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Richard T. Mcree v. Richard N. Goldman

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


March 19, 2012

RICHARD T. MCREE,
PLAINTIFF,
v.
RICHARD N. GOLDMAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING DEFENDANT DOUGLAS E. GOLDMAN'S MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART CITY AND COUNTY OF SAN FRANCISCO'S JOINDER IN MOTION TO DISMISS; GRANTING UNITED STATES' MOTION TO DISMISS; AND DENYING PLAINTIFF'S MOTION TO COMPEL

Plaintiff Richard T. McRee ("Plaintiff") brings this action against Defendants Douglas E. Goldman ("D. Goldman"), the City and County of San Francisco ("CCSF"), the United States of 20 America, Richard N. Goldman's Estate ("R. Goldman"), Willie L. Brown, Jr. ("Brown"), Gavin 21 Newsom ("Newsom"), and Bevan Dufty ("Dufty") (collectively "Defendants"), alleging patent 22 infringement and a variety of constitutional and common law claims. See ECF No. 61. Before the 23 Court are four motions: (1) D. Goldman's Motion to Dismiss Plaintiff's First Amended Complaint, 24

ECF No. 76 ("Goldman Mot."); (2) CCSF's Joinder in D. Goldman's Motion to Dismiss, ECF No. 25

86 ("CCSF Mot."); (3) the United States' Motion to Dismiss Plaintiff's First Amended Complaint, 26

ECF No. 89 ("U.S. Mot."); and (4) Plaintiff's Ex Parte Motion to Compel Response from the 27 Richard N. Goldman Estate, ECF No. 88 ("Mot. to Compel"). The Court held a hearing on D. 28 Goldman's and CCSF's motions to dismiss on March 8, 2012. Pursuant to Civil Local Rule 7-1(b), 2 the Court finds the United States' motion to dismiss suitable for determination without oral 3 argument and hereby VACATES the May 3, 2012 hearing. Having considered the submissions 4 and arguments of the parties, and the relevant law, the Court hereby GRANTS D. Goldman's 5 motion to dismiss all claims against him, but grants leave to amend as to Plaintiff's claim for 6 inducement of infringement; GRANTS IN PART and DENIES IN PART CCSF's Joinder in D. 7

Goldman's Motion to Dismiss; and GRANTS the United States' motion to dismiss all claims 8 against it. Moreover, for the reasons stated in Section IV, infra, the Court DENIES Plaintiff's 9 Motion to Compel a Response from the Richard N. Goldman Estate.*fn1

I.BACKGROUND

A.Factual Background

For purposes of ruling on the motion to dismiss, the Court takes the facts as alleged in Plaintiff's First Amended Complaint ("FAC") to be true and construes them in the light most 14 favorable to Plaintiff, the nonmoving party. See Colony Cove Props., LLC v. City of Carson, 640 15 Patent No. 6,003,269 (the "'269 Patent"), entitled "Retractable Covering for Spaces" ("RCS"), 17 which issued on December 21, 1999. FAC ¶ 1; see ECF No. 62 (FAC Ex. A). Plaintiff uses the 18 registered trademark "SkyCover" to identify embodiments of the '269 Patent. FAC ¶ 1. 19 20

F.3d 948, 955 (9th Cir. 2011).*fn2 Plaintiff is a registered architect, inventor, and sole owner of U.S. 16

Association ("SGFA") has organized and presented, through charitable donations, a series of 4 admission-free summer concerts open to the public and staged in Stern Grove's natural 5 amphitheater. D. Goldman became the Director of SGFA in 1996. Id. ¶ 46. 6

when he saw in the newspaper that the newly renovated Stern Grove -- a public park owned and 8 maintained by CCSF -- featured an embodiment of the '269 Patent covering the new performance 9 stage ("Stern Grove Canopy"). FAC ¶¶ 116, 120-21. The $15 million Stern Grove park renovation 10 project was funded in large part by D. Goldman and R. Goldman and was jointly overseen by The site of the alleged infringement is Stern Grove, a public park owned and maintained by

CCSF, which features an outdoor performance venue. Since 1938, the Stern Grove Festival 3

Plaintiff discovered Defendants' alleged infringement of the '269 Patent on June 20, 2005,

CCSF and the Stern Grove Festival Association ("SGFA"), of which D. Goldman is the Director. 12

Id. ¶¶ 60, 63, 78, 98, 127. Plaintiff alleges that he had previously shared his invention with CCSF 13 in 1998 during a meeting with the Mayor's Office, under the auspices of a signed Confidential 14

Disclosure Agreement, and that Defendants' infringement was therefore willful. Id. ¶ 55. Plaintiff 15 further alleges that, upon discovery of the alleged infringement, he immediately notified 16

Defendants, and for nearly six years thereafter diligently pursued non-litigation strategies for 17 resolving this dispute without resort to the courts. Id. ¶¶ 67, 120, 122, 126.

patent infringement; (2) unconstitutionality; (3) fraud; (4) unfair competition; and (5) negligence. 21

ECF No. 1. On October 12, 2011, the Court granted Defendant D. Goldman's motion to dismiss 22 all claims, with leave to amend. ECF No. 60 ("Order"). On November 8, 2011, Plaintiff filed his 23

FAC, which asserts the same five causes of action, and which repeats many of the same factual 24 allegations as in the original Complaint. However, in response to the October 12, 2011 Order, 25

Plaintiff adds CCSF and the United States as Defendants, and elaborates on why he believes he is 26 entitled to equitable tolling. See generally FAC. D. Goldman filed a Motion to Dismiss Plaintiff's 27

B.Procedural History

Plaintiff filed his original Complaint on March 3, 2011, alleging five causes of action: (1)

FAC on November 28, 2011, see ECF No. 76; and CCSF filed a Joinder in that Motion on 28

December 22, 2011, see ECF No. 86. The United States filed a separate Motion to Dismiss on 2 January 20, 2012. See ECF No. 89. Plaintiff filed Oppositions to all three motions. See ECF No. 3

80 ("Opp'n to Goldman"); ECF No. 92 ("Opp'n to CCSF"); ECF No. 104 ("Opp'n to U.S.").4 it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the 7 plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. 8

II.LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if Corp. v. Twombly, 550 U.S. 544, 547 (2007). This "facial plausibility" standard requires the 9 plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted 10 unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). In deciding whether the plaintiff has stated a claim, the court must assume the plaintiff's allegations are true and draw 12 all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 13 (1982) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9 (1980). However, the court is not required to 15 accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or 16 unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 17

A Rule 12(b)(6) motion to dismiss on statute of limitations grounds may be granted "only if 18 the assertions of the complaint, read with the required liberality, would not permit the plaintiff to 19 prove that the statute was tolled." Morales v. City of L.A., 214 F.3d 1151, 1153 (9th Cir. 2000) 20 (holding that a motion to dismiss on statute of limitations grounds should not be granted if "the 22 complaint, liberally construed in light of our 'notice pleading' system, adequately alleges facts 23 showing the potential applicability of the equitable tolling doctrine."). "'A complaint cannot be 24 dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would 25 establish the timeliness of the claim.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 26 1206 (9th Cir. 1995)).

1987). Pro se pleadings are to be construed liberally. Boag v. MacDougall, 454 U.S. 364, 365 14 (citations omitted); see also Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993) 21 592 F.3d 954, 969 (9th Cir. 2010) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 27 justice so requires." Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010); see 3 Fed. R. Civ. P. 15(a). This is particularly true where the plaintiff is proceeding pro se. See Lopez 4 v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Nonetheless, leave to amend may be denied if 5 allowing amendment would unduly prejudice the opposing party, cause undue delay, or be futile. 6 Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008). In addition, a motion to 7 dismiss based on time bars may be granted without leave to amend where the face of the complaint 8 establishes "facts that foreclose[] any showing of reasonable diligence." Von Saher, 592 F.3d at 9 "'discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.'" Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th 12 Generally, when a complaint is dismissed, "leave to amend shall be freely given when 969 (discussing Orkin v. Taylor, 487 F.3d 734, 742 (9th Cir. 2007)). Finally, the Court's 10 Cir. 2011) (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).13

infringed the '269 [P]atent by earmarking and donating major charitable [f]unds from [his] non-18 profit family charity Funds." FAC ¶ 165. Defendant D. Goldman moves to dismiss Plaintiff's 19 patent infringement claim against him. 20

III. DISCUSSION OF MOTIONS TO DISMISS

A.Patent Infringement

1.D. Goldman

Plaintiff's FAC alleges that D. Goldman "willfully, directly and indirectly induced and

The relevant provisions of federal patent law provide:

(a) . . . whoever without authority makes, uses, offers to sell, or sells any patented

invention, within the United States . . . infringes the patent. (b) Whoever actively induces infringement of a patent shall be liable as an infringer. (c) Whoever offers to sell or sells

within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

35 U.S.C. § 271.

to state a claim against D. Goldman personally for direct infringement" under 35 U.S.C. § 271(a); 3 rather, "allegations of infringement appear[ed] to be directed at SGFA, of which D. Goldman is the 4 chairman of the Board." Order at 7. The Court therefore dismissed Plaintiff's direct infringement 5 claims against D. Goldman with leave to amend, allowing Plaintiff the opportunity to allege 6 grounds for piercing the corporate veil so as to hold D. Goldman personally liable for SGFA's 7 direct infringement. See id. at 8-9. 8

9 alter ego organization[s]," FAC ¶¶ 127, 162, Plaintiff does not allege facts adequate to state a claim 10 against D. Goldman. Under patent law, "the 'corporate veil' shields a company's officers from

The October 12, 2011 Order ruled that the original Complaint did not "plead sufficient facts

Despite Plaintiff's bare and conclusory allegations that SGFA and CCSF are "Goldman personal liability for direct infringement that the officers commit in the name of the corporation, 12 unless the corporation is the officers' 'alter ego.'" Wordtech Sys., Inc. v. Integrated Networks 13 486 F.3d 1286, 1295 (Fed. Cir. 2007)). To determine whether alter ego liability applies under § 15 271(a), courts must apply the law of the regional circuit. Wechsler, 486 F.3d at 1295; see also 16 (Fed. Cir. 1986). The Ninth Circuit applies the law of the forum state, which in this case is 18 1391 (9th Cir. 1993)).

the corporate form only reluctantly and cautiously." Id. In general, California courts allow the 22 corporate veil to be pierced "[o]nly when (1) 'there is such a unity of interest and ownership that 23 the individuality, or separateness, of the said person and the corporation has ceased,' and (2) 'an 24 adherence to the fiction of the separate existence of the corporation would . . . sanction a fraud or 25 promote injustice.'" Id. (quoting Firstmark Capital Corp. v. Hempel Fin. Corp., 859 F.2d 92, 94 26 (9th Cir. 1988)). Here, Plaintiff's FAC alleges only that the "long-standing and influential 27 personal, economic, and political ties" create an alter ego relationship between D. Goldman and 28 Solutions, Inc., 609 F.3d 1308, 1313 (Fed. Cir. 2010) (quoting Wechsler v. Macke Int'l Trade, Inc., 14 Wordtech, 609 F.3d at 1313; Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1579 17 California. Wechsler, 486 F.3d at 1295 (citing Towe Antique Ford Found. v. IRS, 999 F.2d 1387, 19 "California courts generally treat the alter ego doctrine as a drastic remedy and disregard

SGFA and CCSF. FAC ¶ 162. Even taken in the light most favorable to Plaintiff, these allegations 2 are insufficient to show an obvious "unity of interest and ownership" between D. Goldman and 3 either of the two entities allegedly responsible for the direct infringement. Moreover, the FAC falls 4 far short of showing that fraud or injustice would result from allowing Plaintiff's direct 5 infringement claim to proceed against CCSF but not against D. Goldman in his individual capacity. 6

As Plaintiff has already been given an opportunity to cure the deficiency in his pleadings and has 7 failed to do so, the Court DISMISSES with prejudice the claim that D. Goldman directly infringes 8 the '269 Patent. 9

10 violation of 35 U.S.C. § 271(b). "To prevail on inducement, the patentee must show, first that there has been direct infringement, and second that the alleged infringer knowingly induced 12 infringement and possessed specific intent to encourage another's infringement." Kyocera 13 Wireless Corp. v. ITC, 545 F.3d 1340, 1353-54 (Fed. Cir. 2008) (internal quotation marks omitted); 14 accord DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006) (en banc). As the Court 15 explained in its prior Order, "[i]nduced infringement requires more than mere knowledge of the 16 induced acts; rather, the accused must have 'knowledge that the induced acts constitute patent 17 infringement.'" Order at 8 (quoting Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 18

2068 (2011)). In Global-Tech Appliances, the Supreme Court held that the doctrine of willful 19 blindness applies to inducement of infringement claims such that a defendant may not avoid 20 inducement liability by deliberately avoiding actual knowledge that the acts it induces constitute 21 patent infringement. Global-Tech Appliances, 131 S. Ct. at 2069. Thus, a plaintiff may establish 22 inducement liability under a theory of willful blindness by showing that: (1) the defendant 23 subjectively believes that there is a high probability that a fact exists, and (2) the defendant took 24 deliberate actions to avoid learning of that fact. Id. at 2070. "[P]utting Global-Tech together with 25

Iqbal, the question before the Court on [D. Goldman's] motion[] to dismiss is whether [Plaintiff] 26 has plead sufficient facts . . . for the Court to infer that [D. Goldman] had knowledge of 27

Plaintiff also fails to allege sufficient facts that D. Goldman induced infringement in

[Plaintiff's] patent[] and that the [Stern Grove Canopy] infringed on [that] patent[]" at the time of 28 his alleged acts of inducement. See Trading Techs. Int'l, Inc. v. BCG Partners, Inc., No. 10c715, 2 2011 WL 3946581, at *3 (N.D. Ill. Sept. 2, 2011) (Kendall, J.) (emphasis in original); accord

WL 202664, at *4 (S.D. Cal. Jan. 23, 2012) (Sammartino, J.). 5

Weiland Sliding Doors and Windows, Inc. v. Panda Window and Doors, LLC, No. 10CV677, 2012 4

Plaintiff fails to show the concurrence of knowledge and action necessary to establish D. Goldman's liability under § 271(b) for induced infringement. All of D. Goldman's alleged acts of 7 inducement occurred prior to August 9, 2005, when Plaintiff first sent a letter to D. Goldman 8 notifying him of the alleged infringement. FAC ¶ 137. Plaintiff alleges that, in 1999, D. Goldman 9 conferred with the hired designer of the Stern Grove Renewal Project and witnessed "first sketches 10 of the work," FAC ¶¶ 56, 72, 78, and that in 2000 or 2001, he donated $2 million to SGFA for the Plaintiff does not allege that D. Goldman had any knowledge of the '269 Patent prior to August 9, 13

Agreement, he disclosed to someone in the Mayor's Office the designs for his invention and the 15 fact that he had a patent application pending for the RCS, see FAC ¶ 55, he fails to allege how or 16 when this information was conveyed to D. Goldman in advance of his charitable donation to the 17

Stern Grove Renewal Project, stating only that the Goldmans and the City "share long-standing 18 ties," FAC ¶ 70. Furthermore, Plaintiff says that he himself did not initially suspect infringement 19 based on the designer's publicly disclosed drawings, which were "'sketchy' and with no suggestion 20 of a SkyCover." FAC ¶ 105. In short, Plaintiff has not adequately alleged facts from which the 21

Court can draw a plausible inference that D. Goldman knew of or was willfully blind to the 22 existence of the '269 Patent at the time of his charitable donation, nor that he knew his funds would 23 be used to infringe the '269 Patent. Plaintiff furthermore fails to allege that D. Goldman engaged 24 in any acts that induced infringement after he learned of the '269 Patent in 2005. Thus, Plaintiff 25 has failed to plead that D. Goldman knowingly induced any acts of infringement and that he had 26 the requisite specific intent to induce such infringement. Accordingly, the Court DISMISSES 27

Renewal Project, which included construction of the accused product, FAC ¶ 127. However, 12 2005. Although Plaintiff alleges that as early as 1998, under the terms of a Confidential Disclosure 14 Plaintiff's claim of active inducement against D. Goldman. In light of Plaintiff's pro se status and 28 the possibility that he can cure his pleading deficiency with the assistance of pro bono counsel, 2 however, the Court dismisses this claim without prejudice. 3

5 infringe, the '269 Patent through the acts of its public officials. FAC ¶¶ 163-64. CCSF does not 6 move to dismiss the patent infringement claim against CCSF, but instead moves only to strike the 7 patent infringement claim pursuant to Rule 12(f) for failure to comply with Rule 8(a)(2) of the 8

2.CCSF

Plaintiff's FAC seems to allege that Defendant CCSF directly infringed, and continues to Federal Rules of Civil Procedure. See Joinder at 5-6; Goldman Mot. at 18-20 (moving to strike 9 under Rules 8(a)(2), 9(b), and 12(f)). 10

Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 12(f) allows the Court to "strike from a pleading . . . any redundant, 12 immaterial, impertinent, or scandalous matter." A matter is immaterial if it "has no essential or 13 important relationship to the claim for relief" pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 14 U.S. 517 (1994). A matter is impertinent if it does "not pertain, and [is] not necessary, to the issues 16 in question." Id. "'The function of a 12(f) motion to strike is to avoid the expenditure of time and 17 money that must arise from litigating spurious issues by dispensing with those issues prior to 18 trial.'" Id. (quoting Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)); accord 19

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). While a Rule 12(f) 20 motion provides the means to excise improper materials from pleadings, such motions are 21 generally disfavored because the motions may be used as delaying tactics and because of the strong 22 policy favoring resolution on the merits. To that end, courts have held that a motion to strike 23 matter from a complaint simply for being redundant, immaterial, impertinent, or scandalous 24

"should only be granted if 'the matter has no logical connection to the controversy at issue and 25 may prejudice one or more of the parties to the suit.'" N.Y. City Emps.' Ret. Sys. v. Berry, 667 F. 26 2006 WL 581096, at *2 (N.D. Cal. 2007) (Illston, J.)). "Where the moving party cannot 28 1527 (9th Cir. 1993) (internal quotation marks and citation omitted), rev'd on other grounds, 510 15 Supp. 2d 1121, 1128 (N.D. Cal. 2009) (Ware, J.) (quoting Rivers v. Cnty. of Marin, No. C 05-4251, 27 adequately demonstrate such prejudice, courts frequently deny motions to strike 'even though the 2 offending matter literally [was] within one or more of the categories set forth in Rule 12(f).'" Id. 3

(quoting Rivers, 2006 WL 581096, at *2); see also Charles A. Wright & Arthur R. Miller, Federal 4 Practice and Procedure § 1382 (1990). Furthermore, as already noted above, the Court construes 5 pro se pleadings liberally. Boag, 454 U.S. at 365. 6

Although the Court's October 12, 2011 Order advised Plaintiff that he must comply with Rules 8(a)(2) and 12(f), the Court did not consider the merits of D. Goldman's first motion to strike 8 portions of the original Complaint, as the motion was mooted by the Court's dismissal without 9 prejudice of the original Complaint. See Order at 13. D. Goldman's new Motion to Dismiss does 10 not identify what portions of the FAC are subject to be stricken under Rule 12(f), instead merely

In its Joinder, CCSF adds no analysis or argument, simply asserting that "the First Cause of 13

Where a Rule 12(f) motion is really an attempt to dismiss certain claims, the Ninth Circuit has held 15 that a Rule 12(b)(6) motion or a Rule 56 motion is the more proper vehicle. See Whittlestone, 618 16 'neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint.'" 18

(1969)). CCSF in its Joinder has not identified how Plaintiff's patent infringement claim against 20

CCSF is redundant, immaterial, impertinent, or scandalous, nor has it shown how CCSF is 21 prejudiced by any of the matter asserted in the FAC. Accordingly, the Court DENIES CCSF's 22

Rule 12(f) motion to strike the First Cause of Action for patent infringement.23 competition, and negligence as barred by their respective statutes of limitation,*fn3 but granted leave 26

asserting as a general matter that portions of the FAC are prolix or repetitive. See Mot. at 18-21. 12 Action" should be stricken "for failure to comply with Rules 8(a)(2) and 12(f)." Joinder at 6. 14 F.3d at 974; see also Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977) ("Rule 12(f) is 17 (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380, at 782 19

B.State Law Claims

In its October 12, 2011 Order, the Court dismissed Plaintiff's state claims of fraud, unfair to amend to allow Plaintiff an opportunity to plead facts that would entitle him to equitable tolling. 2

Plaintiff has failed to do so in his FAC, and thus the state claims are dismissed with prejudice. 3

4 that: (1) he has been diligent in pursuing his rights, and (2) "'extraordinary circumstances beyond 5

F.3d 992, 1004 (9th Cir. 2006) (quoting Seattle Audubon Soc'y v. Robertson, 931 F.2d 590, 595 7

As explained in the previous Order, a party asserting equitable tolling must demonstrate

[his] control made it impossible to file the claims on time.'" Huynh v. Chase Manhattan Bank, 465 6

(9th Cir. 1991)); see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The doctrine is to be applied 8 sparingly and is reserved only for "extreme cases," such as when the claimant has been tricked by 9 an adversary into letting a deadline expire, an administrative agency's notice of the statutory period 10 is clearly inadequate, or when the statute of limitations is not complied with solely due to defective

pleadings. Scholar v. Pac. Bell, 963 F.2d 264, 267-68 (9th Cir. 1992); see Irwin v. Dep't of 12

Veterans Affairs, 498 U.S. 89, 96 (1990). Courts are "generally unforgiving, however, when a late 13 filing is due to [a litigant's] failure 'to exercise due diligence in preserving his legal rights.'" 14

In Plaintiff's original complaint, he alleged that his untimely filing of his state law claims 16 was due primarily to (1) his financial inability to obtain and retain counsel; (2) his own lack of 17 legal expertise; and (3) his good faith reliance on Defendants' representations that the matter could 18 be resolved amicably without resort to the courts. See Order at 10. Although Plaintiff adds a 19 section to his FAC dedicated to equitable tolling and further elaborates on the reasons why he 20 delayed bringing these causes of action, he still fails to demonstrate entitlement to equitable tolling 21 of his time-barred claims. 22 23 Scholar, 963 F.2d at 268 (quoting Irwin, 498 U.S. at 96). 15 years for unfair competition, see Cal. Bus. & Prof. Code § 17200 et seq.; and (3) four years for a 24 negligence claim based on California Corporations Code § 5231, see Cal. Corp. Code § 5231. See Order at 11-13. Under California law, "[a] cause of action accrues when the claim is complete 25 with all of its elements." Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1054 (9th Cir. 2008). Here, Plaintiff's fraud, unfair competition, and negligence claims all stem from the 26 alleged patent infringement, which Plaintiff discovered in June 2005. Thus, all of his state law 27 claims accrued as of June 2005. Plaintiff did not file his action until March 2011, and therefore all of his state law claims are time barred. 28

his own lack of legal expertise as bases for equitable tolling of his claims. See FAC ¶ 29. If a 3 plaintiff's financial inability to retain counsel or personal lack of legal expertise alone were 4 sufficient to invoke the principles of equitable tolling, all pro se plaintiffs would be able to 5 circumvent the applicable statutes of limitations and delay prosecution of their claims, to the 6 detriment of defendants. These generic grounds do not exemplify the "extraordinary 7 circumstances" required to justify equitable tolling of the statutes of limitations for Plaintiff's state 8 law claims here. 9

without litigation are admirable, they are not sufficient grounds for equitable tolling,

Defendants" and the "complex interweaving and historical interaction of Defendants." FAC ¶ 15. 13 133, but he does not allege that they tricked him into letting a deadline expire or took any other 15 actions that "made it impossible [for him] to file the claims on time," Huynh, 465 F.3d at 1004 16

(internal quotation marks and citation omitted). While the Court appreciates Plaintiff's feelings of 17 frustration at being allegedly ignored by Defendants, it was Plaintiff's own responsibility "'to 18 exercise due diligence in preserving his legal rights'" and to bring suit in a timely manner. 19

Plaintiff also alleges that 2008 "was a year of frustration, anxiety, cancer and recuperation," 21 involving "radiation treatment / 6 months convalescence." FAC ¶¶ 130, 137. Again, while the 22 Court is sympathetic to Plaintiff's medical issues, his allegations fall short of establishing that this 23 is the extreme and rare case where equitable tolling is warranted. Plaintiff does not allege that his 24 medical condition in 2008 rendered him unable to pursue his legal rights during the relevant time 25 period, or that the time period of his incapacitation was long enough to justify the delay of several 26 years in filing his claims. See Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), reh'g 27 granted, op. modified, 477 F.3d 1165 (9th Cir. 2006); Bryant v. Ariz. Att'y Gen., 499 F.3d 1056, 28

First, as before, Plaintiff cannot rely on his financial inability to obtain and retain counsel or Likewise, while Plaintiff's good faith efforts to resolve this dispute with Defendants notwithstanding Plaintiff's appeal to the "vast difference in [m]arket [p]ower between Plaintiff and 12

Plaintiff alleges that Defendants ignored him and "misrepresent[ed] . . . legal case findings," FAC ¶ 14

Scholar, 963 F.2d at 268 (quoting Irwin, 498 U.S. at 96). 20

1060-61 (9th Cir. 2007). Accordingly, Plaintiff's alleged medical issues and treatment are 2 insufficient to toll the applicable statutes of limitations. 3

infringement claim under 35 U.S.C. § 286 to equitably toll his state law claims. See FAC ¶ 29. 5

Finally, Plaintiff cannot rely on the six-year statute of limitations for his patent

Plaintiff alleges, without basis, that "[b]ecause the infringement has . . . been the true basis of this 6 action, 'elements' [for the other claims] truly didn't in any way 'accrue' for Plaintiff until 2010, 7 after RN Goldman refused a final time to respond or intercede." Id. Title 35 applies only to patent 8 law and is not applicable to claims relating to fraud, unfair competition, or negligence. Thus, this 9 last argument is also insufficient to support equitable tolling. 10

In conclusion, Plaintiff's state law claims of fraud, unfair competition, and negligence, are all time barred, and despite being given leave once before to plead facts supporting application of 12 the equitable tolling doctrine, Plaintiff fails to do so. Because the running of the applicable statutes 13 is apparent on the face of the FAC, and because this ground for dismissal applies equally to all 14

Defendants, the Court DISMISSES with prejudice Plaintiff's fraud, unfair competition, and 15 negligence claims as to all Defendants. 16

C.Unconstitutionality

1.D. Goldman and CCSF

Finally, the FAC alleges "Unconstitutionality" as a Cause of Action. FAC ¶¶ 170-71.

Plaintiff argues that patent law in its current form does not provide adequate legal remedies for 20 individual patentees like himself. Id.; see Order at 9-10. He appears to take issue specifically with 21 the Manual of Patent Examining Procedure ("MPEP") Appendix R Section 1.27, which Plaintiff 22 claims disadvantages individual inventors. The Court previously dismissed Plaintiff's 23 unconstitutionality claim against D. Goldman because: (1) Plaintiff failed to allege "that Defendant 24 has any affiliation with the United States Patent Office or any other governmental entity 25 responsible for authoring or implementing the [Manual of Patent Examining Procedure]," and (2) 26

Plaintiff failed to bring his unconstitutionality claim within the four year statute of limitations for 27 28 civil actions arising under an Act of Congress, and failed to establish entitlement to equitable 2 tolling. See Order at 10-11 (citing 28 U.S.C. § 1658(a)). 3

Patent Law or the Manual of Patent Examining Procedure. Furthermore, Plaintiff's 6 unconstitutionality claim is time barred, and as previously discussed, he fails to allege facts 7 sufficient to establish equitable tolling. Plaintiff's claim of unconstitutionality against D. Goldman 8 and CCSF is therefore DISMISSED with prejudice. 9

On this count, Plaintiff's FAC fares no better than his original complaint. Neither D. Goldman nor CCSF is alleged to have any role in enacting, enforcing, or implementing the federal 5

2.United States

As an additional ground for dismissal, the United States argues that Plaintiff lacks standing to bring his unconstitutionality claim because he has not shown and cannot show that any injury 12 suffered is traceable to the challenged regulation or that any injury is redressable by this Court. 13

The Court agrees. The "irreducible constitutional minimum of standing" under Article III contains 14 three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must show: 15

"[(]1) an injury in fact which is 'actual, concrete, and particularized'; [(]2) a causal connection 16 between that injury and the defendant's conduct; and [(]3) a likelihood that the injury can be 17 redressed by a favorable decision of the court." Get Outdoors II, LLC v. City of San Diego, Cal., 18

506 F.3d 886, 891 (9th Cir. 2007) (quoting Lujan, 504 U.S. at 560-61); accord Oliver v. Ralphs 19

"Plaintiff is not asking to 'invalidate' any patent regulations. Rather, he is arguing that [the] 21

United States has failed altogether to establish regulations that would 'secure' his constitutional 22 rights." Opp'n to U.S. at 18. Plaintiff argues that his injury arises from the absence of adequate 23 protections for individual inventors under the existing patent laws, and the relief he appears to be 24 seeking is an injunction compelling the United States or the Department of Justice "to compel the 25 creation of patent regulations . . . to provide [i]nventors the protection they need." Opp'n to U.S. at 26

22. This Court is without power to order the United States Congress to enact new patent 27 legislation, as all legislative powers are vested exclusively in the Legislative Branch. See U.S. 28

Grocery Co., 654 F.3d 903, 907 (9th Cir. 2011). Plaintiff makes clear in his opposition that 20

Const. art. I, § 1; see also Buckley v. Valeo, 424 U.S. 1, 119 (1976) ("[T]he doctrine of separation 2 of powers . . . is at the heart of our Constitution."). Plaintiff has not identified any existing statute 3 or regulation that has caused his alleged injury of patent infringement, nor has he requested a form 4 of relief that this Court can award. Accordingly, the United States' motion to dismiss Plaintiff's 5 claim of unconstitutionality is DISMISSED with prejudice. 6

IV. DISCUSSION OF MOTION TO COMPEL RESPONSE

Finally, the Court considers Plaintiff's motion to compel response from the Estate of R. Goldman, filed on January 1, 2012, in which Plaintiff requests "that the Court employ whatever 9 methods may be at its disposal for compelling a response from the Estate of RN Goldman . . . to 10 assure equitable treatment of all parties." Mot. to Compel at 2. Plaintiff contends he has received

Goldman."*fn4 Mot. to Compel at 2. 13

14 jurisdiction over a defendant unless the defendant has been served properly under [Federal Rule of 15 840 F.2d 685, 688 (9th Cir. 1988)). The Certificate of Service of Summons and First Amended 17

Complaint shows that Plaintiff attempted to serve the Richard N. Goldman Estate via the Richard 18 and Rhoda Goldman Fund. See ECF Nos. 71 (Summons), 84 (Certificate of Service). Plaintiff 19 previously attempted to serve Richard N. Goldman in his official capacity as Chairman of the 20

Richard and Rhoda Goldman Fund ("Goldman Fund") by mailing a copy of the original Complaint 21 to Gregory L. Lippetz, Esq. See ECF No. 20. Plaintiff appears to believe that Attorney Lippetz is 22 the proper agent to accept service on behalf of R. Goldman's Estate for two reasons: (1) Attorney 23

Estate, see Mot. to Compel at 5; and (2) in 2007, when Plaintiff first tried to contact R. Goldman 25 regarding the alleged patent infringement by writing to the Goldman Fund, the Goldman Fund's 26

"no response to [his] summons from the Estate or survivors of deceased defendant Richard N 12

As the Court noted in its October 12, 2011 Order, "[a] federal court does not have

Civil Procedure] 4." Order at 4 (citing Direct Mail Specialists v. Eclat Computerized Techs., Inc., 16

Lippetz represents D. Goldman, son of R. Goldman and putative principal heir to the R. Goldman 24

Executive Director Amy Lyons directed Plaintiff to speak with Attorney Lippetz, see id. at 3. 27

Richard and Rhoda Goldman [F]und." ECF No. 90 ¶ 3. Attorney Lippetz clarified at the March 8, 4

Goldman solely in his capacity as a director of SGFA, not in his personal capacity. Based on 6

Estate. 8

In response to the instant Motion to Compel, Attorney Lippetz filed a declaration stating,

"Neither I nor my firm are or ever have been counsel for Richard N. Goldman, his Estate[,] or the 3 2012 hearing that he represents SGFA and its officers and directors, and therefore represents D. 5

Attorney Lippetz's representations, it appears that Plaintiff has not properly served R. Goldman's 7

If R. Goldman left an Estate, then any claims filed against the Estate must be served on the

Estate's personal representative. See Cal. Prob. Code § 9820 ("The personal representative may . . 10

. [d]efend actions and proceedings against the decedent, the personal representative, or the estate."); id. § 9150(b). Plaintiff therefore must ascertain the identity of the personal representative 12 of the Estate and serve his Complaint upon that person or entity. "The 'personal representative' is 13 the person or firm appointed by the probate court to administer the probate of a decedent's estate." 14

1340 (2008). Plaintiff should be able to identify the personal representative of R. Goldman's 16

Prob. Code § 7051. 18

Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore, 162 Cal. App. 4th 1331, 15 Estate by inquiring at the Probate Court in the County where R. Goldman was domiciled. See Cal. 17

While the Court is sympathetic to the difficulties Plaintiff has faced as a pro se litigant, the Court is without authority to compel the participation of a non-party who has not been properly 20 served. To the extent Plaintiff may wish to compel another party to disclose information that 21 would facilitate service on R. Goldman's Estate and personal representative, Plaintiff may attempt 22 to do so through a discovery request. However, because Plaintiff does not yet appear to have 23 properly served R. Goldman's Estate, Plaintiff's motion to compel a response from the Estate at the 24 present time is DENIED without prejudice.*fn5

V.CONCLUSION

For the foregoing reasons, the Court orders as follows: (1) D. Goldman's motion to dismiss 3 is GRANTED with prejudice as to Plaintiff's claims of direct infringement, fraud, unfair 4 competition, negligence, and unconstitutionality; and GRANTED without prejudice as to 5 Plaintiff's inducement of infringement claim; (2) CCSF's motion to dismiss Plaintiff's claims of 6 fraud, unfair competition, negligence, and unconstitutionality is GRANTED with prejudice; (3) 7 CCSF's motion to strike Plaintiff's patent infringement claim is DENIED; (4) the United States' 8 motion to dismiss all claims against it is GRANTED with prejudice; and (5) Plaintiff's motion to 9 compel response from R. Goldman's Estate is DENIED without prejudice. Any amended 10 complaint must remedy the deficiencies identified above and must be filed and served within 21 days of the date of this Order or will be dismissed with prejudice as to D. Goldman. Plaintiff may 12 not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15(a)(2).

IT IS SO ORDERED.


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