Chabrowski v. Lawson et al

Filing 57

ORDER GRANTING MOTION TO DISMISS COMPLAINT. Signed by Judge Richard Seeborg on 8/28/13. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 8/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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Plaintiff,

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No. 12-06339 RS

DEREK CHABROWSKI

ORDER GRANTING MOTION TO
DISMISS COMPLAINT

v.
COURTNEY LAWSON, et al.,

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Defendants.
____________________________________/

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I.

INTRODUCTION

Plaintiff Derek Chabrowski and defendant Courtney Lawson are former business partners

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whose relationship has deteriorated. Defendants’ previous motion to dismiss was granted with

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leave to amend, and plaintiff filed a First Amended Complaint (“FAC”). Plaintiff alleges

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violations of his constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments,

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as well as of his civil rights under 42 U.S.C. § 1983, common law malicious prosecution, and a

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claim against the State of California under the theory of respondeat superior. Defendants move

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to dismiss the FAC. Plaintiff untimely filed an opposition to the motion after the date for which

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NO. CV 12-06339 RS
ORDER GRANTING MOTION TO DISMISS

it was scheduled to be heard.1 For the following reasons, defendants’ motion to dismiss is

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granted, without leave to amend.2
II.

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BACKGROUND

The initial complaint in this case, although not a paragon of clarity, appeared to advance

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claims for violations of due process and First Amendment rights, as well as defamation,

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intentional infliction of emotional distress, civil conspiracy, California’s Anti-SLAPP statute

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(California Civil Code Section 425.16). Defendants moved to dismiss it on a variety of grounds,

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including for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1),

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arguing that diversity jurisdiction could not exist because Chabrowski had not alleged that the

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amount in controversy exceeded $75,000. See 28 U.S.C. § 1332. As Chawbrowski failed to

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For the Northern District of California

United States District Court

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carry his burden of pleading that the amount in controversy was sufficient to support diversity

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jurisdiction, the case was dismissed for lack of subject matter jurisdiction. He was given leave to

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file an amended complaint to, if he could do so in good faith, include averments that would

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support the existence of diversity jurisdiction. The order dismissing the complaint also noted, as

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Chabrowski has potentially identified claims for constitutional violations, an amended complaint

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may potentially trigger federal question jurisdiction.
Chabrowski’s FAC attempts to correct jurisdictional defects in the original complaint by

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averring that he seeks over two million dollars in damages and by clarifying his state of

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residency. It also clarifies that he is bringing claims for relief for constitutional violations

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pursuant to 42 U.S.C. § 1983, thereby triggering federal question jurisdiction under 28 U.S.C. §

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1331.
III.

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LEGAL STANDARD

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In conjunction with his opposition, plaintiff filed a motion for judicial notice, stating that his
opposition had been filed timely on June 21, 2013, but the Clerk’s Office failed to file them in
the docket. As the opposition is now within the Court’s possession, it has been considered in
conjunction with this motion to dismiss.
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Plaintiff also moves to disqualify defense counsel for conflict of interest. In support of this
motion, plaintiff points to various allegations he has made against counsel in prior proceedings.
There is no evidence, however, that any of these complaints have been resolved in plaintiff’s
favor. Rather, he appears to be manufacturing conflicts without cause or foundation. Thus no
inappropriate conflict of interest is apparent, and plaintiff’s motion must be denied.
NO. CV 12-06339 RS
ORDER GRANTING MOTION TO DISMISS

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I.

Dismissal Under Federal Rule of Civil Procedure 12(b)(1)

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Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) when the district

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court lacks subject matter jurisdiction over the claim. A federal court is presumed to lack subject

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matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated

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Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Federal question jurisdiction exists when a civil

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claim for relief “arising under the Constitution, laws, or treaties of the United States” appears on

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the face of the well-pleaded complaint. 28 U.S.C. § 1331.

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

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A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of

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For the Northern District of California

United States District Court

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Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may

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be based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts

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alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990). When evaluating such a motion, all material allegations in the complaint must

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be accepted as true, even if doubtful, and construed in the light most favorable to the non-moving

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party. Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). In dismissing a complaint, leave to

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amend must be granted unless it is clear that the complaint’s deficiencies cannot be cured by

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amendment. Lucas v. Dep’t of Corporations, 66 F.3d 245, 248 (9th Cir. 1995).

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IV.

DISCUSSION

Defendants move to dismiss the complaint on a variety of grounds, including that subject

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matter jurisdiction over this case is absent because Chabrowski has not properly plead the

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requisites for finding diversity jurisdiction. Defendants’ argument that the FAC should be

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dismissed for lack of diversity jurisdiction is a non sequiter. Plaintiff attempts to advance claims

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for violation of his civil rights under 42 U.S.C. § 1983. It is therefore irrelevant whether

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diversity jurisdiction exists pursuant to 28 U.S.C. § 1332 because subject matter jurisdiction

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instead lies under 28 U.S.C. § 1331 due to the fact that Chawbowski’s FAC presents a civil claim

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for relief arising under the Constitution of the United States.

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NO. CV 12-06339 RS
ORDER GRANTING MOTION TO DISMISS

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Defendants also move to dismiss on the basis that the complaint fails to state a claim

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upon which relief may be granted under 42 U.S.C. § 1983. That statute pertains to “[e]very

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person who under color of any statute, ordinance, regulation, custom, or usage, or any State or

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Territory or the District of Columbia” who deprives “any rights, privileges, or immunities

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secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C § 1983. The

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statute “was intended to ‘[create] a species of tort liability’ in favor of persons who are deprived

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of ‘rights, privileges, or immunities secured’ to them by the Constitution” by state actors. Carey

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v. Piphus, 435 U.S. 247, 253 (1978). While brought as two separate claims, plaintiff’s alleged

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violations of the Constitution are subsumed by his claim under 42 U.S.C. § 1983, as that statute

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provides the only private remedy for any such constitutional violations. See Monroe v. Pape,

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United States District Court

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365 U.S. 167, 171 (1961). Accordingly, for either claim to survive, plaintiff must show the

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defendants were acting “under color of” law.

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Plaintiff has alleged no facts suggesting the Lawsons acted under any State authority.

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Rather, it appears the Lawsons are private citizens who have made allegedly false statements in

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court or filed allegedly false reports with law enforcement. As a result, no § 1983 claim can be

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sustained against them. Similarly, defendant Timothy James Walton is a private citizen, acting

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as legal counsel for the Lawson family, and no § 1983 can be sustained against him. Finally,

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plaintiff brings this claim against defendant Clifford V. Cretan, a state judge presiding in San

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Mateo County. While Cretan was acting under State authority, absolute immunity is provided to

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judges acting within their “judicial” capacity. See Stump v. Sparkman, 435 U.S. 349, 362-64

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(1978). Plaintiff states his claims against defendant Cretan are only for his involvement as an

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individual, not his official capacity, but he has alleged no facts to suggest his complaints against

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Cretan arise from anything other than the rulings made in various state court actions. Thus

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defendant Cretan is immune from damages liability and a claim under 42 U.S.C § 1983 cannot

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be sustained against him. See id. at 364. Accordingly, plaintiff has failed to alleged facts

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sufficient to sustain his first and second claims for relief, for violations of various constitutional

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amendments and for individual liability under 42 U.S.C § 1983.

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NO. CV 12-06339 RS
ORDER GRANTING MOTION TO DISMISS

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Plaintiff also brings claims against the State of California for “supervisory” liability

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under 42 U.S.C § 1983 and for “respondeat superior liability”. For any supervisory

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responsibility to exist, however, an individual must have acted in violation of 42 U.S.C § 1983.

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See Monell v. Dep’t of Soc. Sec., 436 U.S. 658 (1978). Plaintiff states the “State of California

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had full knowledge, gave consent and knew of the deprivation of due process caused by

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Defendant Cretan.” As no claim can be stated against defendant Cretan, there can be no

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“supervisory” liability. Accordingly, these claims must also be dismissed.

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Plaintiff additionally brings a claim for malicious prosecution under California law. To
sustain a claim for malicious prosecution, a plaintiff must establish “the prior action (1) was

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commenced by or at the direction of the defendant and was pursued to a legal termination in his,

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For the Northern District of California

United States District Court

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plaintiff's, favor; (2) was brought without probable cause; and (3) was initiated with malice.”

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Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 871(1989) (internal citations omitted).

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While plaintiff avers defendants have brought charges “against Plaintiff without probable cause

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and in retaliation for his engaging in constitutionally protected activities” he fails to allege any

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facts indicating that these previous actions have been resolved in his favor. Thus, plaintiff has

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not stated a prima facie claim for malicious prosecution. Even had he done so, however, as

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federal subject matter jurisdiction is lacking, the Court declines to exercise supplemental

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jurisdiction over this state law claim. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351

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(1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the

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balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy,

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convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the

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remaining state-law claims.”). Thus, plaintiff’s claim for malicious prosecution must be

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dismissed.

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V.

CONCLUSION

For the foregoing reasons, plaintiff has failed to allege facts sufficient to support a federal

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claim for relief. As plaintiff has previously been afforded an opportunity to amend his

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complaint, it appears that any further opportunity to amend would be futile. Accordingly,

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NO. CV 12-06339 RS
ORDER GRANTING MOTION TO DISMISS

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defendants’ motion to dismiss is granted, without leave to amend. The Clerk is instructed to

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close this case file.

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IT IS SO ORDERED

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Dated: 8/28/13
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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