Petition for Writ of Certiorari — Michael Mogan, Petitioner v. Sacks, Ricketts & Case LLP, et al.

Supreme Court briefJul 17, 2023

Ask Donna

What actually matters in this document.

Text

<r--X

*' « )

Supruifl* Court u.s.

rii.E .*>

in the Supreme Court of the WmteiJ States

JUL 17 M

OFFICE OF THE CLERK

MICHAEL MOGAN,

Petitioner

SACKS, RICKETTS AND CASE LLP, Et Al.

Respondents

On Petition for a Writ of Certiorari to the Court

of Appeal of the Northern District Of California

PETITION FOR A WRIT OF CERTIORARI

Michael Mogan, pro se

4803 N. Milwaukee Ave,

Suite B, Unit #244

Chicago, IL 60630

(949) 424-5237

mm@michaelmogan.com

QUESTIONS PRESENTED

Did the Ninth Circuit—in direct conflict with

the Seventh Circuit—erroneously fail to recognize

that 28 U.S.C. § 636(c) precludes the parties from

selecting a particular magistrate judge to preside

over their conflict and that, when they do so, the

magistrate judge does not obtain jurisdiction over

the matter?

Whether California’s Anti-SLAPP Statute Can

Apply In Federal Court Because The Statute

Answers The Same Question As The Federal Rules

And Is Valid Under The Rules Enabling Act?

Whether denial to Petitioner of oral argument

by the Magistrate Judge through the entire

proceedings including in Petitioner opposing Rule 11

sanctions followed by the Ninth Circuit denying

Petitioner’s request for oral argument and as a

request for special accommodation under the

American With Disabilities Act of 1990, As Amended

warrants reversal.

Whether the Rule 11 motion did not adequately

inform Petitioner of the source of authority for the

sanctions being considered in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 14th Amend.) and in violation of the Due

Process Clause of the Federal Constitution (U-S.

Const., 5th Amend.).

PARTIES TO THE PROCEEDING

Michael Mogan, Petitioner here, was appellant and

objector below. Respondents Sacks Ricketts and Case

LLP, Michele Floyd, Jacqueline Young, Airbnb Inc.,

Jeff Henry, Dave Willner and Sanan Ebrahini were

appellees below.

RELATED PROCEEDINGS

No such proceedings exist.

—

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

RELATED PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISION................

INTRODUCTION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION.

1. Did the Ninth Circuit—in direct conflict with

the Seventh Circuit—erroneously fail to

recognize that 28 U.S.C. § 636(c) precludes the

parties from selecting a particular magistrate

judge to preside over their conflict and that,

when they do so, the magistrate judge does not

obtain jurisdiction over the matter?.................. 8

2. Whether California’s Anti-SLAPP Statute Can

Apply In Federal Court Because The Statute

Answers The Same Question As The Federal Rules

And Is Valid Under The Rules Enabling Act?....... 12

~ }

Page

3. Whether denial to Petitioner of oral argument by

the Magistrate Judge through the entire

proceedings including in Petitioner opposing Rule

11 sanctions followed by the Ninth Circuit denying

Petitioner’s request for oral argument and as a

request for special accommodation under the

American With Disabilities Act of 1990, As

Amended warrant reversal.

4. Whether the Rule 11 motion did not adequately

inform Petitioner of the source of authority for the

sanctions being considered in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 14th Amend.) and in violation of the Due

Process Clause of the Federal Constitution (U.S.

Const., 5th Amend.)................................................ 26

CONCLUSION.

APPENDICES

Appendix A, Opinion of the Ninth Circuit Court of

Appeals, (April 18, 2023)............................................. la

Appendix B, Petitioner’s Consent To Magistrate

Judge Kandis A. Westmore (Nov. 13, 2021).........

Appendix C, Related Case Order of the Northern

District of California (December 10, 2021)............ 11a

Appendix D, Motion To Dismiss Order of Northern

12a

District of California (January 10, 2021)

Page

Appendix E, Rule 11 Order of the Northern

District Of California (January 12, 2021)....

36a

Appendix F, Order Disregarding Withdrawal Of

Magistrate Judge Consent (February 11, 2022)....47a

Appendix G, Pertinent Constitutional And

Statutory Provisions.................................

49a

TABLE OF AUTHORITIES

CASES

Abbas v. Foreign Pol’y Grp., LLC,

passim

783 F.3d 1328 (D.C. Cir. 2015)......

Adriana Int’l Corp. u. Theoren,

913 F.2d 1406 (9th Cir. 1990)........

Am west Mortgage Corp. v. Grady,

925 F.2d 1162 (9th Cir. 1991)........

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)........................

Apostolic Pentecostal Church v. Colbert,

169 F.3d 409 (6th Cir. 1999).........

Bass v. E.I. DuPont de Nemours & Co.,

324 F.3d 761 (4th Cir. 2003)........

Bletas v. Deluca,

2011WL 13130879 (S.D.N.Y. Nov. 15, 2011)...6

BellAtl. Corp. v. Twombly,

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

15,17

Burlington N. R.R. Co. v. Woods,

480 U.S. 1(1987)...............

Bus. Guides, Inc. u. Chromatic Commnc’ns Enters.,

498 U.S. 533 (1991)............................................ 6

Page

Buster v. Greisen,

104 F.3d 1186(9th Cir. 1997), as amended

6,30,34

on denial of reh’g (Mar. 26, 1997)

Carbone v. CNN, Inc.,

passim

910F.3d 1345 (llth Cir. 2018).....

Carlucci v. Piper Aircraft Corp.,

775 F.2d 1440 (llth Cir. 1985)....

Celotex Corp. v. Catrett,

All U.S. 317 (1986)........................

16,17

Chambers v. NASCO, Inc..

501 U.S. 32 (1991)..........................

Chemiakin v. Yefimov,

932 F.2d 124 (2d Cir. 1991)..........

Chia v. FidelityInvs.,

No. 05-7184, 2006 U.S. App. LEXIS 20296

(D.C. Cir. Aug. 3, 2006)................................. 27

Christian v. Mattel, Inc.,

286 F.3d 1118 (9th Cir. 2002)...................... 6,28

Divane v. Krull Elec. Co.,

200 F.3d 1020 (7th Cir. 1999)....................... 33

Gasperini v. Ctr. for Humans., Inc.,

518 U.S. 415 (1996)..........

Godin v. Schencks,

19,20,21

629 F. 3d 79 (1st Cir. 2010)

Golden Eagle Distrib. Corp. v. Burroughs Corp.,

801 F.2d 1531 (9th Cir. 1986).....

Hanna v. Plumer,

380 U.S. 460 (1965).......................

Hatcher v. Consol. City ofIndianapolis,

323 F.3d 513 (7th Cir. 2003)

10,11,12

Hernandez v. City ofEl Monte,

138 F.3d 393 (9th Cir. 1998)

Vll

Page

Holgate v. Baldwin,

425 F.3d 671 (9th Cir. 2005)....................

In re Allen, No. 06-1429,

2007 U.S. App. LEXIS 22445

(10th Cir. Sept. 19, 2007)..........................

In re Grantham Brothers,

922 F.2d 1438, 1442 (9th Cir. 1991) cert.

denied, 502 U.S. 826 (1991)....................

In re Keegan Mgmt. Co. Sec. Litig.,

78 F.3d 431 (9th Cir. 1996).....................

In re Pennie & Edmonds LLP,

323 F.3d 86 (2d Cir. 2003).............. ........

Landscape Properties, Inc. v. Whisenhunt,

127 F.3d 678, 685 (8th Cir. 1997)..........

Klocke v. Watson,

936 F.3d 240 (5th Cir. 2019)................... passim

Maciosek v. Blue Cross & Blue Shield United

of Wisconsin, 930 F.2d 536 (7th Cir. 1991). ..30

Makaeff v. Trump Univ., LLC'

715 F.3d 254 (9th Cir. 2013)............ 20,22,24

Makaeff v. Trump Univ., LLC,

736 F.3d 1180, 1189 (9th Cir. 2013)

McCluskey u. Hendricks,

2021 WL 4815938 (C.D. Cal. June 16, 2021)...7

McCluskey v. Henry,

56 Cal.App.5th 1197 (2020).................

Metabolife Int’l, Inc. v. Wornick,

264 F.3d 832 (9th Cir. 2001)...............

Methode Elecs., Inc. v. Adam Techs., Inc.,

371 F.3d 923 (7th Cir. 2004)...............

Menjivar v. Trophy Props.,

No. C06-03086 SI, 2006 WL 2884396

Page

MHCInv. Co. v. Racom Corp.,

323 F.3d 620.............................................

Midlantic Nat1 Bank v. New Jersey Dep't of

En vironmental Protection,

474 U.S. 494 (1986)................................

Mississippi Publ’g Corp. v. Murphree,

326 U.S. 438 (1946)................................

Nasser v. Isthmian Lines,

331 F.2d 124 (2d Cir. 1964)...................

Newsham,

18,19,21,22

190 F.3d 963 (9th Cir. 1999).

O'Brien v. Alexander,

101 F.3d 1479 (2d Cir. 1996)

Perretta v. Prometheus Dev. Co.,

No. C-05-02987- WHA, 2006 U.S. Dist.

Lexis 10108, (N.D. Cal. Feb. 24, 2006)........ 31

Planned Parenthood Fed’n ofAm., Inc. v. Ctr. for

Med. Progress,

20,21

890 F.3d 828 (9th Cir)...... ..........

Revson v. Cinque & Cinque, P. C.,

221 F.3d 71 (2d Cir. 2000).........

Roberts v. Chevron,

117 F.R.D. 581 (M.D. La. 1987),

affd, 857 F.2d 1471 (5th Cir. 1988)....30

Roell v. Withrow,

538 U.S. 580 (2003)............................

Sakon, Sakon v. Andreo,

119 F.3d 109 (2d Cir. 1997)...............

Schlaifer Nance & Co. v. Estate of Warhol,

194 F.3d 323 (2d Cir. 1999)............... 28,29,34

Segen v. Buchanan Gen. Hosp., Inc.,

(W.D.Va.2007) 552 F.Supp.2d 579..

Page

Shady Grove Orthopedic Assocs., P.A. v. Allstate

Ins. Co., 559 U.S. 393 (2010)

passim

Shin Park v. Seoul Broad. Sys. Co.,

2008 U.S. Dist. LEXIS 17277 (S.D.N.Y. Mar.

3, 2008)............................................................... 29

Silberg v. Anderson,

50 Cal. 3d 205 (1990), as modified (Mar. 12,

1990)................................................................... 12

Sibbach v. Wilson & Co.,

312 U.S. 1 (1941)

14,23,24

Simmons v. Suare,

4:94CV131, 1995 U.S. Dist. LEXIS 14948,

(W.D.N.C. Sept. 15, 1995)............................ 33

Thompson v. Duke,

940 F.2d 192 (7th Cir. 1991).......................

Thornton v. General Motors Corp.,

136 F.3d 450 (5th Cir. 1998).......................

Townsend v. Holman Consulting Corp.,

914 F.2d 1136 (9th Cir. 1990)...................... 29

Standing Comm on Discipline ofU.S. Dist. Ct. for Cent.

Dist. ofCalifornia v. Yagman

55 F.3d 1430, 1443 (9th Cir. 1995)..........

United Natl Ins. Co. v. R&D Latex Corp.,

242 F.3d 1102 (9th Cir. 2001).................

Welk v. GMACMortg, LLC,

720 F3d 736 (8th Cir. 2013)........................

Zuk v. Eastern Pa. Psychiatric Inst, of the Med.

College ofPa.,

103 F.3d 294 (3d Cir. 1996)....................

.—

Page

STATUTES

18 U.S.C. §1343....

18 USC §1951.......

18 U.S.C. § 1962(c).

18 U.S.C. § 1962(d)

2,5

28 U.S.C. §631...................................

9,10,11,12

28 U.S.C. §636(c)...............................

9,11

28 U.S.C. § 636(c)(1)..........................

, passim

Cal. Code Of Civil Pro. §425.16........

.passim

Cal. Code Of Civil Pro. §425.16(b)(1)

passim

Cal. Code Of Civil Pro. §425.16(c)(1).

Cal. Code Of Civil Pro. §425.16(g)....

Private Securities Litigation Reform Act of 1995,

15 U.S.C. §78u-4(b)(2)(A)(2018)................ 20

RULES AND REGULATIONS

Fed. R. Civ. P. 8..........................

Fed. R. Civ. P. 8(a)(2)..................

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

Fed. R. Civ. P. 11........................

Fed. R. Civ. P. 11(b)....................

Fed. R. Civ. P. 11(b)(2)...............

Fed. R. Civ. P. Rule 11(c)(1)(A)...

Fed. R. Civ. P. 11 (c)(2)..............

Fed. R. Civ. P. 12........................

Fed. R. Civ. P. 12(b)(6)...............

Fed. R. Civ. P. 12(d)....................

Fed. R. Civ. P. 23........................

Fed. R. Civ. P. 56........................

Fed. R. Civ. P. 56(a)....................

15,17

passim

...32,33

passim

..................14,15

15,16,17,21,22,35

...................15,17

Page

Fed. R. Evid. 201(b)............................................... 35

N. D. CA - Civil Local Rule 7-3(a)......................... 8

OTHER AUTHORITIES

Mary Kay Kane, Federal Practice And Procedure

§2712 (4th ed. 2020).................................... 15

Rule 11 1993 Advisory Committee Notes............. 33

• r-J

PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael Mogan prays that a writ of

certiorari be granted to review the judgment and

orders entered by the Northern District of California.

OPINIONS BELOW

The opinion of the Ninth District Court of Appeals and

orders of the Northern District Of California case is

attached to this petition as an Appendix.

JURISDICTION

The Ninth District Court Of Appeals opinion is

attached. See Appendix. This petition is filed within

90 days of that date. This Court has jurisdiction under

28 U.S.C. § 1257.

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISION

28 U.S.C. §636; Federal Rules Of Civil Procedure 11;

and California Code Of Civil Procedure 425.16.

INTRODUCTION

Michael Mogan (‘Petitioner”) seeks review of

his Appeal Case No. 22-15254 which affirmed the

judgment and certain orders by the Ninth Circuit

Court Of Appeals. The Ninth Circuit Opinion cited a

second appeal 22-15793 and but the two appeals

were not consolidated.

Petitioner filed a seven count complaint

against Airbnb Inc., Dave Willner, Jeff Henry and

Sanaz Ebrahini (“Airbnb Repondents”) that included

two RICO civil claims specifically 18 U.S.C. 3 1962(c)

and 18 U.S.C. § 1962(d). Despite well settled

precedent that RICO claims are not barred by the

litigation privilege (see Menjivar v. Trophy Props.,

No. C06-03086 SI, 2006 WL 2884396, at *16) the

District Court dismissed all Petitioner’s claims in

granting Airbnb Respondents Rule 12(b)(6) motion

and Rule 11 motion under the litigation privilege and

the non-RICO claims based on collateral estoppel.

The case was initially assigned to Magistrate

Judge Kandis A. Westmore and Petitioner consented

to her as a Magistrate judge. Airbnb Respondents

then related the case to magistrate Thomas Hixson

and Petitioner immediately objected to reassignment

but his objections were not ruled upon. The local

rules in the Northern District Of California have no

such rule governing such a situation as the Seventh

Circuit does whether a plaintiffs consent to

magistrate jurisdiction remains effective after the

case is assigned to another Magistrate Judge thus

Judge Thomas Hixson had no jurisdiction over

Petitioner’s claims.

. r*

Sacks Ricketts and Case LLP, Michele Floyd

and Jacqueline Young (“SRC Respondents”) filed a

motion to strike the abuse of process claim against

SRC Respondents under California’s AntiSLAPP

statute and the District Court analyzed such motion

under both prongs of the California Code Of Civil

Procedure 425.16 statute (“AntiSLAPP statute”) and

dismissed Petitioner claim with prejudice. Airbnb

Respondents filed a motion to declare Petitioner a

vexatious litigant and for sanctions and the District

Court denied the motion however the District Court

failed to apply the same AntiSLAPP statute although

it was clear Airbnb Respondents motion fell within

the first prong of the AntiSLAPP statute. Thus the

District Court arbitrarily applied California’s

AntiSLAPP statute when filed by SRC Respondents

as a moving party but failed to when such a motion

was filed by Petitioner.

Airbnb Repondents also filed a motion to

dismiss (citing disputed facts from 28 exhibits) and a

Rule 11 motion (with 29 exhibits) which the District

Court took judicial notice and subsequently granted

Airbnb Respondents motion to dismiss and Rule 11

motion. Airbnb Respondents Rule 12(b)(6) motion

and Rule 11 motion made no mention of the

allegations in the complaint about the unfiled

sanctions motion, false document and threatening

letter sent to Petitioner nor did they introduce the

unfiled sanctions motion as an exhibit as if that

meant the allegations in the complaint were not true

nor that such unfiled motion did not exist. Instead

Airbnb Respondents claimed Petitioner filed a

complaint based on a different sanctions motion they

later filed. The Rule 11 motion also had no basis in

fact or law and did not discuss why any legal

precedent would require Petitioner to amend or

withdraw the claims in the complaint yet the Ninth

Circuit Court Of Appeals affirmed the decision.

Airbnb Respondents sought to invoke

collateral estoppel in their Rule 12(b)(6) motion for

two specific facts that (1) Airbnb failed to pay its

arbitration fee in an underlying state court case that

Mogan, an attorney, brought on behalf of his client,

and (2) Airbnb sought to harass, threaten, and extort

money from Mogan by moving for sanctions after

Mogan filed a motion to lift a stay on the basis of

Airbnb’s purported untimely arbitration payment

which the District Court granted but the underlying

civil and arbitration proceedings were not final

before January 2021 nor did this address allegations

in the complaint for the unfiled sanctions motion.

Despite these disputed facts the Ninth Circuit

Court of Appeals sua sponte on appeal revised the

facts at issue preclusion and concluded issue

preclusion applied because “[b]oth the instant

lawsuit and the state-court sanctions proceedings—a

“final adjudication”—present the “identical issue(s)”

of the timeliness of Airbnb’s fifing fee payment and

the propriety of Mogan’s actions in response to

communications from the AAA.” Op. at 4. Since the

Ninth Circuit Court Of Appeals concluded the claims

in the complaint were barred by collateral estoppel

the Appellate Panel did reach Petitioner’s arguments

on appeal that the litigation privilege did not bar any

of the claims in the complaint.

Petitioner was also not afforded oral argument

throughout the entire District Court proceedings

including in opposing the Rule 11 motion. Petitioner

also sought oral argument on appeal and as a special

accommodation from the Ninth Circuit Court of

Appeals and Petitioner was denied oral argument

once again.

These questions call urgently for this Court's

review and guidance.

STATEMENT OF THE CASE

A. Factual Background

Petitioner filed a complaint on October 29,

2021 that included claims for (1) Abuse Of Process;

(2) Intentional Infliction Of Emotional Distress; (3)

Intentional Interference With Prospective Economic

Relations; (4) Civil Conspiracy; (5) Federal Civil

RICO, 18 U.S.C. 3 1962(c); (6) Conspiracy to Engage

in a Pattern of Racketeering Activity: 18 U.S.C.

§ 1962(d); (7) Unfair Business Practices Under

Business & Professions Code Sections 17200, et seq.

Dkt. at 1. The crux of the complaint was based upon

threatening letters, an unfiled sanctions motion

never filed and fake documents sent to petitioner in a

desperate attempt to compel Petitioner into refiling

an arbitration claim closed after Respondents failed

to pay their arbitration fifing fees.

The complaint alleged in part Petitioner as an

attorney was involved in arbitration proceedings with

his client, where Petitioner timely paid the filing fee,

however Respondents Jeff Henry, Dave Willner and

Sanaz Ebrahini recklessly did not and arbitration

proceedings were closed April 8, 2019. The complaint

alleged on June 10, 2019 SRC Respondents served

Petitioner a sanctions motion pursuant to California

Code Of Civil Procedure 128.7 seeking $25,047 in

fees to vex and annoy Petitioner into refiling an

arbitration claim instead of proceeding in state court.

The frivolous sanctions motion was never filed. The

complaint also alleged in part the June 10, 2019

sanctions motion included an invoice with false

information that Airbnb Inc. had paid their $7,500.

The RICO claims in the complaint alleged

predicate acts for (1) use of wires to defraud in

Violation of 18 U.S.C. §1343 based upon a threatening

phone call made by Respondent Young to Petitioner;

(2) extortion based upon Respondents threatening

Petitioner with the sanctions motion never filed; (3)

extortion based upon Respondents sending Petitioner

a threatening letter with the unfiled sanctions motion;

(4) extortion based upon personal service of the

unfiled sanctions motion on Petitioner; (5) extortion

based upon service of the unfiled sanctions motion

over email; (6) violation of the Hobbs Act pursuant to

18 USC §1951 for Respondents threats in a letter to

Petitioner’s business and reputation; and (7) violation

of the Hobbs Act 18 USC §1951 for service of the

unfiled sanctions motion upon Petitioner.

On December 21, 2021 Airbnb Respondents

filed a Rule 11 motion with 29 exhibits which motion

cited a single statute, Fed. R. Civ. P. 11, not even the

RICO statutes were cited. The Rule 11 motion only

cited eleven cases which were Adriana Int’l Corp. v.

Theoren, 913 F.2d 1406 (9th Cir. 1990); Bletas v.

Deluca, 2011 WL 13130879 (S.D.N.Y. Nov. 15, 2011);

Bus. Guides, Inc. v. Chromatic Commnc’ns Enters.,

498 U.S. 533 (1991); Buster v. Greisen, 104 F.3d 1186,

1190 (9th Cix. 1997), as amended on denial of reh’g

(Mar. 26, 1997); Christian v. Mattel, Inc., 286

F.3d 1118 (9th Cir. 2002); Golden Eagle Distrib. Corp.

v. Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986);

Holgate v. Baldwin, 425 F.3d 671 (9th Cir. 2005)

In re Keegan Mgmt. Co. Sec. Litig., 78 F.3d 431 (9th

Cir. 1996); McCluskey v. Hendricks, 2021WL 4815938

(C.D. Cal. June 16, 2021) McCluskey v. Henry, 56 Cal.

App. 5th 1197 (2020) and Silberg v. Anderson, 50 Cal.

3d 205 (1990), as modified (Mar. 12, 1990). The Rule

11 motion did not cite DKN Holdings LLC v. Faerber,

61 Cal. 4th 813 (Cal. 2015) (cited by the District Court

in its motion to dismiss and the Appellate Opinion)

and, the litigation privilege nor any legal authority

that the complaint was barred because (1) Airbnb paid

its filing fee; and (2) they filed a separate sanctions

motion for a proper purpose.

B. Procedural History

District Court

Petitioner filed his complaint October 29,

2021. Magistrate Judge Kandis A. Westmore was

assigned to the case November 1, 2019 and

Petitioner consented to her as Magistrate Judge

November 13, 2021. On December 3, 2021 SRC

Respondents filed a notice of related case to transfer

the case to Judge Thomas Hixson. On December 4,

2021 Petitioner objected to the case being related.

On December 10, 2021 Judge Thomas Hixson issued

a related case order and did not rule on Petitioner’s

objections.

On November 24, 2021 Airbnb Respondents

filed a motion to dismiss. Dkt. 12. On November 29,

2021 SRC Respondents filed a motion to strike the

complaint pursuant to California Code Of Civil

Procedure §425.16. Dkt. 16. On December 21, 2021

Airbnb Respondents filed a Rule 11 motion (Dkt. 32)

and a separate motion to declare Petitioner a

vexatious litigant and for sanctions. Dkt. 41.

After briefing concluded the District Court granted

the motion to dismiss and AntiSLAPP motion. Dkt.

38. On January 12, 2021 the District Court granted

Rule 11 sanctions with leave for Airbnb Respontents

to file a fee petition. Dkt. 50 Petitioner filed a Rule

12(b) motion citing California’s AntiSlapp statute

Cal. Civ. Pro. §425.16 and Petitioner filed a separate

opposition to the vexatious litigant motion which the

District Court stated were untimely. On January 11

,2021 Petitioner sought leave to file his opposition to

vexatious litigant motion and for sanctions. On

January 11, 2021, the District Court stated

Petitioner’s Rule 12(b) motion was filed late

pursuant to Civil Local Rule 7-3(a) which requires

oppositions to be filed in 14 days however in such

order the District Court stated in part the motion to

strike also had no merit. Dkt. 43.

B. Ninth Circuit Court Of Anneals

The Ninth Circuit affirmed the District

Court dismissal of Petitioner’s claims against Airbnb

Respondents and the abuse of process claim against

SRC Respondents. The Opinion addressed two

combined appeals filed by Petitioner (Case 22-15254

and 22-15793) however the appeals were not

consolidated.

REASONS FOR GRANTING THE PETITION

1. Did the Ninth Circuit—in direct conflict

with the Seventh Circuit—erroneously

fail to recognize that 28 U.S.C. § 636(c)

precludes the parties from selecting a

particular magistrate judge to preside

over their conflict and that, when they do

so, the magistrate judge does not obtain

jurisdiction over the matter?

The Federal Magistrates Act governs the

jurisdiction authority of federal magistrate judges.

28 U.S.C. §§631-39. Section 636(c)(1) authorizes a

magistrate judge to “conduct any or all proceedings” in

a civil matter, but only if (l) the parties consent and

(2) the magistrate judge is “specially designated to

exercise such jurisdiction by the district court” that he

or she serves. A magistrate judge lacks jurisdiction

unless both criteria are met: there must be consent by

the parties and the court’s special designation. Roell

v. Withrow, 538 U.S. 580, 582 (2003).

The reason for requiring the court, not the

parties, to select the magistrate judge who is to

proceed under §636(c) is obvious^ to prevent the

parties (or a party) from engaging in judge-shopping,

which “doubtless disrupts the proper functioning of

the judicial systemU” Standing Comm, on Discipline

of U.S. Dist. Ct. for Cent. Dist. of California v.

Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995). “Judge-

shopping clearly constitutes ‘conduct which abuses the

judicial process.” Hernandez v. City of El Monte, 138

F.3d 393, 399 (9th Cir. 1998)(quoting Chambers v.

NASCO, Inc., 501 U.S. 32, 44-45 (1991)).

The Seventh Circuit in Hatcher held that

parties cannot select their magistrate judge. Hatcher v.

Consol. City ofIndianapolis, 323 F.3d 513,514 (7th Or. 2003)

Hatcher, was a civil-rights lawsuit against

government officials. Id. The parties specified in their

settlement agreement that a particular magistrate

judge would resolve an outstanding attorneys’ fees

issue. Id. The plaintiff appealed because the district

judge, not the magistrate judge, made the final

attorneys’ fees award. Id. The plaintiff argued that the

parties had validly consented to the magistrate

judge’s jurisdiction, which precluded the district judge

from ruling. Id. Despite consenting to the magistrate

judge, the defendants countered that the form of the

parties’ consent to the magistrate judge was

inadequate under §636(c). Id.

The Seventh Circuit provided two reasons for

this prohibition. First, “the general rule that one may

not choose one’s judge in federal court should not have

an exception for magistrate judges.” Id. at 519. “[N]o

one would think of arguing that parties had the right

to select a particular district judge,” and there is “no

distinction between the position of the magistrate

judges for this purpose and the position of any other

judicial officers exercising power in the federal

courts.” Id. at 518. The court refused to endorse a

scheme that allowed the parties to “shop among a

district court’s magistrate judges” and “disregardt ]

the assignment procedures otherwise used in that

district court for allocating work to the magistrate

judges.” Id. at 517-18.

Second, the plain language of § 636(c) does not

“provide for the parties’ choice of a specific magistrate

judge.” Id. at 518. It would be inappropriate to

construe §636(c) “to allow parties to designate a

magistrate judge independently of the district court’s

procedures for magistrate assignment.” Id. “The

language in the statute that indicates that the

magistrate judge may exercise her power ‘when

specially designated to exercise such jurisdiction by

the district court or courts’ is inconsistent with a rule

permitting the parties effectively to make that

designation.” Id. at 519 (quoting 28 U.S.C. § 636(c)(1)).

Thus, under Hatcher, parties cannot “pick the

magistrate judge who [is] to handle their case.” Id. at

518. To do so violates § 636(c) and amounts to

improper judge-shopping. This conclusion is legally

sound. The plain language of the statute clearly

allows only the “district court” to designate the

magistrate judge. 28 U.S.C. § 636(c)(1). “This can

mean only that it is the court, and not the parties, that

has the power to confer general or specific duties upon

an individual magistrate judge.” Hatcher, 323 F.3d at

518.

The Ninth Circuit claimed Petitioner consented

to magistrate jurisdiction but such generalization

elevates form over substance as Petitioner consented

to a specific magistrate judge then the case was

related. It places too much emphasis on the formal

referral or designation that triggers the statutory

transfer of jurisdiction from one magistrate judge to

another. And it ignores Hatcher’s concern with the

selection of a particular magistrate judge designated

to carry out § 636(c) functions. It goes without saying

that any of Respondents have no ability—no power—

to actually assign judges to their cases and relating a

case to a separate magistrate judge does not enable

such power otherwise Congress would have provided

such rule. Although Hatcher did not involve a party

consenting to one magistrate judge before a related

case order, such principle still forbids parties from

“picking] the magistrate judge who [is] to handle

their case.” 323 F.3d at 518. Indeed, in Hatcher, the

district judge “was advised of the decision of the

parties and seemed to endorse the referral.” Id. at 51516. The Seventh Circuit still vacated the referral

because the parties made the particular selection. Id.

at 518-19.

Furthermore, Congress has not granted a

plenary power to all Magistrate Judges to hold

litigants and attorneys in contempt or impose Rule 11

sanctions. To do so would undermine Congress's

decision to grant magistrate judges certain powers

and withhold others. Furthermore, the normal rule of

statutory construction is that if Congress intends for

legislation to change the interpretation of a judicially

created concept, it makes that intent specific.

Midlantic Natl Bank v. New Jersey Dep't of

Environmental Protection, 474 U.S. 494, 501(1986)

Congress could have included the power to impose

Rule 11 sanctions in 2000 when it amended §636.

Appellant objected to the case being reassigned to

another magistrate judge and later filed a declination

to magistrate jurisdiction which the District Court

failed to consider.

Thus this Court should grant the writ and hold

that Magistrate Judge Hixson lacked jurisdiction to

proceed in this case.

2. Whether California’s AntrSLAPP Statute Can

Apply In Federal Court Because The Statute

Answers The Same Question As The Federal

Rides And Is Valid Under The Rides Enabling

Act

In diversity cases where the issue is whether a

state or federal law should apply, a court may apply

“the typical, relatively unguided Erie choice[,]”

CHanna v. Plumer, 380 U.S. 460, 471 (1965)) under

which “federal courts sitting in diversity apply state

substantive law and federal procedural law.”

Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415,

427(1996). However, in situations covered by the

Federal Rules, courts will apply the relevant Rule,

unless it is either invalid under the Rules Enabling

Act (28 U.S.C. §2072) or unconstitutional. Hanna, 380

U.S. at 471. AntiSLAPP statutes conflict with Federal

Rules 8, 12, and 56 because both the antiSLAPP

statutes and the Rules govern pre-trial dismissal of

claims. Klocke v. Watson, 936 F.3d 240, (5th Cir.

2019); Carbone v. CNN, Inc., 910 F.3d 1345 (llth Cir.

2018); Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d

1328 (D.C. Cir. 2015).

The Supreme Court addressed the issue of

controlling Federal Rules in Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., where the Court

dealt with a state statute “which preclude [d] a suit to

recover a ‘penalty’ from proceeding as a class action,”

and considered whether that statute conflicted with

FRCP 23, which governs the maintenance of class

actions in federal court. Shady Grove, 559 U.S. at

397-398(2010) A divided court held Rule 23 was valid

and controlled. Id. at 399, 408, 410. In the majority

opinion, Justice Scalia addressed “whether Ride 23

answers the question in dispute,” which was whether

the suit could be maintained as a class action. Id. at

398. The state law “attempt[ed] to answer the same

question” as Rule 23 because it, like Rule 23,

addressed when a suit could proceed as a class action.

Id. at 399. Justice Scalia stated “even if [the state

statute] aim[ed] to restrict the remedy a plaintiff can

obtain, [it] achieve [d] that end by limiting a plaintiffs

power to maintain a class action.” Id. at 403. Thus,

Rule 23 must apply in federal diversity suits unless it

was invalid. Id. at 399.

Justice Scalia’s plurality opinion addressed the

validity of Rule 23 under the Rules Enabling Act by

asking whether the Rule “really regulattes]

procedure,—the judicial process for enforcing rights

and duties recognized by substantive law and for

justly administering remedy and redress for disregard

or infraction of them.” Id. at 407 (quoting Sibbach v.

Wilson & Co., 312 U.S. 1, 14 (1941). What matters is

not whether or not the rule affects a party’s

substantive rights, but what the rule regulates^ “ [i]f it

governs only ‘the manner and the means’ by which the

litigants’ rights are ‘enforced,’ it is valid; if it alters

‘the rules of decision by which [the] court will

adjudicate [those] rights,’ it is not.” Shady Grove, 559

U.S. at 407 (quoting Mississippi Publ’g Corp. v.

Murphree, 326 U.S. 438, 446 (1946)). While each rule

did have some effect on the parties’ rights, they merely

regulated the mechanism for enforcing them. Id. at

407-08. As a result, Rule 23 was valid under the Rules

Enabling Act. Id. at 408.

Under Shady Grove, there are two steps in

determining whether or not defendants in diverse

federal litigation can use the protections afforded by

state anti-SLAPP statutes. Shady Grove, 559 U.S. at

398 (2010). The first step in assessing whether a state

statute conflicts with the Federal Rules is to

determine whether or not the state law and the

Federal Rules “attempt! ] to answer the same

question.” Id. at 399. Rules 8, 12, and 56 together

answer the same question as anti-SLAPP statutes;

when must a court dismiss a claim before it goes to

trial? Carbone, 910 F.3d at 1350; Abbas, 783 F.3d at

1333-34. Rule 8 provides that a complaint must state

a plausible claim for relief, (Fed. R. Civ. P. 8(a)(2); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007))

and if it does not, it must be dismissed under Rule

12(b)(6) for failure to state a claim. Fed. R. Civ. P.

12(b)(6). Rule 56 requires a court to “grant summary

judgment if the movant shows that there is no genuine

dispute as to any material fact.” Fed. R. Civ. P. 56(a).

Thus, Rule 8 sets the standards for the sufficiency of

a claim; Carbone, 910 F.3d at 1350. Rule 12(b)(6) tests

the sufficiency of the claim; and Rule 56 seeks to

ensure that there are genuine issues to be tried. Mary

Kay Kane, Federal Practice And Procedure §2712 (4th

ed. 2020). Meanwhile, anti-SLAPP statutes enable

defendants to dismiss claims arising from their

exercise of First Amendment rights through a special

motion to strike, unless the plaintiff can show a

probability or likelihood of success on the merits. Cal.

Civ. Pro. §425.16(b)(1). These statutes do so with the

purpose of quickly dismissing frivolous lawsuits

intended to chill expression. Metabolife Int% Inc. v.

Wornick, 264 F.3d 832, 839 (9th Cir. 2001); AntiSLAPP statutes answer the same question as the

Federal Rules by adding an extra requirement to get

to trial. Abbas, 783 F.3d at 1333—34.

The Federal Rules set up the hurdles that a

plaintiff must overcome in order to get to trial in

federal litigation. Id. at 1334. Rules 8 and 12(b)(6)

work to ensure that a plaintiff has adequately plead a

claim for relief—hurdle number one. Carbone v. CNN,

Inc., 910 F.3d 1345, 1350 (llth Cir. 2018). Rule 56

then ensures that there are genuine issues that may

be heard by a trier of fact—hurdle number two.

Celotex Corp. v. Catrett, All U.S. 317, 323-24 (1986);

Makaeff v. Trump Univ., LLC (Makaeff II), 736 F.3d

1180, 1189 (9th Cir. 2013)(Watford, J., dissenting). If

these hurdles are satisfied, a plaintiff may proceed to

trial. Abbas, 783 F.3d at 1334. However, the antiSLAPP statute sets up an additional hurdle by

requiring a plaintiff to demonstrate a probability of

success, while still leaving the opportunity to dismiss

under Rules 12(b)(6) and 56. Carbone, 910 F.3d at

1350-51; Abbas, 783 F.3d at 1333-34; MakaeffII, 736

F.3d at 1189 (Watford, J., dissenting). As a result,

they answer the same question—when must a court

dismiss a claim before trial—because they provide

defendants sued for certain claims an extra way to

dismiss a lawsuit before trial. Abbas, 783 F.3d at

1333—34. As with the rules at issue in Shady Grove,

the Federal Rules and anti-SLAPP statutes answer

the same question differently. The Anti-SLAPP

statute require a showing of a probability of success.

Cal. Civ. Pro. §425.16(b)(1). However, Rule 8

specifically “does not impose a probability

requirement at the pleading stage!,]” but rather only

requires a showing of a plausible claim for relief. Bell

Atl. Corp. v. Twombly; 550 U.S. 544, 556 (2007). In

fact, a well-plead complaint may proceed even if it

strikes a judge that actual proof of those facts is

improbable, and ‘that a recovery is very remote and

unlikely. Twombly, 550 U.S. at 556. Further, while

requiring that a plaintiff establish a likelihood of

success, California’s anti-SLAPP statute stays

discovery. C.C.P. §425.16(g). Conversely, while Rule

56 is intended “to isolate and dispose of factually

unsupported claims or defenses,” (Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986)) summary

judgment is only warranted when no genuine dispute

of material fact exists after an opportunity for

discovery. Fed. R. Civ. P. 56(a)> Anderson v. Liberty

Lobby Inc., All U.S. 242, 247-48, 250 n.5 (1986)

Thus, the anti-SLAPP statute addresses the same

question, yet provides a different answer.

The difference in answers is significant. Abbas

v. Foreign Poly Grp., LLC, 783 F.3d 1328, 1334 (D.C.

Cir. 2015). The Federal Rules must be read together,

(.Nasser v. Isthmian Lines, 331 F.2d 124, 127 (2d Cir.

1964)) and when done, Rules 8, 12, and 56 provide the

requirements to be entitled to trial. Abbas, 783 F.3d

at 1333-34! Carbone, 910 F.3d at 1350. A plaintiff

first must state a plausible claim. Fed. R. Civ. P. 8,

12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555—56 (2007). Then, after discovery, a plaintiff must

show that there is a genuine dispute of material fact.

Anderson, All U.S. at 250 n.5; Carbone, 910 F.3d at

1350. If a plaintiff can meet these two requirements,

then he is “entitled to trial.” Abbas, 783 F.3d at 1334.

Anti-SLAPP statutes add an extra requirement.

Abbas, 783 F.3d at 1334. Not only does a plaintiffs

claim have to be plausible, it has to be probable that

they will succeed, and they must demonstrate that

without discovery. Cal. Civ. Pro. §425.16(b)(1),(g).

This extra requirement makes it harder for certain

plaintiffs to get to trial solely because of the nature of

the claim. Abbas, 783 F.3d at 1334. In Shady Grove,

the statute in question changed the standards for

whether or not a certain type of suit could be

maintained as a class action. Shady Grove, 559 U.S.

at 399 (2010). Similarly, anti-SLAPP statutes change

the standards that certain plaintiffs must meet in

order to be entitled to trial. Carbone, 910 F.3d at 1351.

In Burlington N R.R. Co. v. Woods, the state statute

“mandate [ed] a test of sufficiency that the Rules

reject” by requiring an affirmative penalty on

unsuccessful appeals as opposed to the discretionary

award for frivolous appeals imposed by the Federal

Rules. Burhngton N. R.R. Co. v. Woods, 480 U.S. 1, 7

(1987)', Carbone, 910 F.3d at 1355. Likewise, antiSLAPP statutes require the courts to apply a stricter

standard that the Federal Rules squarely reject.

Carbone, 910 F.3d at 1350-51. The Ninth Circuit

concluded that because a defendant who brings an

unsuccessful motion to strike under the anti-SLAPP

statute can still turn to Rules 12(b)(6) and 56, there is

no conflict. Newsham, 190 F.3d 963, 972 (9th Cir.

1999). However, this argument directly acknowledges

that the anti-SLAPP statutes add an extra

requirement by saying that even if the claim can make

it over that hurdle, it still has to make it over the other

two to get to trial. Abbas v. Foreign Pol’y Grp., LLC,

783 F.3d 1328, 1334 (D.C. Cir. 2015). Rather than

showing that they answer separate questions, that

argument only proves anti'SLAPP statutes impose an

additional burden on plaintiffs before reaching trial.

Id. Further, the types of claims that anti'SLAPP

statutes cover fall within the sphere of Rules 8, 12,

and 56. The First and Ninth Circuits concluded anti'

SLAPP statutes supplement the Federal Rules, and

exist in their own separate sphere because anti'

SLAPP statutes only pertain to a specific category of

cases. Godin v. Schencks, 629 F.3d 79, 88 (1st Cir.

2010); Newsham, 190 F.3d at 973. While it is correct

that anti'SLAPP statutes provide a supplemental

mechanism for protecting defendants against certain

types of claims, {Godin, 629 F.3d at 88-89; Newsham,

190 F.3d at 973) they still exist within the sphere of

the Federal Rules. Abbas, 783 F.3d at 1334. The

Federal Rules cover all actions brought in the federal

district courts, with minor exceptions. Fed. R. Civ. P.

1. Thus, they are general rules that apply to every

type of claim brought in federal court. Id. Anti'SLAPP

statutes cover just a small subset of claims within the

large sphere of claims that Federal Rules apply to.

Cal. Civ. Pro. §425.16(b)(1). The state statute in

Shady

Grove

similarly

imposed

additional

requirements for certain types of class actions, while

FRCP 23 applied to all types of class actions. Shady,

397, 400-01 (2010). The Court deemed the state

statute’s method of following the Federal Rule for

some claims but singling out certain ones with extra

requirements impermissible. Id. at 400-01.

California’s Anti'SLAPP statute operates in the same

way as to Rules 8, 12, and 56. Klocke v. Watson, 936

F.3d 240, 245-46 (5th Cir. 2019); Abbas v. Foreign

Pol’y Grp., LLC, 783 F.3d 1328, 1334 (D.C. Cir. 2015).

Together, the Federal Rules govern pre-trial dismissal

for every type of claim brought in federal court;

however, California’s anti-SLAPP statute singles out

certain claims and imposes an additional

requirement. Klocke, 936 F.3d at 245-46; Carbone v.

CNN, Inc. 910 F.3d 1345, 1354-55 (llth Cir.2018);

Abbas, 783 F.3d at 1334; Makaeff v. Trump Univ.,

LLC (Makaeff I), 715 F.3d 254, 274 (9th Cir. 2013)

(Kozinski, J., concurring). As a result, their

“supplement” to the Federal Rules impermissibly

intrudes into the sphere of the Federal Rules.

Congress has taken certain types of claims and

placed them outside the sphere of Rules 8, 12, and 56,

but has not done so for any of the claims that

California’s antrSLAPP statute typically covers. See

Private Securities Litigation Reform Act of 1995, 15

U.S.C. §78u-4(b)(2)(A)(2018); Fed. R. Civ. P. 9(b); see

Carbone, 910 F.3d at 1353; Abbas, 783 F.3d at 1335;

Godin v. Schencks, 629 F.3d 79, 91 (1st Cir. 2010).

However, only Congress may create exceptions to the

Federal Rules. Abbas, 783 F.3d at 1335; Shady Grove,

559 U.S. at 400 (2010). The states cannot. Abbas, 783

F.3d at 1335; Shady Grove, 559 U.S. at 400. Therefore,

California’s anti-SLAPP statutes cannot create

exceptions for a typical SLAPP claim in federal court.

California’s Anti-SLAPP statute cannot be read to

avoid conflict with the Federal Rules. In Planned

Parenthood, the Ninth Circuit purported to read

California’s anti-SLAPP statute in such a way so as to

“prevent the collision” of the antiSLAPP statute with

the Federal Rules by reviewing the motion to strike

“under different standards depending on the motion’s

basis.” Planned Parenthood Fed’n ofAm., Inc. v. Ctr.

for Med. Progress, 890 F.3d 828, 833 (9th Cir). While

a majority of justices in Shady Grove agreed that

courts should “interpret] the federal rules to avoid

conflict with important state regulatory policies,”

courts cannot “rewrite the rule.” Shady Grove, 559

U.S. at 430—31. The Ninth Circuit’s reading of the

statute in Planned Parenthood does exactly that.

Rather than applying the California anti-SLAPP

statute’s probability

standard,

(e.g.,

C.C.P.

§425.16(b)(1)) the court decided that federal courts

should apply either the Rule 12(b)(6) or Rule 56

standard depending on the motion’s basis, quite

literally rewriting the law to not conflict. Planned

Parenthood, 890 F.3d at 833. In doing so, the court

illustrated the conflict between anti-SLAPP statute

and the Federal Rules and the fact that they cannot

co-exist without directly colliding. Id. The defendants

in Abbas similarly attempted to portray the D.C. antiSLAPP statute’s special motion to dismiss as a

functional equivalent of the summary judgment

standard. Abbas, 783 F.3d at 1334. In dismissing this

approach, Judge Kavanaugh stated that the main

problem with the defendants’ theory is that it requires

the Court to re-write the special motion to dismiss

provision. Id. Put simply, the D.C. Anti-SLAPP Act’s

likelihood of success standard is different from and

more difficult for plaintiffs to meet than the standards

imposed by Federal Rules 12 and 56. Id. at 1334-35.

Anti-SLAPP statutes do not create substantive rights

either. Godin and Newsham concluded that antiSLAPP statutes create substantive rights that cannot

be abridged by the Federal Rules. Godin v. Schencks,

629 F.3d 79, 89 (1st Cir. 2010)(quoting Shady Grove,

559 U.S. at 423 (Stevens, J., concurring)). Section 556

was ‘so intertwined with a state right or remedy that

it functions to define the scope of the state-created

*1,

right/ it cannot be displaced by Rule 12(b)(6) or Rule

56. Newsham., 190 F.3d 963, 973(9th Cir. 1999). But

see Klocke v. Watson, 936 F.3d 240, 247 (5th Cir.

2019); Abbas, 783 F.3d at 1335; Makaeff v. Trump

Univ., LLC (Makaeff I), 715 F.3d 254, 273 (9th Cir.

2013)(Kozinski, J., concurring). However, a plain

reading of the text of any anti-SLAPP statute does not

support this proposition. MakaeffI, 715 F.3d at 273

(Kozinski, J., concurring). As Judge Kozinski aptly

stated- The anti-SLAPP statute creates no

substantive rights; it merely provides a procedural

mechanism for vindicating existing rights. Id. The

language of the statute is procedural: Its mainspring

is a “special motion to strike;” it contains provisions

limiting discovery; it provides for fees for parties who

bring a non-meritorious suit or motion! the court’s

ruling on the potential success of plaintiffs claim is

not ‘admissible in evidence at any later stage of the

case! and an order granting or denying the special

motion is immediately appealable. Id. The statute

deals only with the conduct of the lawsuit; it creates

no rights independent of existing litigation...Id.;

C.C.P. §425.16. Rather than creating substantive

rights, anti-SLAPP statutes merely provide extra

protection to rights that already exist via a

mechanism that allows defendants to dismiss certain

types of claims quickly. Klocke, 936 F.3d at 247;

Abbas, 783 F.3d at 1335; Makaeff I, 715 F.3d at 273

(Kozinski, J., concurring). The Federal Constitution,

state constitutions, and state laws are the bases of

these rights and claims—not anti-SLAPP statutes.

Makaeff I, 775 F.3d at 273 (discussing substantive

rights created under state laws). Thus, state antiSLAPP statutes, as purely procedural mechanisms

*: '

intended to dismiss frivolous claims, do not create

substantive rights and cannot supersede the Federal

Rules. Klocke, 936 F.3d at 247; Abbas, 783 F.3d at

1335; Makaeff I, 715 F.3d at 273 (Kozinski, J.,

concurring). Therefore California’s antrSLAPP

statute answers the same question as Rules 8, 12, and

56 by governing pre-trial dismissal of certain types of

claims. As a result, the Federal Rules should control,

unless they are invalid under the Rules Enabling Act.

Shady Grove, 559 U.S. at 406—10 (plurality opinion);

id. at 417-18 (Stevens, J., concurring).

The second question is whether or not Rules 8,

12, and 56 are valid under the Rules Enabling Act.

The Court in Shady Grove was divided over the

appropriate test for validity under the Rules Enabling

Act. Shady Grove, 559 U.S. at 406-10 (plurality

opinion); id. at 417-32 (Stevens, J., concurring).

However, Rules 8, 12, and 56 are valid under the

Rules Enabling Act using both Justice Scalia’s and

Justice Stevens’s formulations.

Justice Scaha and the plurality applied the

Sibbach rule—which asks whether the “rule really

regulates procedure” (Sibbach v. Wilson & Co., 312

U.S. 1, 14 (1941))—to determine validity under the

Rules Enabling Act. Shady Grove, 559 U.S. at 407.

Judge Kavanaugh, likely correctly, concluded that

Sibbach should continue to be the rule because Shady

Grove did not actually overturn it. Abbas, 783 F.3d at

1336-37. The question under this test is whether

Rules 8, 12, and 56 “really regulate procedure.”

Sibbach, 312 U.S. at 14; see Shady Grove, 559 U.S. at

407; Abbas, 783 F.3d at 1336-37. As Judge

Kavanaugh noted in Abbas, that question with

respect to these three rules is relatively easy because

' ■*

a majority in Shady Grove expressly stated that

pleading standards and rules governing summary

judgment are “addressed to procedure.” Abbas, 783

F.3d at 1337; Shady Grove, 559 U.S. at 404. Further,

Rules 8, 12, and 56 do not function to curtail a

defendant’s rights. Carbone v. CNN, Inc., 910 F.3d

1345, 1357(11th Cir. 2018). rather, “they alter only

how the claims are processed.” Shady Grove, 559 U.S.

at 408. Together, the Rules simply regulate what

must be overcome to advance to trial—they do not

create claims or rights. Carbone, 910 F.3d at 1357.

Accordingly, Rules 8, 12, and 56 “really regulate! ]

procedure” and are valid under the Rules Enabling

Act pursuant to the plurality’s test. Sibbach v. Wilson

& Co., 312 U.S. 1, 14 (1941); Shady Grove, 559 U.S. at

407. Rules 8, 12, and 56 are also valid under Justice

Stevens’s test, which asks whether the state law “is so

intertwined with a state right or remedy that it

functions to define the scope of the state-created

right.” Shady Grove, 559 U.S. at 423 (Stevens, J.,

concurring).

The state anti-SLAPP statutes do not create

substantive rights and merely exist to provide

additional protection for rights found in the First

Amendment, state constitutions, and state laws.

Makaeff v. Trump Univ., LLC (Makaeff I), 715 F.3d

254, 273 (9th Cir. 2013)(Kozinski, J., concurring). The

statutes do not define the scope of the rights so much

as they provide a “protective mechanism” for them.

Klocke, 936 F.3d at 247; Abbas, 783 F.3d at 1335;

Makaeff I, 715 F.3d at 273(Kozinski, J., concurring).

Similar to the statute in Shady Grove, which applied

to claims based on any state’s law, (Shady Grove, 559

U.S. at 432 (Stevens, J., concurring)), antiSLAPP

statutes also operate to protect defendants based on

the type of claim, not the specific state’s own law.

C.C.P. §425.16. As in Shady Grove, it is difficult to see

how anti-SLAPP statutes could be “so intertwined

with a state right” if they are not tied to the rights of

a specific state but just to certain types of claims.

Shady Grove, 559 U.S. at 423 (Stevens, J.,

concurring); see C.C.P. §425.16. Thus, even under

Justice Stevens’s test, Rules 8, 12, and 56 are valid

under the Rules Enabling Act. Because Rules 8, 12,

and 56 are valid under both Justice Scalia’s and

Justice Stevens’s tests, they are valid under the Rules

Enabling Act. Consequently, because the Federal

Rules are vahd and govern pre-trial dismissal in

federal court, anti-SLAPP statutes should not be

applied in federal diversity cases. Furthermore, the

anti-SLAPP statute only permits an award of

attorney’s fees if the defendant prevails under the

specific motion. C.C.P. 425.16(c)(1). As a result, any

attorney’s fees must also fall with the special motion.

3. Whether denial to Petitioner of oral argument

by the Magistrate Judge through the entire

proceedings including in Petitioner opposing

Rule 11 sanctions followed by the Ninth

Circuit denying Petitioner’s request for oral

argument and as a request for special

accommodation under the American With

Disabilities Act of 1990, As Amended warrants

reversal.

The subject of a motion for sanctions is entitled

to an opportunity to be heard. Sakon, Sakon v.

Andreo, 119 F.3d 109, 113(2d Cir. 1997). The District

Court did not hold a single oral argument throughout

entire proceedings before Petitioner filed his notice of

appeal. Petitioner also requested oral argument in

the Ninth Circuit and a request for special

accommodation special accommodation so he can

appear by telephone if needed which request was

denied as well. Although the ADA does not apply to

the federal judiciary. However, pursuant to Judicial

Conference policy, federal courts provide reasonable

accommodations to persons with communications

disabilities and the Ninth Circuit failed to.

Furthermore such exemption from the ADA does not

apply for Magistrate Judges and throughout the

entire District Court proceedings no oral arguments

were held thus oral arguments on appeal were critical

for Petitioner.

The District Court had granted Rule 11

sanctions for reasons not included in the motion then

cancelled the February 3, 2022 hearing thus

Petitioner was denied an opportunity to be heard.

There is no requirement that an evidentiary hearing

be held prior to the imposition of sanctions, absent

disputed facts or issues of credibility, (Chemiakin v.

Yefimov, 932 F.2d 124, 130 (2d Cir. 1991)) however

disputed facts existed underlying the District Court’s

order based on the timeliness of a wire transfer and

Airbnb Respondents extortionate behavior. It was also

undisputed Airbnb Respondents also misled the state

trial court and the Appellate Court’s factual findings

made clear the AAA confirmed any payment was late.

McCluskey v. Henry; 56 Cal.App.5th 1197, 1202(Cal.

Ct. App. 2020)

4. Whether the Rule 11 motion did not

adequately inform Petitioner of the source of

authority for the sanctions being considered in

violation of the Due Process Clause of the

Federal Constitution (U.S. Const., 14th

Amend.) and in violation of the Due Process

Clause of the Federal Constitution (U.S.

Const., 5th Amend.).

It is mandated that when Rule 11 sanctions are

initiated by the motion of a party, the moving party

gives the subject the opportunity to withdraw the

potentially offending statements before the sanctions

motion is filed. Fed.R.Civ.P. 11(c)(1)(A). Airbnb

Respondents admit Petitioner did not receive

adequate notice by stating in the Rule 11 motion “[t]he

Complaint is also frivolous for the remaining reasons

discussed in Airbnb’s Motion to Dismiss.” The District

Court cited the motion to dismiss multiple times and

legal authority for collateral estoppel in the order

granting fees which specific authority was not

included in the Rule 11 motion.

The District Court was required to explain the

basis for its selection of an appropriate sanction, in

addition to explaining why the conduct at issue

violated the rule. Chia v. Fidelity Invs., No. 05-7184,

2006 U.S. App. LEXIS 20296 (D.C. Cir. Aug. 3,

2006)(remanding for the district court to state its

grounds for imposing sanctions); Zuk v. Eastern Pa.

Psychiatric Inst of the Med. College ofPa., 103 F. 3d

294, 301 (3d Cir. 1996)(remanding for further

consideration of appropriate sanction where district

court failed to explain basis for its imposition of severe

sanctions and failed to consider mitigating factors).

The Court failed to explain legal grounds for

concluding each claim in the complaint violated Rule

11.

A District Court “abuses its discretion if it

bases its decision on an erroneous view of the law or

on a clearly erroneous assessment of the evidence.”

Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78(2d

Cir. 2000); In re Allen, No. 06-1429, 2007 U.S. App.

LEXIS 22445,

at *9(l0th Cir. Sept.

19,

2007)(sanctions are reviewed under abuse of

discretion standard, “[h]owever, any statutory

interpretation or other legal analysis which provides

the basis for the award is reviewable de novo”). Even

with an abuse of discretion standard, “[cjoncerns for

the effect on both an attorney's reputation and for the

vigor and creativity of advocacy by other members of

the bar necessarily require that we exercise less than

total deference to the district court in its decision to

impose Rule 11 sanctions. Thompson v. Duke, 940

F.2d 192, 195 (7th Cir. 1991); Schlailer Nance & Co.

v. Estate of Warhol, 194 F.3d 323, 333-34 (2d Cir.

1999)(since power to impose sanctions may mean that

trial court may act as “accuser, fact finder and

sentencing judge,” abuse of discretion standard must

be exercised so as “to ensure that any such decision is

made with restraint and discretion”).

When a "complaint is the primary focus of Rule

11 proceedings, a district court must determine (l)

whether the complaint is legally or factually baseless

from an objective perspective, and (2) if the attorney

has conducted a reasonable and competent inquiry

before signing and filing it. Christian v. Mattel, Inc.,

286 F.3d 1118, 1127 (9th Cir. 2002). With regard to

factual contentions, "sanctions may not be imposed

unless a particular allegation is utterly lacking in

support." O'Brien v. Alexander, 101 F.3d 1479, 1489

(2d Cir. 1996) Such allegations have to be considered

in a group, because, the isolation of fragmentary

contentions creates the appearance of an

unwarranted contention. Schlaifer Nance Co., 194

F.3d 337. Apostolic Pentecostal Church v. Colbert, 169

F.3d 409, 417 (6th Cir. 1999)(remand because district

court did not specifically inquire into whether

contentions in garnishee disclosure had evidentiary

support). The District Court did not apply this two

prong inquiry.

Under the legally frivolous prong, the test is

whether a party’s conduct is objectively unreasonable,

with no showing of bad faith required which involves

an assessment of (l) the knowledge that reasonably

could have been acquired at the time the pleading was

filed; (2) the type of claims and difficulty of acquiring

sufficient information; and (3) which party has access

to the relevant facts. Townsend v. Holman Consulting

Corp., 914 F.2d 1136, 1139-1140 (9th Cir. 1990). To

establish a Rule 11(b)(2) violation, it must be patently

clear that a claim has absolutely no chance of success

under the existing precedents, and where no

reasonable argument can be advanced to extend,

modify or reverse the law as it stands. Shin Park v.

Seoul Broad. Sys. Co., 2008 U.S. Dist. LEXIS 17277

(S.D.N.Y. Mar. 3, 2008). Thus, the fact that a plaintiff

fails to provide a sufficient showing to overcome a

demurrer or to survive summary judgment is not, in

itself, enough to warrant sanctions. Segen v.

Buchanan Gen. Hosp., Inc. (W.D.Va.2007) 552

F.Supp.2d 579, 585 The District Court summarily

concluded the complaint was frivolous with no legal

analysis of the claims nor allegations in the complaint.

The District Court discussed following cases

where only one was cited in the Rule 11 motion which

was Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir.

1997), where the court concluded that the suit was

barred by the res judicata and collateral estoppel

effects of the prior judgment however Petitioner did

not seek to overturn a judgment. In re Grantham

Brothers, 922 F.2d 1438, 1442 (9th Cir. 1991) cert,

denied, 502 U.S. 826 (1991)) involved a Rule 11 award

for a complaint that involved an impermissible

collateral attack upon a bankruptcy court order

approving sale of property. Id. Petitioner’s claims did

not collaterally attack any court order. Maciosek v.

Blue Cross & Blue Shield United of Wisconsin, 930

F.2d 536, 542 (7th Cir. 1991) involved an award after

Plaintiffs attorneys knew from their involvement in

previous cases that two of Plaintiffs four claims had

been ruled preempted by ERISA. No legal theory

established Petitioner’s claims were pre-empted by

ERISA or any legal authority. In Welk v. GMAC

Mortg., LLC, 720 F3d 736, 738-39 (8th Cir. 2013) the

Appellate Court affirmed a sanctions award after an

attorney brought thirteen separate claims for the

plaintiffs, nearly rested on a “show me the note”

theory which had been rejected by the courts.

Appellant’s claims were not barred by any rejected

theories. Finally, Roberts v. Chevron, 117F.R.D. 581

(M.D. La. 1987), affd, 857 F.2d 1471 (5th Cir. 1988))

involved sanctions for an attempt to have a state court

reverse or change a valid federal court judgment.

Petitioner did not seek to reverse or change a federal

judgment

No authority supporting collateral estoppel was

cited in the Rule 11 motion which only briefly

mentioned the litigation privilege without any specific

authority why the claims against Respondent Airbnb

(a non-party to state proceedings) or Jeff Henry, Dave

Wilmer and Sanaz Ebrahini should be amended or

withdrawn.

The Court abused its discretion overruling

Appellant’s objections to the Court taking judicial

notice of Airbnb Respondents Exhibits filed with the

Rule 11 sanctions as Respondents sought judicial

notice of publicly and non-publicly available

documents for the purpose of contending that

statements set forth therein were true facts. Perretta

v. Prometheus Dev. Co., No. C-05‘02987- WHA, 2006

U.S. Dist. LEXIS 10108, at *7-8 (N.D. Cal. Feb. 24,

2006). The District Court also incorporated by

reference disputed facts from the motion to dismiss

order in the order granting sanctions in error.

The District Court stated the complaint is

baseless because all claims are barred by the

preclusive effect of the state court’s rulings on the

motion to lift the stay and the motion for sanctions

however the motion to lift the stay was interlocutory

and state Appellate Court found no evidence of a

clerical error and confirmed evidence of a late

payment which are disputed facts but this was not

supported by claims and allegations in the complaint.

The complaint was at issue but the Court stated

Appellant was admonished for unprofessional conduct

when the Appellate Court already concluded Airbnb

Respondents misled the state court. McCluskey v.

Henry, 56 Cal.App.5th 1197, 1202.

Attorney fees were not appropriate as the

Court, and not Airbnb Respondents, was the first to

address the first sanctions motions in the January

10th 2022 order thus the Court imposed sanctions on

its own initiative. Legal authority for issue preclusion

was not discussed in the Rule 11 motion but was in

the Court’s order dismissing the complaint. When a

Court imposes sanctions on its own initiative, first,

the court must issue a “show cause” order to the party

or attorney who is exposed to sanctions. See Bass v.

E.I. DuPont de Nemours & Co., 324 F.3d 761, 767(4th

Cir. 2003) (vacating sanctions award where court did

not issue order to show cause); Methode Elecs., Inc. v.

Adam Techs., Inc., 371 F.3d 923, 927 (7th Cir. 2004).

Second, the show cause order, like a party’s sanctions

motion, must describe the specific conduct that

appears to violate Rule 11(b). Thornton v. General

Motors Corp., 136 F.3d 450, 455 (5th Cir. 1998) A

higher standard may also apply because no “safe

harbor” applies to sanctions imposed on the court’s

own initiative, thus particular care must be taken not

to impose sanctions in a manner that will deter

zealous advocacy. MHC Inv. Co. v. Racom Corp., 323

F.3d 620, see United Natl Ins. Co. v. R&D Latex

Corp., 242 F.3d 1102, 1118 (9th Cir. 200l)(reversing

sua sponte sanctions because conduct “was in neither

purpose nor substance ‘akin to contempt’”). Even if an

a show cause order was issued, where a court sua

sponte initiates sanctions proceedings under

circumstances where the lawyer has no opportunity to

correct or withdraw the challenged submission, a bad

faith, rather than objective reasonableness, standard

applies. InrePennie & Edmonds LLP, 323 F.3d 86 (2d

Cir. 2003). In InrePennie & Edmonds LLP, the court,

relying heavily on the Advisory Committee’s notes to

the 1993 amendments to Rule 11(b), which, according

to the court, contemplated court-initiated sanctions

only for conduct akin to contempt of court, reasoned

that a heightened standard is warranted to protect

zealous advocacy in cases where a lawyer is not

afforded the protection of the safe harbor rule and

does not have an opportunity to withdraw the

offensive submission. Id. at 91.

The 1993 rule also disfavors monetary awards

to the proponent of the Rule 11 motion. Landscape

Properties, Inc. v. Whisenhunt, 127 F.3d 678, 685 (8th

Cir. 1997) In addition, courts applying the amended

rule have considered whether the conservation of

judicial resources counsels against a sanctions

proceeding. Simmons v. Suare, 4:94CV131, 1995 U.S.

Dist. LEXIS 14948, at *11 (W.D.N.C. Sept. 15, 1995).

When monetary sanctions are found to be necessary,

they “should ordinarily be paid into court as a penalty,

only under unusual circumstances, particularly for

violations of Rule ll’s improper purpose subsection,

will monetary sanctions payable to the opposing party

be an effective deterrent. 1993 Advisory Committee

Notes; Divane v. KrullElec. Co., 200 F.3d 1020, 1030

(7th Cir. 1999). When a court finds a Rule 11 violation

sua sponte and imposes monetary sanctions, those

sanctions must be paid to the court and not to the

opposing party. Rule 11(c)(2); 1993 Advisory

Committee Notes. The District Court sua sponte

awarded fees for reasons not in the Rule 11 motion

without issuing an order to show cause.

Adequate notice sanctions are being considered

is mandated by statute and the due process clause of

the federal Constitution (U.S. Const., 14th Amend.).

An award of attorney's fees implicates interests

protected by the Due Process Clause of the Fifth

Amendment. Carlucci v. Piper Aircraft Corp., 775

F.2d 1440 (llth Cir. 1985). Airbnb Respondents

sanctions motion was based solely on the second

sanctions motion filed with no mention of the claims

in the complaint nor legal authority for “issue

preclusion.” Airbnb Respondents brief discussion of

the litigation privilege was made solely in relation to

the second sanctions motion which was irrelevant.

The sanctions motion claimed the complaint was

brought for an improper purpose and cited one case,

Buster, 104 F.3d at 1190, and the motion was not

based on allegations in the complaint.

Rule 11 and principles of due process require

that “the subject of a sanctions motion be informed of

(l) the source of authority for the sanctions being

considered; and (2) the specific conduct or omission for

which the sanctions are being considered so that the

subject of the sanctions motion can prepare a

defense.” Schlaifer Nance & Co. v. Estate of Warhol,

194 F.3d 323, 334 (2d Cir. 1999). “Indeed, only conduct

explicitly referred to in the instrument providing

notice is sanctionable.” Id. Rule 11 sanctions must be

"limited to what is sufficient to deter repetition of such

conduct or comparable conduct by others similarly

situated and were inappropriate here.Fed.R.Civ.P.

11(c)(2)

The determination of Ride 11 issues is not a res

judicata or collateral estoppel bar to litigating the

same or related issues in subsequent malicious

prosecution or other actions. Amwest Mortgage Corp.

v. Grady, 925 F.2d 1162, 1164-65 (9th Cir. 1991.

CONCLUSION

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Date: July 17, 2023

Respectfully submitted,

s/ Michael Mogan

Michael Mogan

4803 N. Milwaukee Ave.

Suite B, Unit #244

Chicago, IL 60630

(949) 424-5237

mm@michaelmo gan. com

Petitioner, pro se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.