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Quillinan v. Ainsworth

United States District Court, N.D. California

May 10, 2018

KEVIN DANIEL QUILLINAN, Plaintiff,
v.
RUSSELL AINSWORTH, et al., Defendants.

          ORDER GRANTING MOTIONS TO DISMISS WITH PREJUDICE, Dkt. Nos.35 & 43

          KANDIS A. WESTMORE United States Magistrate Judge

         On July 10, 2017 and August 7, 2017, the appearing defendants filed motions to dismiss Plaintiff Kevin Quillinan's first amended complaint. (Defs.' 1st Mot., Dkt. No. 35; Def.'s 2d Mot., Dkt. No. 43.) The appearing defendants are represented by the same counsel, and the first set of defendants moved to join in the second motion to dismiss, which was granted.

         On October 5, 2017, the Court granted the motions to dismiss with prejudice as to all defendants, and entered judgment. (Dkt. Nos. 75 & 77.) On February 27, 2018, the Ninth Circuit vacated the judgment and the order granting the motions to dismiss and remanded the case for further proceedings in light of its November 9, 2017 ruling in Williams v. King. On March 14, 2018, by the virtue of having unserved defendants, the undersigned reassigned this case to a district judge with the recommendation that the motions to dismiss be granted without leave to amend. (Dkt. No. 86.) On April 24, 2018, the district court dismissed the unserved defendants. (Dkt. No. 99.) On April 25, 2018, the district court reassigned the case to the undersigned, because all remaining parties had previously consented to the undersigned's jurisdiction pursuant to 28 U.S.C § 636(c)(1). (Dkt. No. 100.)

         For the reasons set forth below, the undersigned again GRANTS the motions to dismiss without leave to amend, because any amendment would be futile.

         I.BACKGROUND

         Plaintiff Kevin Quillinan filed this lawsuit alleging five causes of action under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and a single cause of action under 21 U.S.C. § 843(c)(2)(A). (First Am. Compl., “FAC, ” Dkt. No. 8.) Therein, Plaintiff alleges that approximately 67 individuals and corporate entities[1] engaged in an enterprise to cultivate and distribute marijuana in violation of the Controlled Substances Act, which forms the basis of his civil RICO claims.

         Plaintiff is a self-described “concerned citizen[, who] . . . suffered a devastating and disfiguring right leg injury resulting from being hit head on by a drunk, and/or ‘stoned' driver.” (FAC ¶ 22.) Plaintiff further “believes that if marijuana is made lawful by the Federal Government, that the amount of serious accidents caused by ‘stoned' drivers will increase, with the costs of such accidents to society, and to the persons injured, far outweighing any possible ‘tax derived benefits.'” Id. Plaintiff is particularly interested in “the enforcement of federal laws prohibiting the cultivation, distribution, and possession of marijuana.” Id. Plaintiff's wife, non-party Cyporette Quillinan, [2] is also “a concerned citizen physically affected by marijuana smoke, and is interested in non-smokers' rights to clean air and a clean environment.” Id.

         Plaintiff and his wife[3] rented a storage unit from Diversified Storage Solutions in the subject warehouse, located in Oakland, California, where they paid rent regularly for approximately three years. (Pl.'s 1st Opp'n, Dkt. No. 45 at 5; see also FAC ¶ 225-227.) In December 2015, Defendant Richard Silverstein purchased the subject warehouse. (FAC ¶171.) Thereafter, all tenants were served with notices to vacate their storage units within thirty days. (FAC ¶ 225.) Plaintiff and his wife, who are antique vendors, were unable to locate a local, affordable alternative storage space to accommodate their property. (FAC ¶ 226.) As a result, they were “forced to [] sell at deep discounts, and/or give away, and/or dispose of several thousand dollars worth of business property, stock in trade.” Id. Furthermore, “[a]s a result of having to relocate to alternative storage facilities, plaintiff had to move his business and personal property into steel shipping containers without lighting, without electricity, and without a bathroom or other convenience facility such as internet and/or 24 hour access.” Id.

         On July 10, 2017, Defendants Russell Ainsworth, Daniel Bornstein, Joel Feldman, Bruce Goldstone, Hayden Manager LLC, Michael Kanovitz, Jon Loevy, Dianne Murphy, Ashley Peterson, SRG 414 Lessor LLC, SRG Manager LLC, Richard Silverstein, Silverstein Realty Group LLC, and Andrew Thayer filed a motion to dismiss. (Defs.' 1st Mot., Dkt. No. 35.) Thereafter, additional defendants were served. On August 7, 2017, Daniel Cheung, Daniel Fineman, Gospa Lucik, Dimitry Shkolnikov, and Zivorad Zivanovic filed a motion to dismiss. (Def.'s 2d Mot., Dkt. No. 43.) All defendants were represented by the same counsel, and the earlier defendants moved to join the August 7, 2017 motion filed by their co-defendants, which was granted. (Dkt. No. 72.)

         On August 8, 2017, Plaintiff filed an opposition to the first motion to dismiss. (Pl.'s 1st Opp'n, Dkt. No. 45.) On August 22, 2017, Plaintiff filed a consolidated opposition to both motions to dismiss, in which he incorporated by reference the first opposition. (Pl.'s 2d Opp'n, Dkt. No. 54 at 1.) On August 14, 2017, Defendants filed a reply to the first motion to dismiss. (Def.'s 1st Reply, Dkt. No. 52.) On August 28, 2017, Defendants filed a reply to the second motion to dismiss. (Def.'s 2d Reply, Dkt. No. 59.)

         On October 5, 2017, the Court granted the motions to dismiss with prejudice as to all defendants, as Plaintiff and all appearing defendants had consented to the undersigned's jurisdiction pursuant to 28 U.S.C § 636(c)(1). (Dkt. No. 75.) The Court subsequently entered judgment. (Dkt. No. 77.) On November 3, 2017, Plaintiff filed a notice of appeal. (Dkt. No. 79.) On February 27, 2018, the Ninth Circuit sua sponte vacated the judgment and October 5, 2017 order[4] on the motions to dismiss and remanded the case for further proceedings in light of its recent ruling in Williams v. King, 875 F.3d 500, 503-504 (9th Cir. 2017), which required that all parties, including unserved defendants, consent in order for jurisdiction to vest with the magistrate judge pursuant to 28 U.S.C § 636(c)(1). (Dkt. No. 85.)

         On March 14, 2018, the undersigned issued a report and recommendation to grant the motions to dismiss with prejudice and reassigned the case to a district judge. (Dkt. No. 86.) The case was reassigned to the Honorable Saundra Brown Armstrong, Senior United States District Judge. (Dkt. No. 87.)

         On April 11, 2018, the district court issued an order to show cause to Plaintiff regarding the dismissal of the unserved defendants. (Dkt. No. 97.) The district court noted that, despite the undersigned's deadline of July 10, 2017 to complete service, Plaintiff had failed to effectuate service on 44 defendants. Id. The district court, therefore, ordered Plaintiff to show cause why the unserved defendants should not be dismissed from the action without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Id. On April 24, 2018, after Plaintiff failed to timely respond to the order to show cause, the district court issued an order dismissing the unserved defendants without prejudice. (Dkt. No. 99.) On April 25, 2018, since all remaining parties had consented to magistrate judge jurisdiction, the district court reassigned the case back to the undersigned for all purposes. (Dkt. No. 100.)

         II.LEGAL STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         In considering such a motion, a court must “accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case or a claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th ...


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