails to make out a prima facie case of retaliation because she does not specify the causal relationship between her filing complaints with Human Resources and the EEOC and her termination. Therefore, Plaintiff's claims under Title VII are dismissed with leave to amend, so that Plaintiff can properly allege the causal connection between her termination and her filing of the complaints with Human Resources and the EEOC.

G. Intellectual Property Claim

To the extent that Plaintiff alleges an infringement of her intellectual property, Plaintiff fails to state any cognizable claim. Plaintiff merely expresses a suspicion that she has been "blacklisted," which has caused the U.S. Copyright Office to not respond to her inquiries. Plaintiff further fails to allege who she is seeking recovery from under this claim.


For the foregoing reasons, the Court dismisses without leave to amend Plaintiff's Complaint as to all claims except the claims arising under Title VII and the ADA. The Court dismisses with leave to amend Plaintiff's claims under Title VII and the ADA. Plaintiff may file an amended complaint by August 28, 2009. If Plaintiff fails to file an amended complaint by that date, the case will be dismissed.


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