FINDINGS AND RECOMMENDATIONS
This case came before the court on July 17, 2009, for hearing of defendant Bauman's motion to dismiss (Doc. No. 7) pursuant to Fed. R. Civ. P. 12(b)(6). Defendants McDaris, Berrigan, Decker, Coakley, and House joined in defendant Bauman's motion (Doc. Nos. 12-16). All parties in the action are proceeding pro se. At the hearing, defendant Bauman appeared telephonically on his own behalf. Plaintiff Eugene Isaacson also appeared telephonically on his own behalf. No appearance was made by or on behalf of defendants McDaris, Berrigan, Decker, Coakley, and House. At the conclusion of the hearing, defendants' motion was taken under submission.
Upon consideration of all written materials filed in connection with the motion to dismiss, the arguments at the hearing, and the entire file, the undersigned recommends that the motion be granted and this action be dismissed with prejudice.
Plaintiff filed his complaint in this court on January 5, 2009. The court granted plaintiff's motion to proceed in forma pauperis and directed plaintiff to provide documents to the United States Marshal for service of process. In due course, service was effected on all defendants. Defendant Bauman filed his motion to dismiss, and all other defendants joined in the motion. Plaintiff filed opposition to the motion along with a motion for an order of default. The latter motion was denied by order filed June 18, 2009.
In his complaint plaintiff describes his claims as having an admiralty or maritime character. He alleges that the defendants engaged in a conspiracy to illegally seize plaintiff's vessel, the Gray Finn, from the Sacramento River, a navigable waterway where the vessel was legally anchored. Defendants had plaintiff's vessel towed to Cliff's Marina, where it has been held by the marina and defendant McDaris while charging plaintiff $100 per day for impound fees. Plaintiff alleges that the defendants' conspiracy was motivated by a plan involving waterfront real estate adjacent to property being purchased by defendants Berrigan and House from defendant Coakley. Plaintiff claims that he has been deprived of his property valued at $80,000.
Plaintiff's complaint enumerates seven claims based upon his allegations: ship hijacking, illegal seizure, violation of 18 U.S.C. § 241, violation of 42 U.S.C. § 1983, violation of 42 U.S.C. § 1985(3), replevin and conversion, and tort negligence. By way of relief, plaintiff seeks a writ of replevin for the return of his vessel and an order judging defendants liable to plaintiff for the loss of value of his vessel due to their negligence while the boat is in their possession.
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
With regard to claims of fraud, "the circumstances constituting fraud... shall be stated with particularity." Fed. R. Civ. P. 9(b). "Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also 'to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Thus, pursuant to Rule 9(b), a plaintiff alleging fraud at a minimum must plead evidentiary facts such as the time, place, persons, statements and explanations of why allegedly misleading statements are misleading. In re GlenFed, Inc. Sec. Litig., 42 F. 3d 1541, 1547 n.7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995).*fn1
Defendant Bauman seeks dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that: (1) plaintiff's claims have already been adjudicated in Robert Rawlings & Eugene Isaacson v. Shawn Berrigan, et al., case No. 05AS05387 (Sacramento County Super. Ct.), and are therefore barred by the Rooker-Feldman doctrine, collateral estoppel, and res judicata; (2) plaintiff has not alleged sufficient facts to constitute a prima facie case for any of his claims; (3) it appears from the face of plaintiff's complaint that five of his seven claims are time barred; (4) plaintiff lacks standing to assert the two claims that are not time barred; (5) plaintiff failed to remove the state action to federal court in a timely manner; (6) the complaint violates Rule 8(a)(2) of the Federal Rules of Civil Procedure because it is confusing and illogical and is not a short and plain statement of claims showing that plaintiff is entitled to relief; and (7) plaintiff previously filed a complaint in this court on March 20, 2007, Isaacson v. Berrigan, et al., case No. 2:07-cv-00537-MCE EFB PS, which was dismissed on the court's own motion on November 15, 2007. (Def't's Mot. to Dismiss (Doc. No. 7) at 1-2 & Exs. A-E.) Defendant seeks dismissal of plaintiff's complaint with prejudice.
Defendant's motion is supported by copies of documents filed in Robert Rawlings & Eugene Isaacson v. Shawn Berrigan, et al., case No. 05AS05387 (Sacramento County Super. Ct.) and by a copy of the docket for Isaacson v. Berrigan, et al., case No. 2:07-cv-00537-MCE EFB PS (E.D. Cal.). The court takes judicial notice of these documents pursuant to Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman, 803 ...