Kaighn et al v. United States of America

Filing 45

ORDER signed by District Judge Kimberly J. Mueller on 11/3/16: The court dismisses the complaint under Rules 12(b)(1) and 12(b)(6). Because amendment would be futile, dismissal is granted with prejudice. In addition, plaintiffs are hereby ordered to show cause on or before December 5, 2016, why the court should not declare them vexatious litigants and impose sanctions. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JANIS KAIGHN and GREGORY
KAIGHN,
Plaintiffs,

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No. 2:16-cv-02117-KJM-CKD

ORDER
v.
UNITED STATES OF AMERICA,
Defendant.

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Gregory Kaighn, an attorney, brings this case against the United States on behalf
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of himself and Janis Kaighn to “end the insidious Dictatorship imposed on the United States of
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America and the American people.” Compl. ¶ 1, ECF No. 1. Similar to at least four other cases
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recently brought by the Kaighns in various federal courts, this case is meritless. See, e.g., Kaighn
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et al v. United States of America et al, 3:16-cv-08079-SPL (D. Ariz. 2016) (finding all claims
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“wholly frivolous”); Kaighn et al v. United States of America et al., 3:16-cv-08083-NVW (D.
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Ariz. 2016) (dismissing case and revoking Mr. Kaighn’s electronic filing privilege with the
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court); Greg Kaighn et al v. Volkswagen AG et al., 2:15-cv-08905-DSF-JEM (C.D. Cal. 2016)
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(dismissing case and imposing sanctions); Janis Kaighn et al v. Richard Cheney et al., 2:15-cv26

08339-DSF-JEM (C.D. Cal. 2016) (dismissing for failure to comply with court’s orders).1

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It is the court’s understanding that, as is the case here, Mr. Kaighn represented both
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Because the complaint is frivolous, fails to establish the court’s jurisdiction, and fails to state a

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claim upon which relief can be granted, the court DISMISSES the complaint sua sponte with

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prejudice. In addition, plaintiffs are ordered to SHOW CAUSE in writing by December 5, 2016,

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why they should not be declared “vexatious litigants” and additional sanctions be issued against

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them and why Mr. Kaighn should not be subject to sanctions under Rule 11

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I.

BACKGROUND
Plaintiffs filed the complaint on September 6, 2016, alleging that the duly-elected

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government of the United States has been overthrown by the “Roosevelt Dictatorship” with the

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assistance of the British Monarchy, the Rothschild Central Bankers, and the Illuminati. See

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generally ECF No. 1. Plaintiffs assert “[t]he entire United States government has gone

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completely dark” and, accordingly, seek rescission of the United States Constitution, a

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Constitutional Convention, a declaration that a laundry list of federal statutes are unconstitutional,

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the imposition of a constructive trust over the United States, and the appointment of a receiver “to

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take custody, manage, and protect the assets of the United States, the federal government and the

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Federal Reserve for the benefit of the American people.” Id. ¶¶ 83, 105-108.

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The complaint largely consists of conspiracy-laden political pronouncements. See,

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e.g., id. ¶ 1 (“This case will end the insidious Dictatorship imposed on the United States and the

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American people”); id. ¶ 2 (“Opposing the Rothschild Bankers, the British Monarchy, and the

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Illuminati has been very deadly for American Presidents”); id. ¶ 3 (“[T]he September 11, 2001

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terrorist attacks on the United States were an ‘inside job’”); id. ¶ 14 (Theodore Roosevelt

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“fundamentally believed in rule by one person dictatorship”); id. ¶ 15 (“General Albert Pike was

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the ‘puppet master’ for the Illuminati in America”); id. ¶ 19 (“Franklin D. Roosevelt’s rule over

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the American people officially began on March 9, 1933 and his dictatorship is still in place

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today”); id. ¶ 23 (“Eleanor Roosevelt is the most corrupt politician in history and the worst of the

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Roosevelt family ‘axis of evil’”); id. ¶ 25 (“The Social Security Act is part of the terrorist plan

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himself and Janis Kaighn in each of the cases dismissed by the Central District of California. It is
also the court’s understanding that Mr. Kaighn did not represent Mrs. Kaighn in the cases
dismissed by the District of Arizona and that each of the plaintiffs proceeded in pro per.
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and part of the New World Order”); id. ¶ 38 (“The Democratic National Committee and the

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Democratic Party both meet the organizational tests of a ‘communist party’ and must forfeit all

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right to exist as a matter of law”); id. ¶ 47 (“The duly elected government of the United States has

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been overthrown by the Roosevelt Dictatorship”); id. ¶ 63 (“NASA has been ‘experimenting’

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with creating or enhancing ‘natural disasters’ for decades”); id. ¶ 80 (“We attempted to contact

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the Obama Administration many times regarding the theft of our personal identification materials

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and the many acts of violence that the terrorists had perpetrated against us personally”); id. ¶ 82

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(“Court clerks cancel court hearings and decide the cases themselves”); id. ¶ 95 (“The rapture of

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the Roman Catholic Church occurred in 2005”).

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The court considers sua sponte whether the complaint should be dismissed for

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want of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or failure to state a claim

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under Federal Rule of Civil Procedure 12(b)(6).

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II.

STANDARD
As discussed below, the court may dismiss a complaint sua sponte under Federal

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Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6). The court

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addresses each in turn.

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A. 12(b)(1)

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Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the

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jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377–78

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(1994). Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte

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by the court. Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(h)(3); see also Ruhrgas AG v. Marathon

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Oil Co., 526 U.S. 574, 583–84 (1999); Hagans v. Lavine, 415 U.S. 528, 537 (1974) (“[F]ederal

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courts are without power to entertain claims otherwise within their jurisdiction if they are so

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attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously

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frivolous, plainly insubstantial or no longer open to discussion”) quoting Newburyport Water Co.

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v. Newburyport, 193 U.S. 561, 579 (1904), Bailey v. Patterson, 369 U.S. 31, 33 (1962), Hannis

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Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910), Levering & Garrigues Co. v. Morrin, 289

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U.S. 103, 105 (1933), and McGilvra v. Ross, 215 U.S. 70, 80 (1909)). A Rule 12(b)(1)
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jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

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2000). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction,

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even assuming all the allegations are true and construing the complaint in the light most favorable

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to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

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To bring a viable claim against the United States, the onus is on the plaintiff to

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first show sovereign immunity does not bar the court from hearing the claim. See Kingman Reef

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Atoll Investments, LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008) (plaintiff bears the

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burden of establishing jurisdiction). Under the doctrine of sovereign immunity, the United States

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may not be sued unless it expressly consents to suit, see United States v. Mitchell, 463 U.S. 206,

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212 (1983); Balser v. Dep’t of Justice, 327 F.3d 903, 907 (9th Cir. 2003), or unequivocally

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waives sovereign immunity, Gilbert v. DaGrossa, 756 F.2d 1455, 1458-59 (9th Cir. 1985) (citing

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United States v. King, 395 U.S. 1, 4 (1969)). A waiver of sovereign immunity “is a prerequisite

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for jurisdiction.” Gilbert, 756 F.2d at 1458-59. Thus, unless a plaintiff pleads facts sufficient to

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reveal such a waiver, the federal court has no jurisdiction to hear the claim.

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B. 12(b)(6)

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The court may dismiss a claim for “failure to state a claim upon which relief can

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be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal is appropriate only if the complaint lacks a

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“cognizable legal theory” or if its factual allegations do not support a cognizable legal theory.

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Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court

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assumes factual allegations are true and draws reasonable inferences from them. Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). The court may dismiss a claim sua sponte under Federal Rule of

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Civil Procedure 12(b)(6). Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (citing

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Wong v. Bell, 642 F.2d 359, 361–62 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal

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Practice and Procedure § 1357 at 593 (1969))); see also Dydzak v. Alexander, 2:16-CV-02915-

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ODW, 2016 WL 3094753, at *5 (C.D. Cal. June 1, 2016) (dismissing case sua sponte under

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12(b)(6)). “Such a dismissal may be made without notice where the claimant cannot possibly win

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relief.” Omar, 813 F.2d at 991.

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A complaint need contain only a “short and plain statement of the claim showing

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that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than

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unadorned accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal,

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556 U.S. at 678. In the same vein, conclusory or formulaic recitations of a cause’s elements do

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not alone suffice. Id. (quoting Twombly, 550 U.S. at 555). Evaluation under Rule 12(b)(6) is a

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context-specific task drawing on “judicial experience and common sense.” Iqbal at 679.

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III.

DISCUSSION

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As explained below, the court finds grounds for dismissal under Rules 12(b)(1)
and 12(b)(6).
A. 12(b)(1)
The complaint does not address the issue of waiver of the United States’ sovereign

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immunity, and each of the statutes upon which the plaintiffs rely in the complaint clearly fails to

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waive sovereign immunity. See ECF No. 1 ¶¶ 4-8 (citing 28 U.S.C. §§ 2201-2202; 28 U.S.C.

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§ 1331; 28 U.S.C. § 1346; 28 U.S.C. § 1367). Neither the Declaratory Judgment Act, 28 U.S.C.

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§§ 2201-2202, nor the general federal question statute, 28 U.S.C. § 1331, provides a waiver of the

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United States’ sovereign immunity. See Morongo Band of Mission Indians v. California State

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Bd. of Equalization, 858 F.2d 1376, 1382-83 (9th Cir. 1988) (Declaratory Judgment Act); Dunn

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& Black, P.S. v. United States, 492 F.3d 1084, 1088 n.3 (9th Cir. 2007) (federal question statute).

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Similarly, 28 U.S.C. § 1367(a), which grants supplemental jurisdiction over state claims related to

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certain federal claims in any civil action of which the district court has original jurisdiction,

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cannot “operate as a waiver of the United States’ sovereign immunity.’” Dunn & Black, 492 F.3d

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at 1088 n.3 (quoting Wilkerson v. United States, 67 F.3d 112, 119 n.13 (5th Cir. 1995)).

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Finally, the sovereign immunity waiver embedded in the Tort Claims Act also

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does not apply here. Although 28 U.S.C. § 1346(b)(1) provides a limited waiver of the United

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States’ sovereign immunity for tort claims “under circumstances where the United States, if a

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private person, would be liable to the claimant in accordance with the law of the place where the

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act or omission occurred,” 28 U.S.C. § 1346(b)(1), plaintiffs in this case are not seeking damages
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“for injury or loss of property . . . caused by the negligent or wrongful act or omission of any

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employee of the Government while acting within the scope of his office or employment . . . ,” 28

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U.S.C. § 1346(b)(1). Even if they were, plaintiffs have not alleged that they complied with the

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administrative tort claim exhaustion requirement under the Federal Tort Claims Act prior to filing

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this lawsuit. See 28 U.S.C. § 2675(a); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980)

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(“The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing of a

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suit under the FTCA, and, as such, should be affirmatively alleged in the complaint.”) (internal

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citation omitted).

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Because the complaint fails to address sovereign immunity and asserts

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jurisdictional bases for which there has been no waiver of sovereign immunity, the complaint fails

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to establish the court’s jurisdiction. Accordingly, the court dismisses the complaint under

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12(b)(1).

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B. 12(b)(6)

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The complaint also fails to allege any legal claims supported by factual allegations,

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or any relief this court has authority to grant. See Iqbal, 556 U.S. at 677-78. The complaint

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provides an incoherent political manifesto and completely fails to provide “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” The relief sought is beyond

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this court’s authority to grant. See ECF No. 1 ¶ 104 (seeking rescission of the Constitution); id.

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¶ 106 (“Plaintiffs seek the imposition of a Constructive Trust over the United States of America,

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the Federal Government, the Federal Reserve, and all the assets of each”); id. ¶ 107 (“Plaintiffs

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seek the appointment of a Receiver to take custody, manage, and protect the assets of the United

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States of America, the federal government, and the Federal Reserve for the benefit of the

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American people”); id. ¶ 108 (“On behalf of the American people, plaintiffs seek civil forfeiture

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of all assets of the Federal Reserve”). As a result, the complaint fails to state a claim upon which

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relief can be granted. The court dismisses the complaint under 12(b)(6).

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IV.

CONCLUSION
For the reasons explained above, the court dismisses the complaint under Rules

12(b)(1) and 12(b)(6). Because amendment would be futile, dismissal is granted with prejudice.
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In addition, plaintiffs are hereby ordered to show cause on or before December 5, 2016, why the

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court should not declare them vexatious litigants and impose sanctions. See De Long v.

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Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990) (discussing requirements, pursuant to the All

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Writs Act, 28 U.S.C. § 1651(a), for issuing an order requiring a litigant to seek permission from

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the court prior to filing any future suits); Local Rule 151(b) (adopting California Code of Civil

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Procedure relating to vexatious litigants); Cal. Civ. Proc. Code § 391(b) (enumerating bases for

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declaring a litigant “vexatious”). Plaintiffs are notified that possible additional sanctions include

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(1) entering a prefiling order that limits the filing of new cases, see Cal. Civ. Proc. Code § 391.7;

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(2) requiring security be posted to maintain cases, see Cal. Civ. Proc. Code § 391.1; (3) limiting

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the number of pending motions plaintiffs may maintain in a single case; (4) imposing monetary

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sanctions, see, e.g., Greg Kaighn et al v. Volkswagen AG et al., 2:15-cv-08905-DSF-JEM (C.D.

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Cal. 2016); and (5) revoking plaintiffs’ online filing privileges, see, e.g. Kaighn et al v. United

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States of America et al., 3:16-cv-08083-NVW (D. Ariz. 2016)). Mr. Kaighn is further notified

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that, as the counsel of record for Janis Kaighn in this case, he may be subject to sanctions under

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Federal Rule of Civil Procedure 11. See Fed. R. Civ. P. 11(c)(3).

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DATED: November 3, 2016.

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UNITED STATES DISTRICT JUDGE

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