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Shepard Johnson v. Chester Mitchell et al

February 14, 2013


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Plaintiff proceeds pro se in this action for malicious prosecution. Before the court are defendants Manuel Jose Berrocal ("Berrocal") and Rogelio Arosemena's ("Arosemena") motion to quash and dismiss. Dkt. 229. The matter was heard by the undersigned on January 31, 2013. Present at the hearing were plaintiff, Shepard Johnson, and James Bridgman, appearing for defendants. Having considered the briefing submitted, the parties' oral arguments, the court's record in this matter, and the applicable law, the court FINDS AS FOLLOWS:


Plaintiff, a citizen of California, is a real estate developer who claims that the defendants purchased lots for a planned unit development on an island in Panama. See Third Amended Complaint, Dkt. No. 119 ("TAC") at 2-3. Plaintiff alleges that defendants did not want to be subject to the Conditions, Covenants, and Restrictions ("CC&Rs") for the development, and so rather than settling the matter by way of a contract dispute, defendants "banded together and launched a barrage of deliberate falsehoods, and engaged in wrongful conduct...aimed at upsetting and intimidating him, destroying his reputation and business, disrupting relations with other lot owners, and discouraging prospective purchasers." TAC at 3-4. According to plaintiff, defendants' campaign of defamation was conducted primarily over the Internet. TAC at 4. In particular, plaintiff alleges that defendants "posted in excess of 150 messages on the Internet by and through an account with an internet provider based in California and on sites maintained within the State of attract and solicit fellow conspirators." TAC at 16. Defendants also allegedly initiated criminal proceedings against him in the Panama courts which were purportedly later dismissed, and which are the subject of plaintiff's malicious prosecution and conspiracy claims in this litigation. TAC at 4-6. Plaintiff alleges that he was forced to file for bankruptcy on July 3, 2007 "due in significant part to the false criminal complaints filed by Defendants." TAC at 5.

The TAC contains the following allegations with respect to defendants Berrocal and Arosemena. Arosemena, a Panamanian lawyer, was retained by the property owning defendants in 2005 or 2006 to prepare and file criminal denunciations against plaintiff with the deputy public prosecutor of the Republic of Panama. Berrocal, also a Panamanian lawyer, was hired by the same defendants to negotiate a settlement with plaintiff. TAC ¶ 66. Plaintiff claims that despite his good faith efforts towards settlement, defendants "changed the terms of the settlement," thereby thwarting the parties' efforts. Id. at ¶ 67. Plaintiff alleges that both Berrocal and Arosomena fabricated false evidence in support of the criminal action they initiated against plaintiff and used extortion and leverage from the prosecution to force plaintiff to yield to defendants' demands for title.

On October 11, 2012, defendants Berrocal and Arosemena filed a motion to quash and dismiss claiming that they are not subject to the personal jurisdiction of this court.*fn1 Dkt. 230. In support of their position, both defendants attached affidavits declaring that they have never lived or resided in the United States; have never held United States citizenship, a green card or other immigration document; own no real or personal property in the United States; and have only occasionally traveled to the United States for holidays. Dkts. 231, 232. Defendants further declare that they are both citizens and residents of Panama; admitted to practice law in that jurisdiction where they are partners in their respective law practices; own homes, personal and real property in Panama; are registered to vote; hold driver's licences; and maintain their banking accounts with Panama banks. Id. Finally, defendants declare that their connection to this case involved consulting with Americans in Panama who bought real property there from plaintiff. Id. Defendant Arosemena states that he advised the property owners to request that criminal lawsuits be filed in Panama against plaintiff and that he facilitated the filing of these suits. Dkt. 231. Defendant Berrocal advised the property owners on the validity of the land transactions in which they were engaged under Panamanian law. Dkt. 232. Berrocal did not file any suits against plaintiff but referred the case to a criminal attorney in Panama City. Id. Plaintiff does not dispute any of the facts contained in defendants' declarations.


Request for Judicial Notice

Plaintiff requests the court to take judicial notice of four documents: (1) a printout from the website which bears the heading "Department of International Law: Organization of American States, Washington D.C." and contains a partial list of signatory countries to Treaty B-36(dkt. 269-1 at 15, exh. E); (2) a printout from what appears to be an online article from the SACRAMENTO BUSINESS JOURNAL

(dkt. 269-2 at 1, exh. H); (3) a letter from certain American investors to Secretary-General of the Secretariat International Center for the Settlement of Investment Disputes (dkt. 269-2 at 8, exh. I); and (4) a portion of a pleading filed by defendants in the Superior Court of Sacramento (dkt. 269-2 at 20, exh. J).

Although a court generally is confined to the pleadings on a Rule 12(b)(6) motion, it can also consider facts which may be judicially noticed. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evi. 201(b). Consideration of these documents outside the complaint will not convert the motion into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). As to the first three documents, none of them are the proper subject of judicial notice. They are not public records, nor do they contain facts which are not subject to reasonable dispute. The source of the first document cannot be verified as it appears to simply be a website printout. The second document, which appears to be an online news article from the SACRAMENTO BUSINESS JOURNAL, is merely journalistic

reporting on a housing project involving plaintiff. The information contained in the article cannot reasonably be characterized as undisputed fact. The third document is a letter to an international governmental agency advocating the legal position of American investors under Panama law. Again, none of the facts contained therein are reasonably undisputed.

The last document includes the first two pages of a pleading from the Superior Court of California. The court may take judicial notice of this court document without admitting any facts contained therein. See U.S. v. Corinthian Colleges, 655 F.3d 984, 998-999 (9th Cir. 2011) (court may take judicial notice of matters of public record but not of facts that may be subject to reasonable dispute by either party).

Therefore, the court notices that this pleading was, in fact, filed in the Superior Court of California in Sacramento County by defendants Berrocal and Arosemena, but need ...

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