FINDINGS AND RECOMMENDATIONS
This case is before the court on defendants' motions to dismiss plaintiff's complaint and to declare plaintiff a vexatious litigant. Dckt. Nos. 5, 6, 7, 23. These matters were submitted for decision on the papers. Dckt. Nos. 18, 20, 28. For the reasons that follow, this court recommends that defendants' motions to dismiss be granted, but the motions to declare plaintiff a vexatious litigant be denied.
Plaintiff challenges the adjudication of his workers' compensation claim by the California Workers Compensation Appeals Board. He names as defendants, his former employer (G.S.E. Construction Company, Inc.), his employer's workers' compensation insurance carrier (Liberty Mutual Insurance Company) and his employer's workers' compensation attorneys (Katchis, Harris & Yempuku and Daniel Reich), the State of California, the California Department of Industrial Relations Division of Workers' Compensation ("DWC"), Carrie Nevans the Director of DWC and Kaiser Permanente Medical Group.
Plaintiff alleges that GSE Construction, the workers' compensation board, Liberty Mutual and various medical personnel conspired to deny him adequate medical care and workers' compensation payments by falsifying medical records and other fraudulent activities. Compl. at 3-10. The attorneys and judges then conspired to dismiss plaintiff's workers' compensation claim. Id.
Defendants' motions seek to dismiss plaintiff's action for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim, Fed. R. Civ. P. 12(b)(6). Defendants contend that this court lacks subject matter jurisdiction, pursuant to the Rooker-Feldman doctrine, as plaintiff brought the same action in state court and a demurrer was sustained in that action with prejudice.
Following the filing of defendants' motions to dismiss, plaintiff filed a first and second amended complaint on June 26, 2009, and September 4, 2009. Dckt. Nos. 22, 26. Defendants have not responded to these additional complaints. The first amended complaint is a two page summary of the original complaint followed by 300 pages of exhibits. Dckt. No. 22. The second amended complaint, filed without leave from the court, also repeats the allegations from the prior complaints. Dckt. No. 26.
Pursuant to Fed. R. Civ. P. 15, the first amended complaint, despite its deficiencies, could be construed as the operative complaint in this matter, rendering the motions to dismiss the original complaint as moot. Yet, as the court is dismissing this case for lack of subject matter jurisdiction, it is irrelevant that motions to dismiss have not been filed against the first amended complaint. See Emrich v. Touche Ross and Co., 846 F.2d 1190, 1194 n. 2. (9th Cir. 1988) (a challenge to the Court's subject matter jurisdiction can be raised at any time, including sua sponte by the Court.) The court finds that all of plaintiff's complaints should be dismissed for lack of subject matter jurisdiction.
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . ." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir.2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987)).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including civil pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's ...