United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
This matter was before the court on June 11, 2014, for hearing on defendants Maguire, Orcutt, and Taylor's motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF Nos. 5, 6, 17), and plaintiff's motions to strike defendants Maguire and Orcutt's motions to dismiss and plaintiff's motion for appointment of an interpreter (ECF Nos. 20, 21). Attorney Cameron Cobden appeared on behalf of defendant Maguire (erroneously sued as "McGuire") and attorney Jason Sommer appeared on behalf of defendants Orcutt and Taylor; plaintiff failed to appear. For the reasons stated below, plaintiff's motions are denied, and it is recommended that defendants' motions to dismiss be granted.
I. Procedural History
Plaintiff initiated this action on January 24, 2014. ECF No. 1. The complaint purports to assert various federal and state law claims against defendants based on conduct related to two civil actions that were filed in the Superior Court of California, County of Yolo. The first state court civil case, CV09-3280 apparently resolved in a manner unsatisfactory to Nguy. He then filed an action in the same court purporting to sue three of the attorneys involved in the earlier action. That case, CV12-1979 was assigned to Superior Court Judge Maguire, who is a defendant and moving party in this federal action. Plaintiff later filed the instant case before this court naming Judge Maguire and several attorneys involved in the state court litigation as defendants.
On February 14, 2014, defendant Maguire and defendant Orcutt moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and noticed their motions for hearing on March 26, 2014. ECF Nos. 5, 6, 11. In violation of this court's Local Rule 230, plaintiff failed to timely file either an opposition or statement of non-opposition to these motions. Therefore, he was order to show cause why sanctions should not be imposed and the hearing on the motions to dismiss was continued to April 30, 2014. ECF No. 16. On April 7, 2014, defendant Taylor filed a motion to dismiss, which was noticed for hearing on May 14, 2014. The court therefore continued the hearing on Maguire and Orcutt's motions to May 14, 2014, so all three motions could be addressed together. ECF No. 25.
On April 16, 2014, plaintiff filed a response to the order to show cause. ECF No. 19. He also filed an opposition and a motion to strike defendant Orcutt's motion to dismiss, ECF No. 20, and an opposition and motion to strike Maguire's motion to dismiss, ECF No. 21. Plaintiff, however, failed to file an opposition to defendant Taylor's motion to dismiss. Therefore, on May 9, 2014, the court continued the hearing on the pending motions to June 11, 2014, and again ordered plaintiff to show cause why sanctions should not be imposed for his violation of Local Rule 230, this time with regard to Taylor's motion. Plaintiff's response provided no explanation for his failure to timely oppose defendants' motion. However, in light of the recommended disposition of these motions, the March 20 and May 9 orders to show cause are discharged. Plaintiff is admonished however, that future violations of the federal or local rules, or court orders may result in either monetary or terminating sanctions.
On May 29, 2014, plaintiff filed a response to the May 9, 2014 order to show cause, in which plaintiff appears to present arguments in opposition to all three motions to dismiss, ECF No. 36, which the court has considered. Also on May 29, 2014, plaintiff filed a motion requesting that the court order the Clerk to enter default against all defendants for failure to file an answer to his complaint. ECF No. 37.
II. Factual Allegations
The complaint alleges that plaintiff is the owner of United Bakery, a business located in West Sacramento. ECF No. 1 ¶ 2.09. Plaintiff claims that he suffered some undisclosed harm at the hands of Bessamarie Sales, LLC ("Bessamarie"), an Arizona LLC, id. ¶ 3.04, and that he therefore filed suit against Bessamarie in the Yolo County Superior Court. Id. ¶ 3.05. Plaintiff retained defendant Stone to represent him in that action. Id. ¶ 3.06. However, plaintiff claims that Stone failed to properly represent him and "got in the habit of billing Plaintiff for no cognizable movement in the case." Id. On January 11, 2011, plaintiff sent a letter to Stone to inquire about the status of his case. Id. ¶ 3.07. Plaintiff claims that Stone responded by abandoning plaintiff's case. Id. Stone then allegedly contacted Bessamarie's attorney "and conspired with him in which to assert the law that Plaintiff Dinh Nguy company United Bakery must proceed in court WITH AN ATTORNEY." Id. What plaintiff actually means by that statement is not clear, but the gist of his claim appears to be some sort of allegation of malpractice.
Plaintiff subsequently retained defendant Marvin C. Marx to represent him. Id. ¶ 3.08. According to plaintiff, Marx also billed him "without doing any cognizable work to prevail or move upon the case." Id. Six months after he was retained, Marx informed plaintiff that he could no longer represent him. Id. Plaintiff then retained defendant Orcutt. Id. ¶ 3.09. Plaintiff alleges that during the course of representing him, Orcutt "went into a secret ex parte proceeding with the judge." Id. After this meeting, Orcutt stated to plaintiff, "That even if you win, you're not going to get any money." Id.
As a result, plaintiff filed suit against defendants Stone, Marx, and Orcutt in the Yolo County Superior Court. Id. ¶ 3.10; Def. Orcutt's Req. for Judicial Notice, ECF No. 8-1 at 52. In that case, plaintiff purported to assert claims he styled as: (1) legal malpractice; (2) breach of fiduciary duty; (3) breach of contract, breach of duty; (4) misconduct, obstruction of justice, abuse of process; (5) illegal abandonment of case, vindictive refusal to obey California Rules of Professional Conduct Rule 3-700; (6) unjust enrichment [extortion]; (7) fraud by way of inducement; (8) negligence; (9) professional negligence; (10) RICO count. ECF No. 1 ¶ 2.23.
Plaintiff now claims that the Yolo County Superior Court and Judge Maguire obstructed and frustrated plaintiff's case, and "engaged in abuse of process" in plaintiff's action against Stone, Marx, and Orcutt. Id. ¶ 3.11. Plaintiff claims he timely filed a notice of default, but Judge Maguire allegedly ignored it. Plaintiff further alleges that Judge Maguire's rulings "were always against... Plaintiff, and always for the Defendants, even though each ruling was ILLEGAL and against the normal forms of trial as well as being inimical to the concise rule of law." Id. ¶ 3.12. Plaintiff also alleges that Judge Maguire ignored his filings and refused to punish defendants' wrongful conduct. Id. ¶ 3.13. The recurrent theme throughout plaintiff's allegations involving Judge Maguire is that plaintiff was repeatedly unhappy with the rulings he was receiving.
As to the other defendants, plaintiff essentially alleges that all defendants conspired together to deprive him of his right to access the courts, obtain a trial by jury, and receive redress of grievances for injuries caused by defendants. Id. ¶ 2.21. Based on this conduct, plaintiff claims he had no choice but to remove this action to this court. Id. ¶ 3.14. The complaint filed in this court purports to allege eight causes of action: (1) arranging a fixed unjust contest in court, (2) failure to give plaintiff lawful redress of grievances, (3) denial of plaintiff's rights to due process, (4) fraud, (5) denial of access to the courts, (6) obstruction of justice and abuse of process, (7) negligence, and (8) conspiracy. Within his conspiracy claim, plaintiff also alleges that he "[a]s... a naturalized Vietnam Citizen, ... also claims DISCRIMINATION against all Defendants." Id. ¶ 4.50.
Defendants Maguire, Orcutt, and Taylor have moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim. ECF Nos. 5, 6, 17. In response, plaintiff moved to strike Judge Maguire and Orcutt's motions to dismiss. ECF Nos. 20, 21.
III. Plaintiff's Motions to Strike Judge Maguire and Orcutt's Motions to Dismiss and Plaintiff's Motion to Appoint an Interpreter
Contained within plaintiff's opposition to Marguire and Orcutt's motions to dismiss is a requests to strike those motions. ECF Nos. 20, 21. Plaintiff's oppositions and requests to strike are nearly incomprehensible. As far as the court can discern, plaintiff's only basis for moving to strike is his apparent belief that a motion to dismiss is not an appropriate responsive pleading. Plaintiff appears to believe that these defendants are only permitted to file an answer to his complaint and not a motion to dismiss. ECF No. 20 at 3-4; ECF No. 21 at 3-4. Plaintiff is mistaken. Motions pursuant to Rule 12(b)(6) are appropriate responsive pleadings and are clearly permitted under the Federal Rule of Civil Procedure ("Fed. R. Civ. P."). See Fed.R.Civ.P. 12(b)(6). Accordingly, plaintiff's motions to strike are denied.
Plaintiff also filed a motion requesting that the court appoint him an interpreter for the hearing on defendants' motions to dismiss. ECF No. 27. Defendant Orcutt filed objections to plaintiff's request for an interpreter, ECF No. 29, and plaintiff subsequently moved to strike those objections. ECF No. 33. Plaintiff, however, did not appear at the June 11, 2014, and therefore plaintiff's motion for appointment of an interpreter and motion to strike Orcutt's objections are denied as moot.
IV. Rule 12(b)(6) Standard
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). "The pleading must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (quoting Twombly , 550 U.S. at 570). "A claim has facial plausibility when plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs. , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithem , 395 U.S. 411, 421, reh'g denied , 396 U.S. 869 (1969). The court will "presume that general allegations embrace those specific facts that are necessary to support the claim.'" ...