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Mackintosh v. Lyft, Inc.

United States District Court, E.D. California

October 31, 2019

ADAM JOHN MACKINTOSH, Plaintiff,
v.
LYFT, INC., et al., Defendants.

          FINDINGS AND RECOMMENDATIONS ON MOTIONS TO DISMISS, MOTIONS TO STRIKE, MOTION TO REMAND, AND MOTION FOR SANCTIONS; ORDER (ECF Nos. 5, 7, 8, 9, 11, 14, 15, 16, 17, 18, 20, 23, 34, and 50)

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Adam John Mackintosh, who proceeds without counsel, asserts he invented a healthcare-rideshare program that was misappropriated. Plaintiff filed an action in California Superior Court against Defendants Lyft, John Zimmer, Logan Green, Uber Health, Uber Technologies, AH Capital Management, Ben Horowitz, two Benchmark Capital entities, Matt Cohler, Josef Arvin Acebedo, Louis Darnell Pritchett, Jerry Wang, Amy Biddle, and the Better Business Bureau. (ECF No. 1-2.) Plaintiff's 738-page Complaint lists twenty-nine federal and state law claims, as alleged against all Defendants. (Id. at pp. 88-825.)

         Defendants filed a notice of removal. (ECF No. 1.) Thereafter, multiple Defendants moved to strike portions of the Complaint and moved to dismiss - alleging the Complaint fails to notify each Defendant of the claims against them. (ECF Nos. 5, 7, 8, 9, 11, 20). Plaintiff opposed, moved to strike each of Defendants' motions, sought remand back to California Superior Court, requested sanctions for Defendants' “bad faith” removal and moved for default against four defendants. (ECF Nos. 23, 34, 50.) A hearing was held. (See ECF No. 64.)

         For the reasons that follow, the Court recommends dismissal with leave to amend.

         Parties' Arguments[1]

         I. Arguments re: Removal/Remand (and Associated Sanctions)

         Plaintiff moves to remand this action back to California Superior Court, asserting numerous arguments for why jurisdiction does not lie and why the removal was procedurally improper. (ECF No. 23.) Additionally, Plaintiff requested sanctions for Defendants' alleged “bad faith removal” from superior court. (Id. at p. 20.)

         Defendants oppose, asserting that the jurisdictional and procedural prerequisites have been met, and no basis for sanctions exist. (ECF Nos. 49, 51, 52, 53, 54.)

         II. Arguments re: Dismissal/More Definite Statement/Striking Portions of the Complaint

         Defendants Lyft/Zimmer/Green, Benchmark/Cohler, Uber Tech/Uber Health, AH Capital/Horowitz, and the Better Business Bureau (“BBB”) each moved to dismiss Plaintiff's complaint for failure to file a short and plain statement. (ECF Nos. 5, 7, 8, 11, 20.) The Defendants cite to Plaintiff's 700 page Complaint, noting the inconsistency in the number of counts (somewhere between twelve and twenty-nine claims) as well as the shotgun pleading style - that all Defendants violated every claim raised (despite a lack of facts linking the acts of each Defendant to the particular claim raised). Thus, Defendants aver they cannot possibly respond to Plaintiff's Complaint, and request either dismissal or a more definite statement. Additionally, some Defendants assert the Complaint fails to state facts supporting certain claims, while others moved to strike the “redundant, immaterial, impertinent, [or] scandalous” portions of Plaintiff's Complaint. (ECF Nos. 5, 8, 9, 11, 20).

         Plaintiff filed a “motion to strike” citing to each and every one of Defendants' motions to dismiss, and also filed an opposition to each motion to dismiss. (ECF Nos. 34, 41, 55.) Therein, Plaintiff reasserts many of his statements from the Complaint, inserts more documentary evidence, contends Defendants ignored the California Superior Court's scheduling order, and lodges ad hominem attacks against certain individual Defendants. The Court construes these filings as Plaintiff's opposition to Defendants' motions.

         I. Plaintiff's Motion to Remand and Motion for Sanctions

         A defendant may remove to federal court a claim filed in state court that also could have initially been brought in federal court. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). However, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction [over the removed claims], the case shall be remanded.” 28 U.S.C. § 1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001). The removal statute is strictly construed against removal jurisdiction. Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010). It is presumed that a case lies outside the limited jurisdiction of the federal courts, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Id. at 1106-07.

         Federal courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Further, a federal court may exercise supplemental jurisdiction over “all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy . . . .” 28 U.S.C. §1367.

         Here, the caption to Plaintiff's Complaint states that he is bringing claims under, among other sources of law, the “Computer Fraud and Abuse Act” (18 U.S.C. § 1830) and “The Defense of Trade Secrets Act” (18 U.S.C. § 1836). Plaintiff refers to these statutes at various points in the Complaint. (See, e.g., ECF No. 1-2 at ¶¶ 188, 189, 216, 233, 258, 285, 481.) Because some of Plaintiff's rights are created by these federal statutes, Defendants have adequately demonstrated why the Court has “federal question” jurisdiction over this matter.[2] 28 U.S.C. § 1331; Ryan v. Salisbury, 380 F.Supp.3d 1031, 1047 (D. Haw. 2019) (“Federal question jurisdiction exists when a complaint facially presents a federal question.”) (citing Holman v. Laulo-Rowe Agency, 994 F.2d 666, 668 (9th Cir. 1993)); see also e.g., Creative Computing v. Getloaded.com LLC, 386 F.3d 930, 931 (9th Cir. 2004) (reviewing a Computer Fraud and Abuse Act claim in federal court). Additionally, Plaintiff's numerous state-law claims appear to arise out of the same nucleus of facts as his federal claims, and so the Court maintains supplemental jurisdiction over the state-law claims. 28 U.S.C. §1367; see also, e.g., WeRide Corp. v. Kun Huang, 379 F.Supp.3d 834, 845 (N.D. Cal. 2019) (federal court reviewing a plaintiff's trade secret misappropriations brought under both the Defense of Trade Secrets Act and the California Uniform Trade Secrets Act).

         Plaintiff asserts numerous arguments why he believes removal was improper. (ECF No. 29.) He asserts the removing defendants “cherry picked” a few laws in its notice of removal. However, just because Plaintiff also appears to assert numerous state law claims does not obviate this Court's jurisdiction. Federal courts often maintain jurisdiction over claims that might also be brought in state court, so long a jurisdiction lies in this court. Hansen v. Grp. Health Coop., 902 F.3d 1051, 1056 (9th Cir. 2018) (“[I]f these claims give rise to concurrent jurisdiction, the plaintiff may choose to file in either state or federal court. But if the plaintiff elects state court, the defendant then has the option of removing the case from state court to federal court under the general removal statute . . . .”).

         Plaintiff also asserts removal was improper because a case management order was issued by the Superior Court Judge prior to removal. However, 28 U.S.C. § 1446 allows for removal, despite this pending case-management order, so long as the notice was filed within 30 days of service of the pleadings. Here, Defendants Lyft, Zimmer, and Green did so file their notice of removal within the allotted timeframe, and indicated they concurrently notified the Superior Court of the removal. (See ECF No. 1.) Thus, the Superior Court was deprived of further jurisdiction over the matter, and its case management order was no longer of consequence. Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230, 1238 (9th Cir. 1994), as amended (Jan. 20, 1995) (“After removal, 28 U.S.C. § 1446(d) prohibits any proceedings in the state court unless and until the case is remanded.”).

         The Court does note Plaintiff's concern that two of the named Defendants, Jerry Wang and the BBB, did not sign a consent form joining in with the other Defendants' notice of removal. (See ECF No. 29, citing ECF No. 1-3.) However, the BBB timely filed a motion to dismiss in this case, and thus has implicitly consented to removal. See, e.g., Hafiz v. Greenpoint Mortg. Funding, 409 Fed.Appx. 70, 72 (9th Cir. 2010) (consent to removal was shown where party joined with other defendants in moving to dismiss). Further, it appears from the service documents submitted by Plaintiff that Mr. Wang may not have been personally served yet, mooting any issue with his consent. See, e.g., Walker v. Los Angeles Cty., 2008 WL 4447011, at *3 (D. Ariz. Oct. 1, 2008) (finding that joinder of all defendants was not required where the absent defendants had yet to receive proper service of process) (citing Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 (9th Cir. 1988) for the proposition that the joinder requirement “only applies to Defendants who have been properly served in the action.”). As for the remainder of Plaintiff's concerns regarding the removal process, [3] the Court notes that the Ninth Circuit takes a flexible position regarding a party's joining in on removal. See Destfino v. Reiswig, 630 F.3d 952, 956-57 (9th Cir. 2011) (“All defendants who have been properly served in the action must join a petition for removal. If this is not true when the notice of removal is filed, the district court may allow the removing defendants to cure the defect by obtaining joinder of all defendants prior to the entry of judgment.”) Thus, Defendants have time to make any technical corrections that may be required.

         For these reasons, Plaintiff's motion to remand (ECF No. 23) is denied. Further, none of Defendants' actions in removing this case to federal court appear to have been in “bad faith, ” as Plaintiff contends. Accordingly, Plaintiff's motion for Rule 11[4] sanctions (ECF No. 23 at p. 20) is also denied.

         II. Defendants' Motions to Dismiss and Strike the Complaint

         Federal Rule of Civil Procedure 8(a) requires that a pleading be “(1) a short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.” Each allegation must be simple, concise, and direct. Rule 8(d)(1); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (overruled on other grounds) (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.”). The practice of “incorporat[ing] each preceding paragraph, regardless of relevancy [has] been harshly criticized as a form of ‘shotgun pleading' that violates Rule 8's requirement of a ‘short and plain statement' and interferes with the court's ability to administer justice.” Destfino v. Kennedy, 2008 WL 4810770, at *3 (E.D.Cal. Nov. 3, 2008). A complaint must not contain lengthy introductions, argument, speeches, explanations, stories, griping, evidence, summaries, charts, notes, e-mails, and the like. See McHenry v. Renne, 84 F.3d 1172, 1176-78 (9th Cir. 1996). This requirement is because documentary evidence may be presented at a later point in the case. See Id.

         The court must construe a pro se pleading liberally to determine if it states a claim. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (courts continue to construe pro se filings liberally even post-Iqbal). Prior to dismissal, the court is to tell a plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure them if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of dismissal, it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

         In McHenry, Plaintiff's thirty-seven page complaint alleged multiple variations of a civil rights claim against numerous defendants. 84 F.3d at 1174. The district court dismissed for plaintiff's failure to provide a short and plain statement, as required by Rule 8. Id. The district court reasoned that, because of how the complaint was drafted, it was impossible to “figure[] out which defendants were allegedly liable for which wrongs.” Id. at 1175. The court allowed for plaintiff to amend, outlining some of the issues for plaintiff to consider upon amendment. Id. Plaintiff's final amended complaint was fifty-three pages long and contained 122 paragraphs of allegations. Id. The district court again dismissed, describing the complaint as mostly “narrative ramblings” and “storytelling or political griping.” Id. at 1176. Importantly, the court found that plaintiff had failed to obey the court's instructions that a complaint must state “clearly how each and every defendant is alleged to have violated plaintiff's legal rights” by “linking their factual allegations to actual legal claims.” Id. After some further legal analysis, the case was dismissed under Rule 41(b) and the case was closed. Id. at 1177.

         The Ninth Circuit affirmed the district court's dismissal without leave to amend, agreeing that the final complaint was “argumentative, prolix, replete with redundancy, and largely irrelevant.” Id. The court stated: “[d]espite all the pages, requiring a great deal of time for perusal, one cannot determine from the complaint who is being sued, for what relief, and on what theory, with enough detail to guide discovery.” Id. at 1178. As to the harshness of disallowing further amendment, the Ninth Circuit agreed that this was the appropriate conclusion, given the plaintiff's persistent inability to identify “which wrongs were committed by which defendants” as well as his failure to obey the court's order regarding the appropriate level of detail. Id. at 1179.

         Here, Plaintiff's Complaint is over 700 pages long, with 1664 paragraphs of allegations, sorted between headings, sub-headings, and sub-sub-headings. (ECF No. 1-2.) The Complaint's first two pages appears to assert twenty-nine causes of action, but the body of the Complaint is inconsistent with this list. When Plaintiff does discuss a particular claim, he often “incorporates all of the preceding paragraphs”--of which there are hundreds--and often asserts these claims against all of the Defendants. The Complaint is also rife with pictures, emails, excerpts from documents, and hand-drawn notes from Plaintiff and his wife--none of which belong in a complaint. As with McHenry, the Complaint is not a short and plain statement of Plaintiff's claims and is subject to dismissal on that basis. McHenry, 84 F.3d 1172. This dismissal is effective for the moving Defendants (Lyft, Zimmer, Green, Uber Health, Uber Tech., AH Capital, Horowitz, the two Benchmark Capital entities, Cohler, and the BBB), as well as non-moving Defendants (Biddle, Acebedo, Pritchett, and Wang). See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (“A District Court may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants or where claims against such defendants are integrally related.”); see also Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir. 1995) (approving dismissal of a party who has yet to appear where other defendants appeared, moved to dismiss, and similar grounds existed to dismiss absent defendants); Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (“Such a dismissal may be made without notice where the [plaintiff] cannot possibly win relief.”)

         Given that Plaintiff proceeds pro se, the Court will provide an outline for Plaintiff's consideration upon amendment. The outline is based on the twenty-nine claims listed on the first two pages of the Complaint: (A) the first set are claims that Plaintiff may amend, should he choose to do so; (B) the second set are those claims that are frivolous on their face and may not be amended; and (C) the Court will provide general principles for Plaintiff to consider.

         A. Claims listed that may be facially viable if properly pleaded

         The following are claims that Plaintiff referenced in his Complaint. The Court makes no comment as to the viability of whether Plaintiff's claims can actually survive any substantive motion to dismiss. Further, Plaintiff should not construe these statements as the entirety of the law for each claim. Rather, these are merely the claims he listed that are not barred on their face, and the outline is presented merely to provide context for Plaintiff on the claims he listed.

         Civil claims under the Computer Fraud and Abuse Act (18 U.S.C. § 1830, the “CFAA”) and Cal. Penal Code § 502 (Unauthorized Computer Access, Cal Comprehensive Computer Data Access and Fraud Act)

         “The CFAA prohibits a number of different computer crimes, the majority of which involve accessing computers without authorization or in excess of authorization, and then taking specified forbidden actions, ranging from obtaining information to damaging a computer or computer data.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1131 (9th Cir. 2009); see 18 U.S.C. § 1030(a)(1)-(7) (detailing seven separate violations, and the elements required under each). Section 1030(g) authorizes a civil action for a person who suffers damage or loss under the act, and also requires the offence to have caused one of six specific harms. See 18 U.S.C. § 1030(c)(4)(A). Thus, for an individual to state a claim under the CFAA, a plaintiff must allege facts indicating how a particular defendant violated of one of the seven subsections under (a)(1)- (7), and allege facts indicating that the particular defendant's act(s) resulted in one of the six specific harms under subsection (c)(4)(A). See, e.g., Way.com, Inc. v. Singh, 2018 WL 6704464, at *5 (N.D. Cal. Dec. 20, 2018) (detailing how the plaintiff stated sufficient facts indicating what act the defendant took and what harm resulted).

         Cal. Penal Code § 502 contemplates civil remedies for an individual damaged by any one of fourteen separate violations of the statute. See Cal. Pen. Code § 502(e)(1) (citing sub. (c)(1- 14)). Thus, to properly state a claim, a plaintiff must plead facts indicating how a defendant violated one of the fourteen rights provided by Section 502(c). In re Facebook Internet Tracking Litig., 263 F.Supp.3d 836, 843 (N.D. Cal. 2017). As with each cause of action ...


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