Franz Wakefield v. Apple, Inc., et al
Filing
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Filed (ECF) Appellees Apple, Inc., Steve Jobs and Sarah Jessica Parker reply to response to order to show cause dated 08/25/2010. Date of service: 09/07/2010. [7465760] (ELM)
IN THE UNITED STATS COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANZ A. WAKEFIELD,
Plaintiff - Appellant,
vs.
Case No. 10-16550
D.C. No. 5:09-cv-05420-JW
U.S. District Court for Northern
California, San Jose
APPLE INC., STEVE JOBS, and SARAH
JESSICA PARKER,
Defendants - Appellees.
JOINT REPLY OF DEFENDANTS APPLE INC., STEVE JOBS AND
SARAH JESSICA PARKER TO APPELLANT'S RESPONSE TO THE
COURT'S AUGUST 5, 2010 ORDER TO SHOW CAUSE
I. INTRODUCTION
This appeal arises out of the dismissal of an in forma pauperis complaint
filed by Appellant Franz A. Wakefield (“Appellant” or “Wakefield”) against Apple
Inc. (“Apple”), Apple’s Chief Executive Officer, Steve Jobs (“Jobs”), and the
famous television, film and theatre actress Sarah Jessica Parker (“Parker”)
(collectively, “Appellees”). In his complaint, Wakefield claims he invented the
iPod, iTunes and iPhone products and their marketing campaigns in 1989 (when he
was 15 years old) – over ten (10) years before the initial iPod was released in 2001
and nearly twenty (20) years before the release of the iPhone. Wakefield claims
that in 1999 he made a secret contract with Parker whereby she was to reach out to
Apple to commercialize these products and negotiate a contract for him to receive
two percent (2%) of the revenues associated with these products in perpetuity.
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Wakefield further alleges that the FBI seized all of his notes, documents and other
work product related to his iPod trade secrets to preserve and protect the national
security of the United States, making it impossible for him to come forward with
evidence to support his claims. Based on these allegations, Wakefield attempted to
assert a claim against Parker for breach of an oral contract, and claims against
Parker, Apple and Jobs for trade secret misappropriation and violation of the RICO
Act. Apple, Jobs and Parker moved to dismiss the complaint on numerous
grounds, including frivolousness under 28 U.S.C. section 1915(e).
The district court found the in forma pauperis complaint frivolous and was
therefore required to dismiss the complaint pursuant to 28 U.S.C. section 1915(e)
which mandates the dismissal an in forma pauperis complaint any time the court
determines it is “frivolous, malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). Wakefield’s Response to this Court’s August
5, 2010 Order to Show Cause why the judgment should not be summarily affirmed
(“Response”) generally reargues the points Wakefield made to the district court
while glossing over the thrust of the district court’s order (i.e., that Wakefield’s
complaint is frivolous). The district court’s order will be reviewed for abuse of
discretion and Wakefield’s Response does not present any argument from which
one might reasonably conclude that the district court abused its discretion in
concluding that Wakefield’s claims are delusional and frivolous. Accordingly,
there is no substantial question involved in this appeal that would preclude
summary affirmation of the judgment and Appellees Apple, Jobs and Parker
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hereby respectfully request that the Court summarily affirm the judgment pursuant
to Circuit Rule 3-6(b).
II. STANDARD OF REVIEW
The district court’s decision to dismiss a complaint under 28 U.S.C. section
1915(e) will be reviewed for abuse of discretion. Denton v. Hernandez, 504 U.S.
25, 31-33 (1992). “A district court abuses its discretion if its decision is based on
an erroneous conclusion of law or if the record contains no evidence on which it
rationally could have based its decision.” Fischel v. Equitable Life Assurance
Soc'y, 307 F.3d 997, 1005 (9th Cir. 2002) (quoting Paul, Johnson, Alston & Hunt
v. Graulty, 886 F.2d 268, 270 (9th Cir. 1989).
Here, the district court’s order does not disclose any erroneous conclusions
of law and the order and the record provide ample basis for the district court’s
conclusion, including an extended discussion of the frivolous and delusional
quality of Wakefield’s claims.
III. SUMMARY OF THE DISTRICT COURT’S DECISION
Apple, Jobs and Parker filed with the district court motions requesting (1)
dismissal of the case under 28 U.S.C. section 1915(e), (2) dismissal of the case
under Federal Rule of Civil Procedure 12(b)(6), and (3) entry of an order declaring
Wakefield a vexatious litigant in this district and enjoining him from filing further
pro se cases without prior judicial authorization. As part of the briefing, they
provided the district court with over 750 pages of excerpts from Wakefield’s
earlier pro se cases in the Central District of California and in Florida (where
Wakefield already has been declared a vexatious litigant). The district court
granted the motions under 28 U.S.C. section 1915(e) and further noted in footnote
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number 7 that Wakefield’s claims also would be barred by the applicable statute of
limitations (and, in the case of Wakefield’s contract claim against Parker, by the
applicable statute of frauds). The district court also found Wakefield to be a
vexatious litigant and barred him from filing actions in the Northern District of
California without prior judicial approval. In making that decision, the district
court noted Wakefield had filed numerous frivolous actions in several district
courts, appealing all cases to the point of seeking writs of certiorari, and that he has
a history of suing individuals he randomly comes into contact with or sees on
television or on film, claiming harm to himself or his companies in the millions or
billions of dollars. (Order at 9.)
The district court’s order includes a meaningful review of the allegations in
Wakefield’s Complaint, including that between 1989 (when Wakefield was 15
years old) and 1991 he established a relationship with Parker and that he created
the entire line of iPods and iPhones, including their respective marketing
campaigns. (Order at 5:23-25.) The district court found these allegations frivolous
and delusional. The district court also found it “unbelievable that the FBI, after
being contacted by Plaintiff, confiscated his trade secrets for national security
purposes.” (Order at 6:1-2.) Even granting Wakefield a liberal construction of his
allegations (see Order at 5:22-23), the district reasonably concluded that these
claims “rise to the level of the irrational and wholly unbelievable.” (Order at 5:2223.) Accordingly, the district court was required to dismiss the complaint pursuant
to 28 U.S.C. section 1915(e).
Moreover, as explained more fully in the district court’s order, Wakefield’s
oppositions to the motions below did not present a rational story to explain his
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claims. Rather, Wakefield made more completely incredible allegations. For
example, Wakefield claimed that “in 1992 he created a computer game that could
track terrorists and that he warned the FBI of a plan to attack the United States
using commercial airliners.” (Order at 6:8-10.) Wakefield’s opposition papers
also included representations that he had “a secret deal with the FBI based on his
creation of the algorithm behind Google’s web search.” (Order at 6:11-12.)
Wakefield does not dispute that these are his allegations, nor does he dispute
that these are the things he said in his opposition papers. As was the case below,
Wakefield makes no effort to deny or explain his history of vexatious litigation
and, notwithstanding that his allegations are patently unbelievable, he demands
that this action go forward so that he can subpoena and take discovery from the
FBI and the U.S. Department of Justice. Wakefield cannot possibly show that the
district court abused its discretion in concluding that his allegations are frivolous
and delusional; his demand to take discovery from the FBI to prove that his claims
are not frivolous only further underscores the delusional nature of his claims.
IV. WAKEFIELD’S HISTORY OF VEXATIOUS LITIGATION AND
BIZARRE CLAIMS
Wakefield has a long and well-documented history of filing and pursuing
frivolous lawsuits. His behavior before the courts of his home state of Florida was
so abusive that he was sanctioned and formally declared a vexatious litigant after
the court made findings that his claims were “delusional” and “clearly nonmeritorious.” (Order at 8:19-20). Once declared vexatious in Florida, Wakefield
moved his lawsuits to California. He went first to the Central District and then to
the Northern District of California. Wakefield’s litigation history shows that he
has repeatedly abused the pro se rules to pursue absurd and unsubstantiated
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appeals against all manner of defendants. Any chance or brief encounter with him
is fertile ground for a frivolous lawsuit, and because he has no assets to lose (and
therefore nothing to fear from a sanctions award), he has demonstrated a
willingness to pursue his irrational musings all the way to the U.S. Supreme Court.
Wakefield has not prevailed in any of his cases. (Order at 9.)
In the course of not only this case, but myriad other state and federal
litigations, Wakefield claims to have created a whole host of famous inventions
and entertainment properties including, among other things, the Nintendo Wii, the
NASA Mars Rovers, YouTube, the Harry Potter books, the television shows Sex
and the City, Survivor, Ugly Betty, and Big Brother, a Disney video game called
“Kingdom of Hearts,” another famous video game called “Dragon Ball-Z”, over
100 songs, including Standing Ovation, the rapper persona “Young Jeezy” (a stage
name belonging to rapper Jay Jenkins) and the color-coded threat level system
implemented by the Department of Homeland Security (i.e., the red, orange,
yellow, etc. warnings commonly used to identify threat levels at U.S. airports).
Wakefield also claims to have created Google’s search algorithm (and says that the
FBI guaranteed him that he would own three percent (3%) of all of Google’s
shares). (See Order at 6:5-12, Wakefield Decl. filed April 19, 2010 at 8-10 and
Apple’s Reply Brief filed April 26, 2010 at 3-4.)
It is a simple matter of common sense that it took dozens, if not hundreds, of
individuals, years of effort and, in some cases, lifetimes of accumulated skill and
knowledge to create these inventions. Yet, Wakefield claims to have developed
them all by the time he was 15. Wakefield’s creation of any one of them would be
highly improbable; his claim of having created them all is utterly nonsensical and
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obviously delusional. There is no basis to conclude that the district court abused
its discretion in reaching this common sense and obvious conclusion. Thus, there
is no substantial question which requires the attention of the Court of Appeal and
summary affirmation under Ninth Circuit Rule 3-6 is appropriate.
V. WAKEFIELD RAISES NO SUBSTANTIAL QUESTIONS
REGARDING THE DISTRICT COURT’S EXERCISE OF
DISCRETION IN DISMISSING HIS COMPLAINT
Wakefield’s Response is nothing more than a rehash of the irrational
musings the district court rejected. Wakefield cites no relevant legal authority and
makes no factual showing that his appeal would raise a substantial question that in
any way would justify further proceedings before this Court.
A.
The Dismissal Was Based Upon 28 U.S.C. Section 1915(e);
Wakefield Is Not Entitled to Discovery Under Rule 56.
In his Response, Wakefield first argues Rule 56 of the Federal Rules of Civil
Procedure entitles him to take discovery from the FBI and the Department of
Justice to see if those entities have evidence showing that Wakefield created
Apple’s products while he was in high school. Putting aside the fact that this
theory is rooted in Wakefield’s delusions, this argument is legally unsound because
this matter was not decided on a motion for summary judgment under Rule 56.
Thus, Rule 56 does not apply and Wakefield’s arguments in this regard are
misplaced and raise no substantial question for appeal.
B.
Wakefield’s Complaint Is Entirely Frivolous; He Can Raise
No Substantial Question On Appeal To Change That Fact
Wakefield next argues that no matter how delusional his claims may appear
to be, he has a right to pursue them in court. This too is wrong as a matter of law
and presents no substantial question for appeal.
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The district court has the discretion and the obligation to dismiss frivolous or
delusional claims. See 28 U.S.C. § 1915(e)(2)(B) and Denton v. Hernandez, 504
U.S. 25, 33 (1992). A finding of factual frivolousness is appropriate when “the
facts alleged rise to the level of the irrational or the wholly incredible, whether or
not there are judicially noticeable facts available to contradict them.” Denton,
supra, at 33; see also Riches v. Timberlake, 2007 U.S. Dist. LEXIS 81811 (N.D.
Cal. Oct. 24, 2007)(dismissing case as frivolous under §1915(e) where the plaintiff
alleged that he caught the baseball hit by Barry Bonds for his 756th home run; that
the musician Justin Timberlake was sitting next to him and assaulted him, while
actress Jessica Biel took the ball from him; and that defendants then used members
of the Russian mafia to steal his audio recordings, which recordings Justin
Timberlake then put on his latest album). When reviewing a complaint for
frivolity, a trial court may “pierce the veil of the complaint’s factual allegations
and dismiss those claims whose factual contentions are clearly baseless.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). Where the material facts alleged by a
plaintiff are frivolous, fanciful or delusional, as is the case here, the complaint does
not state a plausible claim for relief under Iqbal. See Jagar v. Jagar, 2009 U.S.
Dist. LEXIS 109131 (N.D. Cal. 2009); Basulto v. GMAC Mortg., 2009 U.S. Dist.
LEXIS 50116 (N.D. Cal. June 12, 2009). Thus, Wakefield’s contention that his
claims must be allowed to proceed although they appear delusional is simply
wrong as a matter of law. In fact, delusional claims made by in forma pauperis
litigants are not permitted to proceed to discovery, but must be dismissed pursuant
to 28 U.S.C. section 1915(e).
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Given the nature of Wakefield’s claims, the district court was entirely
correct to find that Wakefield’s claims are frivolous, unbelievable and entirely
irrational. Dismissal under 28 U.S.C. section 1915(e) was, therefore, plainly
warranted. (Order at 6.) Wakefield’s Response presents no argument or evidence
to demonstrate that Wakefield can raise any substantial question on appeal that
would convince this Court that the district court abused its discretion in coming to
this conclusion.
C.
Wakefield’s Complaint Was Properly Dismissed With
Prejudice
Courts may dismiss a complaint without leave to amend if the plaintiff is
unable to cure the defect by amendment. Lopez v. Smith, 203 F.3d 1122, 1129 (9th
Cir. 2000). Here, not only were Wakefield’s claims frivolous, but they were
obviously barred by the statute of limitations (and, in the case of Wakefield’s
contract claim against Parker, by the applicable statute of frauds). (See Order at
6:25-27 (footnote 7).) Wakefield did not request leave to amend his complaint and
did not suggest any allegations he could add to the complaint to cure its many
defects. Indeed, Wakefield’s claims are so fundamentally frivolous and so
obviously barred that there is no plausible way for Wakefield to cure the defects in
his claims. Thus, the district court properly dismissed the complaint with
prejudice. Even if Wakefield had been granted leave to try to amend his complaint
to remove the judicial admissions that bar his claims, the underlying factual
allegations would still be frivolous. Thus, amendment was futile and the district
court properly dismissed the complaint with prejudice.
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VI. CONCLUSION
The district court properly dismissed Wakefield’s complaint on the grounds
that the allegations and claims therein are frivolous, irrational and wholly
unbelievable. The district court’s order is thorough and well-reasoned and leaves
no substantial questions for appeal. Wakefield has failed to raise any questions
that would suggest any abuse of discretion by the district court. Therefore, further
proceedings before this Court are not justified and would be a waste of the Court’s
valuable resources. Accordingly, Appellees respectfully request that the Court
summarily affirm the judgment pursuant to Ninth Circuit Rule 3-6(b).
ATTESTATION OF FILING ON BEHALF OF MS. PARKER
I, Emily L. Maxwell, attest that this document is filed on behalf of my
clients, Apple Inc. and Steve Jobs, and that it also is filed on behalf of Sarah
Jessica Parker with the consent and concurrence of her counsel, Ron Arena, of
Arena Hoffman LLP.
Dated: September 7, 2010
HOWREY LLP
By:
/s/Emily L. Maxwell
Emily L. Maxwell
Howrey LLP
525 Market Street, Suite 3600
San Francisco, CA 94105
Tel: (415) 848-4900
Fax: (415) 848-4999
E-mail: maxwelle@howrey.com
Attorneys for Appellees
APPLE INC. and STEVE JOBS
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on September 7, 2010.
Participants who are registered with CM/ECF users will be served by the
appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class, postage
prepaid, or have dispatched it to a third party commercial carrier for delivery
within 3 calendar days to the following non-CM/ECF participants:
Franz A. Wakefield
17731 North West 14th Court
Miami, FL 33169
By:
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/s/Emily L. Maxwell
Emily L. Maxwell
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