The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before the court is defendant Michael Armstrong's ("Michael Armstrong") motion to dismiss plaintiffs' Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Dkt. No. 82, 85.) The court submitted this matter without oral argument.*fn1 (Dkt. No. 102.) The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, will recommend that: (1) Michael Armstrong's motion be granted, and (2) all of plaintiffs' claims alleged against Michael Armstrong be dismissed with prejudice.
Plaintiffs' operative complaint, the Third Amended Complaint,*fn3 is a wide-ranging, 25-page complaint that alleges, in eight-point font, 38 claims for relief against 61 defendants. (Dkt. No. 66.) In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Dkt. No. 56 at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)
The allegations in the Third Amended Complaint that are specific to Michael Armstrong are few. More generally, the claims against Michael Armstrong arise out of an underlying internecine family dispute between the Winters family and defendant Virginia Armstrong. The Third Amended Complaint alleges that in or around the year 2002, plaintiff Susan Winters' elderly parents, Joe and Virginia Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and move to Nevada City, California, to live with the Armstrongs. (Third Am. Compl. at 4.) Plaintiffs allege that before plaintiffs returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred properties, including the residence at 11318 Via Vista in Nevada City, California, from the Armstrong Living Trust dated July 29, 1994, to the Virginia Armstrong Living Trust. (Id.) Plaintiffs allege that Virginia Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon, who was Virginia Armstrong's attorney, and Michael Armstrong, Virginia Armstrong's son, who is an attorney. (Id.)
The relationship between Virginia Armstrong and plaintiffs resulted in several proceedings in the Nevada County Superior Court. Relevant here, Logsdon, acting as Virginia Armstrong's attorney, filed an unlawful detainer action on her client's behalf seeking to evict members of the Winters family from Ms. Armstrong's home. (Third Am. Compl. at 5; Req. for Judicial Notice, Ex. 1, Dkt. No. 75.) In connection with the unlawful detainer action, and relevant to claims alleged against Michael Armstrong, plaintiffs allege that an Assistant United States Attorney from Illinois wrote a letter to defendant Logsdon "offering any aid to help her evict the Winters from their home in Nevada City, California." (Third Am. Compl. at 6, 21.) Plaintiffs further allege that Michael Armstrong caused declarations or other documents to be filed in connection with the issuance of a restraining order, which was favorable to plaintiff Susan Winters, by a judge of the Nevada County Superior Court. (Id. at 6.)
Plaintiffs' Third Amended Complaint alleges the following claims against Michael Armstrong: abuse of process (claim 6); trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); "Slander, Libel, and Slander & Libel Per Se" (claim 21); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress (claim 38). In response to the filing of the Third Amended Complaint, Michael Armstrong filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 82, 85.)
There are several, separately-filed motions pending before the court. Despite the court's previous order that plaintiffs file a separate opposition to each pending motion (Dkt. No. 89 at 6), plaintiffs filed a consolidated opposition. (See Dkt. No. 99.) Plaintiffs filed their opposition on January 13, 2010, despite a court-ordered deadline of January 6, 2010. (Compare Dkt. Nos. 89 with 99.) Although plaintiffs' opposition was untimely and need not be considered, the undersigned has considered that opposition in arriving at the findings and recommendations that follow.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949).
The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect.*fn4 See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).
A. Plaintiffs' Section 1983 Claims Against Michael Armstrong
Plaintiffs sued "All Defendants" for violation of 42 U.S.C. § 1983 (claim 14), for engaging in a conspiracy to violate 42 U.S.C. § 1983 (claim 15), and for "civil conspiracy," which appears to be an additional claim alleging a conspiracy to violate Section 1983. (See Third Am. Compl. at 19-20.) Michael Armstrong moves to dismiss these claims for failure to state a claim on the grounds that: (1) plaintiffs have not alleged that he participated in any act that deprived plaintiffs of their constitutional or statutory rights, and (2) plaintiffs have alleged no specific facts that he acted under the color of law. His arguments, although tersely stated, are persuasive.
"Section 1983 imposes civil liability upon an individual who 'under color [of state law]... subjects or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges or immunities secured by the Constitution and laws.'" Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). Conclusory allegations of a violation of Section 1983 or a conspiracy to violate Section 1983 will not survive a motion to dismiss. See, e.g., Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal of plaintiff's second amended complaint as a result of plaintiff's "conclusory allegations" of a conspiracy to deprive him of his constitutional rights in violation of Section 1983).
Plaintiffs' allegations in support of their Section 1983 claims are conclusory and, on this basis alone, claims 14, 15 and 18 should be dismissed as to Michael Armstrong. For example, plaintiffs do not allege which of their specific constitutional rights were violated and how specifically Michael Armstrong participated in such a violation. Nevertheless, the undersigned will address additional grounds why plaintiffs' claims fail as alleged against Michael Armstrong.
As to claim 14, alleging that all defendants, including Michael Armstrong, individually violated plaintiffs' constitutional rights, plaintiffs allege:
Paragraphs above incorporated by reference. Defendants, by their actions and acting under the color of law, subjected Plaintiffs, and caused Plaintiffs to be subjected, to the deprivations of their rights, privileges, and immunities secured by the Constitution and laws of the State of California and of the United States of America, ...