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Andrew W. Shalaby v. Bernzomatic

September 9, 2011

ANDREW W. SHALABY
PLAINTIFF,
v.
BERNZOMATIC, AN UNINCORPORATED DIVISION OF IRWIN INDUSTRIAL TOOL COMPANY; IRWIN INDUSTRIAL TOOL
COMPANY; NEWELL OPERATING COMPANY, INC., AND DOES 1 THROUGH 50, INCLUSIVE; DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION FOR PREFILING ORDER [Doc. Nos. 5 and 6]

Before the Court are Defendants' motion to dismiss Plaintiff Andrew Shalaby's First Amended Complaint ("FAC") for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), [Doc. No. 5], and motion for prefiling order, [Doc. No. 6]. For the reasons set forth below, the Court hereby GRANTS Defendants' motion to dismiss and DENIES WITHOUT PREJUDICE Defendants' motion for prefiling order.

FACTUAL BACKGROUND

Plaintiff Andrew Shalaby purchased a handheld gas-powered torch from Home Depot produced by Defendant Bernzomatic. He alleged that the torch malfunctioned causing injuries. On October 10, 2006, Shalaby filed a diversity product liability case under California law against Bernzomatic in the Alameda County Superior Court. That action was removed and transferred to the Southern District of California, Case No. 07cv2107 MMA (BLM) ("Prior Federal Action").

The Prior Federal Action lasted three years. The Honorable Michael M. Anello granted Bernzomatic's motion for summary judgment in favor of Defendant on July 28, 2009. The Court excluded all of Plaintiff's expert testimony finding the expert testimony was: 1) unreliable and irrelevant; and 2) the expert was not a qualified expert, and even if she were, her testimony was unreliable and irrelevant. [Order Granting Def.'s Mot. For Summ. J., Case No. 07cv2107, Doc. No. 209]. The Court's exclusion of these two witnesses' testimony meant that Plaintiff had not presented the "expert testimony . . . required to establish causation." Id. (citing Stephen v. Ford Motor Co., 134 Cal. App. 4th 1363, 1373, 37 Cal. Rptr. 3d 9 (Cal. Ct. App. 2005). The Court ruled that Plaintiffs had not presented any admissible evidence to create a triable issue of material fact on whether or not the torch was defective. [Id. at p. 24].

The Ninth Circuit affirmed the District Court's decision and issued an opinion on May 17, 2010. See Shalaby v. Newell Rubbermaid, Inc., 379 Fed. Appx. 620 (9th Cir. 2010); [FAC ¶ 3]. The Supreme Court denied Plaintiff's Petition for Writ of Certiorari on November 1, 2010. [FAC ¶ 3] The Court notes that Plaintiff also appears to have made attempts to litigate related claims in the Contra Costa Superior Court.

LEGAL STANDARD

I. Fed. R. Civ. P. 12(b)(6)

A motion to dismiss under Rule 12(b)(6), tests the legal sufficiency of the pleadings, and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "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).

Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, -- U.S. -- , 129 S. Ct. 1937, 1949--50, 173 L.Ed.2d 868 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1929. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (citations omitted).

II. Leave to Amend

FRCP 15(a) declares that the "court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a). If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. Foman v. Davis, 371 U.S. 178, 182 (1962). Although there is a general rule that parties are allowed to amend their pleadings, it does not extend to cases in which any amendment would be an exercise in futility or where the amended complaint would also be subject to dismissal. Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1331 (9th Cir. 1996); Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam).

III. Federal Rule of Civil Procedure Rule 9(b)

Fraud claims must be plead to satisfy the particularity requirements of FRCP 9(b). A claim of fraud must have the following elements: "(a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." In re Estate of Young, 160 Cal. App. 4th 62, 79 (2008) (quoting Lazar v. Superior Court, 12 Cal. 4th 631, 638 (1996) (internal quotation marks omitted)). Federal Rule of Civil Procedure 9(b) requires that each of these elements be pleaded with particularity. The Ninth Circuit has "interpreted Rule 9(b) to mean that the pleader must state the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation." Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1988). Averments of fraud must be accompanied by the "who, what, when, where, and how" of the misconduct charged. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). Additionally, "the plaintiff must plead facts explaining why the statement was false when it was made." Smith v. Allstate Ins. Co., 160 F. Supp. 2d 1150, 1152 (S.D. Cal. 2001) (citation omitted); see In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc) (superseded by statute on other grounds).

DISCUSSION

Plaintiff, an attorney licensed by the state of California, initiated this law suit pro se on January 12, 2011. He filed the FAC a day later on January 13, 2011. [Doc. No. 3]. Plaintiff alleges five causes of action against Bernzomatic: (1) Declaratory Relief; (2) Fraud; (3) Intentional Tort; (4) Negligence; and (5) Injunctive Relief. Bernzomatic has moved to dismiss all claims based on the doctrine of res judicata, failure to state a claim for fraud, and that the statute of limitation has passed. The Defendants have also filed a motion for prefiling order and a request for judicial notice.

I. Defendants' Requests for Judicial Notice

Under Federal Rule of Evidence (hereinafter "FRE") Rule 201(b), the Court can take judicial notice of facts not subject to reasonable dispute, including the existence of orders and decisions by other courts. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). Under FRE 201(d), the Court must take notice if requested by a party and if supplied with the necessary information.

Defendants' have filed three requests for judicial notice. The first request for judicial notice, [Doc. No. 5-4], requests judicial notice of: (1) documents filed in Prior Federal Action; (2) records related to appeal of Prior Federal Action; and (3) records related to the state action. The second request for judicial notice, [Doc. No. 10], requests judicial notice of: 1) Court's Chamber Rules as they existed in the year 2009; 2) this Court's order in case number 07CV2107-MMA (BLM), dated 08/07/2009, [Doc. No. 220]; and 3) this Court's order in case number 07CV2107-MMA (BLM), dated 05/19/2010, [Doc. No. 269]. Bernzomatic has provided this Court with copies of these documents. The third request for judicial notice, [Doc. Nos. 6-7], requests judicial notice of: (1) Order issued by this Court awarding costs in the Prior Federal Action [Doc. No. 251]; 2) Order issued by the Ninth Circuit [Doc. No. 272]; 3)

Order Denying in Part and Granting in Part Plaintiffs' Motion to Strike in Prior Federal Action [Doc. No. 191]; 4) Order Denying Plaintiffs' Ex Parte Application for Leave to File Motion for Relief from Judgment of Dismissal in Prior Federal Action [Doc. No. 214]; 5) Order Denying Plaintiffs' Request for Repeal of Chamber Rule and Denying Plaintiffs' Ex Parte Application to File Motion for Reconsideration in Prior Federal Action [Doc. No. 220]; 6) Order Denying Motion for Leave to File Plaintiffs' Ex Parte Application to File Motion for Reconsideration Re: Dismissal of Plaintiffs' Action in Prior Federal Action [Doc. No. 227]; 7) Order Denying Plaintiffs' Ex Parte Applications to Continue Costs Hearing in Prior Federal Action [Doc. No. 242]; 8) Order Denying Ex Parte Applications to Continue Costs Hearing in Prior Federal Action [Doc. No. 242]; 9) Order Denying Plaintiffs' Motion to Retax Costs in Prior Federal Action [Doc. No. 265]; 10) Order Denying Plaintiffs' Ex Parte Application to Continue Motion to Tax Costs Until Appeal Concludes in Prior Federal Action [Doc. No. 258]; 11) Order Denying Plaintiffs' Ex Parte Request for Recusal in Prior Federal Action [Doc. No. 263]; 12) Notation in the docket that the "Notification of Death" filed by Mr. Shalaby in the Prior Federal Action was stricken from the record [Doc. No. 266]; 13) Notice of Document Discrepancies ...


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