Michael R. Fletcher v. State of Missouri et al

Filing 51

ORDER (1) DENYING PLAINTIFFS REQUEST TO WITHDRAW HIS FIRST AMENDED COMPLAINT 14 ; (2) DENYING PLAINTIFFS REQUEST FOR EVIDENTIARY HEARING 13 ; (3) GRANTINGFEDERAL DEFENDANTS MOTION TO DISMISS 16 ; (4) GRANTING MISSOURI STATE DEFENDANTS MOTION TO DISMISS 19 , 46 ; (5) DENYING PLAINTIFFS VARIOUS REQUESTS AND APPLICATIONS 8 , 12 , 42 , 45 ; AND (6) DISMISSING WITHOUT PREJUDICE CLAIMS AGAINST THE CALIFORNIA STATE DEFENDANTS by Judge Dean D. Pregerson ( MD JS-6. Case Terminated ) (lc)

-FFM Michael R. Fletcher v. State of Missouri et al

Doc. 51

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Federal Defendants include Judge Ortrie Smith, Judge Gary Fenner, the Federal District Court for the Western District of Missouri, Judge Robert Larsen, and the United States. The Missouri State Defendants include the State of Missouri, the Missouri Supreme Court, Judge Mary Russell, and Judge Linda Turley.
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

MICHAEL R. FLETCHER,

) Case No. CV 10-02268 DDP (ANx) ) Plaintiff, ) ORDER (1) DENYING PLAINTIFF'S ) REQUEST TO WITHDRAW HIS FIRST v. ) AMENDED COMPLAINT, (2) DENYING ) PLAINTIFF'S REQUEST FOR STATE OF MISSOURI; MISSOURI ) EVIDENTIARY HEARING, (3) GRANTING SUPREME COURT; MARY RUSSELL; ) FEDERAL DEFENDANTS' MOTION TO LINDA TURLEY; ORTRIE SMITH; ) DISMISS, (4) GRANTING MISSOURI GARY FENNER; FEDERAL ) STATE DEFENDANTS' MOTION TO DISTRICT COURT FOR THE ) DISMISS; (5) DENYING PLAINTIFF'S WESTERN DISTRICT OF ) VARIOUS REQUESTS AND MISSOURI; ROBERT LARSEN; LOS ) APPLICATIONS; AND (6) DISMISSING ANGELES COUNTY PROSECUTOR'S ) WITHOUT PREJUDICE CLAIMS AGAINST OFFICE AND SCOTT CARBAUGH, ) THE CALIFORNIA STATE DEFENDANTS ) Defendants. ) ___________________________ ) This matter comes before the Court on (1) a request to withdraw the First Amended Complaint ("FAC") and a request for an evidentiary hearing filed by the plaintiff Michael R. Fletcher ("Plaintiff"), appearing pro se, and (2) motions to dismiss filed by the Federal Defendants and by the Missouri State Defendants.1

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After reviewing the parties' submissions, the Court DENIES Plaintiff's request to withdraw the FAC, DENIES Plaintiff's request for an evidentiary hearing, GRANTS both motions to dismiss, DENIES Plaintiff's various other applications and requests, and DISMISSES WITHOUT PREJUDICE the claims against certain California defendants. I. BACKGROUND Plaintiff is an attorney from Missouri. Following an

investigation of attorney misconduct in 2004, the United States District Court for the Western District of Missouri ("WDMO") suspended Plaintiff from practicing law in that court. The United

States Court of Appeals for the Eighth Circuit affirmed the WDMO's decision in 2005. In re Fletcher, 424 F.3d 783 (8th Cir. 2005).

In 2006, The Missouri Supreme Court found Fletcher violated the Rules of Professional Conduct and suspended him from the practice of law. The court also held that it would not entertain any

application for reinstatement until the WDMO reinstated Fletcher's license. Fletcher moved to California in 2006. The WDMO denied

Fletcher's petitions for reinstatement in January 2008 and March 2009. The Missouri Supreme Court also denied Fletcher's petition

for reinstatement in May 2008 and his petition for reconsideration of the denial in February 2010. On February 26, 2010, Plaintiff commenced this action against the Federal Defendants and the Missouri State Defendants, as well as certain California defendants, in Los Angeles Superior Court, alleging nineteen causes of action relating to the denials of reinstatement. /// 2

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On March 29, 2010, the Federal Defendants filed a notice of removal pursuant to 28 U.S.C. § 1442(a), as well as a notice of the Attorney General's certification that "defendants United States District Judges Gary Fenner and Ortrie Smith and United States Magistrate Judge Robert Larsen were acting within the course and scope of their official United States Government employment at all times material." (Notice of Substitution 4:10-17.) Pursuant to 28

U.S.C. § 2679(d)(2), the Federal Defendants requested that the United States be substituted as Defendant in their place as to the common law claims. On April 12, 2010, Plaintiff filed the FAC. On April 19,

2010, Plaintiff filed a request for an evidentiary hearing regarding the Attorney General's certification and a request to withdraw the FAC. The Federal Defendants filed a motion to dismiss

the FAC on April 22, 2010, and the Missouri State Defendants filed a motion to dismiss the FAC on April 26, 2010. II. DISCUSSION A. Request to Withdraw FAC

On April 9, 2010, the Federal Defendants filed an Ex Parte Application for an extension of time to file an answer to the Complaint. Before the Court could rule on the Application, On April 15, 2010, the On

Plaintiff filed the FAC on April 12, 2010.

Court vacated the Application as moot in light of the FAC.

April 19, 2010, Plaintiff filed a request to withdraw the FAC, which appears to be based on Plaintiff's belief that the Federal Defendants waived their Rule 12 defenses by failing to file a timely responsive pleading to the Complaint. (Request to Withdraw

FAC, Dkt. No. 14, ¶ 7 ("Plaintiff asserts that a party may not re3

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plead a claim that has already been lost by failing to file an answer.").) As to his argument that the Federal Defendants have waived their Rule 12 defenses, Plaintiff is incorrect. The Ninth Circuit

"allows a motion under Rule 12(b) any time before the responsive pleading is filed." Aetna Life Ins. Co. v. Alla Med. Servs., Inc., Furthermore, the FAC appears

855 F.2d 1470, 1474 (9th Cir. 1988).

to be substantively indistinguishable from the Complaint. Therefore, Plaintiff's request to withdraw the FAC is DENIED. B. Westfall Certification and Request for Evidentiary Hearing Plaintiff requests an evidentiary hearing to contest the Attorney General's Westfall Act Certification that the Federal Defendants were acting within the scope of their employment. (Request for Evidentiary Hearing Regarding Defendants' Argument that Defendants Were Acting in the Course and Scope of Their Employment, Dkt. No. 13.) The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, "permits suits against the United States for injuries caused within a government employee's scope of employment." F.3d 1033, 1036 (9th Cir. 2006). Kashin v. Kent, 457

"The Westfall Act amended the

FTCA to provide that if the Attorney General certifies that a federal government employee was acting within the scope of employment when the tort occurred, then the United States shall be substituted as the defendant in a tort suit against the employee." Id. (citing 28 U.S.C. § 2679(d)). Upon such certification, "the

government employee is dismissed from the suit, and is immune from

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other civil actions arising from the alleged tort." U.S.C. § 2679(b)(1)).

Id. (citing 28

The plaintiff may challenge the Attorney General's scope of employment certification. Gutierrez de Martinez v. Lamagno, 515

U.S. 417, 420 (1995); Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991). The party seeking

review of the Westfall certification "bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." (9th Cir. 1993). Green v. Hall, 8 F.3d 695, 698

The district court is "authorized to hold an

evidentiary hearing and resolve disputed questions of fact." Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 874 (9th Cir. 1992). However, "no hearing is needed where even if

the plaintiff's assertions were true, the complaint allegations establish that the employee was acting within the scope of his/her employment." Dolan v. United States, 514 F.3d 587, 593 (6th Cir.

2008) (quotation marks and citation omitted). In this case, the Attorney General filed a notice of substitution as to Plaintiff's common law tort claims against the Missouri federal judges. Fletcher opposes the certification and

requests an evidentiary hearing to determine whether the federal judges were acting within the scope of their employment. In determining whether the federal judges were acting within the scope of their employment, "we apply the respondeat superior principles of the state in which the alleged tort occurred." Green v. Hall, 8 F.3d 695,699 (9th Cir. 1993). Because the nexus of the

Missouri federal judges' actions in denying reinstatement of the 5

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Plaintiff's law license was in Missouri, Missouri law applies. Under Missouri law, "respondeat superior applies to torts committed while the employee is engaged in an activity that is within the scope of employment." Daugherty v. Allee's Sports Bar & Grill, 260 S.W.3d 869, 873 (Mo. Ct. App. 2008)(internal quotations omitted). "The conduct causing the tort must naturally arise from the employee's work." Id. For example, in Daugherty, a bar patron was

injured when a bartender placed a toothpick in the patron's beer bottle as a joke. Id. The court found the tort was within the

scope of the employee's conduct because placing the toothpick in the bottle occurred while the bartender was engaged in the customary act of a bartender, i.e., serving a beer. Id.

Here, Plaintiff argues that the federal judges committed torts in denying his petitions for reinstatement and that the Court should hold an evidentiary hearing to inquire into the judges' motives in rendering those decisions. the essence of employment as a judge. Judicial decision-making is Like a tort committed during

the customary act of a bartender serving a beer in Green, the judges actions in rendering decisions on Plaintiff's petitions are within the scope of judicial employment, regardless of the underlying motives. Therefore, the Court concludes that (1) the federal judges were acting within the scope of their employment and the United States should be substituted as a defendant in their place and (2) no evidentiary hearing on the matter is required. /// /// /// 6

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C.

Federal Defendants' Motion to Dismiss 1. FTCA Claims Against the United States

The FTCA requires a plaintiff to exhaust his administrative remedies before bringing a tort claim against the United States. 28 U.S.C. § 2675(a). This requirement is jurisdictional and must Brady v. United States, 211 F.3d

therefore be strictly adhered to. 499, 502 (9th Cir. 2000).

Fletcher did not submit an administrative claim to the Administrative Office of the United States. Accordingly, this

Court lacks subject matter jurisdiction to adjudicate the tort claims against the United States pursuant to the FTCA, and those claims are hereby dismissed without prejudice. 2. Bivens Claims Against Federal Judge

The Federal Defendants move to dismiss the Bivens claims against the federal judges for lack of personal jurisdiction. Federal Rule of Civil Procedure 12(b)(2) provides that a court may dismiss a suit for lack of personal jurisdiction. P. 12(b)(2). Fed. R. Civ.

The plaintiff has the burden of establishing that The plaintiff need only make "a prima facie

jurisdiction exists.

showing of jurisdictional facts to withstand the motion to dismiss." 2006). Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.

"[U]ncontroverted allegations in [plaintiff's] complaint

must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiff's] favor." Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). District courts have the power to exercise personal jurisdiction to the extent authorized by the law of the state in 7

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which they sit.

Fed. R. Civ. P. 4(k)(1)(A); Panavision Int'l, L.P. Because

v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998).

California's long-arm statute authorizes personal jurisdiction coextensive with the Due Process Clause of the United States Constitution, see Cal. Civ. Code § 410.10, this Court may exercise personal jurisdiction over a nonresident defendant when that defendant has "at least `minimum contacts' with the relevant forum such that the exercise of jurisdiction `does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The

contacts must be of such a quality and nature that the defendants could reasonably expect "being haled into court there." Volkswagen v. Woodson, 444 U.S. 286, 297 (1980). Fletcher has not alleged that any of the traditional bases of personal jurisdiction exist over the Missouri federal judges. Fletcher has not alleged the Missouri federal judges have had continuous, systematic, and substantial contacts with California. Thus, there is no basis for general personal jurisdiction over the Missouri federal judges. Helicopteros Nacionales de Colombia, S.A. Therefore, this Court can World-Wide

v. Hall, 466 U.S. 408, 414 n.9 (1984).

only exercise specific personal jurisdiction over the Missouri federal judges if they had "certain minimum contacts with [California] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations omitted). /// 8 Int'l

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Specific jurisdiction exists where a case arises out of forumrelated acts. The Ninth Circuit analyzes specific jurisdiction

according to a three-prong test: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Yahoo! Inc. v. La Ligue Contre le Rascime, 433 F.3d 1199, 205-06 (9th Cir. 2006). The first prong, often referred to as the purposeful availment prong, may be satisfied through either purposeful availment or purposeful direction analysis, depending on the situation. Schwarzenegger, 374 F.3d at 803. The Ninth Circuit "evaluates

purposeful direction using the three-part `Calder-effects' test, taken from the Supreme Court's decision in [Calder v. Jones, 465 U.S. 783 (1984)]." Brayton Purcell LLP v. Recordon & Recordon, 575

F.3d 981, 986 (9th Cir. 2009); Schwarzenegger, 374 F.3d at 803. "In Calder, the Supreme Court held that a foreign act that is both aimed at and has effect in the forum state satisfies the purposeful availment prong of the specific jurisdiction analysis." 223 F.3d at 1087. Bankcroft,

"[T]he `effects' test requires that the

defendant allegedly have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002). Here, the second and third requirements have not been established. The express aiming "requirement is satisfied when the 9 Dole

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defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state." Brayton Purcell, 575 F.3d at 986 (quoting Bancroft, The decision to reject Plaintiff's petition for

223 F.3d at 1087).

reinstatement before the WDMO was not expressly aimed at California, nor was it foreseeable that such a decision would cause harm in California (particularly because, at the time, Plaintiff lived in Missouri). Furthermore, the courts have long held that

non-resident defendants may not be haled into court based on the plaintiff's unilateral activity. Hanson v. Denckla, 357 U.S. 235,

253 (1958) ("The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State."). Plaintiff's

unilateral decision to move to California after the WDMO denied his petitions for reinstatement cannot serve as a basis for personal jurisdiction over the nonresident federal judges. Therefore, Plaintiff's Bivens claims against the federal judges are dismissed for lack of personal jurisdiction. 3. Bivens Claims Against WDMO

The United States has not waived sovereign immunity with respect to Fletcher's Bivens claims against the WDMO. immunity is jurisdictional in nature." 471, 475 (1994). "Sovereign

F.D.I.C. v. Meyer, 510 U.S.

Accordingly, this Court lacks subject matter

jurisdiction over the Bivens claims against the WDMO and the United States. Generally, dismissal for lack of subject matter However, when lack of subject

jurisdiction is without prejudice.

matter jurisdiction is based on a defendant's sovereign immunity,

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dismissal with prejudice is proper. 201, 204 (9th Cir. 1988).

See Frigard v. U.S., 862 F.2d

Accordingly, Fletcher's Bivens claims against the WDMO and the United States are dismissed with prejudice. 4. Breach of Contract Claim

Plaintiff asserts a breach of contract claim in his eleventh cause of action. The United States Court of Federal Claims has

exclusive jurisdiction over breach of contract claims seeking more than $10,000 in damages. 28 U.S.C. § 1491(a)(1); Hewitt v.

Grabicki, 749 F.2d 1373, 1382 (9th Cir. 1986). While Plaintiff has not alleged a specific dollar amount under his breach of contract claim, he alleges he has lost past and future income as a result of his suspension from the practice of law for several years. The Court finds reasonable attorney annual

incomes over several years total more than $10,000. This Court lacks subject matter jurisdiction to adjudicate Fletcher's breach of contract claim, and the claim is therefore dismissed. 5. Administrative Procedure Act Claim

Plaintiff's remaining claim against the federal defendants is an Administrative Procedure Act (the "APA") claim. APA precludes claims against the judiciary. 701(b)(1)(B). prejudice. D. Missouri State Defendants Pursuant to the Rooker-Feldman doctrine, "[a] federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court." Noel v. Hall, 341 11 However, the

5 U.S.C. §

Therefore, Plaintiff's APA claim is dismissed with

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F.3d 1148, 1154 (9th Cir. 2003); see also id. (noting that "[t]he Rooker-Feldman doctrine takes its name from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)". Furthermore, "[o]rders

of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court, and not by means of an original action in a lower federal court." MacKay v. Nesbett, 412 F.2d 846, 846 (9th Cir. 1969),

cited with approval in Feldman, 460 U.S. at 486-87. The Court concludes that Plaintiff's entire action against the Missouri State defendants constitutes a collateral attack on its decisions regarding his suspension and denial of his reinstatement. The Court cannot grant Plaintiff any relief in this case without "effectively revers[ing] the state court decision or void[ing] its holding." Snider v. City of Excelsior Springs, 154 F.3d 809, 811

(8th Cir. 1998). Therefore, all of Plaintiff's claims against the Missouri State Defendants are dismissed for lack of subject matter jurisdiction. E. Miscellaneous Requests and Applications

Plaintiff has filed various other requests and applications, namely: (1) request for attorney fees and costs, (dkt. no. 8); (2) request for default judgment on equitable and injunctive claims, (dkt. no. 12); (3) ex parte application requesting a stay of this court's order setting a hearing date, (dkt. no. 42); and (4) ex parte application requesting that this court issue orders regarding

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plaintiff's previously filed motions, (dkt. no. 45). requests and applications are hereby DENIED. F. California State Defendants

These

Plaintiff also raises claims against Scott Carbaugh and the "Los Angeles Prosecutor's Office" relating to a secret file they allegedly maintained in July 2007. Plaintiff appears to raise

various state-law tort theories as well as Section 1983 claims against these defendants. (FAC ¶¶ 46-47.)

In his FAC, Plaintiff states that he "dismissed the nonfederal defendants on April 5, 2010, based solely on his concern that nepotism will be allowed to impede his fundamental right to access the courts." (FAC ¶ 4.) Plaintiff states that he

"continues to include them as defendants in name only" because the Court "has not yet issued an order dismissing these parties," and that he "has not served a copy of this Amended Complaint on the dismissed defendants . . . ." (Id.)

Because Defendant has opposed the motion to dismiss filed by the Missouri State Defendants but has filed no proof of service as to the California State Defendants, the Court construes Plaintiff's statement that he "dismissed" the non-federal defendants as a notice of voluntary dismissal as to the California State Defendants, namely Scott Carbaugh and the Los Angeles District Attorney's Office. Fed. R. Civ. P. 41(a)(1)(A)(i) (stating that

"the plaintiff may dismiss an action without a court order by filing" a "notice of dismissal before the opposing party serves either an answer or a motion for summary judgment" and that such dismissal is without prejudice).

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Therefore, the Court dismisses the claims against Scott Carbaugh and the Los Angeles District Attorney's Office without prejudice. III. CONCLUSION For the foregoing reasons, the Court: (1) DENIES Plaintiff's request to withdraw the FAC (2) DENIES Plaintiff's request for an evidentiary hearing (3) GRANTS the Federal Defendants' Motion to Dismiss (4) GRANTS the Missouri State Defendants' Motion to Dismiss (5) Dismisses Without Prejudice claims against the California State Defendants; and (6) DENIES Plaintiff's various requests and applications, docket nos. 8, 12, 42, and 45. IT IS SO ORDERED.

Dated: July 13, 2010

DEAN D. PREGERSON United States District Judge

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