Marowitz v. Williams et al

Filing 30

ORDER GRANTING 17 Defendants' Motion to Stay signed by District Judge Dale A. Drozd on 11/16/2018. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANDREW MAROWITZ,

12

No. 1:16-cv-01892-DAD-BAM

Plaintiff,

13

ORDER GRANTING DEFENDANTS’
MOTION TO STAY

v.

14

SARAH WILLIAMS, et al.,
(Doc. No. 17)

15

Defendants.

16
This matter is before the court on a motion to dismiss1 plaintiff’s second amended

17
18

complaint (“SAC”) filed on behalf of defendants Mariposa County Planning Department and

19

Sarah Williams (collectively, the “defendants”). (Doc. No. 17.) A hearing on the motion was

20

held on October 16, 2018. Plaintiff Andrew Marowitz appeared on his own behalf. Attorney

21

Nicolas R. Cardella appeared on behalf of defendants. The court has considered the parties’

22

briefs and oral arguments, and for the reasons set forth below, will grant defendants’ motion to

23

stay this action pending final resolution of plaintiff’s state court proceedings.

24

/////

25

1

26
27
28

Defendants’ motion is styled as a motion to dismiss. However, defendants’ principal argument
is that this case should be dismissed or stayed pursuant to Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976). (Doc. No. 17-1 at 16.) As discussed below, the
court agrees that it should surrender its jurisdiction to the state court under the circumstances of
this case. The court will therefore stay this action pending resolution of plaintiff’s state court
proceedings.
1

1

BACKGROUND

2

On September 1, 2016, plaintiff filed a pro se complaint in Mariposa County Superior

3

Court against the defendants asserting numerous causes of action, each of which stems from

4

searches that Mariposa County personnel executed on plaintiff’s property without plaintiff’s

5

consent or a warrant. (Doc. No. 17-3, Ex. A.) On December 20, 2016, plaintiff filed a pro se

6

complaint in this court against defendants alleging numerous claims based upon those same

7

searches. (Doc. No. 1.)

8
9

On February 5, 2018, defendants filed a demurrer to the operative complaint in the state
suit, arguing the complaint failed to allege facts sufficient to state a cause of action. (Doc. No.

10

17-3, Exs. E, F.) After hearing, the state trial court ruled that plaintiff “had no legitimate

11

expectation of privacy in the areas of his property that w[ere] searched by the County pursuant to

12

the open fields doctrine.” (Doc. No. 17-3 at 291.) Defendants’ demurrer was sustained without

13

leave to amend as to all causes of action except his challenge to the constitutionality of California

14

Government Code § 65105, as to which plaintiff was granted leave to amend for the sole purpose

15

of substituting the State of California as defendant. (Id. at 291–92.) On or about May 7, 2018,

16

plaintiff appealed the state trial court ruling to the California Court of Appeal for the Fifth

17

Appellate District. (Doc. No. 17-3, Ex. M.)
On August 21, 2018, defendants were served in this case.2 (Doc. Nos. 12, 13.) On

18
19

August 23, 2018, plaintiff filed his SAC, the operative complaint in this federal action.3 (Doc.

20

No. 15.) On August 31, 2018, plaintiff filed an application with the California Court of Appeal

21

requesting a sixty (60) day extension to file his opening brief on appeal from the Superior Court’s

22

2

23
24
25
26
27
28

Plaintiff’s original complaint filed in this federal action was initially set to be screened by the
assigned magistrate judge. (Doc. No. 4 at 2.) Prior to screening, the magistrate judge granted
plaintiff leave to file a first amended complaint (“FAC”). (Doc. Nos. 4, 5.) However, screening
of plaintiff’s FAC was never conducted, due to a change in the court’s screening practices in fee
paid cases filed by pro se litigants. Between plaintiff filing of his FAC on December 14, 2017
and the Clerk of the Court issuing a summons on May 9, 2018, plaintiff’s action in state court
continued to move forward.
3

It appears plaintiff served defendants with his FAC and not the SAC. (Doc. No. 17-1 at 12 n.
1.) However, defendants have waived objection to any defect in service, and their motion to
dismiss addresses the SAC. (Id.)
2

1

order of dismissal. (Doc. No. 17-3, Ex. N.) The state appellate court granted plaintiff’s request,

2

and plaintiff’s opening brief on appeal is now due on November 9, 2018. (Doc. No. 17-3, Ex. O.)

3

On September 11, 2018, defendants filed the motion to dismiss plaintiff’s SAC. (Doc.

4

No. 17.) On September 26, 2018, plaintiff filed his opposition. (Doc. No. 26.) On October 9,

5

2018, defendants filed their reply to plaintiff’s opposition. (Doc. No. 27.)

6

LEGAL STANDARD

7

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

8

sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

9

1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

10

sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

11

F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

12

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

13

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

14

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

15

Iqbal, 556 U.S. 662, 678 (2009).

16

In evaluating whether a complaint states a claim on which relief may be granted, the court

17

accepts as true the allegations in the complaint and construes the allegations in the light most

18

favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, the

19

court will not assume the truth of legal conclusions cast in the form of factual allegations. United

20

States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does

21

not require detailed factual allegations, “[t]hreadbare recitals of the elements of a cause of action,

22

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 676. A complaint

23

must do more than allege mere “labels and conclusions” or “a formulaic recitation of the elements

24

of a cause of action.” Twombly, 550 U.S. at 555.

25

ANALYSIS
Defendants’ Request for Judicial Notice

26

A.

27

Defendants request that the court take judicial notice of fifteen documents filed in

28

plaintiff’s state court action. (Doc. Nos. 17-2; 17-3, Exs. A–O.) Ordinarily, the court considers
3

1

only the complaint and attached documents in deciding a motion to dismiss; however, the court

2

may also take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d

3

668, 688–89 (9th Cir. 2001). Pursuant to the Federal Rule of Evidence 201(b), a court may

4

“judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally

5

known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily

6

determined from sources whose accuracy cannot reasonably be questioned.” A court may

7

therefore take judicial notice of documents filed in related state court actions. See Burbank-

8

Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (taking

9

judicial notice of court filings in a state court case where the same plaintiff asserted similar and

10

related claims).

11

The exhibits that are the subject of defendants’ request for judicial notice relate to

12

plaintiff’s state suit against the same defendants in which plaintiff alleged similar claims to those

13

raised in this action. Accordingly, the court grants defendants’ request for judicial notice, but

14

only for the purposes of noticing the existence of the state suit and the causes of action presented

15

there. See U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248

16

(9th Cir. 1992) (taking judicial notice of proceedings in other courts where those proceedings

17

have a “direct relation to matters at issue”) (internal quotation marks and citation omitted).

18

B.

Whether this Court Should Abstain under Colorado River

19

Defendants contend this action should be dismissed or stayed under the Supreme Court’s

20

holding in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).

21

While “[a]bstention from the exercise of federal jurisdiction is the exception, not the rule,” the

22

Supreme Court has recognized that federal courts may dismiss or stay a case “in situations

23

involving the contemporaneous exercise of concurrent jurisdictions . . . by state and federal

24

courts.” Id. at 813, 817. “[C]onsiderations of [w]ise judicial administration, giving regard to

25

conservation of judicial resources and comprehensive disposition of litigation,” underpin the

26

Colorado River abstention doctrine. Id. at 817 (internal quotation marks and citation omitted).

27
28

In the Ninth Circuit, eight factors are to be considered in determining the appropriateness
of a dismissal or stay under Colorado River:
4

1
2
3
4

(1) which court first assumed jurisdiction over any property at stake;
(2) the inconvenience of the federal forum; (3) the desire to avoid
piecemeal litigation; (4) the order in which the forums obtained
jurisdiction; (5) whether federal law or state law provides the rule of
decision on the merits; (6) whether the state court proceedings can
adequately protect the rights of the federal litigants; (7) the desire to
avoid forum shopping; and (8) whether the state court proceedings
will resolve all issues before the federal court.

5
6

R.R. Street & Co. Inc. v. Transport Ins. Co., 656 F.3d 966, 978–79 (9th Cir. 2011) (citing Holder

7

v. Holder, 305 F.3d 854, 870 (9th Cir. 2002)). “These factors are to be applied in a pragmatic and

8

flexible way, as part of a balancing process rather than as a ‘mechanical checklist.’” Am. Int’l

9

Underwriters (Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1257 (9th Cir. 1988).

10

“No one factor is necessarily determinative; a carefully considered judgment taking into account

11

both the obligation to exercise jurisdiction and the combination of factors counselling against that

12

exercise is required.” Colorado River, 424 U.S. at 818–19. The court’s task “is not to find some

13

substantial reason for the exercise of federal jurisdiction,” but instead “to ascertain whether there

14

exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado

15

River to justify the surrender of that jurisdiction.” Moses H. Cone Memorial Hosp. v. Mercury

16

Constr. Corp., 460 U.S. 1, 25–26 (1983). The court addresses each of these factors below as they

17

apply under the circumstances of this case.

18
19

1.

Which Court First Assumed Jurisdiction Over Any Property at Stake

Which court first assumed jurisdiction over any property at stake is not relevant here

20

because there is no property in dispute. Both plaintiff’s state and federal suits seek injunctive

21

relief, declaratory relief, and damages (Doc. No. 17-3 at 78–79; Doc. No. 15 at 30) and plaintiff

22

does not seek to recover possession of any property in either forum. Consequently, this factor is

23

neutral in the court’s abstention analysis.

24

2.

The Inconvenience of the Federal Forum

25

The second factor considers the inconvenience of the federal forum. Defendants contend

26

that Mariposa County Superior Court is a more convenient location in which to litigate plaintiff’s

27

claims than this federal court because “all of the individuals who have knowledge of the facts at

28

issue and who may be called as witnesses to testify[] reside in Mariposa.” (Doc. No. 17-1 at 18–
5

1

19). However, the distance between the Mariposa County courthouse and the federal courthouse

2

in Fresno is only approximately seventy-three (73) miles and such a distance is not great enough

3

to favor abstention. See, e.g., Travelers Indem. Co. v. Madonna, 914 F.2d 1364, 1368 (9th Cir.

4

1990) (“Although 200 miles is a fair distance, it is not sufficiently great that this factor points

5

toward abstention. The district court did not err in finding this factor ‘unhelpful.’”).

6

Accordingly, this factor too is neutral and does not weigh in favor or against abstention.

7

3.

8

The Desire to Avoid Piecemeal Litigation

The third factor the court considers is the desire to avoid piecemeal litigation, which

9

“occurs when different tribunals consider the same issue, thereby duplicating efforts and possibly

10

reaching different results.” Am. Int’l Underwriters, 843 F.2d at 1258. Importantly, “[a] general

11

preference for avoiding piecemeal litigation is insufficient to warrant abstention” because “[a]ny

12

case in which Colorado River is implicated will inevitably involve the possibility of conflicting

13

results, piecemeal litigation, and some duplication of judicial efforts, which are the unavoidable

14

price of preserving access to . . . federal relief.” Seneca Ins. Co., Inc. v. Strange Lan, Inc., 862

15

F.3d 835, 842 (9th Cir. 2017) (internal quotation marks and citation omitted). Thus, “Colorado

16

River does not say that every time it is possible for a state court to obviate the need for federal

17

review by deciding factual issues in a particular way, the federal court should abstain.” United

18

States v. Morros, 268 F.3d 695, 706 (9th Cir. 2001). Instead, a court must find exceptional

19

circumstances demonstrating that piecemeal litigation will be “particularly problematic” in the

20

case before it .4 Seneca Ins., 862 F.3d at 843.

21

4

22
23
24
25
26
27
28

In Morros, the court stated “‘it is evident that the avoidance of piecemeal litigation factor is
met, as it was in . . . Colorado River itself, only when there is evidence of a strong federal policy
that all claims should be tried in the state courts.’” 268 F.3d at 706–07 (quoting Ryan v.
Johnson, 115 F.3d 193, 197–98 (3d Cir. 1997)). More recently, in Seneca Insurance, the Ninth
Circuit suggested that evidence of a clear federal policy is but one example of a special concern
counseling in favor of abstention. See 862 F.3d at 843 (“The district court misconstrued the
piecemeal litigation factor because it failed to identify any special concern counseling in favor of
federal abstention, such as a ‘clear federal policy’. . .. Nothing about this dispute evinces a
special or important rationale or legislative preference for resolving these issues in a single
proceeding.”) (emphasis added). If this federal action proceeds it will require duplicative effort
and pose a substantial risk of inconsistent judgments. Even if this alone is insufficient to meet the
avoidance of piecemeal litigation factor, abstention under Colorado River here is appropriate
because, on balance, the remaining factors still weigh heavily in favor of such abstention.
6

1

Here, the state court has already decided substantive issues relating to this case. Namely,

2

the state trial court determined: pursuant to the “open fields” doctrine, plaintiff did not have a

3

reasonable expectation of privacy in the areas of his property that were inspected or subject to

4

search by the county; the case relied upon by plaintiff, Camara v. Municipal Court of City &

5

County of San Francisco, 387 U.S. 523 (1967), did not apply here; and the county’s employees

6

cannot be liable for punitive damages. (Doc. No. 17-3 at 290–91.) The state trial court also

7

entered an order sustaining the county defendants’ demurrer and granted the county defendants’

8

request for dismissal. (Doc. No. 17-3, Exs. K, L.)

9

If this federal court were to exercise its jurisdiction, it would necessarily have to reanalyze

10

these same issues, thereby requiring duplicative effort. Additionally, permitting the federal suit to

11

go forward poses a real threat of this court reaching a different result than that reached in the state

12

court, especially because it appears the amendments in plaintiff’s SAC filed in this court were

13

specifically crafted as plaintiff’s response to the state court’s adverse ruling. For example,

14

although plaintiff in his state suit amended his complaint twice, filed an opposition to the

15

defendants’ demurrer, and filed an unauthorized sur-reply, he never contended in the state court

16

proceedings that the area of his property that the county inspected was within the “curtilage” of

17

his home and, as such, was protected by the Fourth Amendment—a claim he asserts for the first

18

time in his SAC filed with this court. (Compare Doc. Nos. 1; 5; 17-3, Exs. A, B, C, G, I, with

19

Doc. No. 15.) In an apparent effort to bolster his arguments of a reasonable expectation of

20

privacy within the curtilage, plaintiff also for the first time refers to the structure on the property

21

as a “home” and describes various “activities . . . intimately associated with the ongoings of the

22

home” in his SAC. (Doc. No. 15 at 14, 22–24.) Therefore, allowing plaintiff to proceed with his

23

federal suit will “undeniably result in piecemeal litigation.” Nakash v. Marciano, 882 F.2d 1411,

24

1415 (9th Cir. 1989). Consideration of this factor thus weighs heavily in favor of abstention.

25

4.

The Order in Which the Forums Obtained Jurisdiction

26

The fourth Colorado River factor concerns the order in which the forums obtained

27

jurisdiction. Under this factor, “priority should not be measured exclusively by which complaint

28

was filed first, but rather in terms of how much progress has been made in the two actions.”
7

1
2

Moses H. Cone, 460 U.S. at 22.
Here, it is undisputed that plaintiff’s state suit was filed nearly four months before this

3

federal action was initiated. (Compare Doc. 17-3 at 2, with Doc. 1 at 1.) The federal action, as

4

discussed below, is a parallel action brought by the same plaintiff against the same defendants;

5

thus, the federal action is a “repetitive” lawsuit, and this fact, when coupled with “the fact that

6

state court jurisdiction was invoked first[,] weighs heavily towards justifying a stay or dismissal

7

of the parallel federal action.” Ryder Truck Rental, Inc. v. Acton Foodservices Corp., 554 F.

8

Supp. 277, 280–81 (C.D. Cal. 1983).

9

The state courts have also made significant progress in resolving plaintiff’s suit filed

10

there. The Mariposa County Superior Court considered plaintiff’s complaint in its entirety, as

11

well as defendants’ demurrer, plaintiff’s opposition to the demurrer, defendants’ reply to the

12

opposition, and plaintiff’s unauthorized sur-reply; it held a hearing on the demurrer; and it entered

13

judgment in favor of defendants and dismissed plaintiff’s state suit. (Doc. 17-3, Exs. C, E–L.)

14

As discussed above, the Mariposa County Superior Court has also ruled on substantive matters of

15

law relating to plaintiff’s causes of action. Finally, plaintiff has filed an appeal from the dismissal

16

of his state suit and that appeal is now pending before the California Court of Appeal. In contrast,

17

while this federal court has considered the parties’ briefs and held a hearing on the pending

18

motion to dismiss, it has not ruled on any substantive issue of law relating to plaintiff’s claims.

19

Thus, the state court’s “significant progress” in the state suit also weighs heavily against this

20

court asserting jurisdiction. R.R. Street., 656 F.3d at 980.

21

Plaintiff contends he “was prevented from pursuing the case in Federal Court” because

22

this court did not issue a summons until May 9, 2018, nearly seventeen (17) months after he first

23

filed his complaint with this court. (Doc. No. 15 at 2.) According to plaintiff, now that a

24

summons has issued, he is “choos[ing] to have the Federal Court assert jurisdiction” over his

25

case. (Id.) Essentially, plaintiff is arguing this court’s delay in issuing a summons forced him to

26

litigate his claims in state court. The dockets in the two actions refute this contention: even if

27

this court had promptly issued a summons in this case, plaintiff’s state suit would still have been

28

filed first—almost four months prior to this federal suit being initiated.
8

1

Had plaintiff desired to litigate his claims in federal court, he could have sought to stay his

2

state suit, or elected only to file his claims in federal court. Instead, plaintiff fully litigated his

3

causes of action against defendants in his state court action, received an adverse ruling from the

4

state trial court, amended his federal complaint to include causes of action and defendants that the

5

Mariposa County Superior Court had dismissed, and is now inviting this federal court to assert

6

jurisdiction over those repetitive claims and defendants. The court declines the invitation.

7

“Having elected state court, plaintiff should be bound by [his] choice absent compelling reasons

8

to seek relief in another forum.” American Intern. Underwriters (Philippines), Inc. v. Continental

9

Ins. Co., 843 F.2d 1253, 1259 (9th Cir. 1988) (quoting Ryder Truck Rental, Inc., 554 F. Supp. at

10

280); Montanore Minerals Corp. v. Blake, 867 F.3d 1160, 1168 (9th Cir. 2017). The court thus

11

finds that the order in which the forums obtained jurisdiction over plaintiff’s suits also weighs

12

heavily in favor of abstention in this case.

13

5.

Whether Federal or State Law Provides the Rule of Decision on the Merits

14

Fifth, the court examines whether federal law or state law provides the rule of decision on

15

the merits. “[T]he presence of federal-law issues must always be a major consideration weighing

16

against surrender [of jurisdiction].” Moses H. Cone, 460 U.S. at 26. “That state law provides

17

the rule of decision supports abstention only when the state law questions are themselves complex

18

and difficult issues better resolved by a state court.” Seneca Ins., 862 F.3d at 844. However, “[i]f

19

the state and federal court[] have concurrent jurisdiction over a claim, this factor becomes less

20

significant.” Nakash, 882 F.2d at 1416.

21

Plaintiff’s SAC asserts claims under federal law (violations of his Fourth Amendment

22

rights; municipal and supervisory liability under 42 U.S.C. § 1983; the unconstitutionality of

23

California Government Code § 65105) as well as state law claims (invasion of privacy; civil

24

conspiracy; “oppression”; “malice”; intentional infliction of emotional distress). Because

25

plaintiff’s state law claims do not present complex or difficult issues relating to state law, their

26

presence in this action does not support abstention. While the presence of plaintiff’s federal law

27

claims does weigh against abstention, this factor is mitigated here because the state court has

28

concurrent jurisdiction over the plaintiff’s federal law claims. The Supreme Court has
9

1

“consistently held that state courts have inherent authority, and are thus presumptively competent,

2

to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt, 493 U.S. 455,

3

458 (1990); Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962); see also

4

Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986) (“[S]tate courts are as

5

competent as federal courts to decide federal constitutional issues.”) (citing Allen v. McCurry,

6

449 U.S. 90, 105 (1980)). Consideration of this factor thus weighs only slightly against

7

abstention.

8
9
10

6.

Whether the State Court Proceedings Can Adequately Protect the Rights of
the Federal Litigants

Sixth, “[a] district court may not stay or dismiss the federal proceeding if the state

11

proceeding cannot adequately protect the rights of the federal litigants.” R.R. St. & Co. Inc., 656

12

F.3d at 981; see also Montanore Minerals Corp., 867 F.3d at 1169. Thus, “if there is a possibility

13

that the parties will not be able to raise their claims in the state proceeding, a stay or dismissal is

14

inappropriate.” R.R. St. & Co. Inc., 656 F.3d at 981. “[T]his factor is more important when it

15

weighs in favor of federal jurisdiction.” Id. (internal quotation marks and citation omitted); see

16

also Montanore Minerals Corp., 867 F.3d at 1169.

17

Here, consideration of this factor weighs in favor of abstention because the state court had

18

the authority to address the rights and claims at issue in both actions. First, as discussed below,

19

the causes of action in the state suit and the claims in the federal suit almost exactly mirror each

20

other, and the state court considered and addressed each of plaintiff’s causes of action (Doc. No.

21

17-3, Ex. J). Second, plaintiff does not contend that he was unable to allege any cause of action

22

in the state suit, that the state court lacked jurisdiction to hear his causes of action, or that the state

23

court lacked the authority to grant him the relief he sought. Consequently, it appears clear that

24

plaintiff can adequately enforce the federal rights he asserts in the state court proceedings.

25

In his opposition to the motion to dismiss, plaintiff states that he “has always been

26

concerned with the . . . objectivity of the . . . [state court]”; that he “does not believe that the

27

judges are biased against him, but [they] may possibly hold a small degree of bias for the

28

Cou[n]ty”; and that “[g]enerally . . . [he] believes there is no bias against him.” (Doc. No. 26 at
10

1

8–9.) In any event, plaintiff offers no evidence suggesting that the state court is biased against

2

him, nor does he argue that the state court prevented him from asserting causes of action. Even if

3

plaintiff had credibly alleged such bias, his issue would be with the adequacy of the state court

4

proceeding, not with whether the state court lacked the “authority to address the rights and

5

remedies at issue in this case.” R.R. St. & Co. Inc., 656 F.3d at 981.5 Consideration of the sixth

6

Colorado River factor therefore supports abstention here as well.

7

7.

The seventh Colorado River factor considers “whether either party improperly . . .

8
9
10

The Desire to Avoid Forum Shopping

pursued suit in a new forum after facing setbacks in the original proceeding.” Seneca Ins., 862
F.3d at 846.

11

The court recognizes that plaintiff filed this federal suit well before receiving an adverse

12

ruling in his state court action. Specifically, he filed this action on December 20, 2016 and the

13

state court dismissed his state suit on March 22, 2018. (Doc No. 1 at 1; Doc. No. 17-3 at 306.)

14

Nonetheless, the court finds that plaintiff’s SAC filed in this case is an attempt by him to forum

15

shop and avoid the state court’s adverse ruling. Prior to the state trial court dismissing the state

16

suit against the county defendants, plaintiff’s FAC named California Attorney General Xavier

17

Becerra as the sole defendant, alleged violations of his Fourth Amendment rights, and questioned

18

the constitutionality of California Government Code § 65105. (See Doc. No. 5.) After the

19

Mariposa County Superior Court granted defendants’ demurrer and dismissed plaintiff’s state suit

20

and after this court issued a summons in this federal action, plaintiff amended his federal

21

complaint to include defendants named and substantially all of the claims alleged in his recently

22

dismissed state suit—“[t]his epitomizes forum shopping.” Am. Int’l Underwriters, 843 F.2d at

23

1259. In short, after failing to prevail there, plaintiff “bec[ame] dissatisfied with the state court

24

and now seeks a new forum for [his] claims.” Nakash, 882 F.2d at 1417; see also Montanore

25

Minerals Corp., 867 F.3d at 1169; Seneca Ins. Co., 862 F.3d at 846. Therefore, the need to

26

discourage such forum shopping weighs heavily in favor of abstention here.

27
28

5

Of course, plaintiff is not precluded from raising such concerns in his appeal pending before the
state appellate court.
11

1
2

8.

Whether the State Court Action Will Resolve All Issues Before the Court

The eighth and final factor concerns whether the state court proceedings will resolve all

3

issues before the court. “When a district court decides to dismiss or stay under Colorado River, it

4

presumably concludes that the parallel state-court litigation will be an adequate vehicle for the

5

complete and prompt resolution of the issues between the parties.” Moses H. Cone, 460 U.S. at

6

28. “[T]he existence of a substantial doubt as to whether the state proceedings will resolve the

7

federal action precludes a Colorado River stay or dismissal.” R.R. St. & Co. Inc., 656 F.3d at 982

8

(internal quotation marks and citation omitted). Thus, “a district court may enter a Colorado

9

River stay [or dismissal] order only if it has ‘full confidence’ that the parallel state proceeding

10

will end the litigation.” Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir.

11

1993) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 277 (1988)).

12

Moreover, courts “should be particularly reluctant to find that actions are not parallel when the

13

federal action is but a ‘spin-off’ of more comprehensive state litigation.” Nakash, 882 F.2d at

14

1417. Exact parallelism between the state and federal suits is not required, but “substantial

15

similarity of claims is necessary before abstention is available.” Seneca Ins., 862 F.3d at 845

16

(citing Nakash, 882 F.2d at 1416); see also Montanore Minerals Corp., 867 F.3d at 1170.

17

Here, plaintiff’s federal suit is clearly a “spin-off” of his state suit for the reasons noted

18

above. Accordingly, this court therefore has full confidence that the state suit will completely and

19

promptly resolve the issues between the parties.

20

First, the gravamen of both suits is that the county performed searches on plaintiff’s

21

property without plaintiff’s consent. (Compare Doc. No. 17-3, Ex. C, with Doc. No. 15.) The

22

operative complaint in the state suit alleges the following causes of action: municipal liability

23

under 42 U.S.C. § 1983 (Doc. No. 17-3 at 49); supervisory liability under 42 U.S.C. § 1983 (id. at

24

42); violations of the California Tort Claims Act (id. at 53); violations of California Civil Code §

25

3480 (id. at 54); invasion of privacy (id. at 57); “official misconduct” (id. at 61); civil conspiracy

26

(id. at 62); “oppression” (id. at 65); “malice” (id. at 66); intentional infliction of emotional

27

distress (id. at 67); violations of plaintiff’s Fourth Amendment rights (id. at 68); and the

28

unconstitutionality of California Government Code § 65105 (id.). Similarly, the operative
12

1

complaint in this federal action explicitly alleges the following claims: municipal liability under

2

42 U.S.C. § 1983 (Doc. No. 15 at 14); supervisory liability under 42 U.S.C. § 1983 (id. at 17);

3

and the unconstitutionality of California Government Code § 65105 (id. at 20). Construing

4

plaintiff’s pro se pleading liberally, the court finds the SAC also implicitly alleges the following

5

claims: violations of plaintiff’s Fourth Amendment rights (Doc. No. 15 at 11, 12, 18); invasion of

6

privacy (id. at 12); civil conspiracy (id. at 11, 19, 21); “oppression” (id. at 20); “malice” (id.);

7

intentional infliction of emotional distress (id.). Plaintiff’s federal suit therefore alleges claims

8

that are clearly substantially similar to the causes of action presented in his state suit.

9

Second, the defendants in both suits are substantially similar. In his state suit, plaintiff

10

named the county, the county’s planning department, the county’s building department, Sarah

11

Williams, Michael Kinslow, Steven Dahlem, Debra Willis, Brian Hodge, Mac Myovich, Josh

12

Soares, Xavier Becerra, and Does 1–100 as defendants. (Doc. No. 17-3 at 33.) In his federal suit,

13

plaintiff named Sarah Williams, the county’s planning department, Xavier Becerra, the State of

14

California, and Does 1–100 as defendants.6 (Doc. No. 15 at 1.)

15

Finally, plaintiff himself has essentially conceded that the two actions are essentially

16

parallel. In his FAC, plaintiff references the state suit and notes “it can be argued that the

17

allegations and facts are related.” (Doc. No. 5 at 2.). In his SAC, plaintiff alleges that he had

18

previously filed “virtually the same case, applying the same facts and claims” in the state court

19

and that his state suit was dismissed with prejudice. (Doc. No. 15 at 2.)
Plaintiff has not distinguished the two actions in any meaningful way. All of plaintiff’s

20
21

allegations concern the county searching his property without his consent or a warrant. The court

22

therefore concludes that the two actions are almost exactly parallel—and the state proceedings

23
24
25
26
27
28

6

Plaintiff has not yet served the California Attorney General, who is named as a defendant in
both plaintiff’s state and federal actions, or the State of California in compliance with Federal
Rule of Civil Procedure 4(m). (See Doc. No. 16.) Nonetheless, sua sponte staying of the action
as to these defendants is appropriate. See Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery,
44 F.3d 800, 802 (9th Cir.1995) (“We have upheld dismissal with prejudice in favor of a party
which had not yet appeared, on the basis of facts presented by other defendants which had
appeared.”); see also Abagninin v. AMVAC Chemical Corp., 545 F.3d 733, 742–43 (9th Cir.
2008). In this case, with respect to the appropriateness of abstention under Colorado River all
the named defendants are in the same position.
13

1

will resolve all the issues pending before this court. Consideration of the eighth Colorado River

2

factor therefore weighs heavily in favor of abstention.

3

9.

Balancing the Colorado River Factors

4

To determine whether abstention is warranted, the court must balance the relevant factors,

5

“with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460

6

U.S. at 16; see also Colorado River, 424 U.S. at 817 (Federal district courts have a “virtually

7

unflagging obligation . . . to exercise the jurisdiction given to them.”). However, abstention is

8

appropriate under Colorado River where, like here, a pro se plaintiff attempts to relitigate claims

9

previously litigated in state court. See, e.g., Bolgiano v. Garber, No. CV 6:17-1163, 2018 WL

10

1433527, at *3–5 (W.D. La. Feb. 26, 2018), report and recommendation adopted, No. CV 6:17-

11

1163, 2018 WL 1415689 (W.D. La. Mar. 21, 2018); Server v. Nation Star Mortg., LLC, No. 3:16-

12

CV-1582 (VLB), 2017 WL 3097493, at *4–7 (D. Conn. July 20, 2017); Burgos v. Suntrust Bank

13

N.A., No. 13-21197-CIV, 2014 WL 11880360, at *2–4 (S.D. Fla. Nov. 17, 2014), report and

14

recommendation adopted, No. 13-21197-CIV, 2015 WL 11201189 (S.D. Fla. Jan. 26, 2015);

15

Harrison v. Capital Grp. Companies, Inc., No. SACV090935DOC(MLGX), 2009 WL 3272071,

16

at *6–7 (C.D. Cal. Oct. 9, 2009); Ingalls v. The AES Corp., No. 1:07CV0104-DFH-TAB, 2007

17

WL 2362967, at *4–8 (S.D. Ind. Aug. 16, 2007), aff’d sub nom. Ingalls v. AES Corp., 311 F.

18

App’x 911 (7th Cir. 2008).

19

In this case, five of the six relevant factors weigh in favor of abstention. The desire to

20

avoid piecemeal litigation, the order in which the forums obtained jurisdiction, the desire to avoid

21

forum shopping, and whether the state court proceedings will resolve all issues before the federal

22

court each weigh heavily in favor of abstention. Whether the state court proceedings can

23

adequately protect the rights of the federal litigants also weighs in favor of abstention to some

24

degree, albeit less than the other factors. Whether federal or state law provides the rule of

25

decision on the merits weighs slightly against abstention. Because almost every Colorado River

26

factor weighs in favor of abstention, the court finds that this case presents exceptional

27

circumstances making it appropriate to surrender its jurisdiction to the state court.

28

/////
14

1

10.

2

Determining Whether a Stay or Dismissal is Appropriate

Once a district court decides to abstain pursuant to Colorado River, it can either stay or

3

dismiss the federal action. See Moses H. Cone, 460 U.S. at 28. In the Ninth Circuit, district

4

courts “must stay, rather than dismiss, an action when they determine that they should defer to the

5

state court proceedings under Colorado River.” Coopers & Lybrand v. Sun-Diamond Growers of

6

CA, 912 F.2d 1135, 1138 (9th Cir. 1990); see also Montanore Minerals Corp., 867 F.3d at 1166

7

(“A stay ‘ensures that the federal forum will remain open if for some unexpected reason the state

8

forum.... turn[s] out to be inadequate.’”) (quoting Attwood v. Mendocino Cost Dist. Hosp., 886

9

F.2d 241, 243 (9th Cir. 1989)). The court will therefore stay this federal action pending

10

resolution of the state court proceedings.7

11

CONCLUSION

12

For the reasons stated above, defendants’ motion to stay (Doc. No. 17) is granted and the

13

parties are directed to inform the court when a final judgment is reached in plaintiff’s state court

14

proceedings.

15

IT IS SO ORDERED.

16

Dated:

November 16, 2018
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
7

25
26
27
28

Once a final judgment is entered in the state suit, this federal action will likely be ripe for
dismissal under principles of claim preclusion. See Eichman v. Fotomat Corp., 759 F.2d 1434,
1439 (9th Cir. 1985) (“Under California law, [] a judgment is not final for purposes of res judicata
[or claim preclusion] during the pendency of and until the resolution of an appeal.”). Here, given
the identity of the claims and the privity of the parties between this federal suit and plaintiff’s
state suit, a final judgment on the merits in the state suit will likely give rise to a preclusive effect.
Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005).
15