Petition for Writ of Certiorari — Robert Allen Richards, Jr., Petitioner v. County of Los Angeles, California, et al.

App. A 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE RICO FRAUD CASE

LITIGATION

No. 17-56732

ROBERT ALLEN RICHARDS JR., D.C. No.

Plaintiff-Appellant,

2: 17-cv-00400PSG-AGR

kA

COUNTY OF LOS ANGELES; MEMOANDUM

et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Philip S, Gutierrez, District Judge, Presithig

Submitted May15, 2018**

Before: SILVER, BEA, and WATFORD,Circuit Judges.

Appendix A

App. A 2

Robert Allen Richards Jr., appeals pro se from the

district Court's judgment dismissing his action

alleging violations Of the Racketeer Influenced and

Corrupt Organizations Act and other claims in

Connection with child support Proceedings.

Proceedings. We have jurisdiction under

28 U.S.C. 1291. We review de novo a dismissal

* This disposition is not appropriate for publication

and is not precedent except as provided by

Ninth Circuit Rule 36-3.

-

** The panel unanimously concludes this case is

suitable for decision without oral argument. See

Fed. R. App. P 34(a)(2).

App. A 3

under the Rooker-Feldman doctrine. Noel v. Hall,

341 F. 3d 1148, 1154 (9th Cir, 2003), We affirm.

The district court properly dismissed Richards's

action for lack of subject matter jurisdiction under

the Rooker-Feldman doctrine because Richards's

claims constituted a forbidden "de facto appeal"

of a prior state court judgment or were

"inextricably intertwined" with that judgment.

See id. at 1163-65 (discussing proper application

Of the Rooker-Feldman Doctrine); see also Henrichs

v. Valley View Dev., 474 F. 3d 609, 616 (9th Cir. 2007)

(Rooker-Feldman doctrine barred plaintiffs

Claim because the relief sought "would require

App. A 4

the district court to determine that the state

court's decision was wrong and thus void").

We do not consider matters not specifically

and distinctly raised and argued in opening brief,

or arguments and allegations raised for

the first time on appeal.

See Padgett v. Wright,

587 F. 3d 983, 985 n.2 (9th Cir. 2009).

We do not consider document or facts not presented

to be district court. See United States v. Elias, 921

F. 2d 870, 874 (9th Cir. 1990) (Documents or

facts not presented to the district Court

are not part of the record on appeal,").

Richards's motion for leave to file multiple

reply briefs (Docket Entry No. 24) is granted.

The Clerk shall file the briefs submitted at

Docket Entry Nos. 20-23.

AFFIRMED.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

Case No. CV 17-0400 PSG (AGRx)

Date October 20, 2017

Title Robert Allen Richards Jr. v.

County of Los Angeles et al.

Present: The Honorable Philip 5, Gutierrez,

United States District Judge

Wendy Hernandez

Not Reported

Deputy Clerk

Court Reporter

Attorneys Present for Plaintiff(s):

Not Present

Attorneys Present for Defendant(t):

Not Present

Proceeding (In Chamber): Order

Granting Defendants' Motion to Dismiss

Appendix B

Before the Court are Defendant Jesus D.

Perez's motion to dismiss or strike portions

of Plaintiff Robert Allen Richards, Jr's Third

Amended Complaint and Defendant County

of Los Angeles's(CSSD) ("COLA") motion to

dismiss Plaintiffs Third Amended Complaint.'

See Dkts .# 95 ("Perez MTD"), 96 ("COLA MTD").

Plaintiff opposes the motions, see Dkts. # 115

("COLA Opp."), 116 ("Perez Opp."), and

Defendants timely replied, see Dkts. # 118

("Perez Reply"), 120 ("COLA Reply").

The Court finds the matter appropriate for

Decision without oral argument. See Fed.

R. Civ. P. 78(b); L.R. 7-15. Having considered

the moving papers, the Court Grants

Defendants' motions to dismiss with

prejudice.

gone M

I.

Background

A. Introduction

This case arises from a paternity

action against Plaintiff Robert

Allen Richards Jr.(Plaintiff) in

Superior Court of California,

Los Angeles County, in which

Defendant COLA (together with

Defendant Jesus D. Perez,

"Defendants") asserted that

Plaintiff is the biological

Of Tracie Richards ("Tracie").

See Dkt. # 94, Third Amended

Complaint ("TAC"), Ex. 14 ati.

Plaintiff continues to deny the

Finding by the Superior Court

that he is Tracie's father and

claims that Defendant Derek K.

Williams ("Williams") is the

Biological father. TAC Para. 5.

Plaintiff filed a Voluntary

Declaration of Paternity upon

Tracie's birth in 2002, prior to

The litigation in Superior

Court.2 See TAC, Ex. 15 at 1, 4;

See also Defendant

ri3-U' :i

I Defendant Maria Del Rosario Guardado

("Guardado") requests to be included in

the motion to dismiss filed by co-defendant

Perez and COLA. See Dkt. #110. As

defendant Guardado is proceeding pro Se,

the Court grants this request.

2

The details of this Declaration are not

before the Court.

Perez's Request for Judicial Notice

("Perez RJN"), Dkt # 95-3, Ex. A.

Plaintiff alleges that Defendants

"Committed Paternity Fraud... a type

of fraud that occurs when.., a mother

names a man to be the biological father

of a child, when she knows or suspects

that he is not the biological father"

TAC para. 9.

App. B 5

Further, Plaintiff claims that he"[i]s the victim

of a well thought out Paternity Fraud scheme

to get tax free money." Id. para. 3. B. Procedural History

On January 18, 2017, Plaintiff filed

His original complaint against

COLA, Perez, Guardado, and

Williams.4 See Dkt. # 1. Defendant

Perez moved to dismiss Plaintiffs

Original complaint on February 23,

2017. See Dkt. # 13. The court

Granted Perez's first motion to

dismiss without prejudice on

March 31, 2017. See Dkt. #25.

On April 28, 2017, Plaintiff filed

His First Amended Complaint

("FAC"). See Dkt. # 28. Defendant

Perez moved to dismiss the FAC

on May 12, 2017. See Dkt. #38.

Defendant COLA moved to dismiss

the FAC on May 19, 2017. See

Dkt. #47.

r3.J"u :i

When considering a motion to dismiss, a court

typically does not look beyond the complaint

in order to avoid converting a motion to dismiss

into a motion for summary judgment. See Mack

v. South Bay Distribs., Inc., 798 F. 2d 1279,

1282 (91h Cir. 1986), overruled on the grounds

by Astoria Fed. Say. & Loan Assn v.

Solimiono, 501 U.S. 104 (1991).

Notwithstanding this precept, a court

may properly take judicial notice of (1)

material which is included as part of the

complaint or relied upon by complaint, and

(2) matters in the public record. See

Marder v. Lopez, 450 F.3d 445, 448 (91h

Cir, 2006); Lee v. City of L.A., 250 F.3d

668, 688-89 (9th Cir. 2001).

ffins RE

A court may also take judicial notice pursuant

To Federal Rule of Evidence 201 (b). Under

the rule, a judicial noticed fact must be one

that is "not subject to reasonable dispute

because it: (1) is generally known within the

trial court's territorial jurisdiction; or (2) can

be accurately and readily determined from

sources whose accuracy cannot reasonably

be questioned." Fed. R.Evid. 201(b). A

court "must take judicial notice if a party

requests it and the court is supplied with

the necessary information." See Fed. Evid.

201(c)(2); In re Icenhower, 755 F. 3d 1130,

1142 (9th Cir. 2014). Accordingly, the Court

takes judicial notice of exhibits "A-U"

attached to Perez's Request for Judicial

Notice in Support of his Motion pursuant

to Rule 201 of the Federal Rules of

Evidence, as these documents are all

publically filed court documents. See Fed

R. Evid.201 (b); see also U.S. ex rel.

Robinson rancheria Citizens Council

v. Borneo, Inc., 971 F.2d 244,248 (9th Cir.

1992) (holding that publicly filed

Documents from proceedings in other

Courts that "have a direct relation to

matters at issue" are the proper subject

of judicial notice) (citation omitted).

4 Defendant Perez was Guardado's

attorney during the paternity proceedings.

See TAC para. 7,9. Plaintiff filed his Second

Amended Complaint ("SAC") on June 26,

2017, thereby mooting Perez and COLA's

:isi

motion to dismiss the SAC. See Dkts. #90,

94. On September 8, 2017, Defendant Perez

Moved to dismiss or strike portions of the

TAC. See Perez MTD. On September 8, 2017,

Defendant COLA also moved to dismiss the

TAC. See COLA MTD. In his Plaintiff argues,

inter alia, that Defendants committed

paternity fraud. TAC para. 3, 9. Plaintiff

also asserts two principle claims against

Defendants for their alleged (1) violation

of Racketeer Influenced and Corrupt

Organization Act ("RICO"), 18 U.S.C.

1962 et seq., and (2) conspiracy to

violate RICO.5 See TAC at 16, 17, 23-25.

Plaintiff also attempts to prosecute a

number of criminal charges against

App. B 10

Defendants. See TAC at 17-22, 2527.

C. Fact Adjudicated in State Court

Proceeding

On February 28, 2002, Plaintiff

and Defendant Guardado both

signed a Declaration of Paternity

stating that they were the

biological parents of Tracie D. Richards.

Perez RJN, Ex. A (Declaration of

Paternity ified with the State of

California-Health & Human Services

Agency; 3/15/2002).

On April 14, 2015, COLA filed

a Complaint Regarding Parental

Obligations against Plaintiff

Seeking child support for Tracie

in the amount of $1,319.00 per

month. See Defendant COLA's

App. B 11

Request for Judicial Notice

("COLA RJN"), Dkt. #97,

Ex. A6 ; see also

P1aintiff specifically alleges

5

four counts against COLA

and Perez: 1) "Enterprise!

ENTERPRISE"; 2) "Racketeering";

"Conspiracy to Engage in

a Pattern Racketeering Activity";

"Interstate and International

Commerce of the ENTERPRISES!

Enterprises." TAC para. 31-34,

51-54. Plaintiff alleges three count

against Defendant Guardado: 1)

"Interest in an Enterprise Engaged

in a Racketeering Activity";

App. B 12

"Conspiracy of RICO";

"Racketeering." Because Plaintiff

fails to substantively differentiate

between the claims, the court will

analyze the counts in the context of

1) RICO, and 2) Conspiracy to

Violate RICO.

6

The court takes judicial notice of

Exhibits A-J attached to COLA's

Request for Judicial Notice

pursuant to Rule 201 of the

Federal Rules of Evidence, as

These documents are all

Publically filed court documents.

See Fed. R. Evid. (b); see also

Borneo, 971 F.2d at248.

Perez RJN Ex. B (4/14/2015

Complaint- County of Los Angeles

v. Robert Allen Richards Jr.,

LASC #BZ 176122).

App. B 13

On September 23, 2015, Judgment

was entered against plaintiff

ordering him to pay child support

in the amount of $1,319.00 per

month. COLA RJN, Ex. B;

Perez RJN, Ex. C (9/23/2015

Judgment Regarding Obligations).

On October 9, 2015, Plaintiff

Filed an Application to Set Aside

The Judgment and Support Order

Based upon lack of notice. COLA

RJN, Ex. C; Perez RJN, Ex. D

(10/09/2015 Application to Set

Aside Support Order).

On January 7, 2016, Plaintiff

Filed a Request for Order,

Requesting, inter alia, a DNA

Test and Judgment of

Non-paternity. COLA RJN, Ex.D;

Perez RJN,Ex, E (1/07/2016

Request for Order).

App. B 14

On February 24, 2016, Plaintiff

Filed a Request to Set Aside

Voluntary Declaration of

Paternity. COLA RJN, Ex. F

(2/24/2016 Application to Set

Aside Voluntary Declaration

of Paternity}.

On July 19, 2016, the state court

denied Plaintiffs Application to

Set Aside Judgment and entered

A Judgment Regarding Parental

Obligations ordering Plaintiff to

ordering Plaintiff to pay a modified

child support obligation in

amount of $1,041.00 per month.

COLA RJN, Ex. F; Perez RJN

Ex. K (7/18/2016 Minute Order,

Ex. "L"; 7/19/2016 Judgment).

On July 25, 2016, Plaintiff

Filed a Declaration to

Application to Set Aside

App. B 15

Voluntary Declaration of

Paternity and requesting

Genetic testing. COLA BiN,

Ex, G; Perez RJN, Ex. M

(7/25/2016 Declaration to

Application to Set Aside

Paternity).

October 12, 2016, the court

Denied Plaintiffs Application

To Set Aside Judgment of

Paternity and Voluntary

Declaration of Paternity.

COLA BiN, Ex. H;

(10/12/2016 Order After

Hearing).

-

On or about October 11, 2016,

Plaintiff filed a Request for

Order requesting a change in

His child support obligations

and paternity testing.

App. B 16

COLA RJN, Ex. I; Perez RJN,

Ex. P (10/11/2016 Request for

Change in Child Support and

Paternity Testing).

11. On December 21, 2016, the

state court denied Plaintiffs

Application to Set Aside

Voluntary Declaration of

Paternity and Request for

Genetic testing. COLA RJN,

Ex. J; Perez RJN, Ex. R

(12/21/2016 Order After Hearing).

D. Motion to Dismiss

The defendants move to

Dismiss the TAC on the

Following grounds:

(1) lack of personal jurisdiction

App. B 17

over Defendant COLA due

to insufficient service of

process pursuant to

Federal Rule of Civil

Procedure 12(b)(5);7

lack of subject matter

jurisdiction under the

Rooker-Feldman doctrine

pursuant to Federal Rule

of Civil Procedure 12(b)(1);

res judicata and collateral;8

failure to state a claim

upon which relief can be

granted under Federal

Rule of Civil Procedure

12(b)(6); and

lack of private right of

action to give rise to

criminal violations.

COLA MTD at 7-9,14-17;

Perez MTD at 1-2. In the

alternative, Defendant Perez

moves to strike portions of

the TAC pursuant to Federal

Rule of Civil Procedure 12(f).

Perez MTD at 2-3.

II.

Legal Standard

A. Personal Jurisdiction

Rule 12(b)(5) of the

Federal Rules of Civil

Procedure authorizes

a defendant to move for

dismissal or to quash a

summons due to

insufficient service of

process. "A federal

court does not have

jurisdiction over a

defendant unless the

defendant has been served

MUM

properly [with the summons

and complaint] under Fed.R.

Civ.P. 4... [W]ithout substantial

compliance with Rule 4,

neither actual notice nor simply

naming the defendant in the

complaint will provide

personal jurisdiction."

Direct Mail Specialist, Inc v.

Eclat Computerized techs.

840 F.2d 685, 688 (9th Cir. 1988)

(internal quotation marks omitted).

Once service of process is

Challenged, the "plaintiffFj bear[s]

the burden of establishing that

service was valid." Brockmeyer

v. May, 383F. 3d 798, 801

(9th Cir. 2004). If plaintiff is unable

to satis!y its burden of

demonstrating effective

service, the Court has discretion

to either dismiss or retain the

action. See Stevens v. Security

Pac. Natl Bank, 538 F.2d. 1387,

1389 (9th Cir. 1976).

.

.j.Ittt]

B. Subject Matter Jurisdiction

A motion to dismiss an action

Pursuant to Federal Rule

of Civil Procedure 12(b)(1)

raises the question of the

federal court's subject matter

jurisdiction over the action.

The objection presented by

this motion is that the

Court has no authority to

hear and decide the case.

This defect may exist despite

the formal sufficiency of

the allegations in the

complaint. See T.B. Harms

Co. v. Eliscu, 266 F. Supp.

337, 338 (S.D. N.Y. 1964),

Affd 339 F.2d 823

(2d Cir. 1964)

7 Oii1y Defendant COLA

moves to dismiss the

complaint on the grounds

App. B 21

of lack of personal jurisdiction.

8 OrJy Defendant COLA moves

dismiss the complaint under

the doctrines of res judicata

and collateral estoppel.

(the formal allegations must

Yield to the substance of the

claim when a motion is filed

to dismiss the complaint for

lack of subject matter

jurisdiction). When considering

a Rule 12(b)(1) motion

challenging the substance of

jurisdictional allegations, the

Court is not restricted to the

face of the pleading, but

App. B 22

May review any evidence, such as

declarations and testimony, to

resolve any factual disputes

concerning the existence of

jurisdiction. See McCarty v.

United States, 850F.2d 558, 560

(9th Cir. 1988). The burden of

proof in a Rule 12(b)(1) motion

is on the party asserting

jurisdiction. See Sopcak v.

Northern Mountain Helicopter

Serv., 52 F.3d 817, 818 (9th Cir.

1995); Association of Am. Med.

Coil. V. United States, 217 F.3d

770, 778-79 (9th Cir. 2000).

App. B 23

C. Failure to State a Claim

Federal Rule of Civil Procedure

8(a) states that a complaint

must contain a "short and

plain statement of claim

showing that the [plaintiff]

is entitled to relief." Fed. R

Civ. P. complaint must

"contain sufficient factual

Matter, accepted as true, to

'state a claim to relief that

Is plausible on its face."

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)(quoting

Bell Ati. Corp.u. Twombly,

550 U.S. 544,570 (2007)).

"A claim has facial

plausibility when the plaintiff

pleads factual content that

allows the court to draw

the reasonable inference

that the defendant is liable

for the misconduct alleged."

App. B 24

Iqbal, 556U.S.at 678

(citing Twombly, 550 U.S.

at 556). "Factual allegations

must be enough to raise a

right to relief above the

speculative level." Twombly,

550 U.S. at 570.

In assessing the adequacy

of the complaint, the court

must accept all pleaded

facts as true and construe

them in light most favorable

to the plaintiff. Turner v.

Cty. of S.F., 788 F.3d 1206,

1210 (9th Cir, 2015); Cousins

v. Lockyer, 568 F.3d 1063,

1067 (9th Cir. 2009). The

Court then determines

whether the complaint

"pleads factual content

that allows the court to

draw the reasonable

inference that the defendant

is liable for the misconduct

alleged."

App. B 25

Iqbal, 556 U.S. at 678.

"Mere conclusory statements

in a complaint and 'formulaic

recitation[s] of the elements

of a cause of action' are not

sufficient." Chavez v.

United States, 683 F.3d

1102, 1108 (9th Cir. 2012)

(quoting Twomly, 550 U.S.

At 555). Therefore, "a court

discounts conclusory statements,

which are not entitled to the

presumption of truth, before

determining whether a claim

is plausible." Chaves, 683

F.3d at1108 (citing Iqbal,

556 U.S. at 678).

Rule 9(b) requires a party

alleging fraud to "state

with particularity the

circumstances constituting

fraud." Fed. R. Civ. P. 9(b).

App. B 26

To plead fraud with

particularity, the pleader

must state the time, place,

and specific content of the

false representations.

Odom v. Microsoft Corp..

486 F.3d 541, 553 (9th

Cir. 2007). The allegation

"must set forth more than

neutral facts necessary

to identify the transaction.

The plaintiff must set forth

what is false or misleading

about the statement, and

why it is false." Vess v.

Ciba-Geigy Corp. USA,

317 F.3d 1097, 1106

(9th Cir. 2003) (internal

Quotation marks omitted).

In essence, the defendant

must be able to prepare an

adequate answer to the

allegations of fraud.

App. B 27

Where multiple defendants

allegedly engaged in fraudulent

activity, "Rule 9(b) does not

allow a complaint to merely

lump multiple defendants

together." Swartz v. KPMG LLP,

476F.3d 756, 764 (9th Cir.

2007). Rather, a plaintiff

must identify each defendant's

role in the alleged scheme.

Id. at 765.

D. Motion to Strike

A motion to strike material

From a pleading is made

pursuant to Federal Rule

•of Civil Procedure 12(f).

Under Rule 12(f), the Court

may strike from a pleading

any "insufficient defense" or

any material that is "redundant,

immaterial, impertinent or

scandalous."

A Rule 12(f) motion is not a motion

to dismiss for dismiss for state a

claim upon which relief may be

granted, and, where not involving

a purportedly insufficient defense,

simply tests whether a pleading

contains inappropriate material.

The Court may also strike under

Rule 12(f) a prayer for relief which

is not available as a matter of law.

Tapley v. Lockwood Green Engineers,

502 F,2d 559, 560(8th Cir. 1974).

The essential function of Rule

12(f) motion is to "avoid the

expenditure of time and money

that must arise from litigating

spurious issues by dispensing

with those issues prior trial."

Fantasy, Inc. v. Fogerty, 984

F,2d 1524, 1527 (9th Cir. 1993),

rev'd on other grounds, 510 U.S.

517 (1994).

App. B 29

Because of "the limited importance

of pleading in federal practice,"

motions to strike pursuant to

Rule 12(f are disfavored.

Bureerong v. Uvawas, 922 F.Supp.

1450, 1478 (C.D. Cal. 1996).

III. Discussion

A. Failure to Timely Effectuate Service

Defendant COLA argues that

Plaintiffs TAC should be dismissed

for failure to timely effectuate

service under Federal Rule of

Civil Procedure 4(m). Rule 4(m)

states that, "[i}f a defensant is not

Served within 90 days the complaint

is filed, the court.... must dismiss

the action without prejudice

against that defendant or order

that service be made within a

specified time" unless "the plaintiff

shows good cause for the failure."

Fed. R. Civ. P. 4(m). absent a finding

of good cause, the Court may

extend the time for service if

MOM

there is a showing of excusable

neglect. Lemoge v. United States,

578 F.3d 1188, 1198 (91h Cir. 2009).

In Lemoge, the Ninth Circuit held

that "[e]xcusable neglect

'encompass[es] situations in which

the failure to comply with a filing

deadline is attributable to

negligence' and includes

'omissions caused by carelessness."

Id. at 1192 (quoting Pioneer liw.

Servs. Co v. Brunswick Assocs.

Ltd., 507 U.S. 380,388,394 (1993)).

If the plaintiff is unable to satisfy

its burden of demonstrating

effective service, the Court has

discretion to either dismiss or

retain the action. See Stevens,

538 F.2d at 1389. Defendant

COLA argues that here,

"Plaintiff effectuated service of

process on the County on

September 20, 2017 (Dkt. No. 111),

which was two hundred and

forty (240) days from the date

when Plaintiff filed his initial

Complaint on January 18, 2017

(Dkt. No. 1)."

...

App. B 31

COLA Reply at 2n.1.9

Defendant COLA further

argues that "this warrants

mandatory dismissal because

service of process was not

effectuated within 90 days

after filing the initial complaint."

Id. Because Plaintiff does not

proffer a counter argument to

rebut COLA's claim or show

good cause for the failure and,

once service of process is

challenged the "plaintiffFJ

bear[s] the burden of

establishing that service was

valid," the Court determines

that COLA was not properly

served under Rule 4(m).

Brockmeyer, 383 F.3d 801;

Fed. R. Civ. P. 4(m). However,

in light of additional finding

of the Court, discussed infra,

the Court finds this issue to be

moot and chooses to exercise its

discretion to retain the action

at this time. See Stevens, 538

F.2d at 1389.

App. B 32

B. Subject Matter Jurisdiction

and the Rooker-Feldman

Doctrine'0

The Supreme Court has

explained that "lower

federal courts no power what

ever to sit in direct review of

state court decision."

District of Columbia Ct.

of App. v. Feldman, 460

U.S. 462, 482 n. 16 (1983)

(quoting Atlantic Coast

Line R. Co. v. Brotherhood

of Locomotive Eng'rs. 398

U.S. 281, 296 (1970).

Pursuant to the RookerFeldman doctrine, a federal

Court is without jurisdiction

to exercise appellate review

of state court judgments.

See Rooker-Fidelity Trust,

263 U.S. 413, 415-16 (1923);

Feldman, 460 U.S. at 482-486.

Specifically, the RookerFeldman doctrine bars a

litigant who lost in state

App. B 33

court "seeking what in

substance would be appellate

review of the state judgment

in a United States district

court." Johnson v. DeGrandy,

512 U.S. 997, 1005-06 (1994).

The underlying question is

whether "the District Court

is in essence being called upon

to review the state court

decision." Feldman, 460

U.S. at 482 n. 16.

The Rooker-Feldman doctrine

"includes three requirements:

(1)'[T]he party against whom

the doctrine is invoked must

have actually been a party to

the state-court judgment

9The Court reviewed the

proof of service and notes

that service of COLA

occurred on September 15,

2017. See Dkt. #111. This

date, however, is still well

outside the prescribed time

period for service of process

WT

IIJM

'°Because Defendants'

Rooker-Feldman argument

"is a challenge for lack of subject

matter jurisdiction,"

Olson Farms, Inc. v. Barbosa,

134 F.3d 933, 937 (9th Cir.

1998), the Court will

consider it as a threshold

matter before turning to the

Defendants' motion'to

dismiss for failure to state

a claim for which relief can

be granted pursuant to

Federal Rule of Civil

Procedure 12(b)(6).

or have been in privity with

such a party'; (2) 'the claim

raised in the federal suit

must have been actually

raised or inextricably

intertwined with statecourt judgment'; and (3)

'the federal claim must not

parallel to the state-court

claim." Lance v. Dennis, 546

U.S. 459, 462 (2006) (quoting

Lance v. Davidson, 379 F. Supp.

2d 1117, 1124 (D. Cob. 2005)).

App. B 35

Involves same party

Here, the plaintiff was a

party in the prior state

court judgment where he

was unsuccessful in his

efforts to reverse his

Voluntary Declaration of

Paternity and was ordered

to pay child support. See COLA

RJN, Ex. A; Perez RJN, Ex. B

(4/15/2015 ComplaintCounty of Los Angeles v.

Robert Allen Richards Jr.,

LASC #BZ 176122); see also

TAC para. 16-17, 22-25,

Exs. 14, 15; Perez RJN,

Exs. C, K, L, 0, Q, and R;

COLA RJN, Exs. B, F, H, J.

Thus, this element is met.

Inextricably Intertwined

Pursuant to the RookerFeldman doctrine, "federal

district courts do not have

jurisdiction to hear de facto

appeals from state court

App. B 36

Judgments." Carmona v.

Carmona, 603 F.3d 1041, 1050

(9th Cir. 2003)). In Cooper v.

Ramos, 704 F.3d 772 (9th Cir.

2012), the Ninth Circuit "found

Claims inextricably intertwined

where the relief requested in the

federal action would effectively

reverse the state court decision

or void its ruling." Id. at779

(internal quotation marks and

Citation omitted). The Supreme

Court held in Feldman that "[i]f

the constitutional claims

prevented to a United States

District Court are inextricably

intertwined with the state

court's [decision]... then the

District Court is in essence

being called upon to review

the state court decision. This

the District Court may not

do." Feldman,460 U.S. at 482

n. 16 (emphasis added).

App. B 37

Where the parties do not

directly contest the merits

of a decision by the state

court, the Rooker-Feldman

doctrine may also apply as

it "prohibits a federal district

court from exercising subject

matter jurisdiction over a

suit that is a de facto appeal

from a state court judgment."

Reusser u. Wachovia Bank,

N.A., 525 F.3d 855, 859

(9th Cir. 2008) (quoting

Kougasian v.TMSL, Inc.,

359 F.3d 1136, 1139

(9th Cir. 2004). "A federal

action constitution such a

de facto appeal where 'claim

raised in the federal court

action are inextricably

intertwined with the state

court's decision such that the

adjudication of the federal

claims would undercut

the state ruling

!3'J'- :Iff]

or require the district court to

interpret the application of

state laws or procedural rules."

Reusser, 525 F.3d at 859

(quoting Bianchi v. Rylaarsdam,

334 F.3d 895, 898 (9th Cir.2003).

Under these circumstances,

"the district court is in essence

being called upon to review

the state court decision."

Reusser, 525 F.3d at 859

(quoting Feldman, 460 U.S.

at 482 U.S. n.16). In this case,

Defendant Perez argues that

"Plaintiff's claims against

the Defendants... all arise

from his multiple, unsuccessful

efforts at reversing his

Voluntary Declaration of

Paternity in the underlying

State court Paternity Action."

Perez MTD at 1, 10. Defendant

COLA states that, "both the state

and the present case seek

similar relief that is, relief of

App. B 39

Plaintiffs obligation to pay

child support." COLA MTD at 13.

Further, as Defendant COLA

explains, "the only injuries

alleged by Plaintiff derive

from the state court judgmentthe obligation to provide child•

support payments." Id.

Defendant Perez further argues

That integral to Plaintiffs

allegations of RICO

violations are Plaintiffs

claims that he was "ma[de]...

to pay a debt that was never

owed" and that Defendants acted

as an enterprise to "develop

and carry out" the alleged

RICO scheme "to bill and

collect unlawful debt."

Perez MTD at 10; see also

Perez Reply at 3; TAC para.

31, 34. These claims appear

to be based upon the state

97

6 1M

0 :zts]

court's refusal to set aside the

Plaintiff's Voluntary Declaration

of Paternity, finding that Plaintiff

is Tracie's legal father, and the

reaffirmation of Plaintiffs

attendant child support

obligations. Further, as

Defendant Perez argues,

Plaintiff purports to

"circumvent the application

of the Rooker-Feldman doctrine

by casting the TAC as a

'civil RICO." Perez MTD at 11.

However, this is specifically

proscribed by the RookerFeldman doctrine as "a

litigant may not attempt to

circumvent the effect of

Rooker-Feldman and seek

reversal of a state court

judgment simply by casting

the complaint in the form of

a civil rights action." Id. (quoting

Long v. Shorebank Dev. Corp.,

182 F.3d 548, 557 (7th Cir. 1999)).

Defendants also contend that

"Plaintiff failed to file a timely

appeal." COLA MTD at 13

(citing COLA RJN, Exs. B, J).

Defendant COLA argues that

"Plaintiffs complaint is nothing

but an attempt to re-litigate

issues previously decided

against him because he failed.

to file a timely appeal."

COLA MTD at 14. The Feldman

Court held that the fact that

we may not have jurisdiction

to review a final state court

judgment because

of a petitioner's failure to

raise his constitutional claims

in state court does not mean that

a United States District Court

should have jurisdiction over

the claims. By failing to raise

his claims in state court a

plaintiff may forfeit his right

to obtain review of the state

court decision in any federal court.

This result is eminently defensible

on policy grounds. We have noted

the competence of state courts to

adjudicate federal constitutional

claims. Feldman,, 460 U.S. at

482 n.16 (citations omitted).

Plaintiff does not provide a

substantive opposition to the

Defendants' contentions

regarding the Rooker-Feldman

doctrine. The substance of

Plaintiffs opposition is that

the "DOCTRINE is not

application in case, RICO

Fraud Lawsuits are exempt

from this doctrine, Citing:

Iqbal v. Patel, F.3d, 2015 WL

85941 (7th Cir. 2015). (See

Exhibit 2)." See COLA Opp.

para. 2; Perez para. 1. The

Court has reviewed the Iqbal

v. Patel case cited by the

Plaintiff and provided in

App. B 43

Exhibit 2 to the Oppositions,

and determines that the Patel

decision involves an issue that

is distinguishable from this case.

In Patel, the court held that the

Rooker-Feldman doctrine did not

bar the plaintiffs claims because

he sought damages for activity

that took place before the state

proceeding and "caused injury

independently of it." Iqbal v.

Patel, 780 F.3d 728, 730

(7th Cir. 2015). The Patel

held that, "[b]ecause Iqbal

seeks damages for activity

that (he alleges) predates the

state litigation and caused

injury independently of it,

the Rooker-Feldman doctrine

does not block this suit." Id.

Contrary to Plaintiffs assertions,

the Patel court's conclusions do

not state civil RICO actions

are exempt from the RookerFeldman doctrine generally,

but that the doctrine was not

applicable to the specific facts

App. B 44

of the Patel case. The court

agrees with the Defendants

and concludes that, although

the principal claims alleged

by Plaintiff involve RICO

violations, the essence

underlying Plaintiffs

claims is his dissatisfaction

with and attempt to

circumvent the paternity

ruling by the state court.

Although the RICO claims

may be masked as independent

claims, the crux of the

allegations are inextricably

intertwined with the state

court findings. Accordingly,

the Court finds that the TAC

is effectively a de facto appeal

of the final state court decision

and as such is barred by the

Rooker-Feldman doctrine. See

Reusser, 525 F.3d at 860.

App. B 45

iv.

Claim Not Parallel

Lastly, this case was filed after the

conclusion of the state court

proceeding and is therefore not

parallel to the state court action.

Judgment was entered in the state

Court proceeding on September 23,

2015 and the state court denied

Plaintiff's Application to Set Aside

Judgment on December 21, 2016.

COLA RJN, Exs. C, R. Plaintiff

filed the current case in federal

court on January 18, 2017.

V.

Summation

The Court finds that, under the

Rooker-Feldman doctrine, the

Court does not have subject

matter jurisdiction over this

action pursuant to Federal

Rule of Civil Procedure 12(b)(1).

Because the lack of subject

matter jurisdiction disposes

of the entire case, Defendants'

App. B 46

additional arguments in support

of dismissal need not be addressed.

C. Motion to Strike Under Federal of

Civil Procedure 12(f)

Defendant Perez moves to strike

Plaintiffs "Triple Damages Multiplier"

as well as his prayer for criminal

penalties. Because the Court finds

that Plaintiffs claims are barred

due to lack of subject matter

jurisdiction pursuant to the

Rooker-Feldman doctrine, which

warrants dismissal of the TAC in

its entirety, the Court does not reach

the issues contained in Defendant

Perez's alternative motion to strike.

IV.

Leave to Amend

According to the Ninth. "[d]ismissal without leave to amend

is proper if it is clear that the

UT

IMM

complaint could not be saved

by amendment." Kendall v.

Visa U.S.A., Inc., 518 F.3d

1042, 1051 (9th Cir. 2008)

(citing Eminence Capital,

LLC v. Aspeon, Inc., 316 F.3d

1048, 1059 (9th Cir. 2003)

(per curiam)); see also Gordon

v City of Oakland, 627 F.3d

1092, 1094 (9th Cir. 2010)

("Although leave to amend

a deficient complaint shall

be freely given when justice

so requires, leave may be

denied if amendment of

the complaint would be

futile.") (citation omitted).

Plaintiff was already put on

notice that this action might

be dismissed with prejudice

if he failed to adequately

plead his claims and oppose

any future motions to dismiss. In a minute order

dated August 8, 2017,

the Court explained that

"considering Plaintiffs

repeated failure to

substantively oppose

Defendants' motions to

dismiss, the Court notes

that Plaintiff's pattern of

litigation boarders on

vexation and his pleadings

bear markers of futility."

See Dkt. # 90. The Court

further stated that it

"hereby cautions Plaintiff

that the Court may dismiss

this Action with prejudice,

unless Plaintiff adequately

pleads his claims in the

Third Amended Complaint,

or substantively demonstrates

in opposition to any future

motions to dismiss that leave

to amend would not be futile."

!3'J"u fT

Id. (citing Carrico v. City &

Cty. of S.F., 656 F.3d 1002,

1008 (9th Cir. 2011)) (emphasis added).

Here, Plaintiffs Oppositions

to Motion to Dismiss do not

substantively demonstrate

to the Court how leave to

amend would not be futile.

Moreover, Plaintiff has already

been granted leave to amend his

complaint on three separate

occasions. The Court agrees

with Defendant COLA's

observation that "Plaintiff['s]

50-page Complaint, is rambling,

full of criminal allegations,

incoherent argument and

irrelevant detail with

unsupported conclusions,

and is not simple, concise or

direct." COLA MTD at 4.

Even if Plaintiffs claims

WORM

were sufficiently pleaded, they

would still be barred by the

Rooker-Feldman doctrine.

Accordingly, the Court finds that

further amendment would be

futile and DENIES leave to

amend.

V. Conclusion

For the foregoing reason, the

Court GRANTS Defendants'

Motion to Dismiss and dismiss

Plaintiffs Third Amended

Complaint with prejudice.

IT IS SO ORDERED.