Robin Duboc Kimbell v. Republic of Austria et al

Filing 10

MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. If Plaintiff still wishes to pursue this action, she is granted thirty (30) days from the date of this Memorandum and Order within which to file a First Amended Complaint. In any amended complaint, the Plaintiff shall cure the defects described above. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which i s attached. Plaintiff is further advised that is she no longer wishes to pursue this action, she may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiffs convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. CV 17-4767 FMO (SS)

ROBIN DUBOC KIMBELL,

MEMORANDUM DECISION AND ORDER

v.

DISMISSING COMPLAINT WITH

REPUBLIC OF AUSTRIA, et al.,

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LEAVE TO AMEND

Defendants.

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I.

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INTRODUCTION

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On June 28, 2017, plaintiff Robin Duboc Kimbell (“Plaintiff”),

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a California resident proceeding pro se, filed a Complaint for

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Money Damages (“Complaint” or “Compl.”).

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rights claims

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the Foreign Sovereign Immunities Act, 28 U.S.C. § 1606; and the

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Sarbanes–Oxley Act, 18 U.S.C. § 1519, among other state and federal

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laws.

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Plaintiff alleges civil

and asserts that they arise under 42 U.S.C. § 1985;

(Dkt. No. 1).

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Congress mandates that district courts perform an initial

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screening of complaints in civil actions where a prisoner seeks

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redress

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§ 1915A(a). This Court may dismiss such a complaint, or any portion

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thereof,

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frivolous or malicious, (2) fails to state a claim upon which

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relief can be granted, or (3) seeks monetary relief from a defendant

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who is immune from such relief.

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also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000)

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(en banc). For the reasons stated below, the Complaint is DISMISSED

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with leave to amend.1

from

a

before

governmental

service

of

entity

process

or

if

employee.

the

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complaint

U.S.C.

(1)

is

28 U.S.C. § 1915A(b)(1-2); see

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II.

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ALLEGATIONS OF THE COMPLAINT

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Plaintiff’s

fifty-four

page

Complaint

asserts

fourteen

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different claims against more than twenty Defendants.

Many of the

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Defendants are government officials of the United States and the

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Republic of Austria, including the Austrian minister of justice,

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various Assistant United States Attorneys, and the director of the

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Office of International Affairs in the United States Department of

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Justice.

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States District Judge.

Plaintiff also sues her former husband and a United

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A magistrate judge may dismiss a complaint with leave to amend
without the approval of a district judge. See McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
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The Complaint’s allegations concern the forfeiture of an

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Austrian bank account that was seized in connection with the

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criminal conviction of Plaintiff’s former husband.

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asserts she was an innocent spouse and was entitled to the funds

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based on certain agreements with her former husband.

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that by executing the forfeiture, Defendants should be held liable

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for conspiracy to violate her civil rights, as well as the wrongful

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taking

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intentional infliction of emotional distress, and other claims.

and

retention

of

property,

fraud,

breach

Plaintiff

She claims

of

contract,

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III.

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DISCUSSION

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The Complaint Fails To Satisfy Federal Rule of Civil Procedure 8

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Under

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U.S.C.

§

1915A(b),

the

Court

must

dismiss

the

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Complaint due to pleading defects.

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a pro se litigant leave to amend her defective complaint unless

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“it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.”

Akhtar v. Mesa, 698 F.3d 1202,

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1212

and

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omitted).

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least some of the defects of Plaintiff’s Complaint could not be

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cured by amendment.

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leave to amend.

(9th

Cir.

2012)

(citation

However, the Court must grant

internal

quotation

marks

Although unlikely, it is not “absolutely clear” that at

The Complaint is therefore DISMISSED with

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Federal

Rule

of

Civil

Procedure

8(a)(2)

requires

that

a

complaint contain “‘a short and plain statement of the claim
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showing that the pleader is entitled to relief,’ in order to ‘give

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the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.’”

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544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)).

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instructs that “[e]ach averment of a pleading shall be simple,

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concise, and direct.”

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too little,” and “when a pleading says too much.”

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738 F.3d 1106, 1108 (9th Cir. 2013) (emphasis in original). Lengthy

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complaints violate Rule 8 if a defendant would have difficulty

Bell Atlantic Corp. v. Twombly, 550 U.S.
Rule 8(e)(1)

Rule 8 may be violated when a pleading “says
Knapp v. Hogan,

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responding to the complaint.

Cafasso, U.S. ex rel. v. General

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Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011).

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Here, among other pleading deficiencies, the Complaint fails

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to set out Plaintiff’s claims and allegations in a clear and concise

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manner.

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averments, often in lengthy paragraphs.

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together all U.S. and Austrian Defendants, mostly neglecting to

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tie claims and allegations to any particular Defendant.

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the Complaint prevents Defendants from being able to effectively

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understand the claims at issue and form an appropriate response.

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As such, the Complaint violates Rule 8 and must be dismissed.

Plaintiff

instead

includes

a

morass

of

details

and

The claims, moreover, lump

In sum,

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IV.

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CONCLUSION

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For the reasons stated above, the Complaint is dismissed with

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leave to amend.

If Plaintiff still wishes to pursue this action,

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she is granted thirty (30) days from the date of this Memorandum
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and Order within which to file a First Amended Complaint.

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amended complaint, the Plaintiff shall cure the defects described

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above.

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allegations that are not reasonably related to the claims asserted

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in the original complaint.

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shall be complete in itself and shall bear both the designation

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“First Amended Complaint” and the case number assigned to this

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action.

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complaint in this matter.

Plaintiff

shall

not

include

new

defendants

In any

or

new

The First Amended Complaint, if any,

It shall not refer in any manner to any previously filed

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In

any

amended

complaint,

Plaintiff

should

confine

her

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allegations to those operative facts supporting each of her claims.

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Plaintiff

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Procedure 8(a), all that is required is a “short and plain statement

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of the claim showing that the pleader is entitled to relief.”

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Plaintiff is strongly encouraged to utilize the standard civil

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rights complaint form when filing any amended complaint, a copy of

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which is attached.

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identify the nature of each separate legal claim and make clear

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what specific factual allegations support each of her separate

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claims.

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concise and to omit irrelevant details.

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Plaintiff to cite case law, include legal argument, or attach

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exhibits at this stage of the litigation. Plaintiff is also advised

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to omit any claims for which she lacks a sufficient factual basis.

is

advised

that

pursuant

to

Federal

Rule

of

Civil

In any amended complaint, Plaintiff should

Plaintiff is strongly encouraged to keep her statements
It is not necessary for

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Plaintiff is explicitly cautioned that failure to timely file

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a First Amended Complaint or failure to correct the deficiencies
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described above, will result in a recommendation that this action

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be dismissed with prejudices for failure to prosecute and obey

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court orders pursuant to Federal Rule of Civil Procedure 41(b).

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Plaintiff is further advised that is she no longer wishes to pursue

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this action,

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of Dismissal in accordance with Federal Rule of Civil Procedure

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41(a)(1).

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convenience.

she may

voluntarily dismiss it by filing a Notice

A form Notice of Dismissal is attached for Plaintiff’s

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DATED:

August 24, 2017
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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