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O'Rourke v. United States

May 26, 2010

ALBERT O'ROURKE, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER: 1) GRANTING DEFENDANT KELLOGG'S MOTION TO DISMISS [DOC. NO. 5.] 2) GRANTING DEFENDANT LA JOLLA BEACH AND TENNIS CLUB'S MOTION TO DISMISS [DOC. NO. 6.] 3) DISMISSING ALL REMAINING DEFENDANTS WITHOUT PREJUDICE

On February 8, 2010, Plaintiff Albert O'Rourke ("Plaintiff") filed this lawsuit against more than nineteen separate defendants, including: the United States of America, the Attorney General of the State of California, various private individuals, and various entities like the La Jolla Beach and Tennis Club ("LJBTC"). Defendants William Kellogg, Jr. ("Kellogg") and LJBTC have each filed a motion to dismiss. Plaintiff has opposed.

The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS both motions to dismiss. The Court also DISMISSES this lawsuit against all the remaining defendants.

I. BACKGROUND

On February 8, 2010, Plaintiff filed this lawsuit against more than nineteen separate defendants. It appears from the Complaint that Plaintiff was the owner and/or resident of a home in La Jolla, California. He is no longer in possession of that house and has filed this lawsuit against various individuals and entities that he believes are responsible for that loss. Specifically, Plaintiff sets forth causes of action for (1) Violation of Civil Rico 18 U.S.C. § 1962, (2) Violation of 18 U.S.C. § 2340 (torture), (3) Declaratory Relief, (4) Injunctive Relief, (5) Violation of FRCP 11 (CCP 128.5) "bad faith", (6) Gross Negligence, (7)Intentional Infliction of Emotional Distress, (8) Civil Conspiracy, (9) Conversion, and (10)Trespass. (Doc. No. 1.)

On March 1, 2010, Defendant Kellogg filed a motion to dismiss. On March 29, 2010, Defendant LJBTC filed a separate motion to dismiss. Both motions were set to be heard on May 10, 2010. As such, any opposition to either motion was due April 26, 2010. See S.D. Cal. Civ. R. 7.1(e.2) On April 29, 2010, Plaintiff filed a consolidated opposition, which the Court considered despite its untimeliness. (Doc. Nos. 10, 11.)

II. LEGAL STANDARD

A. Motions to Dismiss Under Rule 12(b)(4) and 12(b)(5)

Under the Federal Rules of Civil Procedure, the plaintiff is responsible for having the summons and complaint served upon the defendants. Fed.R.Civ.P. 4(c). However, as a party to the lawsuit, the plaintiff may not personally effect service. Id. A defendant may assert the defense of insufficiency of service of process either by motion or in the defendant's answer. Fed.R.Civ.P. 12(b)(4), 12(b)(5). The court must dismiss a cause of action for insufficient process or service of process. Id.

B. Motions to Dismiss Under Rule 12(b)(6)

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964--65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

III. DISCUSSION

As mentioned above, Defendants Kellogg and LJBTC have each filed a motion to dismiss this lawsuit. Additionally, the Court has reviewed the Complaint and has found it be inadequate to maintain a ...


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