Sean David Morton et al v. Bennett Ellenbogen et al

Filing 10

NOTICE OF MOTION AND MOTION to Dismiss Case Or In The Alternative For A More Definite Statement; Memorandum of Points and Authorities with proof of service filed by Defendants Bennett Ellenbogen, Tim Johnson, Eric Holder, Jr, Thomas P. O'Brien. Motion set for hearing on 6/15/2009 at 01:30 PM before Judge Percy Anderson. (Attachments: # 1 Exhibit Proof of Service)(Park, Richard)

Sean David Morton et al v. Bennett Ellenbogen et al

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THOMAS P. O'BRIEN United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division RICHARD M. PARK Assistant United States Attorney California State Bar No. 236173 Room 7516, Federal Building 300 North Los Angeles Street Los Angeles, California 90012 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Federal Defendants

9 10 11 12 13 SEAN DAVID MORTON and MELISSA MORTON, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiffs, ) ) v. ) ) BENNETT ELLENBOGEN, TIM JOHNSON, ERIC ) HOLDER, JR., Attorney General of the ) United States, THOMAS P. O'BRIEN, U.S. ) Attorney for the Central District of ) California, ) ) ) Defendants. ) ) ) ) NO. CV 09-1875-PA (JCx) DEFENDANTS' NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT; MEMORANDUM OF POINTS AND AUTHORITIES. [Hon. Percy Anderson] DATE: June 15, 2009 TIME: 1:30 p.m. CTRM: 15 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT PLEASE TAKE NOTICE that on June 15, 2009 at 1:30 p.m., or as soon thereafter as counsel may be heard, in the Courtroom of the Honorable Percy Anderson, United States District Judge, located at 312 North Spring Street, Los Angeles, CA 90012, defendants will move to dismiss the action because the complaint fails to

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comply with the pleading requirements of Fed. R. Civ. P. 8. the alternative, defendants will move for a more definite statement pursuant to Fed. R. Civ. P. 12(e).

In

This motion is made on the grounds that the complaint fails to contain a short and plain statement of the claim showing that the pleader is entitled to relief, and the averments of the complaint are not simple, concise and direct. This motion is based on this Notice of Motion and Motion, upon the Memorandum of Points and Authorities, and upon such arguments as the Court may allow at the time of the hearing. The parties did not conduct a Local Rule 7-3 meet and confer because Plaintiffs are in pro se. DATED: May 18, 2009. Respectfully submitted, THOMAS P. O'BRIEN United States Attorney LEON W. WEIDMAN Chief, Civil Division Assistant United States Attorney /s/ Richard Park RICHARD M. PARK Assistant United States Attorney Attorneys for Federal Defendants

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs Sean David Morton and Melissa Morton, acting in pro se, have filed a 31-page, 144-paragraph complaint in which they (1) assert nine random grounds for federal court jurisdiction, (2) fail to identify how two of the four defendants1 are involved in the complaint and (3) provide inadequate factual support for any of their causes of action. Generally, plaintiffs allege that they are the targets of an unjustified investigation by the Securities and Exchange Commission ("SEC") for their involvement in certain investmentrelated activities. See Complaint, ¶¶ 20, 67. In connection

with the investigation, Plaintiffs seem to claim that defendants Bennett Ellenbogen and Stephen Johnson2, two SEC attorneys, have committed mail and wire fraud, see id., ¶¶ 20, 67, which entitles plaintiffs to present evidence to a grand jury. See Id., ¶¶ 112120. Finally, plaintiffs submit rambling and argumentative prose

regarding their beliefs that federal judges are subject to pressure and intimidation by the United States Department of Justice. See Id., ¶¶ 70-102, 122-144.

Except for being listed as named defendants in the complaint, Eric Holder, Jr., Attorney General for the United States, and Thomas P. O'Brien, United States Attorney for the Central District of California are not cited anywhere in the factual allegations, causes of action, or relief requested. As such, plaintiffs' inclusion of these defendants improperly adds to the ambiguity and confusion in the complaint. The correct name for named defendant "Tim Johnson" is in fact "Stephen Johnson" ii
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Because of the vagueness and ambiguity of plaintiffs' claims and lack of specific supporting facts, defendants hereby move to dismiss the action or, in the alternative, for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, on the ground that the complaint fails to comply with the pleading requirements of Rule 8. II. THE COURT SHOULD DISMISS THIS ACTION OR ORDER PLAINTIFFS TO FILE A MORE DEFINITE STATEMENT OF THEIR CLAIMS IN A FIRST AMENDED COMPLAINT A. The Complaint Should Be Dismissed Pursuant to Rule 8 Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(d)(1) provides that "each allegation "A complaint which fails

must be simple, concise, and direct."

to comply with Rules 8(a) and 8(e) may be dismissed with prejudice pursuant to Rule 41(b)." Nevijel v. Northcoast Life

Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981)(emphasis added). Notwithstanding the liberal pleading requirements of the Federal Rules of Civil Procedure, a plaintiff is required to state a claim with "brevity, conciseness and clarity" which will "discharge the function of giving the other party fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved." 5 Wright and

Miller, Federal Practice and Procedure, § 1215, at 136-38 (2d ed. 1990); see also Fed. R. Civ. P. 8(a). It is well-settled that a

district court has discretion to dismiss an action for failure to comply with the requirements of Rule 8 where the complaint is so iii

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"verbose, confused and redundant that its true substance, if any, is well-disguised." Cir. 1965) To that end, the Ninth Circuit has repeatedly held that complaints such as plaintiffs', which fail to comply with the requirements of Rule 8, are subject to dismissal. See, e.g., Corcoran v. Yorty, 347 F.2d 222, 223 (9th

McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996) (affirming dismissal of a 53-page third amended complaint that was "argumentative, prolix, replete with redundancy, and largely irrelevant"); Hatch v. Reliance Insurance Co., 758 F.2d 409, 415 (9th Cir. 1985) (affirming dismissal of complaints, "which, including attachments, exceeded 70 pages in length, were confusing and conclusory and not in compliance with Rule 8"); Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming a dismissal of a 23-page amended complaint with 24 pages of addenda found to be verbose, confusing and conclusory); Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1964) (per curiam) (affirming dismissal of complaint for alleged fraud and conspiracy in violation of civil rights, where complaint was "so verbose, confused and redundant that its true substance, if any, is well disguised"). "Rule 8(a) requires

parties to make their pleadings straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket of mud." United States ex rel. Garst v. Lockheed-Martin

Corp., 328 F.3d 374, 378 (7th Cir. 2003). The complaint fails to comply with the pleading requirements of Rule 8, which makes it impossible for Defendants to frame a meaningful responsive pleading. Far from being a "short and iv

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plain statement" of their claims, plaintiffs' 31-page, 144paragraph complaint devotes much attention to matters not directly related to their claims. For instance, plaintiffs spend

a significant part of their complaint defending their actions, which are the subject of an investigation by the Securities and Exchange Commission. See Compl. ¶¶ 11-60. In addition,

plaintiffs devote twenty paragraphs to lashing out at federal judges who "ignore the law and evidence in criminal cases in order to uphold criminal convictions," see id. ¶¶ 71-81, which purportedly stemmed from a "1989 Bush directive" to "ignore the Constitutional Rights of defendants in criminal cases. . ." See Compl. ¶¶ 82-102. In addition, the complaint includes confusing

and conclusory claims that defendants Ellenbogen and Johnson engaged in mail and wire fraud, see id. ¶¶ 109-110, and verbose and unsupported allegations that federal judges are subject to pressure and intimidation by the United States Department of Justice. B. See Id., ¶¶ 70-102, 122-144.

The Complaint Fails To Comply With The Pleading Requirements Of Rules 8 and 12(e) of the Federal Rules of Civil Procedure Under Rule 12(e) of the Federal Rules of Civil Procedure, a

movant seeking a more definite statement "must point out the defects complained of and the details desired." 12(e). Fed. R. Civ. P.

When a pleading fails to comply with the pleading

requirements of Rule 8, a defendant may "move for a more definite statement under Rule 12(e) before responding." Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). A review of the complaint reveals that plaintiffs should

provide more clarity and information with respect to the v

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following issues: · Specific grounds for the Court's jurisdiction, reduced from the nine random grounds currently listed. Compl. ¶¶ 82-102. · Specific factual allegations or causes of action which require the inclusion of Eric Holder, Jr., Attorney General for the United States, and Thomas P. O'Brien, United States Attorney for the Central District of California as named defendants in the complaint. · Factual support, if any, for the First Cause of Action, which seeks mandamus relief. · See Id. ¶¶ 103-107. See

Factual support, if any, for the Second Cause of Action, which alleges mail fraud, wire fraud and/or fraud under 18 U.S.C. § 1346 against certain defendants. See Id. ¶¶ 108-111.

·

Factual support, if any, for the Third Cause of Action, which alleges that the Executive Branch of the federal government, and specifically, the United States Department of Justice are exerting pressure on federal judges. See Id. ¶¶ 122-144.

·

In general, factual support for all of plaintiffs' causes of action which provide legal citations, but virtually no factual support. See Id. ¶¶ 103-144.

Accordingly, the complaint fails to satisfy the requirements of Fed. R. Civ. P. 8, and the Court should order plaintiffs to file a more definite statement of their claims.

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III. CONCLUSION For the foregoing reasons, defendants respectfully request the Court to dismiss this action pursuant to Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, order plaintiffs to file a more definite statement of their claims in a first amended complaint in accordance with Rule 8 and 12(e). DATED: May 18, 2009. Respectfully submitted, THOMAS P. O'BRIEN United States Attorney LEON W. WEIDMAN Chief, Civil Division Assistant United States Attorney /s/ Richard Park RICHARD M. PARK Assistant United States Attorney Attorneys for Federal Defendants

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