Link v. Hansen et al

Filing 4

ORDER DISMISSING COMPLAINT - Action dismissed with prejudice. Clerk to close file. Signed by Judge Marilyn Hall Patel on 1/11/07. (Attachments: # 1 Certificate of Service)(epb, COURT STAFF) (Filed on 1/11/2007)

Link v. Hansen et al

Doc. 4

Case 3:06-cv-07962-MHP

Document 4

Filed 01/11/2007

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For the Northern District of California

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
GUSTAVE WILLIAM LINK, Plaintiff, v. RUPERT P. HANSEN, ATTY, Officer of Court; COX, WOOTION, GRIFFIN, HANSEN & POULOS, LLP; FRANK ROESCH, Judge of Superior Court, of State of California, and John Does, Defendants. / No. C 06-7962 MHP ORDER DISMISSING COMPLAINT

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Plaintiff Gustave William Link filed this action against attorney Rupert Hansen, Hansen's law firm, and Judge Frank Roesch on December 29, 2006. Hansen represented Link's former employer in a wrongful termination suit brought before Judge Roesch in Alameda County Superior Court. Judge Roesch granted summary judgment in favor of the defendant in that action. Link appealed the summary judgment order to the California Court of Appeal in June 2006. Complt., Exh. A. On July 18, 2006, the Court of Appeal dismissed Link's appeal as premature because no judgment had been entered in the trial court. Id. Link petitioned for reconsideration at the appellate court the following month. Id. The following day, the Court of Appeal denied Link's motion to reinstate, stating that "Once a final judgment has been entered by the trial court, appellant remains free to file a new, timely notice of appeal from the judgment with the Clerk of the Alameda County Superior Court." Id. (emphasis added). Judge Roesch signed the judgment on November 21, 2006. Complt. ¶ 15. Link received the judgment from Hansen on December 8, 2006. Id. ¶ 17. Link apparently misunderstood the proceedings before the Court of Appeal, and believes that his appeal

Dockets.Justia.com

Case 3:06-cv-07962-MHP

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was "thrown out" as a result of the trial court's delay in entering a signed judgment. Link asserts that Hansen and Judge Roesch conspired to delay the entry of judgment "to force Link to abandon his appeal." Id. ¶ 18. "A trial court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim, but the court must give notice of its sua sponte intention to invoke Rule 12(b)(6) and afford plaintiffs an opportunity to at least submit a written memorandum in opposition to such motion." Wong v. Bell, 642 F.2d 359, 361­362 (9th Cir. 1981). However, such notice need not be given where a plaintiff "cannot possibly win relief" on the bases he has urged. Id. at 362. Here, Link's complaint is patently frivolous. In an apparent attempt to circumvent Judge Roesch's judicial immunity, Link has made an allegation of "conspiracy" that is questionable at best. More importantly, however, Link has not even suffered the harm he claims to have suffered. According to Link's own evidence, he remains free to pursue his appeal in the California Courts. Link is advised to do so immediately before the time for appeal actually expires. Furthermore, even if Link fails to make a timely appeal, he may seek leave in the California Courts to pursue his appeal based on the surrounding circumstances. Link therefore has substantial recourse in the state system without going down the tortuous route of federal litigation. This action is therefore DISMISSED WITH PREJUDICE. The clerk will close the file. IT IS SO ORDERED.

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Dated:

Jan. 11, 2007 MARILYN HALL PATEL District Judge United States District Court Northern District of California

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ENDNOTES

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