United States District Court, S.D. California
GAVIN B. DAVIS, Plaintiff,
JASON M. ADLER; ODESSA R. JORGENSEN; and JANE DOES, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 8(A)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Jason Adler's
(“Defendant Adler”) motion to dismiss Plaintiff
Gavin Davis's (“Plaintiff”) Complaint. (Doc.
No. 3.) Plaintiff opposes the motion. (Doc. No. 8.) Having
reviewed the parties' arguments and controlling legal
authority and pursuant to Civil Local Rule 7.1.d.1., the
Court finds the matter suitable for decision on the papers
and without oral argument. Accordingly, the motion hearing
date set for April 27, 2017, is vacated. For the reasons set
forth more fully below, the Court GRANTS Defendant
Adler's motion to dismiss.
following facts are taken from the Complaint and construed as
true for the limited purpose of resolving the pending motion.
See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994).
February 27, 2017, Plaintiff, proceeding pro se,
filed a Complaint against Defendants Jason Adler, Odessa
Jorgensen, and Jane Doe Defendants (collectively referred to
as “Defendants”). (Doc. No. 1.) Plaintiff asserts
several causes of action that stem from several different
events. (See generally id.)
the events occurred in March of 2015, when Plaintiff
requested that Defendant Adler stop using his name as a
character in Defendant Adler's
“script.” (Id. ¶ 33.) Plaintiff states
that Defendant Adler creates “mixed media.”
(Id. ¶ 2.) Plaintiff's Complaint also
points to an incident where Defendant Adler allegedly
provided false and misleading information to the authorities
including the San Diego District Attorney, and San Diego
Police Department, which resulted in Plaintiff being
illegally detained. (Id. ¶ 36.) On October 5,
2016, Plaintiff alleges that he was subjugated to a pre-trial
detention where he was held without bail for approximately
sixty minutes. (Id. ¶ 37.) On October 20, 2016,
Plaintiff contends that he was assaulted at the San Diego
central jail. (Id.)
addition, Plaintiff claims that Defendant Adler developed,
maintained, and intended to commercialize a hate crime
website on Facebook titled “I am a Fan of Gavin Davis
R.I.P.” (Id. ¶ 5.) Plaintiff alleges that
this website is an illegal trespass on his information, that
he has been regularly harassed, and that Defendant Adler is
attempting to profit from collecting information about him
and posting it to this website. (Id. ¶ 7.)
the Court finds that Plaintiff's Complaint alleges a
litany of violations including cyberstalking, violation of
his Fourth Amendment rights, harassment, and copyright
violations. (See generally, Doc. No. 1.) Plaintiff
requests damages for medical expenses, lost earnings and
profits, loss of earning capacity, and exemplary damage if
sought. (Id. at 25.)
March 21, 2017, Defendant Adler, proceeding pro se,
filed the present motion, his motion to dismiss. (Doc. No.
3.) Plaintiff opposed the motion on March 30, 2017, and
Defendant Adler replied on April 13, 2017. (Doc. Nos. 8, 13.)
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiff's complaint 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). “[A] court may dismiss a complaint as a matter
of law for (1) lack of a 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) (citations omitted).
However, a complaint will survive 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). In making this
determination, a court reviews the contents of the complaint,
accepting all factual allegations as true, and drawing all
reasonable inferences in favor of the nonmoving party.
Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters
of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
this deference, the reviewing court need not accept
“legal conclusions” as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
a 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).
Adler argues that Plaintiff's Complaint should be
dismissed as it fails to comply with Federal Rule of Civil
Procedure 8. (Doc. No. 3 at 5.) Plaintiff retorts and claims that
Defendant Adler does not address any of his allegations
contained in the ...