73 Chucas Griffin MTD

Case 3:13-cv-01944-CAB-BLM Document 73-1 Filed 12/12/13 Page 1 of 28
1 Kenneth H. Moreno
J. Lynn Feldner SBN 132913
2 Gina E. Och SBN 170520
MURCHISON & C MMING, LP
3 750 B Street Suite 2550
San Diego, California 92101-8114
4 Telephone: !6 l 9l 544-3204
619 544-3216
5 Facsimile: 213 630-1027
E-Mail: kmoreno murchisonlaw.com
6
7
8 for Defendants,
TERRY CHUCAS and SUSAN GRIFFIN
9
10
11
12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
13 CALIFORNIA COALITION FOR
FAMILIES AND CHILDREN.,
14 a Delaware Corporation, LEXEVIA, PC,
a California Professional Corporation,
15 and COLBERN C. STUART,
an individual,
16
17
18
vs.
Plaintiffs,
19 SAN DIEGO COUNTY BAR
TIONf a California
20 corporation, et a .,
21
22
23
24
Defendants.
CASE NO. 3:13-cv-01944-CAB-BLM
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS DEFENDANTS
TERRY CHUCAS AND SUSAN
GRIFFIN ORi.,IN THE ALTERNATIVE,
FOR A MORE DEFINITE
STATEMENT
[FILED CONCURRENTLY WITH NOTICE OF MOTION]
Date: January 24, 2014
Time: 2:00 p.m.
Ctrm: 4C
Assigned Judge: Hon. Cathy Ann Bencivengo
Magistrate: Hon. Barbara Lynn Major
Action Filed: August 20, 2013
25 Defendants TERRY CHUCAS and SUSAN GRIFFIN submit the following
26 Memorandum of Points and Authorities in support of their Motion to Dismiss or, in the
27 Alternative, for a More Definite Statement:
28 //
3: 13-cv-O l 944-CAB-BLM
1
2
3
I.
4
II.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 III.
TABLE OF CONTENTS
Page
INTRODUCTION ................................ .. ............................................................ l
ARGUMENT ...... .. ............................ .... .............................................................. 3
A. Plaintiffs' 175-Page Complaint Should be Dismissed or be
Required to Set Forth a More Definite Statement Pursuant to Rule
12(e) for Failing to Comply with Rule 8 . ...... ................ .. ........................ . 3
B. Plaintiffs CCFC and Lexevia Lack Standing and Capacity to Sue
Mr. Chucas and Ms. Griffin .... .................... .... ................ .... ...................... 4
1. Neither CCFC nor Lexevia is Being Represented by
Counsel in this Action; thus, Their Claims Should be
Dis1nissed ..... .. .................. .. .......... ..... .. ........................................... 5
2. Lexevia is a Suspended Corporation; thus, there is an
Additional Reason for its Claims to be Dismissed ........... .. ........ 6
C. Conclusory All egations and Unreasonable Inferences Cannot
Establish Liabi lity Against Either Mr. Chucas and Ms. Griffin ............... 7
I. Plaintiffs' 42 U .S.C. 1983 Counts 1, 2, 3, and 9 Should be
Dis1nissed . ............................... .. ........ ............................ .. ............... 9
2. Plaintiffs' 42 U.S.C. 1985 Counts 11, 12, 13, 14, and 15
Should Also be Dismissed .......................................................... 11
3. Plaintiffs' Lanham Act Count is Not Only Time-Barred and
Does Not State a Claim for False Designation of Origin
and False Description, Plaintiffs Do Not Even Have the
Standing to Sue Under this Claim ......................................... ....... 14
4. Plaintiffs Lack Standing to Sue Under RICO, and their
RICO Counts Neither Satisfy the Heightened Pleading
Standard Required by Rule 9 Nor State a Claim under
Rule 12 .............................................. ..................................... ..... . 17
5. Plaintiffs' Prospective Relief Counts Do Not Support a
Basis for Relief Against Mr. Chucas and Ms. Griffin ............... 20
CONCLUSION ........... .. ................. .. .................... .. ........................................... 22
3: 13-cv-O 1944-CAB-B LM
1
2
3
CASES
TABLE OF AUTHORITIES
4
Alan Neuman Productiops, Inc. v. Albright,
862 F.2d 1388 (9t I Cir. 1988) ............................................................................ 19
5 Amoco Co. v. Viii. of Gambell, Alaska,
480 U.S. 531, 107 S.Ct.1396 (1987) ................................................................. 20
6
7 c2009) .......................................................................................... 7
: Be
11
A 1't0
1
d.f 0 'i If g'.(':f, 'f'9 5 5 ( 2007) ........................... .. .... .... .... .. .. .. .... 7
10
:: vr.Yd
0
1 fies 2001) .............................................................................. 9
13
Canlis v. San Joa uin heriffs Posse Comitatus,
641 F.2 711 (9 Cir. 1981) .............................................................................. 12
::
..................................................................... l 7
16 .................... 5
17 Clark v. Time Warner C
1
able,
523 F .3d 1110 (9t I Cir. 2008) ............................................................................ 18
18
19
Cooper v. Pickett,
1
137 F.3d 616 (9
11
Cir. 1997) .............................................................................. 18
Crowe .............................................................................. I 0
22
Davis v. United Statesfh
642 F .2d 328 (9 Cir. 1981 ) .............................................................................. 14
Ebeid .................................................................... I 8
25
Edwards v. Marin Park,
1
Inc.,
356 F.3d I 058 (9t I Cir. 2004) ............................................................................ 18
26 Gen. Cor12. v.
27
947 F. d 1395, 1397 n.2 (9 Cir. 1991) ........................................................... 14
28
In re GlenFed, Inc. Litig.,
42 F.3<fl541 (9 I Cir. 1994) .............................................................................. 18
ll 3:13-cv-01944-CAB-BLM
1
Indep. ................................................... 20
2
Jack Russell Terrier Ne work of N. Cal. v. Am. Kennel Club Inc.,
3 7 F. I 7 Ir. ............................................................................ 15
4 James v. Daley & Lewis,
406 F.Supp.645 ( 1976) ....................................................................................... 5
5
Jarrow Formulas, Nutrition Now, Inc.,
6 304 F.3d 829 (9 Cir. 2002) .............................................................................. 14
7 Jones v. Blanas,
1
393 F.3d 918 (9
11
Cir. 2004) ................................................................................ 9
8
9
10 Lujan v. Defenders of Wildlife,
504 U.S. 555, 112 S.Ct.2130 (1992) ................................................................. 15
11
Mazurek v. Armstrong,
12 520 U.S. 968, 117 S.Ct.1865 (1997) ................................................................. 20
13 .............................................................................. 11
14
McHenry v. Renne,
1
15 84 F.3d 1172 (9
11
Cir. 1996) ................................................................................ 3
16 McKeever v. Block,
1
932 F.2d 795, 798 (9
11
Cir. 1991) ....................................................................... 3
17
18 Meco ......................................................... 5
19

F(9ltaeir ......... ................................................................ 18

20
21
22 N. Star Int'! v. Ariz. Cgr12s. Comm'n,
720 F.2d 578 (9 I Cir. 1983) ................................................................................ 8
23
Odom v. Microsoft
24 486 F.3d 541 (9t Cir. 2007) .............................................................................. 18
25 Owens v. Okure,
488 U.S. 235, I 09 S.Ct.573 ( 1989) .. .......................................................... .. ...... 9
26
Pareto v. FDIC,
1
27 139 F.3d 696 (9
11
Cir. 1998) ................................................................................ 7
28
Ill 3: 13-cv-01944-CAB-BLM
1
2
Price v. Hawaii, h
3 939 F.2d 702, (9
1
Cir. 1991) ............................................................................ 10
4
Reed (1989) ................................................................... 14
5
6 Sever f 5i9 1992) .. ....... .. ... ................... ........... ............ .................... 14
7 Silva v. Crain,
1
169 F.3d 608 (9
11
Cir. 1999) ................................................................................ 9
8
9
Simm31s8
........................................................ 1 o
10 Smith v. Jackson,
1
84 F.3d 1213 (9
11
Cir. 1996) .............................................................................. 18
11
Summit Tech. v. HiTh-Line Med. Instruments Co.,
12 933 F.Supp.9 8 (C.D.Cal. 1996) .................................... .. ................................ 17
13 Sykes v. State of Cal.
1
497 F.2d 197 (9
11
Cir. 1974) .............................................................................. 10
14
15
1996) ................................................................................ 15
16 Timmerman v. US. Ban N.A.,
483 F.3 I I 10 Cir. 2007) ................ .. ................... ... .................................. I 2
17
Tower v. Glover,
18 467 U.S. 914, 104 S.Ct.2820 (1984) ................................................................. 10
19 TrafficSchool.com v. Edriver Inc.,
653 F.3d 820 (9 I Cir. 2011 ) .............................................................................. 15
20
21 ................................................................. 20
22
23
Winter v. Nat'l Res. Def. Council Inc.,
24 55 U.S. 7, 129 S.Ct.365 (2008) ................................ ...... ............... .. .20
25
Vess v3 ............................................................................ 18
26
Warth v. Seldin,
27 422 U.S. 490 (1975) ............................................................................................ 4
28
IV 3: 13-cv-01944-CAB-BLM
1 West v. Atkins,
487 U.S. 42, 108 S.Ct.2250 (1988) ....................................................... ............ 10
2
White v. Lee, h
3 227 F.3d 1214 (9
1
Cir. 2000) .............................................................................. 4
4
5 STATUTES
6 15 U.S.C. 1125(a)(l)(A) .......................................................................................... 17
7 18U.S.C. 1514(b) .................................................................................................... 20
8 18 U.S.C. 1961(1) .................................................................................................... 18
9 180.S.C.1964 ......................................................................................................... 18
10 18 U.S.C. 1964(b) .................................................................................................... 19
11 28 U.S.C. 2201(a) ..................................................................................................... 21
12 42 U.S.C. 1983 .................................................................................................. passitn
13 42 U.S.C. 1985 ..................................................................................................... 2, 11
14 42 U.S.C. 1985(2) .................................................................................................... 12
15 California Code of Civil Procedure 335.1 .................................................................. 9
16 California Code of Civil Procedure 338(d) ............................................................... 14
17 California Corporations Code 2205(c) .................... ........ ............. ...................... ........ 6
18 Declaratory Judgment Act, 28 U.S.C. 2201, 2202 ................................................. 21
19 Federal Rule of Civil Procedure?. 8(a) ......................................................................... 3
20 Federal Rule of Civil Procedure 17(b )(2) .................................................................. 5,6
21
22
23
24
25
26
27
28
v 3:13-cv-01944-CAB-BLM
1 I.
2 INTRODUCTION
3 On or about August 20, 2013, Plaintiffs, CALIFORNIA COALITION FOR
4 FAMILIES AND CHILDREN (hereinafter "CCFC"), LEXEVIA, PC (hereinafter
5 "Lexevia"), and COLBERN C. STUART (hereinafter "Mr. Stuart"), filed a confusing
6 175-page Complaint covering a seemingly disconnected series of grievances they have
7 against a litany of defendants, ranging from public entities to individual lawyers and
8 psychology-related professionals. Nevertheless, what is clear from this Complaint is that
9 Plaintiffs seek to retaliate against anyone who was remotely associated with the
10 dissolution of Mr. Stuart's marriage and an unrelated family law seminar hosted by the
11 San Diego County Bar Association.
12 As part of Plaintiffs' apparent scorch earth campaign, Plaintiffs have sued
13 Defendants TERRY CHUCAS (hereinafter "Mr. Chucas") and SUSAN GRIFFIN
14 (hereinafter "Ms. Griffin"). These individuals had the misfortune of attending the family
15 Jaw seminar three years ago when Mr. Stuart was allegedly escorted out by Sheriffs
16 Deputies and security guards after refusing to leave. Although the Complaint is 175
17 pages, it is truly bereft of any facts as why or how Mr. Chucas and Ms. Griffin are liable
18 to any Plaintiff or caused any Plaintiff a cognizable injury.
19 As will be explained more fully, Plaintiffs' Complaint should be dismissed against
20 Mr. Chucas and Ms. Griffin for the following reasons:
21 First, Plaintiffs' Complaint fails to satisfy the requirements of Federal Rules of
22 Civil Procedure 8(a) and (d), 9(b), and 12(b)(l), (b)(6) and (e).
23 Second, Plaintiffs CCFC and Lexevia lack standing to bring this action because
24 neither is represented by counsel. Lexevia also lacks standing to sue because its
25 corporate status is currently suspended.
26 Third, Plaintiffs' 42 U.S.C. 1983 counts fail because: (I) the counts are barred by
27 the statute oflimitations; (2) the Complaint does not contain sufficient factual matter to
28 state a claim for relief against either Mr. Chucas or Ms. Griffin; and (3) the Complaint
3: 13-cv-O 1944-CAB-BLM
1 does not allege that either Mr. Chucas or Ms. Griffin, private individuals, acted under the
2 color of law in connection with the alleged "Stuart Assault."
3 Fourth, Plaintiffs' 42 U .S.C. 1985 counts fail because: (1) the counts are barred
4 by the statute of limitations; (2) the Complaint does not contain sufficient factual matter
5 to state a claim for relief against either Mr. Chucas or Ms. Griffin; and (3) the Complaint
6 does not allege facts showing that any Plaintiff is a federal officer who was prevented
7 from performing his or its duties, Defendants obstructed justice or interfered with a
8 witness testifying or attending federal court, or Defendants had a discriminatory motive
9 and Plaintiffs' membership in a suspect class.
10 Fifth, Plaintiffs' Lanham Act count fails because: (1) Plaintiffs lack standing to sue
11 these moving Defendants; (2) the count is barred by the statute of limitations; (3) the
12 Complaint does not contain sufficient factual matter to state a claim for relief against
13 either Mr. Chucas or Ms. Griffin.
14 Sixth, Plaintiffs' RICO counts fail because: (1) Plaintiffs lack standing to sue
15 under these moving Defendants; (2) the Complaint does not contain sufficient factual
16 matter to state a claim for relief against either Mr. Chucas or Ms. Griffin; (3) the
17 Complaint does not allege Mr. Chucas's or Ms. Griffin's participation in whatever
18 purported RICO enterprise is claimed; and ( 4) the Complaint does not allege the requisite
19 specific intent to defraud.
20 Seventh and final, Plaintiffs' Complaint fails to contain sufficient factual matter to
21 satisfy all elements of their requested injunctive relief or declaratory relief.
22 For any and all of these reasons, the Court may and should grant Defendants'
23 motion and dismiss them from this action. Alternatively, to the extent any relief is
24 granted to Plaintiffs, they should be ordered to set forth a more definite statement of their
25 pleading against these Defendants.
26 II
27 II
28 II
2 3: 13-cv-O 1944-CAB-B LM
1
2
3
II.
ARGUMENT
4 A. Plaintiffs' 175-Page Complaint Should be Dismissed or be Required to Set
5 Forth a More Definite Statement Pursuant to Rule 12(e) for Failing to
6 Comply with Rule 8.
7 Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint "shall
8 contain ( 1) a short and plain statement of the grounds upon which the court's jurisdiction
9 depends ... , (2) a short and plain statement of the claim showing that the pleader is
10 entitled to relief, and (3) a demand for judgment for the relief the pleader seeks."
11 Fed.R.Civ.P. 8(a). Rule 8(d) requires that "each averment of a pleading shall be simple,
12 concise and direct." Generally, Rule 8 is designed to provide defendants with fair notice
13 of the claims against them, including the grounds on which those claims rest. McKeever
14 v. Block, 932 F.2d 795, 798 (9
1
h Cir. 1991 ); see McHenry v. Renne, 84 F.3d 1172, 1177
15 (9
1
h Cir. 1996).
16 Even a cursory review of Plaintiffs' Complaint reveals that it does not conform
17 with Rule 8( d) because it is not a "simple, concise and direct" pleading. Instead, the
18 Complaint is both incoherent and confusing. There are three Plaintiffs, 49 Defendants, at
19 least 34 "counts," 175 pages included in the Complaint, and over a thousand pages in
20 Exhibits in support of the Complaint. To exasperate the lumbering nature of the
21 pleading, the Complaint uses at least 80 acronyms or abbreviations for parties, groups,
22 events, incidents, and even allegations throughout the pleading. Moreover, it contains
23 allegations completely irrelevant to the claims, such as ten pages of quotes and citations
24 from United States Supreme Court cases, lengthy recitations of what Plaintiffs do or
25 have purportedly done or said in the legal or family law-related community within at
26 least the last five years, and thee pages of Endnotes making reference to books, Abraham
27 Lincoln, and more case law.
28 //
3 3: 13-cv-O 1944-CAB-B LM
1 The most the Complaint says about moving Defendants is that Mr. Chucas is a
2 lawyer and Ms. Griffin is a professional in the family law community. (Comp. at pp. 15-
3 16, 36, 43.) From there, however, the Complaint is virtually silent about what these
4 two individuals actually did wrong or how they specifically have caused Plaintiffs harm.
5 While the Complaint sets forth varying groups of parties, "schemes," "conspiracies,"
6 charging allegations, or headings, none ever actually refers to either Mr. Chucas or Ms.
7 Griffin. Most do not even relate to the April 15, 2010 incident, which according to the
8 Complaint, is the only connection between moving Defendants and these Plaintiffs.
9 The Ninth Circuit has aptly observed that "confusing complaints ... impose unfair
10 burdens on litigants and judges." McHenry, supra, 84 F.3d at 1179-80. Certainly,
11 Plaintiffs' Complaint has unfairly burdened this Court and these Defendants. It is not the
12 responsibility of the Court or moving Defendants to weed through the 175 pages of the
13 Complaint or a thousand pages of supporting Exhibits to decipher what allegations are
14 indeed leveled at Mr. Chucas or Ms. Griffin to determine whether any of the three
15 Plaintiffs state a legitimate claim.
16 Because the Complaint fails to conform with Rule 8, the Court may properly
17 dismiss Plaintiffs' Complaint in its entirety for failure to comply with Rule 8.
18 Alternatively, Plaintiffs should be required to set forth a more definite statement against
19 Mr. Chucas and Ms. Griffin under Rule 12(e).
20 B. Plaintiffs CCFC and Lexevia Lack Standing and Capacity to Sue Mr. Chucas
21 and Ms. Griffin.
22 Because standing relates to a federal court's subject matter jurisdiction under
23 Article III, it is properly raised in a motion to dismiss under Federal Rules Civil
24 Procedure 12(b)(l). White v. Lee, 227 F.3d 1214, 1242 (9
111
Cir. 2000). "It is the
25 responsibility of the complainant clearly to allege facts demonstrating that he is a proper
26 party to invoke judicial resolution of the dispute and the exercise of the court's remedial
27 powers." Warth v. Seldin, 422 U.S. 490, 518, 95 St.Ct. 2194 (1975). If the complainant
28 fails in that responsibility, then a dismissal is proper.
4 3: 13-cv-01944-CAB-BLM
1 As Defendants will demonstrate, CCFC and Lexevia have failed clearly to allege
2 facts showing their standing and capacity to sue, nor can they. The Court may properly
3 dismiss their claims under Rule l 2(b )( 1 ).
4 1. Neither CCFC nor Lexevia is Being Represented by Counsel in this
5 Action; thus, Their Claims Should be Dismissed.
6 A corporation's capacity to sue is determined by the law in which it was organized.
7 Fed. R. Civ. P. l 7(b )(2); Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox
8 Bldg. Corp., 302 U.S. 120, 124-25, 58 S.Ct.125 (1937). In this case, CCFC is a
9 Delaware corporation. (Comp. at p. 1; see Request for Judicial ("RJN"), Ex. C filed by
10 Superior Court Defendants in support of their motion (Dkt. No. 16-2.).) According to
11 Delaware law, corporations may appear in court only through counsel and corporations
12 are prohibited from proceeding in litigation in propria persona.Jam es v. Daley & Lewis,
13 406 F.Supp.645 (1976). Lexevia, on the other hand, is a California corporation. (Comp.
14 at p. l; see RJN, Ex. I filed by Superior Court Defendants in support of their motion (Dkt.
15 No. 16-2.).) Similar to Delaware law, California law permits corporations to appear in
16 court only through counsel and they are prohibited from proceeding in litigation in
17 propria persona. Meco Const. Engineers, Inc. v. Municipal Court, 21 Cal.3d 724, 730
18 (1978).
19 Not surprisingly, the Local Civil Rules in the Southern District likewise provide
20 that "corporations ... may appear in court only through an attorney permitted to practice
21 pursuant to Civil Local Rule 83.3." CivLR 83.3.k. Moreover, Local Civil Rule 83.3
22 requires the attorneys appearing before this Court to be attorneys in "good standing of
23 the State Bar of California," and attorneys appearing before this Court pro hac vice be in
24 "good standing" and designate a local "member of the bar of this court." CivLR
25 83.3.c.1.a, 83.3.c.2, 83.3.c.4.
26 Based on the foregoing, clearly CCFC and Lexevia are only allowed to bring and
27 continue this action through counsel who are in "good standing." However, neither has
28 done so. First, to the extent Mr. Stuart suggests he is their counsel, he is not. Mr. Stuart
5 3: 13-cv-01944-CAB-BLM
1 was disbarred in California on December 6, 2012, and he is suspended from the practice
2 of Jaw in both Arizona and Nevada. (See RJN, Exs. D-H filed by Superior Court
3 Defendants in support of their motion (Dkt. No. 16-2.).) Second, to the extent Plaintiffs
4 argue Dean Browning Webb and/or his law firm is CCFC's and Lexevia's counsel,
5 neither he nor his firm is their counsel. Although Plaintiffs have a designation of "pro
6 hac vice pending" besides Mr. Webb's name on their Complaint caption, there is no such
7 application pending before this Court as of this writing and according to the Court's
8 Docket. (Declaration of Gina E. Och, ~ 2.) Further, according to the Declaration of
9 Kristine P. Nesthus, filed in support of the Superior Court Defendants' motion, Mr.Webb
10 informed Ms. Nesthus by voicemail message that he had not agreed to represent
11 Plaintiffs and Plaintiffs were using his name without permission. (Dkt. No. 16-3, Deel. of
12 Nesthus, ~ 4.) Likewise, according to the Declaration of Kyle Van Dyke, counsel for
13 Defendant Fritz, which was filed in support of its motion to dismiss, Mr. Webb
14 confirmed to Mr. Van Dyke that he does not represent any party to this action. (Dkt. No.
15 48-3, Deel. of Van D y k e ~ 3.)
16 Neither CCFC nor Lexevia is represented by counsel and there is no counsel in
17 "good standing" with the State Bar of California and member of this bar, who is
18 representing either corporation. Consequently, the Court should dismiss all of CCFC's
19 and Lexevia's claims against Mr. Chucas and Ms. Griffin.
20
21
2. Lexevia is a Suspended Corporation; thus, there is an Additional
Reason for its Claims to be Dismissed.
22 A corporation also lacks standing to bring suit in federal court when it is
23 suspended. As previously stated, a corporation's capacity to engage in litigation is
24 governed by the law of the state of incorporation. Fed. R. Civ. P. l 7(b)(2). California
25 law dictates that, upon suspension, "the corporate powers, rights, and privileges of the
26 corporation are suspended." Cal. Corp. Code 2205( c ). This means that a suspended
27 corporation is further "disabled from participating in litigation activities." Leasequip Inc.
28 v. Dapeer, 103 Cal.App.4
111
394, 402 (2002). As a by-product of the suspension, a
6 3:13-cv-01944-CAB-BLM
1 corporation's suspended status will not toll the statute oflimitations; thus, actions will be
2 time-barred if the statute oflimitations expires during a corporation's suspension. Id.
3 Currently, Lexevia is a suspended corporation in California. (See RJN, Ex. I filed
4 by Superior Court Defendants in support of their motion (Dkt. No. 16-2.) Therefore,
5 Lexevia cannot bring a lawsuit, defend itself in an action, or appeal from an adverse
6 decision. As will be discussed further, to the extent any statute of limitations period has
7 expired or will expire during the pendency of Lexevia's suspension, there is no tolling
8 and any expired claim remains time-barred.
9 This is yet another reason for the Court to dismiss all claims alleged by Lexevia
10 against Mr. Chucas and Ms. Griffin.
11 c.
12
13
Conclusory Allegations and Unreasonable Inferences Cannot Establish
Liability Against Either Mr. Chucas and Ms. Griffin.
To survive a motion to dismiss, "a complaint must contain sufficient factual
14 matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft
15 v.Iqbal, 129S.Ct.1937, 1949(2009)(quotingBellAtlanticCorp.v. Twombly, 550U.S.
16 544, 570, 127 S.Ct. 1955 (2007)); Moss v. United States Secret Service, 572 F.3d 962,
17 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-
18 conclusory 'factual content,' and reasonable inferences from that content, must be
19 plausibly suggestive of a claim entitling the plaintiff to relief.") (citing Twombly and
20 Iqbal). At a minimum, the plausibility standard "asks for more than a sheer possibility
21 that a defendant has acted unlawfully." hL (quoting Twombly, supra, 550 U.S. at 556).
22 Consequently, "threadbare recitals of the elements of a cause of action, supported by
23 mere conclusory statements," are not taken as true. Iqbal, supra, 129 S.Ct. at 1949-1950
24 (citing Twombly, supra, 550 U.S. at 555).
25 As part of a court's task in examining a pleading, it need not accept as true
26 unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations
27 cast in the form of factual allegations. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998)
28 ("conclusory allegations oflaw and unwarranted inferences are not sufficient to defeat a
7 3: 13-cv-01944-CAB-BLM
1 motion to dismiss"). Conversely, a court may consider exhibits submitted with or
2 alleged in the complaint and matters that may be judicially noticed pursuant to Federal
3 Rule of Evidence 201. Taking heed of these directives, and by careful examination of
4 the complaint and what may be judicially noticed, the dismissal of a complaint is proper
5 if it is vague, conclusory, and fails to set forth any material fact in support of the
6 allegation. See N. Star Int'l v. Ariz. Corps. Comm'n, 720 F.2d 578, 583 (9th Cir. 1983).
7 Here, Plaintiffs' Complaint alleges Mr. Chucas is a lawyer, "an organizer and
8 panel member of the SDCBA SEMINAR working for or on behalf of the SDCBA .... "
9 (Comp. at p. 15, 36.) Ms. Griffin is alleged to be a "family law community
10 professional," who provides "forensic psychology and child custody
11 evaluation/mediation services .... " (Comp. at p.16, 43.) She too is alleged to have been
12 "an organizer and panel member of the SDCBA SEMINAR working for or on behalf of
13 the SDCBA .... "(Id.) The Complaint then lumps Mr. Chucas and Ms. Griffin together in
14 a group of Defendants labeled as the "STUART ASSAULT COORDINATORS (SAC)."
15 (Comp. at p. 19, 57 .) Thereafter, under the heading, "The SDCBA ENGAGEMENT,"
16 moving Defendants are divided into smaller groups- Mr. Chucas in the "FLC legal
17 industry professionals ('DDIA')" and Ms. Griffin in "FLC behavioral sciences
18 professionals ('DDIPS')." (Comp. at p. 58, 115.) These are the only references to either
19 moving Defendant in the entire 175-page Complaint.
20 Based on these groupings, moving Defendants' apparent connection to this lawsuit
21 is the April 15, 20 I 0 incident that is identified in Plaintiffs' Complaint as "The STUART
22 ASSAULT." (Comp. at pp. 63-67, 124-136.) Yet, none of the allegations falling
23 under "The STUART ASSAULT" heading mentions either Mr. Chucas or Ms. Griffin.
24 More to the point, nowhere is it alleged that either Defendant asked Mr. Stuart to leave
25 the event, or handcuffed and escorted Mr. Stuart out of the event. (lgJ Plaintiffs instead
26 allege two Deputy Sheriffs and two security guards asked Mr. Stuart to leave, and when
27 he refused he was handcuffed, and escorted out of the building where he was released.
28 (Comp. at p. 66, 135.)
8 3: 13-cv-01944-CAB-BLM
1 Further, although CCFC alleges it had members outside of the event with signs
2 and distributing brochures, CCFC concedes its participation at the event was without
3 "conflict, disruption, obstruction, or beach of the peace." (Comp. at p. 63, 124-126).
4 As for Lexevia, except for the allegation that CCFC's distribution of pamphlets was
5 somehow "valuable to ... LEXEVIA's commercial interests" (Comp. at p. 63, 126),
6 there is no allegation that it attended the event or had any connection to the event.
7 (Comp. at pp. 63-67, 124-136.)
8 In sum, Plaintiffs' Civil Rights, Lanham Act, and RICO counts pied against Mr.
9 Chucas and Ms. Griffin are essentially based on conclusory allegations purportedly
10 stemming from "The STUART ASSAULT" on April 15, 2010, and do nothing "to raise a
11 right to relief above the speculative level. .. " against Mr. Chucas and Ms. Griffin.
12 Twombly, supra, 550 U.S. at 556. Accordingly, the Court may and should dismiss Mr.
13 Chucas and Ms. Griffin from this lawsuit, especially because as will be further discussed,
14 no amendment can cure the pleading defects.
15 1. Plaintiffs' 42 U.S.C. 1983 Counts 1, 2, 3, and 9 Should be Dismissed.
16 First, a 42 U.S.C. 1983 claim must be brought within the time specified by the
17 forum state's personal injury statute oflimitations. Owens v. Okure, 488 U.S. 235, 240,
18 109 S. Ct. 573 ( 1989). In addition, "in the event that the state has multiple statutes of
19 limitations, 'courts considering 1983 claims should borrow the general or residual
20 statute for personal injury actions."' Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999)
21 (quoting Owens, supra, 488 U.S. at 250). In California, the two-year statute of
22 limitations for personal injury actions applies to 42 U.S.C. 1983 claims. Jones v.
23 Blanas, 393 F.3d 918, 927 (9th Cir. 2004); see Canatella v. Van De Kamp, 486 F.3d
24 1128, 1132 (9th Cir. 2007) (forum state's statute oflimitations for personal injury actions,
25 which is two years in California, applies to 1983 claims); see also Cal. Code Civ. Proc.
26 335.1 (two-year statute of limitations for personal injury claims).
27 In this case, Plaintiffs' 42 U.S.C. 1983 counts against Mr. Chucas and Ms.
28 Griffin are premised on "The STUART ASSAULT" occurring on April 15, 2010.
9 3: 13-cv-01944-CAB-BLM
1 (Comp. at pp. 63-67, 124-136.) This means that Plaintiffs were required to file their
2 42 U.S.C. 1983 counts against moving Defendants by April 15, 2012, which is within
3 two years of when their alleged claims arose against Mr. Chucas and Ms. Griffin.
4 However, they did not file their Complaint until August 10, 2013. Because these claims
5 were not timely filed, the Court may properly dismiss Plaintiffs' 42 U.S.C. 1983 counts
6 as time-barred.
7 Second, to state a claim under 42 U.S.C. 1983, a plaintiff must allege: (1) that a
8 right secured by the Constitution or laws of the United States was violated; and (2) that
9 the alleged violation was committed by a person acting under the color of state law.
10 West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988).
11 With respect to the second element, the Ninth Circuit has stated that "private
12 parties are not generally acting under color of state law," and has further stated that
13 "[ c ]onclusory allegations, unsupported by facts, [will be] rejected as insufficient to state
14 a claim under the Civil Rights Act." Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.
15 1991) (parentheses in original); see Simmons v. Sacramento County Superior Court, 318
16 F Jd 1156, 1161 (9th Cir. 2003) (explaining that a lawyer in private practice does not act
17 under color of state law, and finding conclusory allegations that a private party conspired
18 with a state actor to deprive plaintiff of constitutional rights are insufficient to state a
19 claim). Consequently, under limited circumstances, a private party may act under the
20 color of state law where he or she conspires with state officials to deprive others of their
21 constitutional rights. See Tower v. Glover, 467 U.S. 914, 920, 104 S. Ct. 2820 (1984);
22 see also Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 20 l 0) (conspiracy
23 claim requires the existence of an agreement or meeting of the minds to violate
24 constitutional rights). However, even in this situation, "[p ]rivate persons cannot be held
25 liable for conspiracy under the Civil Rights Statutes if the other conspirators are state
26 officials who are themselves immune to liability under the facts alleged." Sykes v. State
27 of Cal., 497 F.2d 197, 202 (9th Cir. 1974).
28 //
10 3:13-cv-01944-CAB-BLM
1 Here, the Complaint does not contain sufficient factual matter to state a claim for
2 relief under 1983 against Mr. Chucas or Ms. Griffin. In particular, neither the
3 Complaint nor the specific counts allege facts plausibly suggesting that any
4 Constitutional right held by Mr. Stuart, CCFC, or Lexevia was violated, let alone
5 violated by either Mr. Chucas or Ms. Griffin. Again, the allegations relating to the April
6 15, 20 I 0 incident make no mention of these moving Defendants, allege others
7 handcuffed and/or escorted Mr. Stuart out of the event, concede CCFC's participation
8 was peaceful, and admit Lexevia's participation was non-existent. Moreover, even
9 assuming they allege a violation of Plaintiffs' Constitutional or federal rights was
10 committed by either Mr. Chucas or Ms. Griffin, Plaintiffs' 1983 counts do not allege
11 moving Defendants were acting under the color of state law, nor do they contain facts
12 demonstrating that either Mr. Chucas or Ms. Griffin conspired with or had a meeting of
13 the minds with a federal or state actor (who must also not be immune to liability) at the
14 time of the April 15, 20 IO incident to violate Plaintiffs' Constitutional rights. In fact,
15 Plaintiffs acknowledge at paragraphs 36 and 43 that Mr. Chucas and Ms. Griffin were
16 private individuals. They did not nor could they have acted under the color of law on
17 April 15, 2010 or any time leading up to the event.
18 For these reasons, Plaintiffs' 42 U.S.C. 1983 counts (Counts 1, 2, 3, and 9) fail.
19 2. Plaintiffs' 42 U.S.C. 1985Counts11, 12, 13, 14, and 15 Should Also be
20 Dismissed.
21 As an initial matter, like claims made under 42 U.S.C. 1983, claims made under
22 42 U.S.C. 1985 are governed by California's two-year statute of limitations period for
23 personal injury claims. McDougal v. County of Imperial, 942 F.2d 668, 673-74 (9
111
Cir.
24 1991) (applying California's personal injury limitations period to claims brought under
25 1983 and 1985). Because Plaintiffs allege their 42 U.S.C. 1985(3) counts arise out of
26 "The STUART ASSAULT," they were required to file their Complaint within two years
27 of April 15, 20 I 0. They did not do so. Instead, they filed their Complaint more than
28 three years later on August 20, 2013. There is no question-Plaintiffs' 42 U.S.C. 1985
11 3: 13-cv-O 1944-CA B-B LM
1 counts are time-barred and should be dismissed on this ground alone.
2 In any case, Plaintiffs assert five counts based on subdivisions ( 1 ), (2), and (3) of
3 42 U.S.C. 1985, but each fails to state a claim against these Defendants as show here:
4 Count 11 is premised on 42 U .S.C. 1985(1) and appears to be asserted by Mr.
5 Stuart only. (Comp. at pp. 85-86, 191-192.) Section 1985(1 ), which deals with
6 conspiracies to impede federal officials in the performance of their official duties is not
7 implicated by Plaintiffs' Complaint, nor can it. Presumably paragraphs 102 through 106
8 of the Complaint, collectively coming under the heading, "STUART's Position Under the
9 United States," may be Mr. Stuart's attempt to qualify for protection under 1983(1).
10 These allegations, however, only indicate that, at one point in Mr. Stuart's career he
11 practiced law before the federal courts. These allegations do not allege Mr. Stuart was a
12 federal officer or held a federal office at the time of"the STUART ASSAULT," which is
13 required. See Canlis v. San Joaquin Sheriffs Posse Comitatus, 641 F.2d 711, 717 (9th
14 Cir. 1981) ( 1985(1) did not afford any rights or protections to plaintiff, a county
15 official, because he was not a federal officer). Hence, Mr. Stuart (as well as the other
16 Plaintiffs) cannot state a claim or have standing to sue under this provision.
17 Count 12 is equally unavailing. Section 1985(2) is divided into two types of
18 violations. The first clause-conspiracy to intimidate a party, witness, or juror under
19 1985(2) requires: (1) a conspiracy, (2) to deter testimony or attendance in federal court,
20 and (3) injury to the plaintiff. Timmerman v. US. Bank, N.A., 483 F.3d 1106, 1124 (10th
21 Cir. 2007). The second clause is further separated into two sub-clauses of conspiracies:
22 ( 1) conspiracies to impede the due course of justice in any state with the intent to deny to
23 any citizen the equal protection of the laws; and (2) conspiracies to injure a person for
24 enforcing, or attempting to enforce, the right of any person to the equal protection of the
25 laws. See 42 U.S.C. 1985(2). Under either sub-clause, an additional predicate for the
26 claim requires some class-based animus on the part of the defendant. See Portman v.
27 County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993) ("It is well-settled that the equal
28 protection language of the second clause of section 1985(2) requires an allegation of
12 3: 13-cv-01944-CAB-BLM
1 class-based animus for the statement of a claim under that clause.") (alteration, citation,
2 and internal quotation marks omitted).
3 None of the Plaintiffs was a party or witness in a federal proceeding at the time of
4 "The STUART ASSAULT," and surely there is no factual allegation that Mr. Chucas or
5 Ms. Griffin did anything to deter Mr. Stuart, CCFC, or Lexevia from testifying or
6 attending any federal proceeding. While Plaintiffs conclude there was a "conspiracy"
7 among various or all of the Defendants, there are simply no facts to support that Mr.
8 Chucas and Ms. Griffin conspired between themselves or with others to deter Plaintiffs
9 from testifying or attending a particular federal proceeding, and injuring Plaintiffs.
10 Further, Plaintiffs have failed to plead facts supporting that they were
11 discriminated on the basis of race, ethnicity, or membership in a protected class by Mr.
12 Chucas or Ms. Griffin, and that these Defendants had an intent to deny Plaintiffs equal
13 protection or had an intent to injure Plaintiffs for enforcing their rights of equal
14 protection. Although Count 12 sets forth allegations about a "parent-child" class or a
15 "domestic relations" class, these allegations are unconnected to any of the Plaintiffs and
16 do not show that they qualify as a protected class. At Paragraph 199, Mr. Stuart alleges
17 that he falls within the "gender" class. Even assuming the truth of this allegation, there
18 must be a factual showing that Mr. Chucas and Ms. Griffin acted with this discriminatory
19 intent on April 15, 2010 due to his gender. Yet, there is no such factual showing.
20 Regardless of which clause of 42 U.S.C. 1983 is asserted, Count 12 does not state a
21 claim, and cannot be saved by amendment.
22 Counts 13, 14, and 15, based on 42 U.S.C. 1985(3), similarly fail. Section
23 1985(3) is divided into three parts. The first part prohibits conspiracies to deprive "any
24 person or class of persons of the equal protection of the laws or of equal privileges and
25 immunities under the laws." 42 U.S.C. 1985(3). The second part prohibits conspiracies
26 to interfere with federal elections. hl The third part provides a cause of action in federal
27 court for the victim of conspiracies prohibited by 1985(3). Id. As with subdivision (2),
28 subdivision (3) requires a class-based, invidious animus on the part of the conspiring
13 3: 13-cv-01944-CAB-BLM
1 defendant. See Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).
2 Plaintiffs have not demonstrated that Mr. Chucas and Ms. Griffin conspired
3 between themselves or with others to deprive Mr. Stuart, CCFC, and Lexevia of their
4 constitutional rights. Indeed, Plaintiffs have not alleged that moving Defendants acted in
5 such a manner that is in violation of any part of 42 U.S.C. 1985(3). More critically,
6 Plaintiffs have not alleged that any actionable conspiracy involving moving Defendants
7 was motivated by a class-based discrimination.
8 Overall, Plaintiffs' Complaint fails to state a cognizable or viable 1985 claim
9 against Mr. Chucas and Ms. Griffin. Counts 11, 12, 13, 14, and 15 should be dismissed.
10 3. Plaintiffs' Lanham Act Count is Not Only Time-Barred and Does Not
11 State a Claim for False Designation of Origin and False Description,
12 Plaintiffs Do Not Even Have the Standing to Sue Under this Claim.
13 The Lanham Act "contains no explicit statute of limitations," thus, federal courts
14 "presume that Congress intended to 'borrow' the limitations period from the closely
15 analogous action under state law." Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304
16 F.3d 829, 836 (9th Cir. 2002) (citing Reed v. United Transp. Union, 488 U.S. 319, 323-
17 24, 109 S. Ct. 621 (1989)). Consequently, in California, courts rely on the relevant state
18 statute of limitations period for fraud, which is a closely analogous to false-advertising
19 claims arising under the Lanham Act. See, M, Karl Storz Endoscopy-Am., Inc. v.
20 Surgical Techs., Inc., 285 F.3d 848, 857 (9th Cir. 1992) (applying California's three-year
21 fraud statute of limitations to Lanham Act claims); Cal. Civ. Proc. Code 338(d)
22 (California law provides a three-year statute of limitations for fraud). This three-year
23 period "runs from the time the plaintiff knew or should have known about his 43(a)
24 cause of action." Jarrow, supra, 304 F.3d at 838 (citing Gen. Bedding Corp. v.
25 Echevarria, 947 F.2d 1395, 1397 n.2 (9th Cir. 1991)). The burden of determining
26 whether and whom to sue within the statutory period rests on the plaintiff. Davis v.
27 United States, 642 F.2d 328, 331 (9th Cir. 1981 ).
28 //
14 3:13-cv-01944-CAB-BLM
1 Accordingly, Plaintiffs' Lanham Act count is barred because Plaintiffs knew or
2 should have known, as of April 15, 20 l 0 ("The STUART AS SAUL T")- the only
3 connection allegedly between moving Defendants and Plaintiffs- or anytime prior to
4 this incident, about their Lanham Act cause of action. Yet, Plaintiffs did not file this
5 action until August 20, 2013, which is more than three years after the alleged offending
6 incident or last act of whatever false advertising may have occurred. (Comp. at pp. 115-
7 116, 266.) Without any further indication in Count 21 of dates of wrongdoing by Mr.
8 Chucas or Ms. Griffin, the Court can reach no other conclusion but to find Plaintiffs'
9 Lanham Act is time-barred.
10 Furthermore, Plaintiffs have the burden of establishing Article Ill standing. See
11 Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) ("A party invoking the federal
12 court's jurisdiction has the burden of proving the actual existence of subject matter
13 jurisdiction."). "In a false advertising suit, a plaintiff establishes Article III injury if
14 some consumers who bought the defendant's product under a mistaken belief fostered by
15 the defendant would have otherwise bought the plaintiffs product." TrafficSchool.com,
16 Inc. v. Edriver Inc., 653 F.3d 820, 825 (9
1
h Cir. 2011) (internal quotations and citation
17 omitted). "[D]irect competition is strong proof that plaintiffs have a stake in the outcome
18 of the suit, so their injury isn't 'conjectural' or 'hypothetical."' Id. at 825-26 (citing Lujan
19 v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992)). Stated
20 differently, to have standing to sue under the Lanham Act, Plaintiffs must allege specific
21 facts, not legal conclusions, that show "(1) a commercial injury based upon a
22 misrepresentation about a product; and (2) that the injury is 'competitive,' or harmful to
23 the plaintiffs ability to compete with the defendant." Jack Russell Terrier Network ofN.
24 Cal. v. Am. Kennel Club, Inc., 407 F.3d 1027, 1037 (9th Cir. 2005); see also
25 TrafficSchool.com, supra, 653 F.3d at 826.
26 Plaintiffs, in this case, have not and cannot plead specific facts showing that Mr.
27 Stuart, CCFC, and Lexevia compete with Mr. Chucas and Ms. Griffin for the same
28 business, or that they could be or have been harmed by Defendants' alleged false
15 3:13-cv-01944-CAB-BLM
1 advertising. They broadly allege "Defendants" advertise, promote, sale, or offer for sale
2 "legal services" (Comp. at p. 107, 260), but nowhere do they describe the type oflegal
3 services each Defendant purportedly provides. Elsewhere in their Complaint, Plaintiffs
4 allege Mr. Chucas is a licensed, individual attorney, but offer nothing more. (Comp. at p.
5 15, 36.) As for Ms. Griffin, they admit she does not provide any legal services
6 whatsoever because she is a psychologist, and as such, allegedly provides "forensic
7 psychology and child custody evaluation/mediation services .... " (Comp. at p. 16, 43.)
8 By contrast, Mr. Stuart is a disbarred attorney, who no longer can practice law or
9 provide legal services. CCFC is alleged to be a public benefit corporation that educates,
10 supports, and promotes parents' and children's rights in domestic disputes and child
11 custody matters (Comp. at p. 49, 100), and Lexevia is alleged to be a professional law
12 corporation founded by Mr. Stuart that has previously represented CCFC (Comp. at p.
13 52, 107-108).
14 There is no doubt that Plaintiffs' Complaint lacks any factual allegation that
15 Plaintiffs actually compete with Defendants to provide legal services or that they
16 compete or intend to compete with Defendants for the same pool of customers. More
17 importantly, due to their admissions, it is evident they were not and are not direct
18 competitors with Defendants, and that Plaintiffs have not sustained the type of injury
19 necessary to establish standing under the Lanham Act. Thus, the claim should be
20 dismissed.
21 Aside from the standing issue, Plaintiffs cannot state claim. Their Count 21 is
22 ostensibly a claim for false designation of origin and false description against all
23 Defendants. Because this count is based on fraud, Defendants contend that it should
24 comply with Rule 9's heightened pleading standard.
25 A claim for false designation of origin requires the following:
26 ( 1) defendant uses a designation or false designation of origin;
27
28
(2) the use was in interstate commerce; (3) the use was in
connection with goods or services; ( 4) the designation or false
16 3: 13-cv-O 1944-CAB-B LM
1
2
3
4
5
6
7
designation is likely to cause confusion, mistake, or deception
as to (a) the affiliation, connection, or association of defendant
with another person, or (b) as to the origin, sponsorship, or
approval of defendant's goods, services, or commercial
activities by another person; and (5) plaintiff has or is likely to
be damaged by these acts.
8 Summit Tech. v. High-Line Med. Instruments Co., 933 F.Supp. 918, 928 (C.D.Cal.
9 1996); 15 U.S.C. 1125(a)(l)(A).
10 Like the other causes of action, there is no factual allegation against Mr. Chucas
11 and Ms. Griffin supporting any contention that either Defendant, who are alleged to be
12 local professionals, used a false designation of origin in interstate commerce in
13 connection with a specific good or service that likely caused confusion or deception.
14 Even in a broader sense, the claim makes no mention that these Defendants advertised at
15 all, let alone falsely advertised. Finally, missing from the Complaint are specific facts
16 shedding light on how any Plaintiff was injured by these Defendants (i.e., their alleged
17 false designation of any product or service, or their alleged false advertising of their
18 product or service) that gives rise to a violation of the Lanham Act.
19
20
21
22
23
For these reasons, the Lanham Act cause of action fails .
4. Plaintiffs Lack Standing to Sue Under RICO, and their RICO Counts
Neither Satisfy the Heightened Pleading Standard Required by Rule 9
Nor State a Claim under Rule 12.
To have standing to sue, "a civil RICO plaintiff must show: (1) that his alleged
24 harm qualifies as injury to his business or property; and (2) that his harm was 'by reason
25 of the RICO violation, which requires the plaintiff to establish proximate causation."
26 Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008) (internal
27 citation omitted). Here, Mr. Stuart, CCFC, and Lexevia have not alleged harm to a
28 specific business or property interest-or a "concrete financial loss"-as required under
17 3:13-cv-01944-CAB-BLM
1 RICO caused by either Mr. Chucas or Ms. Griffin. Id. at 975. As a result, they do have
2 the requisite standing to sue under RICO.
3 Next, where a plaintiff alleges "a unified course of fraudulent conduct and rel[ies]
4 entirely on that course of conduct as the basis of a claim[,] ... the claim is said to be
5 'grounded in fraud' or to 'sound in fraud,' and the pleading of that claim as a whole must
6 satisfy the particularity requirement of [Federal Rule of Civil Procedure] 9(b ). "Vess v.
7 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003). To be alleged with
8 particularity, a plaintiff must allege "the who, what, when, where, and how" of the
9 alleged fraudulent conduct (Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)), and
10 "set forth an explanation as to why [a] statement or omission complained of was false
11 and misleading" (In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9
1
h Cir. 1994) (en
12 bane)). See also Cafasso, ex rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
13 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel. United States v. Lungwitz, 616 F.3d
14 993, 998 (9th Cir. 2010)). Rule 9(b) "applies to civil RICO fraud claims." Edwards v.
15 Marin Park, Inc., 356 F.3d 1058, 1065-66 (9
1
h Cir. 2004) (internal citation omitted);
16 Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 541 (9th Cir. 1989).
17 Keeping this in mind, Plaintiffs' RICO counts do not meet this heightened
18 pleading standard, and cannot be sustained against Mr. Chucas and Ms. Griffin.
19 "Liability under RICO ... requires (1) the conduct (2) of an enterprise (3) through a
20 pattern (4) of racketeering activity." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.
21 1996). "To establish the existence of such an enterprise, a plaintiff must provide both
22 'evidence of an ongoing organization, formal or informal,' and 'evidence that the various
23 associates function as a continuing unit."' Odom v. Microsoft Corp., 486 F.3d 541, 552
24 (9th Cir. 2007). A "pattern of racketeering activity" requires at least two predicate acts.
25 Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9
111
Cir. 2008). "[R]acketeering
26 activity" is defined as acts or threats involving a variety of crimes, such as "murder,
27 kidnapping, gambling, arson, robbery, bribery, [or] extortion." 18 U.S.C. 1961(1).
28 Finally, a RICO violation must affect interstate or foreign commerce. 18 U.S.C. 1964.
18 3: 13-cv-01944-CA B-BLM
1 In this case, Plantiffs' RICO counts are premised on 18 U.S.C. 1964(b), (c), and
2 ( d). (Comp. at p. 119, 271.) In spite of the lengthiness of the RICO allegations and
3 counts set forth in the Complaint, they do not specify facts supporting the above-stated
4 elements of the claim against Mr. Chucas and Ms. Griffin. With respect to these
5 particular Defendants, there is no who, what, when, where, and how alleged. The
6 requisite level of specificity is completely lacking.
7 With respect to the "enterprise" element, the Complaint alleges the existence of
8 various enterprises seemingly involving all Defendants. (Comp. at pp. 116-119, 268-
9 269.) Only the enterprise identified as, "San Diego Family Law Community Domestic
10 Dispute Industry Criminal Enterprise," actually names Mr. Chucas and Ms. Griffin.
11 (Comp. at p. 121, 275.) However, just listing randomly named Defendants, and
12 concluding they are part of an "enterprise," is not stating facts showing there is an
13 identifiable structure of parties associated for a common purpose and is an ongoing
14 organization for purposes of RICO.
15 Similar to stringing along Defendants and calling them an "enterprise," Plaintiffs
16 just list predicate activities associated with the RICO statutes (Comp. at pp. 148-150,
17 336), then make general reference to "fraud, bribery and/or kickbacks" allegedly
18 perpetrated by all RICO Defendants (Comp. at pp. 152-153, 346). These allegations
19 are vague with no factual support that Mr. Chucas and Ms. Griffin (as opposed to another
20 Defendant) engaged in any of the requisite predicate crimes and/or pattern of
21 racketeering activity. In addition, the RICO counts to not disclose that the enterprise in
22 question was engaged in, or its activities affected, interstate or foreign commerce. As
23 well, Plaintiffs fail to allege these moving Defendants had a specific intent to harm them.
24 Since Plaintiffs fail to adequately plead a claim for violation of RICO with factual
25 specificity, RICO Counts 2 through 13 do not and cannot survive this motion to dismiss.
26 See Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392-93 (9
111
Cir. 1988)
27 (allegations of predicate acts in the RICO complaint were "entirely general," and "no
28 specifics of time, place, or nature of the alleged communications are pleaded").
19 3: 13-cv-O 1944-CAB-BLM
1 5. Plaintiffs' Prospective Relief Counts Do Not Support a Basis for Relief
2 Against Mr. Chucas and Ms. Griffin.
3 Plaintiffs' request for prospective relief seeks a temporary restraining order
4 prohibiting harassment of a victim or witness in a Federal criminal case (Prospective
5 Relief Count 1 ), and a declaratory judgment (Prospective Relief Count 2).
6 Plaintiffs' Prospective Relief Count 1 alleges that they are entitled to a restraining
7 order because they are "victims and witnesses to FICRO Counts 1-34, and numerous
8 civil rights offenses committed by DEFENDANTS .... " (Comp. at p. 164, 387.) They
9 cite to 18 U.S.C. 1514(b) as the basis for their requested relief. This statute is clearly
10 inapplicable as it deals with temporary restraining orders related to harassment of a
11 victim or witness in a federal criminal case. This is not a federal criminal case, and
12 Plaintiffs are neither victims nor witnesses in a federal criminal case.
13 Nonetheless, the sole function of injunctive relief, whether temporary or
14 permanent, is to forestall future violations. United States v. Oregon State Med. Soc'y,
15 343 U.S. 326, 333, 72 S. Ct. 690 (1952). Hence, a party may be entitled to injunctive
16 relief if he can show: ( 1) a likelihood of success on the merits; (2) a likelihood that the
17 moving party will suffer irreparable harm absent preliminary injunctive relief; (3) that
18 the balance of equities tips in the moving party's favor; and ( 4) that preliminary
19 injunctive relief is in the public interest. Winter v. Nat'! Res. Def. Council, Inc., 555 U.S.
20 7, 20, 129 S. Ct. 365 (2008). In considering these factors, the Court "must balance the
21 competing claims of injury and must consider the effect on each party of the granting or
22 withholding of the requested at 376 (quoting Amoco Co. v. Viii. of Gambell,
23 Alaska, 480 U.S. 531 542, 107 S. Ct. 1396 (1987)); lndep. Living Ctr. ofS. Cal., Inc. v.
24 Maxwell-Jolly, 572 F.3d 644, 651 (9th Cir. 2009) . Not surprisingly, injunctive relief "is
25 an extraordinary and drastic remedy, one that should not be granted unless the movant,
26 by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S.
27 968, 972, 117 S.Ct. 1865 (1997) (citation omitted).
28 //
20 3:13-cv-01944-CAB-BLM
1 Plaintiffs do establish the four requirements necessary for injunctive relief. As
2 already demonstrated by Defendants, there is no showing that Plaintiffs will prevail on
3 the merits of their claims against them. Once again, because of CCFC's and Lexevia's
4 lack of overall standing to sue and maintain this lawsuit, there can be no injunction
5 issued in their favor. With respect to Mr. Stuart, he has not shown he is immediately
6 threatened with irreparable harm caused by Mr. Chucas or Ms. Griffin. In fact, the acts
7 or incident at issue occurred more than three years ago. With no threat of future harm by
8 Mr. Chucas and Ms. Griffin, Plaintiffs' request for an injunction is in reality moot.
9 Finally, no meaningful public interest (or at least one that has been articulated) supports
10 injunctive relief against these individual Defendants.
11 As it stands, there is no reason to disrupt the status quo, and there is no clear
12 showing that Plaintiffs are entitled to injunctive relief. For the above-stated reasons,
13 none should be granted.
14 Plaintiffs' Prospective Relief Count 2 seeks declaratory relief. In general, federal
15 courts have the power to grant declaratory relief pursuant to the Declaratory Judgment
16 Act, 28 U.S.C. 2201, 2202, which provides in pertinent part:
17 In a case of actual controversy within its jurisdiction ... any
18 court of the United States, upon the filing of an appropriate
19
20
21
22
23
24
pleading, may declare the rights and other legal relations of
any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall
have the force and effect of a final judgment or decree and
shall be reviewable as such.
25 28 U.S.C. 2201(a).
26 Declaratory relief may properly be denied "when prudential considerations
27 counsel against its use," and "when it will neither serve a useful purpose in clarifying and
28 settling the legal relations in issue nor terminate the proceedings and afford relief from
21 3: 13-cv-O 1944-CAB-B LM
1 the uncertainty and controversy faced by the parties." United States v. State of
2 Washington, 759 F.2d 1353, 1357 (9
111
Cir. 1985).
3 Based on the foregoing and what Defendants; motion has revealed, there is no
4 basis for declaratory relief with respect to Mr. Chucas or Ms. Griffin. No useful purpose
5 will be served in declaring the rights Plaintiffs contend are in controversy, especially
6 since there is no actual or actionable controversy before this Court as between Plaintiffs
7 and these Defendants.
8
9 III.
10 CONCLUSION
11 For the reasons stated above, Defendants TERRY CHUCAS and SUSAN
12 GRIFFIN respectfully request that the Court grant their motion, and dismiss these
13 Defendants from this action.
14
15 DATED: December 12, 2013
16
17
18
19
20
21
22
23
24
25
26
27
28
MURCHISON & CUMMING, LLP
By:
KENNETH H. MORENO
J. LYNN FELDNER
GINA E. OCH
for Defendants,
TERRY CHUCAS and SUSAN GRIFFIN
22 3: 13-cv-01944-CAB-BLM

73 Chucas Griffin MTD

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

73 Chucas Griffin MTD

Uploaded by

Copyright:

Available Formats

Case 3:13-cv-01944-CAB-BLM Document 73-1 Filed 12/12/13 Page 1 of 28

F(9ltaeir ......... ................................................................ 18

You might also like