IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 20, 2011
BRENT WINTERS, ET AL., PLAINTIFFS,
DELORES JORDAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is plaintiffs' "Motion to Join Defendants Benjamin Wagner and J. Earlene Gordon" to this action pursuant to Federal Rule of Civil Procedure 20(a)(2). (Dkt. No. 232.) Because oral argument would not materially aid the resolution of the pending motion, the undersigned submitted this matter on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). Having fully considered plaintiffs' moving and reply papers and defendants' written opposition, the undersigned denies plaintiffs' motion.
Plaintiffs' Third Amended Complaint alleges no facts about Benjamin B. Wagner, the United States Attorney for the Eastern District of California, or J. Earlene Gordon, an Assistant United States Attorney who works under Wagner and is or was counsel for several other defendants in this case. Based on the record before the court, Wagner's and Gordon's only connection with this action is their representation of other named defendants.
Plaintiffs sued several defendants in this action based on their participation in the criminal investigation and prosecution of plaintiff Brent Winters in a matter that proceeded in the Central District of Illinois. See generally United States v. Hills, 618 F.3d 619 (7th Cir. 2010). The following defendants named in this action were federal prosecutors or internal revenue agents involved in the criminal investigation and prosecution of Brent Winters: Jan Paul Miller, Bernard Coleman, Sue Roderick, Kathi Jo McBride, Stephen Tinsley, Kevin Martens, Phillip Johnson, Hilda Molnar, Robert Anderson, Donald Staggs, James Pogue, Patrick Chelsey, and Hilary Frooman (collectively, "Federal Defendants"). Defendant John Taylor is an Assistant Federal Public Defender who represented one of Brent Winters's co-defendants in the criminal action in Illinois. The Illinois investigation began as early as 1999, and the trial concluded in June 2008. See Hills, 618 F.3d at 624-25.
On August 11, 2010, the Federal Defendants and Taylor filed, through Assistant United States Attorney Gordon, an ex parte motion for a 60-day extension of time to respond to the Third Amended Complaint on the grounds these defendants, all of whom are former or current federal employees, were then seeking representation by the United States Attorney's Office. (Dkt. No. 151.) The court granted the extension and ordered that responses to the Third Amended Complaint be filed on or before October 15, 2010. (Order, Aug. 12, 2010, Dkt. No. 152.) On October 14, 2010, defendant John Taylor requested, again through Gordon, another extension, until November 15, 2010, to file a response to the Third Amended Complaint. (Dkt. No. 184.) Taylor did so on the ground that the United States Attorney's Office had declined his request for representation, and Taylor would thus have to find private counsel. The court granted Taylor's request for an additional extension. (Order, Oct. 15, 2010, Dkt. No. 190.)
On October 15, 2010, the Federal Defendants filed a timely motion to dismiss plaintiffs' claims against them on several grounds. On November 4, 2010, John Taylor filed a timely motion to dismiss plaintiffs' claims against him on several grounds, but through private counsel.*fn1
On February 7, 2011, plaintiffs filed the pending motion to join Wagner and Gordon as defendants in this action. Plaintiffs contend that Wagner and Gordon violated federal statutes, including the Westfall Act, 28 U.S.C. § 2679(d)(1), by representing the Federal Defendants and Taylor at all.
In relevant part, Federal Rule of Civil Procedure 20(a)(2) provides:
(a) Persons Who May Join or Be Joined.
(2) Defendants. Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
This rule is conjunctive in nature, requiring an adequate showing under Rule 20(a)(2)(A) and Rule 20(a)(2)(B). "The first prong, the 'same transaction' requirement, refers to similarity in the factual background of a claim." See, cf., Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) (discussing permissive joinder in the context of a claim of misjoinder of plaintiffs).
Here, plaintiffs' potential claims against Wagner and Gordon relate to Wagner's and Gordon's participation as counsel in this action, representing the Federal Defendants and, on a limited basis, Taylor. Plaintiffs' claims that Wagner and Gordon lacked authority to represent the Federal Defendants and Taylor in this action have nothing to do with the facts and claims alleged in or underlying the Third Amended Complaint. Plaintiffs have not alleged that Wagner or Gordon had any connection to the criminal prosecution of Brent Winters in the Central District of Illinois. Similarly, plaintiffs do not allege that Wagner or Gordon had any involvement in the events that give rise to plaintiffs' nearly three dozen claims alleged against over 60 other defendants in the Third Amended Complaint. Plaintiffs are simply attempting to sue Wagner and Gordon for their participation as counsel in this action. The undersigned concludes that plaintiffs' claims against Wagner and Gordon do not arise out of the same transaction, occurrence, or series of transactions or occurrences as their claims against other named defendants in this action.*fn2 Accordingly, the undersigned denies plaintiffs' motion to join Wagner and Gordon in this action.
The undersigned briefly notes that even if the court were permit the
joinder of Wagner and Gordon to this action, plaintiffs' potential
claims would in all likelihood be barred by Noerr-Pennington immunity.
"Under the Noerr-Pennington doctrine, those who petition all
departments of the government for redress are generally immune from
liability." Empress LLC
v. City & County of San Francisco, 419 F3d 1052, 1056 (9th Cir.
2005). "The Noerr-Pennington doctrine ensures that those who petition
the government for redress of grievances remain immune from liability
for statutory violations, notwithstanding the fact that their activity
might otherwise be proscribed by the statute involved."*fn3
White v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000).
And although this doctrine originated in the antitrust context, it is no
longer limited to antitrust actions.*fn4 See, e.g.,
Kearny v. Foley & Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009). The
Noerr-Pennington doctrine applies equally to "defensive" activity.
Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005).
Here, plaintiffs' potential claims against Wagner and Gordon only plausibly relate to Gordon's filing, as counsel for named defendants, of two ex parte applications seeking extensions of time in which to respond to the Third Amended Complaint and a motion to dismiss. Gordon's filing of the requests for extensions and the motion to dismiss constitute petitioning activity protected by the Noerr-Pennington doctrine. See, e.g., Freeman, 410 F.3d at 1184 ("A complaint, an answer, a counterclaim and other assorted documents and pleadings, in which plaintiffs or defendants make representations and present arguments to support their request that the court do or not do something, can be described as petitions . . . ."). Nevertheless, the undersigned does not reach the merits of plaintiffs' potential claims against Wagner and Gordon here.
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiffs' Motion to Join Defendants Benjamin Wagner and J. Earlene Gordon (Dkt. No. 232) is denied.
IT IS SO ORDERED.