characterizing 10 finding under first exception as “a result we would reach only with great reluctance”; 11 noting such finding deprives litigant of “the ordinary protections afforded by the First 12 Amendment”
How later courts described this case
- characterizing 10 finding under first exception as “a result we would reach only with great reluctance”; 11 noting such finding deprives litigant of “the ordinary protections afforded by the First 12 Amendment”
Written by the judges who cited it.
The opinion
1
2
3
4 IN THE UNITED STATES DISTRICT COURT
5 FOR THE NORTHERN DISTRICT OF CALIFORNIA
6
7 MICHAEL GEARY WILSON, Case No. 20-cv-03045-MMC
8 Plaintiff,
ORDER GRANTING PLAINTIFF'S
9 v. APPLICATION TO PROCEED IN
FORMA PAUPERIS; DISMISSING
10 LEIGH LAW GROUP, P.C, (LLG), et al., COMPLAINT; VACATING CASE
MANAGEMENT CONFERENCE
11 Defendants.
12
13 Before the Court are plaintiff Michael Geary Wilson’s (“Wilson”) complaint and
14 application to proceed in forma pauperis, both filed May 4, 2020. Having read and
15 considered plaintiff’s filings, the Court rules as follows.
16 Based on the information provided in plaintiff’s application to proceed in forma
17 pauperis, the Court finds plaintiff lacks funds to pay the filing fee, and, accordingly, said
18 application is hereby GRANTED.
19 Where, as here, a party proceeds in forma pauperis, the district court, pursuant to
20 28 U.S.C. § 1915(e)(2), must dismiss the complaint if the plaintiff “fails to state a claim on
21 which relief may be granted” or the action is “frivolous and malicious.” See 28 U.S.C.
22 § 1915(e)(2)(B). The Court thus turns to the question of whether the complaint “state[s] a
23 claim on which relief may be granted.” See id.1
24 BACKGROUND
25 Plaintiff alleges he is an “indigent” citizen of California “with disabilities.” (See
26
1 On June 23, 2020, defendant Mount Diablo Unified School District filed a “Motion
27
Requesting Plaintiff Be Deemed a Vexatious Litigant and Ordered to Post Security.”
1 Compl., filed May 4, 2020, at ¶ 3.) The defendants named in the complaint can be
2 categorized as follows: (1) individuals and entities named as defendants in Wilson v. Mt.
3 Diablo Unified School District, Case No. 3:19-cv-3441-MMC (hereinafter, "Wilson I"), a
4 prior action filed by plaintiff;2 (2) attorneys, who although not named as defendants in
5 Wilson I, are either a partner or associate at a law firm named as a defendant therein;3
6 (3) the attorneys and law firms that represented the defendants named in Wilson I
7 (hereinafter, collectively, “attorney defendants”);4 and (4) certain board members and one
8 employee of the Mount Diablo Unified School District (hereinafter, “Mount Diablo”).5
9 The gravamen of the instant complaint is that, in Wilson I, the attorney defendants
10 engaged in litigation misconduct in the course of responding to a motion to amend filed
11 by plaintiff.6 In particular, plaintiff alleges, the attorney defendants “mislabeled,” as
12 “oppositions” instead of “motions to dismiss” (see id. at ¶ 60), the four documents they
13 filed in response to his motion, allegedly in order to deprive plaintiff of an additional week
14 within which to respond. See Civil L.R. 7-3. Plaintiff further alleges the oppositions
15 contained “many fraudulent and deceitful statements” (see id. at ¶ 66) and that three of
16
17
2 The defendants comprising the first group are Leigh Law Group, P.C.; Mount
Diablo Unified School District; Atinskon, Andelson, Loya, Ruud & Romo; Fagen,
18
Friedman & Fulfrost, LLP; Mandy Gina Leigh; Damien Berkes Troutman; Elizabeth Ann
Estes; Christine Anell Huntoon; and Roy Albert Combs.
19
3 The defendants comprising the second group are Peter Kirk Fagen, Howard Jay
20
Fulfrost, and Seth Nathaniel Eckstein.
21
4 The defendants comprising the third group are Jay Toivo Jambeck; Kevin
Ellsworth Gilbert; Alison Paige Buchanan; Jonathan Robert Rizzardi; Orbach, Huff,
22
Suarez & Henderson LLP; Hoge, Fenton, Jones, & Appel, Inc.; and Long & Levitt, LLP.
23
5 The defendants comprising the fourth group are Debra Mason, Cherise Khaund,
Joanne Durkee, Brian Lawrence, and Linda Mayo, and Robert Anthony Martinez.
24
6 Although the complaint refers to the above motion as “my 3/19/2020 document
25
with my 3/19/2020 FAC attached thereto” (see id. at 39), the Court hereby takes judicial
notice of said filing, which is titled “Wilson’s Request to Add New Causes of Action and
26
New Defendants to His First Amended Complaint” (see Wilson v. Mt. Diablo Unified
School District, et al., No. 3:19-cv-3441-MMC (N.D. Cal.), Doc. No. 75); see also Reyn's
27
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (holding courts
1 the four were not served in accordance with various procedural rules. As to the
2 remaining opposition, plaintiff alleges, service was “intentionally” delayed by
3 “approximately eight days” (see id. ¶ 55), causing him to receive it “a day after” his
4 deadline to respond (see id. ¶ 85), and the proof of service contained false statements.
5 According to plaintiff, all of the above actions were taken in order to deprive him of his
6 rights “to respond to this Court” and to “due process of law in this Court about the
7 requests contained [in said documents].” (See id. ¶ 56.)
8 Based on the above allegations, plaintiff asserts the following seven federal
9 Claims for Relief and four state law Claims for Relief: (1) “Fraud in Obtaining Orders,” (2)
10 “Deprivation of Rights (42 U.S.C. § 1983),” (3) ) “Conspiracy to Obstruct Justice in
11 Federal Courts (42 U.S.C. § 1985(2), First Clause),” (4) “Conspiracy to Injure Person or
12 Property for Enforcing Equal Protection (42 U.S.C. § 1985(2)),” (5) “Conspiracy/Acts to
13 Deprive Protected Persons of Equal Protection/Privileges & Immunities (42 U.S.C.
14 § 1985(3)),” (6) “Failure to Prevent Violations of 42 U.S.C. § 1985 (42 U.S.C. § 1986),”
15 (7) “Monell Liability for Deprivation of Rights (42 U.S.C. § 1983),” (8) “Abuse of Process,”
16 (9) “Intentional Infliction of Emotional Distress,” (10) “Negligence,” and (11) “Negligent
17 Hiring, Supervision, or Retention of Employee.”7
18 DISCUSSION
19 A. Federal Claims
20 1. Claim I
21 Although the basis for plaintiff’s first Claim, “Fraud in Obtaining Orders,” is unclear,
22 the Court construes it as a claim for relief from final judgment or order under Rule 60 of
23
7 The First, Third through Sixth, and Eighth through Tenth Claims for Relief are
24
brought against all defendants. The Second Claim for Relief is brought against all
defendants except Mount Diablo. The Seventh Claim for Relief is brought solely against
25
Mount Diablo. The Eleventh Claim for Relief is brought against “all supervising
defendants” (see id. at ¶ 166), which the Court construes as all defendants alleged to
26
have “supervisory authority” (see, e.g., id. at ¶ 12), namely, Jay Toivo Jambeck, Mandy
Gina Leigh, Robert Anthony Martinez, Debra Mason, Cherise Khaund, Joanne Durkee,
27
Brian Lawrence, Linda Mayo, Peter Kirk Fagen, Howard Jay Fulfrost, Roy Albert Combs,
1 the Federal Rules of Civil Procedure, pursuant to which a district court may set aside a
2 “final” order or judgment on a number of grounds, including “fraud (whether previously
3 called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” See
4 Fed. R. Civ. P. 60(b).
5 “Rule 60(b) is typically applied through a noticed motion in the underlying action,”
6 but “a party may bring an independent action in equity to set aside a judgment.” See
7 U.S. Care, Inc. v. Pioneer Life Ins. Co. of Illinois, 244 F. Supp. 2d 1057, 1061 (C.D. Cal.
8 2002). To state such a claim, “a plaintiff's allegations must satisfy the following
9 requirements of a suit in equity: (1) the plaintiff has a meritorious claim or defense, (2) the
10 plaintiff is diligent and not at fault, (3) there is a lack of alternative remedy, and (4) the
11 judgment is manifestly unconscionable.” See id. at 1062. An independent action to set
12 aside a final judgment or order is available “only to prevent a grave miscarriage of
13 justice.” See U.S. v. Beggerly, 524 U.S. 38, 46 (1998).
14 Here, plaintiff’s claim is based on his allegation that defendants’ litigation conduct
15 in Wilson I prevented him from “timely and/or adequately responding” to their oppositions
16 to his motion to amend. (See Compl. at ¶ 96.) A review of the docket in Wilson I,
17 however, shows plaintiff filed a timely, consolidated reply to three of defendants’
18 oppositions.8 As to the fourth opposition, which plaintiff alleges he received after his
19 deadline to reply had already passed, the docket in Wilson I shows that, three days after
20 said deadline, plaintiff filed a document titled “Ex Parte Application to Refer Jay Toivo
21 Jambeck . . . to Proper Authorities for Felony Perjury, Misdemeanor Deceit & Collusion, &
22 Other Wrongdoing.” (See Wilson v. Mt. Diablo Unified School District, et al., No. 3:19-cv-
23 3441-MMC (N.D. Cal.), Doc. No. 87.)9
24
8 Plaintiff’s reply, which was ordered sealed, was filed April 24, 2020, and the
25
redacted version, which is the version in the public record, was filed subsequently. (See
Wilson v. Mt. Diablo Unified School District, et al., No. 3:19-cv-3441-MMC (N.D. Cal.),
26
Doc. No. 85).
27
9 By order filed May 4, 2020, the Application was denied. (See Wilson v. Mt.
1 In both of the above-referenced responses,10 plaintiff raised the arguments that
2 form the basis of the instant complaint, specifically, that defendants’ oppositions
3 contained fraudulent statements and were mislabeled as “oppositions” instead of
4 “motions to dismiss,” that service of the fourth opposition was intentionally delayed, and
5 that the proof of service for said opposition contained fraudulent statements. Moreover,
6 the docket in Wilson I shows that, by order filed June 25, 2020, the Court granted
7 plaintiff’s motion to amend. Although, by that same order, the Court, pursuant to 28
8 U.S.C. § 1915(e)(2), sua sponte dismissed the amended complaint, it did so on a ground
9 not raised in any of the oppositions to plaintiff’s motion to amend, specifically, that all of
10 the claims alleged therein were already alleged in Wilson v. Mt. Diablo Unified School
11 District, et al., No. 3:20-cv-3368-MMC (“Wilson II”), a separate action pending before this
12 Court. (See Wilson v. Mt. Diablo Unified School District, et al., No. 3:19-cv-3441-MMC
13 (N.D. Cal.), Doc. No. 100; see also id., Doc. No. 101 (Judgment).)
14 Under such circumstances, the Court finds plaintiff cannot meet the “demanding
15 standard” for relief from a final judgment or order. See Beggerly, 524 U.S. at 46. First, at
16 the time plaintiff filed the instant action, May 4, 2020, there was no “final” order or
17 judgment in Wilson I. See Fed. R. Civ. P. 60(b). Second, the order and judgment of
18 dismissal that ultimately issued were, as noted, not based on any ground advanced by
19 defendants in their oppositions to plaintiff’s motion to amend. Consequently, any
20 allegedly fraudulent statements contained in defendants’ oppositions, and any alleged
21 procedural violations committed in connection therewith, had no bearing on the ruling the
22 Court issued as to plaintiff’s amended complaint.
23 In short, plaintiff has failed to allege any facts showing the order of dismissal and
24 judgment in Wilson I are “manifestly unconscionable,” see Pioneer Life Ins. Co. of Illinois,
25 244 F. Supp. 2d at 1062, nor has plaintiff otherwise demonstrated a need to prevent a
26
10 The Court hereby takes judicial notice of said filings, as well as all other court
27
filings referenced herein. See Reyn's Pasta Bella, LLC, 442 F.3d at 746 n. 6 (holding
1 “grave miscarriage of justice,” see Beggerly, 524 U.S. at 46.
2 Accordingly, plaintiff’s First Claim for Relief will be dismissed. Further, in light of
3 the record in Wilson I set forth above, the Court finds amendment would be futile, and,
4 consequently, such dismissal will be without leave to amend.
5 2. Claims II through VII
6 a. Noerr-Pennington Doctrine
7 Plaintiff’s remaining federal claims, which he brings pursuant to 42 U.S.C. § 1983
8 (“Section 1983”), 42 U.S.C. § 1985 (“Section 1985”), and 42 U.S.C. § 1986 (“Section
9 1986”), are barred by the Noerr-Pennington doctrine.
10 “The Noerr-Pennington doctrine derives from the First Amendment’s guarantee of
11 ‘the right of the people . . . to petition the Government for a redress of grievances.’” See
12 Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (quoting U.S. Const. Amend.
13 I). Under the doctrine, “those who petition any department of the government for redress
14 are generally immune from statutory liability for their petitioning conduct,” including
15 litigation activity. See id. The Noerr-Pennington doctrine provides immunity to
16 governmental entities, see Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 645 (9th Cir.
17 2009), and, in the litigation context, it protects “the defendants in the original case, [as
18 well as] their employees, law firms and lawyers,” see Freeman v. Lasky, Haas & Cohler,
19 410 F.3d 1180, 1186 (9th Cir. 2005). To determine whether a defendant is entitled to
20 immunity under the Noerr-Pennington doctrine, courts “(1) identify whether the lawsuit
21 imposes a burden on petitioning rights, (2) decide whether the alleged activities constitute
22 protected petitioning activity, and (3) analyze whether the statutes at issue may be
23 construed to preclude that burden on the protected petitioning activity.” See Kearney,
24 590 F.3d at 644.
25 Here, as discussed above, plaintiff’s claims are entirely based on defendants’
26 litigation conduct in Wilson I, specifically, defendants’ characterizing, as “oppositions”
27 rather than “motions to dismiss,” the documents they filed in response to plaintiff’s motion
1 the proofs of service, and the manner in which those oppositions were served on plaintiff.
2 Consequently, the “success of [the instant] lawsuit would constitute a burden on
3 [defendants’] petitioning rights.” See id. at 645; see also Williams v. Jones & Jones
4 Mgmt. Grp., Inc., No. 14-cv-2179-MMM, 2015 WL 349443, at *9 (C.D. Cal. Jan. 23, 2015)
5 (holding lawsuit challenging allegedly fraudulent statements in special motion to strike
6 and appellate briefing burdened defendant’s petitioning rights). Next, defendants’ filing of
7 oppositions constitutes protected petitioning activity, see Freeman, 410 F.3d at 1184
8 (holding “Noerr-Pennington immunity . . . appl[ies] to defensive pleadings”), and
9 defendants’ serving said documents and filing proofs of service are protected as “conduct
10 incidental” to such petitioning, see id.; see also Warren v. Reid, No. 10-cv-3146-SBA,
11 2010 WL 4694924, at *7 (N.D. Cal. Nov. 8, 2010) (holding filing of allegedly “false and
12 perjured” proofs of service is protected conduct under Noerr-Pennington doctrine).
13 Lastly, the Noerr-Pennington doctrine provides immunity where, as here, claims are
14 brought under Sections 1983, 1985 and 1986. See, e.g., Manistee Town Center v. City
15 of Glendale, 227 F.3d 1090, 1092 (9th Cir.2000) (applying Noerr–Pennington doctrine to
16 Section 1983 claim); Williams, 2015 WL 349443, at *9–11 (applying Noerr–Pennington
17 doctrine to claims brought under Sections 1983, 1985, and 1986).
18 The Court recognizes that a “sham” exception to the Noerr-Pennington doctrine
19 exists. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.
20 127, 144 (1961) (holding petitioning conduct not protected under Noerr-Pennington if
21 “ostensibly directed toward influencing governmental action” but in fact “a mere sham”).
22 As discussed below, however, plaintiff’s claims do not fall within it.
23 In the Ninth Circuit, petitioning activity may qualify as a sham in one of three ways,
24 see Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056, 1060 (9th Cir. 1998), only two of
25 which are applicable where, as here, the protected petitioning activity is defensive
26 litigation conduct.11 In particular, defensive petitioning activity constitutes a sham (1)
27
1 where it is “objectively baseless” and “the defense as a whole [is] a concealed attempt to
2 interfere with the plaintiff's business relations,” see Freeman, 410 F.3d at 1185 (internal
3 quotation and citation omitted), or (2) where “a party’s knowing fraud upon, or its
4 intentional misrepresentations to, the court deprive the litigation of its legitimacy,” see
5 Kottle, 146 F.3d at 1060.
6 With regard to the first such exception, litigation activity is considered objectively
7 baseless only where “no reasonable litigant could realistically expect success on the
8 merits.” See Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49,
9 60 (1993); see also White v. Lee, 227 F.3d 1214, 1232 (9th Cir. 2000) (characterizing
10 finding under first exception as “a result we would reach only with great reluctance”;
11 noting such finding deprives litigant of “the ordinary protections afforded by the First
12 Amendment”).
13 Here, as noted above, plaintiff alleges defendants’ oppositions contained “many
14 fraudulent and deceitful statements.” (See Compl. at ¶ 66) Specifically, according to
15 plaintiff, the oppositions (1) mischaracterized some of the facts underlying Wilson I; (2)
16 selectively and misleadingly quoted from certain documents; (3) improperly argued that
17 res judicata barred his claims, that he should be classified as a vexatious litigant, and that
18 the facts he added to his amended complaint were known to him when he filed his initial
19 complaint; and (4) misstated aspects of the law regarding amendment of pleadings, the
20 elements of three of plaintiff’s fifteen claims, and the statute of limitations codified under
21 California Code of Civil Procedure Section 340.6. (See id. at ¶ 66.)
22 Such allegations, however, do not establish that “no reasonable litigant could
23 realistically expect success on the merits” of defendants’ oppositions. See Prof'l Real
24 Estate Inv'rs, Inc., 580 U.S. at 60. Rather, a review of the oppositions shows that, on the
25 whole, they raised reasonable arguments against plaintiff’s requested amendment.
26 Although, as noted above, the Court in Wilson I granted plaintiff’s motion to amend over
27
1 defendants’ oppositions, “the fact that a litigant loses his case does not show that his
2 lawsuit was objectively baseless for purposes of Noerr-Pennington immunity.” See
3 White, 227 F.3d at 1232; see also Prof'l Real Estate Inv'rs, Inc., 580 U.S. at 60 n.5
4 (holding “court[s] must resist the understandable temptation to engage in post hoc
5 reasoning by concluding that an ultimately unsuccessful [filing] must have been
6 unreasonable or without foundation” (internal quotation and citation omitted)). In sum,
7 the Court finds defendants’ oppositions contained “enough objective merit . . . to cover
8 [them], and the conduct incidental to [them], with the Noerr-Pennington cloak.” See
9 Freeman, 410 F.3d at 1185.
10 With regard to the second exception, although, as noted above, plaintiff alleges
11 the defendants made fraudulent statements in their oppositions, such asserted conduct
12 did not “deprive the litigation of its legitimacy, see Kottle, 146 F.3d at 1060, as plaintiff, in
13 his reply brief, identified the allegedly fraudulent statements (see Wilson v. Mt. Diablo
14 Unified School District, et al., No. 3:19-cv-3441-MMC (N.D. Cal.), Doc. No. 85 at 3:4-
15 5:13, 7:13-9:27) and raised the argument that defendants’ oppositions were “deceitful
16 overall” (see id. at 3:4); see also Ungureanu v. A. Teichert & Son, No. 11-cv-0316-LKK,
17 2012 WL 1108831, at *9 (E.D. Cal. Apr. 2, 2012) (holding alleged misrepresentations did
18 not deprive litigation of legitimacy where such misrepresentations “came to light during
19 that litigation”). Moreover, as also noted above, the Court granted plaintiff’s motion to
20 amend, and, although the Court dismissed plaintiff’s amended complaint, such dismissal
21 was not based on any argument raised in defendants’ oppositions. Consequently, any
22 alleged fraud by defendants did not form the basis of the Court’s rulings in Wilson I and
23 could not have deprived that litigation of its legitimacy.
24 Accordingly, plaintiff’s Second through Seventh Claims for Relief will be dismissed.
25 Further, in light of the record in Wilson I set forth above, the Court finds amendment
26 would be futile, and, consequently, such dismissal will be without leave to amend.12
27
1 B. State Law Claims
2 The Court's jurisdiction over plaintiff's state law claims, i.e., the Eighth through
3 Eleventh Claims for Relief, is supplemental in nature. See 28 U.S.C. § 1367(a). Where a
4 || district court "has dismissed all claims over which it has original jurisdiction,” such court
5 || may decline to exercise supplemental jurisdiction over the remaining state law claims.
6 || See 28 U.S.C. § 1367(c)(3). In this instance, as the case remains at the pleading stage,
7 || and there are no apparent considerations weighing in favor of retaining jurisdiction over
8 || the state law claims, the Court finds it appropriate to decline to exercise supplemental
9 || jurisdiction over the state law claims.
10 Accordingly, plaintiff's state law claims will be dismissed without prejudice under
11 || 28 U.S.C. § 1367(c).
12 CONCLUSION
13 For the reasons stated above:
14 1. Plaintiffs federal claims are hereby DISMISSED with prejudice.
2 15 2. Plaintiff's state law claims are hereby DISMISSED without prejudice to refiling in
a 16 || state court.
g 17 3. In light of the above, the Case Management Conference currently scheduled
18 || for August 4, 2020, is hereby VACATED.
19 IT IS SO ORDERED.
20
21 || Dated: July 14, 2020 feb Chat
AKINE M. CHESNEY
22 United States District Judge
23
24
25
26
27 || complaint to add additional claims. As Wilson appears to acknowledge, however, the
claims he would add are already alleged in another complaint filed in federal court,
2g || Specifically, Wilson v. County of Contra Costa, No. 20-cv-4160-WHA.