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Roberts v. Levine

United States District Court, S.D. California

October 30, 2019

JEFFREY ROBERTS, Plaintiff,
v.
ANJALI STOKES LEVINE; LOUISE MOYA STOKES; and ANIL KUMAR STOKES, Defendants.

          ORDER

          HON. WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE

         The matters before the Court are 1) the Motion to Set Aside Entry of Default Pursuant to Fed.R.Civ.P. 55(c) and Quash Service of Process filed by Defendant Anjali Levine (ECF No. 19); 2) the Motion to Strike Portions of First Amended Complaint filed by Defendants Anjali Levine, Louise Stokes, and Anil Stokes (ECF No. 22); 3) the Motions to Dismiss First Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to Fed.R.Civ.P. 12(b)(6) filed by Anjali Levine (ECF No. 23), Louise Stokes (ECF No. 24), and Anil Stokes (ECF No. 25); and 4) the Motion Regarding Choice of Law filed by Plaintiff Jeffrey Roberts (ECF No. 32).

         I. BACKGROUND

         A. Procedural History

         On March 28, 2019, Plaintiff initiated this action by filing a Complaint. (ECF No. 1). Plaintiff filed Proofs of Service as to Louise Stokes and Anil Stokes on April 6, 2019 (ECF Nos. 3-4), and as to Anjali Levine on April 15, 2019 (ECF No. 5). Louise Stokes and Anil Stokes filed Motions to Dismiss the Complaint on April 29, 2019 (ECF Nos. 6-7), but Anjali Levine never filed a responsive pleading. On May 1, 2019, Plaintiff filed a Request for Entry of Default as to Anjali Levine. (ECF No. 9). The Clerk entered default on May 2, 2019. (ECF No. 2).

         Plaintiff filed an Amended Complaint on May 21, 2019. (ECF No. 13). Plaintiff brings claims against Anjali Levine and Louise Stokes for 1) intentional infliction of emotional distress (“IIED”); 2) assault and battery; 3) violation of the Bane Act, section 52.1 of the California Civil Code; 4) invasion of privacy; 5) civil harassment; 6) stalking; 7) fraud; 8) deceit; 9) scheme to defraud and communications fraud in violation of section 817.034 of the Florida Statutes; 10) violation of the Racketeering Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq.; 11) malicious civil conspiracy; and 12) stalking and harassment. Plaintiff brings claims against Anil Stokes for 1) malicious civil conspiracy; and 2) aiding and abetting. Plaintiff seeks damages, including punitive damages and attorneys' fees and costs. Id. at 32. Plaintiff also seeks an injunction against Anjali Levine and Louise Stokes “against further possession or control of Plaintiff's private information.” Id. at 33.

         On May 23, 2019, Anjali Levine filed a Motion to Set Aside Entry of Default and Quash Service of Process. (ECF No. 19). Plaintiff did not file a response.

         On June 6, 2019, Defendants filed a Motion to Strike portions of the Amended Complaint. (ECF No. 22). Defendants each filed a Motion to Dismiss the Amended Complaint. (ECF Nos. 23-25).

         On July 15, 2019, Plaintiff filed a Response in Opposition to Defendants' Motion to Strike and Motions to Dismiss. (ECF No. 26). On July 24, 2019, Defendants filed a Reply in support of their Motion to Strike (ECF No. 28) and Replies in support of their Motions to Dismiss (ECF Nos. 29-31).

         On July 29, 2019, Plaintiff filed a Motion Regarding Choice of Law. (ECF No. 32). On August 19, 2019, Defendants filed a Response in Opposition to Plaintiff's Choice of Law Motion. (ECF No. 34). Plaintiff did not file a reply.

         B. Factual Allegations in the FAC

         Plaintiff is a divorced, Orthodox Jewish rabbi with two children, living in Palm Beach County, Florida. Plaintiff alleges that in September 2011, he met Anjali Levine on frumster.com, a dating website for Orthodox Jews. On Plaintiff's frumster.com profile, he “represented himself . . . [as] a religious teacher and counselor . . . .” ECF No. 13 at 3. Plaintiff alleges that, around this same time, Anjali Levine's mother, Louise Stokes, reached out to Plaintiff via Facebook Messenger. Plaintiff alleges that Louise Stokes sought Plaintiff's counseling and guidance regarding Louise Stokes' marriage to Anil Stokes, her plans to divorce Anil Stokes, her desire to convert to Judaism, her financial difficulties, and her sick mother.

         Plaintiff alleges that, after “numerous phone calls over several months, Anjali Levine requested to meet Plaintiff in person.” Plaintiff alleges that Anjali Levine planned to fly from California, where she lived, to visit Plaintiff in Florida in January 2012. Plaintiff alleges that Anjali Levine forwarded Plaintiff “an authentic-appearing paid-for e-ticket flight itinerary.” Shortly before the flight, Anjali Levine cancelled the visit. Plaintiff alleges that this cancelled trip was the first of many. Plaintiff alleges that between 2011 and 2017, Anjali Levine and/or Louise Stokes would send Plaintiff “authentic-appearing e-tickets.” These tickets were intended to “dupe” Plaintiff into believing that Anjali Levine and/or Louise Stokes were in Florida attempting to meet him. Plaintiff alleges that Anjali Levine and Louise Stokes intended to harass Plaintiff, and Anjali Levine had no intention of ever meeting him. Id. at 4.

         Plaintiff alleges that there were approximately fifteen trips between 2011 and 2017 where Anjali Levine “misrepresented” to Plaintiff that she attempted to visit Florida but could not board the plane. There were also six trips where Anjali Levine and Louise Stokes allegedly told Plaintiff that Anjali Levine was in Florida but was too scared to meet Plaintiff in person. Id. at 8. Plaintiff alleges that he saw photos on Facebook of Anjali Levine in New York or California when she claimed to be in Florida.

         Anjali Levine's second failed trip occurred in March 2012. Plaintiff alleges that he received a booking confirmation from a Palm Beach hotel showing that Anjali Levine paid $368, non-refundable, for a room. Anjali Levine did not show up at the hotel. When Plaintiff pressed Anjali Levine about her failure to come to Florida, Anjali Levine told Plaintiff that she was “afraid to meet him in person” because she was a victim of childhood sexual assault. Id. at 4. Plaintiff alleges that he was genuinely concerned and cared for Anjali Levine. Plaintiff counseled Anjali Levine and Louise Stokes on how to deal with Anjali Levine's trauma. Anjali Levine and Louise Stokes confided to Plaintiff that Anjali Levine had suffered from an eating disorder, insomnia, and nervous breakdowns and that Anil Stokes was suffering from Parkinson's disease. Plaintiff alleges that Anjali Levine visited a therapist who was “utterly convinced Anjali was telling the truth.” Id. ¶ 36. Plaintiff alleges that Anjali Levine and Louise Stokes' representations were false. Anjali Levine, Louise Stokes, and Anil Stokes' ailments were “invented” in order to “appeal[] to Plaintiff's sympathy as a religious teacher and counselor to . . . manipulate, control, psychologically abuse, and defraud Plaintiff.” Id. at 11. Plaintiff alleges that he became emotionally involved in Anjali Levine's welfare, pouring “years of counseling, care, money, and effort” into Anjali Levine's psychological well-being at the expense of his own health. Id. at 6. Plaintiff alleges he suffered from 1) chest pain caused by the stress of Anjali Levine allegedly planning to visit him; 2) pneumonia; 3) fever and skin lesions requiring surgery; 4) blackouts from abnormal blood pressure; and 5) severe emotional distress. Id. at 15-16.

         Plaintiff alleges that Anjali Levine expressed to Plaintiff that she had “romantic and even sexual fantasies about him.” Anjali Levine sent Plaintiff and his children gifts, including a $488 leather briefcase. Plaintiff alleges that Anil Stokes “was aware of and financially enabled Anjali's and Louise's interactions with Plaintiff.” Id. at 7. Plaintiff alleges that Anjali Levine's claims of romance were insincere, and the gifts were intended to trick Plaintiff into believing her lies.

         Plaintiff alleges that Defendants invited him to visit Anjali Levine on eight occasions in New York, Irvine, or Washington, D.C. Plaintiff alleges that when Plaintiff traveled to meet Anjali Levine, she was either not in the city she had claimed to be in or she “actively avoided” Plaintiff during his visit. Plaintiff alleges Anjali Levine “admitted to Plaintiff that she had stalked Plaintiff, ” and she appeared in photos on Facebook less than a mile from Plaintiff's house on dates when she told Plaintiff she was in California or New York. Id. at 10. Plaintiff alleges that Anjali Levine and Louise Stokes would “frantically call[], text[], and arrange[] meetings . . . day after day where they kept him waiting as long as possible, playing on his sympathy and begging for his counsel and support.” Id. at 12. Plaintiff alleges that on “June 27, 2017, Plaintiff suspected fraudulent intentions on Anjali's and Louise's behalf.” Plaintiff “told Anjali he did not want to live knowing she had deceived him in order to test Anjali's reactions.” Anjali Levine “urged [Plaintiff] to kill himself immediately.” Id. at 14.

         Plaintiff alleges that between 2011 and 2017, he sent Anjali Levine approximately $8, 000 in gifts and cash, based on false representations from Anjali Levine and Louise Stokes that they needed money to pay for Anjali Levine's therapy, travel expenses, and school. Anjali Levine “regularly expressed her desire to receive gold jewelry.” Id. at 21. Plaintiff alleges that Anjali Levine “bragged” to Plaintiff that she conducted schemes to obtain gifts and money from other Orthodox Jewish men, whom she contacted via Facebook or frumster.com. Id. at 22.

         11. MOTION TO SET ASIDE DEFAULT AND QUASH SERVICE

         Anjali Levine contends that the Court should set aside entry of default and quash service of process because service of process was defective.[1] (ECF No. 19-1 at 8). Anjali Levine contends that no one served her personally on April 9, 2019, or any other day. Instead, an envelope with Anjali Levine's name was left at the front desk of her office on April 16, 2019. Id. at 14.

         Pursuant to Federal Rule of Civil Procedure 55(c), a court may set aside an entry of default for good cause. “Failure to properly serve a defendant with process pursuant to Fed.R.Civ.P. 4 constitutes good cause to set aside an entry of default.” Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 245 F.R.D. 470, 472 (D. Nev. 2007).

         Federal Rule of Civil Procedure 4(e) governs service of process on individuals within a judicial district of the United States. Rule 4(e) provides that a plaintiff may serve an individual by:

         (1) following state law for serving a summons in an action brought in the courts of general jurisdiction in the state where the district court is located or where service is made; or

         (2) doing any of the following:

(a) delivering a copy of the summons and of the complaint to the individual personally;
(b) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(c) delivering a copy of each to an agent authorized by appointment or by law to accept service.

California state law allows for service upon an individual by 1) delivering a copy of the summons and complaint by “personal delivery . . . to the person to be served;” 2) substitute service combined with mailing after a good faith effort at personal service has been attempted; or 3) service by publication. Cal. Code Civ. Proc. §§ 415.10, 415.20, 415.30, 415.50. Manners of substitute service include “leaving a copy of the summons and complaint during usual office hours in his or her office” or “leaving a copy of the summons and complaint at the person's . . . usual place of business . . . in the presence of . . . a person apparently in charge of his or her office.” Cal. Code Civ. Proc. § 415.20(a)-(b).

         Here, Plaintiff bears the burden of establishing that service of process was proper, because default judgment has not been entered. Brockmeyer, 383 F.3d at 801. Plaintiff fails to meet his burden. See SEC v. Internet Solutions for Bus., Inc., 509 F.3d 1161, 1163 (9th Cir. 2007) (“[A] signed return of service constitutes prima facie evidence of valid service . . . .”). Anjali Levine has submitted Declarations and Exhibits that call the Proof of Service into question, and Plaintiff has not submitted additional evidence of proper service. Plaintiff's failure to show Anjali Levine was properly served constitutes good cause to set aside the entry of default, even though the Complaint is no longer the operative complaint in this matter. Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[W]hen a plaintiff files an amended complaint, the amended complaint supersedes the original, the latter being treated thereafter as non-existent.”) (quotation omitted). Anjali Levine's Motion to Set Aside Default and Quash Service of Process (ECF No. 19) is GRANTED.

         III. CHOICE OF LAW MOTION

         Plaintiff contends that the Court should apply Florida substantive law to Counts Nine and Ten of the Amended Complaint, which Plaintiff has brought for violations of the Florida Communications Fraud Act (“FCFA”), section 817.034 of the Florida Statutes. Plaintiff contends that there is “no California equivalent” to the FCFA. (ECF No. 32 at 1). Plaintiff contends that the FCFA is different from both California common law fraud and California's codified tort of deceit, because “each of the California [laws] only address liability for specific actions, whereas the very purpose of Florida Statutes § 817.034 is to address ‘a systematic, ongoing course of conduct . . . .'” Id. at 2 (quoting Fla. Stat. § 817.034(3)(d)). Plaintiff contends that Florida and California's fraud and deceit laws exist to protect persons in their states. Plaintiff's location during the underlying events should, therefore, determine which law governs. Plaintiff contends that the Court should also apply Florida substantive law to Count Twelve for malicious civil conspiracy, because Florida and California civil conspiracy laws are designed to protect the citizens of their respective states. “Defendants should be held accountable under Florida law for actions directed at a Plaintiff in Florida.” (ECF No. 32 at 2).

         Defendants contend that Plaintiff fails to meet his burden to show the Court should apply Florida law. (ECF No. 34 at 5). Defendants contend that the FCFA “is not applicable to the facts alleged in the matter and thus there is no conflicting law to choose from.” Id. at 10. Defendants contend that the FCFA does not apply because Defendants did not conceal their names or attempt to sell Plaintiff any service or product. Id. at 11. Defendants contend that, if the FCFA does apply, there is no conflict with California law, because the FCFA is a restatement of the federal wire and mail fraud laws. California courts “employ those same federal wire and mail fraud statutes.” Id. at 13-14. Defendants contend that California state law addresses schemes to defraud, not only specific, discrete acts. Id. at 15. Finally, Defendants contend that California has the greater interest in applying its law, because California was where the alleged wrongs were committed. Id. at 16. Defendants contend that Florida and California conspiracy law is virtually identical, so there is no conflict between the two laws. Id. at 18.

         Federal courts sitting in diversity “must apply the forum state's choice of law rules to determine the controlling substantive law.” Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th Cir. 2005) (quotation omitted). The foreign law proponent has the burden to show that foreign law, rather than California law, should apply to the plaintiff's claims. In re Hyundai v. Kia Fuel Econ. Litig., 926 F.3d 539, 561 (9th Cir. 2019). To meet their burden, the foreign law proponent must satisfy California's three-step “governmental interest” test. Id.

Under the first step of the governmental interest approach, the foreign law proponent must identify the applicable rule of law in each potentially concerned state and must show it materially differs from the law of California . . . . If . . . the trial court finds the laws are materially different, it must proceed to the second step and determine what interest, if any, each state has in having its own law applied to the case . . . . Only if the trial court determines that the laws are materially different and that each state has an interest in having its own law applied, thus reflecting an actual conflict, must the court take the final step and select the law of the state whose interests would be ‘more impaired' if its law were not applied.

Wash. Mut. Bank v. Sup. Ct., 15 P.3d 1071, 1080 (Cal. 2001) (citations omitted). The preference is to apply California law, rather than choose the foreign law. Strassberg v. New England Mut. Life Ins. Co., 575 F.2d 1262, 1264 (9th Cir. 1978).

         Regarding Plaintiff's Ninth and Tenth Counts, Plaintiff fails to make any argument regarding step three of the governmental interest test. Even if Plaintiff meets his burden at steps one and two of the governmental interest test, Plaintiff fails to show Florida's interest would be more impaired if the Court applies California law than California's interest would be if the Court applies Florida law. See Coufal Abogados v. AT&T, Inc., 223 F.3d 932, 936 (9th Cir. 2000) (“[W]ith respect to regulating or affecting conduct within its borders, the place of the wrong has the predominant interest.”). Plaintiff fails to meet his burden to demonstrate that the Court should apply Florida law, rather than California law, to Plaintiff's Ninth and Tenth Counts.

         Regarding Plaintiff's Twelfth Count, Plaintiff makes no effort to “identify the applicable rule of law in each potentially concerned state and [] show it materially differs from the law of California.” Wash. Mut. Bank, 15 P.3d at 1080. Plaintiff has not met his burden to show the Court should apply Florida law. The Court applies California law to Counts Nine, Ten, and Twelve. Plaintiff's Motion Regarding Choice of Law (ECF No. 32) is DENIED.

         IV. MOTIONS TO DISMISS

         Defendants move to dismiss Plaintiff's Amended Complaint on the grounds it fails to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 23-1 at 2).

         A. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” In order to state a claim for relief, a pleading “must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Dismissal under Rule 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a ...


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