United States District Court, N.D. California, San Jose Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION; DISMISSING AMENDED COMPLAINT WITHOUT LEAVE TO
AMEND; AND DISMISSING ACTION WITH PREJUDICE [RE: ECF
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
Mark Downey, proceeding pro se, filed the complaint
in this action on July 22, 2019, along with an application
for leave to proceed in forma pauperis. See
Compl., ECF 1; Applic. to Proceed IFP, ECF 2. The case was
assigned to Magistrate Judge Nathanael M. Cousins, who
granted Plaintiff's application for leave to proceed in
forma pauperis and screened the complaint pursuant to 28
U.S.C. § 1915. See Order, ECF 4. Judge Cousins
determined that the complaint, which asserted forty-five
claims for relief, did not allege facts sufficient to state a
claim upon which relief could be granted. See Id.
Judge Cousins noted that Plaintiff appeared to be complaining
that the United States government had failed to streamline
its whistleblower program, had not responded Plaintiffs'
400 submissions, has a trillion-dollar budget deficit, and
fails to deal with poorly performing federal employees; that
Apple, Inc. engages in abusive monopolistic practices; and
that Plaintiff has suffered various personal injuries.
See Id. at 2. Plaintiff sought more than $4 billion
in compensatory and punitive damages. See Id. Judge
Cousins advised Plaintiff that the complaint was “both
prolix and insufficiently detailed” and that the
request for damages did not appear to be tied to
Plaintiff's claims. See Id. Judge Cousins
dismissed the complaint with leave to amend, directing
Plaintiff to file any amended pleading by September 6, 2019.
See Id. at 3.
timely filed a first amended complaint (“FAC”) on
August 15, 2019. See FAC, ECF 7. Judge Cousins
screened the FAC and concluded that Plaintiff again had
failed to state a claim upon which relief could be granted.
See R&R, ECF 8. Because Judge Cousins did not
have the consent of all parties, he issued a Report and
Recommendation (“R&R) that the FAC be dismissed
without leave to amend, and directed the Clerk to reassign
the case to a district judge. See Id. The case was
reassigned to the undersigned on September 27, 2019.
See Reassignment Order, ECF 9.
Cousins indicated that although Plaintiff appears to be
complaining about the United States government's failure
to respond to his many whistleblower complaints under the
False Claims Act, 31 U.S.C. § 3729, Plaintiff has not
identified any qui tam lawsuits that he has brought.
See R&R at 2. Moreover, Judge Cousins found that
Plaintiff has not alleged facts supporting his multi-billion
dollar claim that Apple, Inc. overcharged the United States
for Apple iPhones. See Id. Judge Cousins determined
that Plaintiff's allegations that Apple should be subject
to the federal gift tax, and complaining about Apple's
music streaming service, likewise are unsupported. See
Id. Finally, Judge Cousins concluded that
Plaintiff's commentary regarding the United States'
budget deficit is unconnected to any of his claims. See
Rule of Civil Procedure 72(b)(2) provides that a party may
file specific written objections to a magistrate judge's
recommended disposition of a case within fourteen days after
being served with a copy of the recommended disposition.
Fed.R.Civ.P. 72(b)(2). Judge Cousins' R&R informed
Plaintiff that he could file objections within fourteen days
of being served with the R&R. See R&R at 2,
ECF 8. The docket reflects that Plaintiff was served with the
R&R by mail on September 26, 2019. See
Certificate of Service, ECF 8-1.
appears that Plaintiff was confused about how to respond to
the R&R, because within the fourteen-day period for
filing objections, Plaintiff filed both a Memorandum
objecting to Judge Cousins' R&R
(“Objection”), and a Notice of Appeal.
See Objection, ECF 13; Notice of Appeal, ECF 11. In
the Objection, Plaintiff states that he “would rather
have the case proceed in the U.S. General District Court
rather than appeal to the U.S. Appeals Court, ” and he
“requests additional consideration for the case to
proceed in the U.S. District Court.” Objection, at 11,
ECF 13. Plaintiff's request to proceed in the district
court is appropriate, because no final order or judgment has
been issued in this case. Therefore, although Plaintiff has
filed a Notice of Appeal, this Court proceeds to consider his
Objection along with Judge Cousins' R&R.
Objection does not demonstrate any error in the R&R,
which the Court finds to be correct, well-reasoned, and
thorough. The eleven-page Objection contains a wide-ranging
discussion regarding Thomas Jefferson, the state of Virginia,
sovereign immunity, and various provisions of the United
States Constitution and the United States Code. See
Objection at 1-8, ECF 13. The Objection touches on the
deficiencies in the FAC identified by Judge Cousins,
asserting among other things that “[t]he qui tam Claims
will produce enough to eliminate the Federal Deficit”;
the request for damages in the FAC is not exaggerated; and
Apple should have to pay gift tax because Apple charges
excessive prices. See Id. at 8-11. However, none of
Plaintiff's assertions set forth an adequate factual or
legal basis for any claim. Accordingly, the FAC is subject to
noted above, Judge Cousins recommends that the FAC be
dismissed without further leave to amend. Leave ordinarily
must be granted unless one or more of the following factors
is present: (1) undue delay, (2) bad faith or dilatory
motive, (3) repeated failure to cure deficiencies by
amendment, (4) undue prejudice to the opposing party, and (5)
futility of amendment. Foman v. Davis, 371 U.S. 178,
182 (1962); see also Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (discussing
Foman factors). The Court finds no undue delay
(factor 1) or bad faith (factor 2), and there is no prejudice
to Defendant United States at this point, because Defendant
has not been served (factor 4). However, despite Judge
Cousins' prior order dismissing the original complaint,
Plaintiff still has not alleged a viable claim (factor 3).
Moreover, based on Plaintiff's filings to date, it does
not appear that he would be able to state a viable claim for
relief; thus, amendment would be futile (factor 5). Based on
Plaintiff's failure to cure the deficiencies identified
by Judge Cousins, and because it appears amendment would be
futile, the Court finds that on the particular facts of this
case further amendment is not warranted.
the Court ADOPTS the R&R, DISMISSES the FAC without leave
to amend, and DISMISSES the action with prejudice.