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Tony Eugene Goodspeed Ii v. Colleen M. Nichols

November 19, 2012

TONY EUGENE GOODSPEED II, PLAINTIFF,
v.
COLLEEN M. NICHOLS, MARK S. CURRY, ROBERT P. MCELHANY, CHARLES D. WACHOB, TRACY L. LUNARDI, GAREN J. HORST, JOHN C. LYMAN, BRADFORD R. FENOCCHIO, PAUL G. GREEHNHILL, SEAN KELLEY; AND DAVID WEINER, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on July 6, 2012, for hearing of defendants' motions to dismiss pro se plaintiff Tony Eugene Goodspeed's amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Raymond Rouse, Esq. appeared for defendants Colleen Nichols, Mark Curry, Robert McElhany, Charles Wachob, Paul Greenhill and Sean Kelley. David Huskey, Esq. appeared for defendants Tracy Lunardi, Garen Horst and Bradford Fenocchio. Travis Stokes, Esq. appeared for defendant John Lyman. Defendant David Weiner, Esq. appeared on his own behalf. Plaintiff appeared telephonically at the hearing on his own behalf. Oral argument was heard and the motions were taken under submission.

BACKGROUND

Plaintiff commenced this action March 29, 2012, by filing his original complaint and an application to proceed in forma pauperis. (Doc. Nos. 1 & 2.) However, on April 20, 2012, before plaintiff's original complaint and application to proceed in forma pauperis had been reviewed, plaintiff filed an amended complaint. (Am. Compl. (Doc. No. 3.)) Therein, plaintiff alleges claims for civil RICO, mail fraud, wire fraud, violation of procedural Due Process, malfeasance and declaratory judgment. (Id. at 66-74.*fn1 ) On May 11, 2012, plaintiff paid the required filing fee and withdrew his application to proceed in forma pauperis. (Doc. No. 12.)

That same day, counsel for defendants Bradford Fenocchio, Garen Horst and Tracy Lunardi, filed a motion to dismiss plaintiff's amended complaint. (Doc. No. 11.) Plaintiff filed an opposition to that motion to dismiss on May 31, 2012. (Doc. No. 17.) On June 5, 2012, the remaining defendants filed motions to dismiss. (Doc. Nos. 19, 20 & 24.) Plaintiff filed opposition to those motions to dismiss on June 21, 2012. (Doc. Nos. 28-30.)

On June 25, 2012, defendants Colleen Nichols, Mark Curry, Robert McElhany, Charles Wachob, Paul Greenhill and Sean Kelley filed a reply to plaintiff's opposition to their motion to dismiss. (Doc. No. 32.) On June 26, 2012, defendant John Lyman filed a reply to plaintiff's opposition to his motion to dismiss. (Doc. No. 33.) Plaintiff filed unauthorized sur-replies on June 26, 2012 and June 29, 2012.*fn2 (Doc. Nos. 34 & 35.)

STANDARDS

I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(1)

In moving to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the challenging party may either make a facial attack on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis. Thornhill Publ'g Co. v. Gen. Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977). If the motion constitutes a facial attack, the court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891). The court may properly consider extrinsic evidence in making that determination. Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004).

II. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6)*fn3 is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "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). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on the motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. Rule 8

The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.

Fed. R. Civ. P. 8(a).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. ...


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