Levy v. AT&T

Filing 10

ORDER dismissing 1 Complaint with prejudice; ORDER TO SHOW CAUSE as to why Plaintiff should not be declared a vexatious litigant. Show Cause Response due by 4/3/2017. Signed by Judge Maria-Elena James on 3/2/2017. (mejlc2S, COURT STAFF) (Filed on 3/2/2017) (Additional attachment(s) added on 3/2/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARC OLIN LEVY, 7 Case No. 17-cv-00411-MEJ Plaintiff, 8 ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND v. 9 AT&T, 10 ORDER TO SHOW CAUSE Defendant. United States District Court Northern District of California 11 12 13 INTRODUCTION 14 The Court previously granted Plaintiff Marc Olin Levy‟s (“Plaintiff”) Application to 15 Proceed in Forma Pauperis. Dkt. No. 7.1 The Court now proceeds to review Plaintiff‟s Complaint 16 pursuant to 28 U.S.C. § 1915(e)(2). See Compl., Dkt. No. 1. For the reasons stated below, the 17 Court DISMISSES the Complaint WITHOUT LEAVE TO AMEND. In addition, the Court 18 issues an ORDER TO SHOW CAUSE as to why Plaintiff should not be deemed a vexatious 19 litigant. 20 // 21 // 22 23 24 25 26 27 28 1 Defendant AT&T (“AT&T”) has not been served, and therefore is not a party to the suit pursuant to 28 U.S.C. § 636(c). See Williams v. Oakland Police Dep’t, 2015 WL 5355393, at *1 (N.D. Cal. Sept. 14, 2015). On January 26, 2017, Plaintiff filed a “Notice, Consent, and Reference of a Civil Action to a Magistrate Judge” indicating he consents to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Consent, Dkt. No. 6. As this form was dated December 18, 2016—a month before Plaintiff initiated this action—and unsigned by a district judge, the Court requested Plaintiff to re-file his consent or declination, and served the notice by mailing it to Plaintiff‟s address on file. Dkt. Nos. 8 & 8-1. The notice was returned as undeliverable. Dkt. No. 9. As the Court has no other contact information for Plaintiff, it accepts Plaintiff‟s original Consent. SUA SPONTE SCREENING UNDER 28 U.S.C. § 1915(e)(2) 1 2 A. Legal Standard While the Court has granted Plaintiff‟s Application to Proceed In Forma Pauperis, it must 3 4 also review Plaintiff‟s Complaint to determine whether the action may be allowed to proceed. 5 The Court must dismiss the Complaint if it is frivolous, fails to state a claim upon which relief can 6 be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 7 U.S.C. § 1915(e)(2)(B). To make this determination, courts assess whether there is a factual and 8 legal basis for the asserted wrong, “however inartfully pleaded.” Franklin v. Murphy, 745 F.2d 9 1221, 1227-28 (9th Cir. 1984) (quotation omitted). Pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Moreover, the Ninth Circuit has 11 United States District Court Northern District of California 10 “repeatedly held that a district court should grant leave to amend even if no request to amend the 12 pleading was made, unless it determines that the pleading could not possibly be cured by the 13 allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Unless it is clear 14 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 15 pauperis is entitled to notice and an opportunity to amend before dismissal. Noll v. Carlson, 809 16 F.2d 1446, 1448 (9th Cir. 1987). 17 B. 18 Allegations in the Complaint Plaintiff alleges AT&T failed to publish his advertisement for his Civil Rights law firm in 19 its December 2011-2012 San Francisco Bay Area Yellow Pages. Compl. at ECF p.3. Plaintiff 20 asserts that on October 28, 2011, he emailed AT&T with a specific advertisement that read “Marc 21 Olin Levy Law Firm,” with his slogan “Lawyer For The People” written below it. Id. The 22 advertisement listed in bullet points the types of law Plaintiff practiced and provided his contact 23 information. Id. Plaintiff asserts AT&T responded to his email with “another advertisement they 24 had made up themselves.” Id. AT&T‟s advertisement listed a different slogan, disregarded 25 Plaintiff‟s bullet points, and stated Plaintiff was an “Attorney at Law.” Id. Plaintiff contends “I 26 am not an attorney, I am a lawyer.” Id. Plaintiff alleges AT&T “refused to print [his] ad as [he] 27 had created and ordered.” Id. 28 Plaintiff‟s claims are less than clear; however, he appears to assert claims of breach of 2 1 contract, fraud, misrepresentation, unfair business practices, and violation of civil rights. See id. 2 (“Obviously, AT&T is guilty and liable for breach of contract, fraud, [] misrepresentation, unfair 3 business practice, and a civil rights violation.”); but see Civil Cover Sheet, Dkt. No. 1-1 (checking 4 box indicating contract dispute but not civil rights; listing under “cause of action” only “fraud, 5 civil rights”; and providing “brief description of cause” that “ATT [sic] broke contract, violated 6 civil rights”). He seeks as damages $2 billion in preferred AT&T stock. Id. 7 C. 8 9 Analysis and Screening Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that the complaint set forth a “short and plain statement of the claim showing the pleader is entitled to relief.” Rule 8(d)(1) requires that each allegation in a pleading be “simple, concise, and direct.” See McHenry v. 11 United States District Court Northern District of California 10 Renne, 84 F.3d 1172, 1177, 1179 (9th Cir. 1996) (affirming dismissal of complaint that was 12 “argumentative, prolix, replete with redundancy, and largely irrelevant”). In addition, the 13 complaint must include facts which are “more than labels and conclusions, and a formulaic 14 recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 15 554, 555 (2007). For instance, in Ashcroft v. Iqbal, the Supreme Court rejected conclusory 16 assertions that “petitioners „knew of, condoned, and willfully and maliciously agreed to subject 17 [him]‟ to harsh conditions of confinement „as a matter of policy, solely on the account of [his] 18 religion, race, and/or national origin and for no legitimate penological interest.‟” 556 U.S. 662, 19 680 (2009). The Court reasoned that such allegations were akin to the “formulaic recitation of the 20 elements” dismissed in Twombly, and therefore, insufficient to meet Rule 8(a). Id. In doing so, 21 the Court explained, “[a] claim has facial plausibility when the plaintiff pleads factual content that 22 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 23 alleged.” Id. at 678. 24 As an initial matter, Plaintiff already attempted to litigate these claims in 2011, in a case 25 styled Levy v. AT&T Corp., Case No. 11-cv-6615-DMR (N.D. Cal.) (“Levy I”). The presiding 26 judge in that matter, the Honorable Donna M. Ryu, dismissed the action without prejudice on the 27 basis that “the court [could] not discern a cognizable legal claim based on Defendant‟s alleged 28 mere refusal to not publish Plaintiff‟s advertisement in the style and with the content that he 3 1 desired.” Dismissal Order, Dkt. No. 6 at 1-2, Levy I.2 Plaintiff did not amend his complaint. See 2 Levy I. Like Judge Ryu, this Court cannot identify a cognizable claim based on AT&T‟s alleged 3 refusal to print Plaintiff‟s advertisement in his preferred style. Dismissal Order at 1-2. To the 5 extent Plaintiff seeks to allege breach of contract, fraud, and misrepresentation, these causes of 6 action are time barred, as the events at issue occurred in 2011. See Cal. Civ. Proc. Code § 337 7 (four-year statute of limitations on action upon any written contract); Cal. Civ. Proc. Code. § 339 8 (two-year statute of limitations on “[a]n action upon a contract, obligation or liability not founded 9 upon an instrument of writing”); Cal. Civ. Proc. Code. § 338(d) (imposing three-year statute of 10 limitations on fraud action);3 Fanucci v. Allstate Ins. Co., 638 F. Supp. 2d 1125, 1133 n.5 (N.D. 11 United States District Court Northern District of California 4 Cal. 2009) (depending on the circumstances, “[a] negligent misrepresentation claim has either a 12 two- or three-year statute of limitations.”); Rae v. Bank of Am., N.A., 2017 WL 447306, at *3 13 (C.D. Cal. Feb. 1, 2017) (“The statute of limitations for . . . [a] claim for intentional 14 misrepresentation[] is three years.” (citing Cal. Code Civ. Proc. § 338(d))). 15 Normally, given Plaintiff‟s pro se status, the Court would grant Plaintiff leave to amend. 16 But amendment would be futile as each of Plaintiff‟s claims is time barred, and the Court cannot 17 discern a cognizable claim based on the alleged events. 4 Accordingly, the Court DISMISSES the 18 Complaint WITHOUT LEAVE TO AMEND. VEXATIOUS LITIGANT 19 “When a litigant has filed numerous harassing or frivolous lawsuits, courts have the power 20 21 to declare him a vexatious litigant and enter an order requiring that any future complaints be 22 23 2 24 3 25 26 27 28 Citations to “Levy I” refer to documents filed in Case No. 11-cv-6615-DMR. A cause of action for fraud deemed accrued only when the plaintiff “discover[s] . . . the facts constituting the fraud[.]” Cal. Civ. Proc. Code § 338(d). As Plaintiff attempted to sue AT&T in 2011 for claims arising out of the same events (Levy I), he discovered the facts constituting the alleged fraud no later than that time, and cannot rely on the delayed discovery rule to excuse his untimeliness. 4 The Court also finds the instant Complaint offers no greater detail as to why AT&T‟s alleged refusal to print Plaintiff‟s advertisement presents a cognizable civil rights claim compared to the complaint Plaintiff filed in Levy I. 4 1 subject to an initial review before they are filed.” Gavin v. City & Cty. of S.F., 2015 WL 7272678, 2 at *3 (N.D. Cal. Nov. 18, 2015). “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts 3 with the inherent power to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen 4 Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing Weissman v. Quail Lodge Inc., 179 5 F.3d 1194, 1197 (9th Cir. 1999)). The Ninth Circuit cautions that “pre-filing orders should rarely be filed.” De Long v. 6 7 Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). Limiting access to the courts is “a serious 8 matter” that implicates a person‟s First Amendment Rights. Ringgold-Lockhart v. Cty. of L.A., 9 761 F.3d 1057, 1061 (9th Cir. 2014); see Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). As such, the Ninth Circuit has set forth the following process courts must follow in declaring an 11 United States District Court Northern District of California 10 individual a vexatious litigant: 12 When district courts seek to impose pre-filing restrictions, they must: (1) give litigants notice and “an opportunity to oppose the order before it [is] entered”; (2) compile an adequate record for appellate review, including “a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed”; (3) make substantive findings of frivolousness or harassment; and (4) tailor the order narrowly so as “to closely fit the specific vice encountered.” 13 14 15 16 17 Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147-48). Since 2010, Plaintiff has filed twenty lawsuits in this district; Exhibit A to this Order lists 18 19 those lawsuits and their outcome. Plaintiff has frequently filed multiple—up to six—lawsuits in a 20 single day.5 In sixteen of those actions, including this one, Plaintiff has proceeded in forma 21 22 23 24 25 26 27 28 5 Plaintiff filed four lawsuits on November 10, 2010. See Levy v. State of Cal., Case No. 10-cv5113-SI (N.D. Cal.); Levy v. Private Def. Program, Case No. 10-cv-05114-RS (N.D. Cal.); Levy v. Telecare Corp., Case No. 10-cv-05115-SI (N.D. Cal.); Levy v. San Mateo Cty., Case No. 10-cv05116-SI (N.D. Cal.). On December 22, 2011, Plaintiff filed three lawsuits. See Levy v. Cumulus Media Inc., Case No. 11-cv-06616-WHA (N.D. Cal.); Levy v. N.Y. Life Ins. Co., Case No. 11-cv06617-JCS (N.D. Cal.); Levy I. He next filed six lawsuits on March 14, 2012. See Levy v. Newscorp, Case No. 12-cv-01293-EDL (N.D. Cal.); Levy v. United States, Case No. 12-cv-01294EDL (N.D. Cal.); Levy v. Comerica Bank, Case No. 12-cv-01296-MEJ (N.D. Cal); Levy v. United States, Case No. 12-cv-01295-DMR (N.D. Cal.); Levy v. United States, Case No. 12-cv-01297DMR (N.D. Cal.); Levy v. Mass Mut., Case No. 12-cv-01298-LB (N.D. Cal.). Most recently, in addition to the above-captioned action, Plaintiff filed two other lawsuits on January 26, 2017. See Levy v. Vista Holdings, Case No. 17-cv-0049-JSC (N.D. Cal); Levy v. First Grp./Greyhound, Case 5 1 pauperis. See Ex. A. Each case has been dismissed, several for failure to file an amended 2 complaint or to state a cognizable claim. Accordingly, the Court ORDERS Plaintiff to show cause 3 why he should not be declared a vexatious litigant subject to a pre-filing order entered against him. 4 CONCLUSION Based on the analysis above, the Court DISMISSES Plaintiff‟s Complaint WITHOUT 5 6 LEAVE TO AMEND. In addition, the Court ORDERS Plaintiff to show cause as to why he 7 should not be declared a vexatious litigant. Plaintiff shall file his response no later than April 3, 8 2017. 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 Dated: March 2, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 17-cv-0412-KAW (N.D. Cal.). 6 EXHIBIT A 1 2 1. 2. Case Number 10-cv-5113-SI* 10-cv-5114-RS* 3. 4. 5. 10-cv-5115-SI* 10-cv-5116-SI* 11-cv-1850-RS 8 6. 9 7. 8. 11-cv-6616-WHA* Levy v. Cumulus Media Inc. 11-cv-6617-JCS* Levy v. N.Y. Life Ins. Co. 12-cv-1293-EDL* Levy v. Newscorp 9. 12-cv-1294-EDL* 3 4 5 6 7 10 Name Levy v. State of Cal. Levy v. Private Def. Program Levy v. Telecare Corp. Levy v. San Mateo Cty. Levy v. Private Def. Program United States District Court Northern District of California 11 Levy v. United States 12 13 14 10. 12-cv-1296-MEJ* Levy v. Comerica Bank 11. 11-cv-6615-DMR* 12. 12-cv-1295-DMR* Levy v. AT&T Corp. Levy v. United States 13. 12-cv-1297-DMR* Levy v. United States 14. 12-cv-1298-LB* Levy v. Mass Mut. 15. 14-cv-4073-EJD^ 15 16 17 18 19 21 16. 16-cv-1254-HRL^ Levy v. State Farm Mut. Auto. Ins. Co. Levy v. Primerica, Inc. 22 17. 14-cv-4116-EJD^ Levy v. Nw. Mut. Life 23 18. 15-cv-6136-EDL^ Levy v. Mass. Mut. Life Ins. Co. Levy v. Vista Holdings 20 24 19. 17-cv-409-JSC* 25 20. 17-cv-412-KAW* 26 27 28 Levy v. First Grp./Greyhound 21. 17-cv-411-MEJ* Levy v. AT&T * Plaintiff proceeded in forma pauperis. ^ Case removed from state court. Outcome Dismissed with prejudice Dismissed pursuant to Fed. R. Civ. P 41(b) Dismissed without prejudice Dismissed without prejudice Dismissed without prejudice after Plaintiff failed to pay filing fee or serve defendants Dismissed for failure to plead facts sufficient to state a claim Case terminated after Plaintiff failed to file an amended complaint Case terminated after Plaintiff failed to file an amended complaint Dismissed with prejudice for failure to file an amended complaint Dismissed without prejudice for failure to file an amended complaint Dismissed without prejudice Dismissed as frivolous for seeking a remedy only the legislative branch could provide Dismissed as frivolous because claims fell outside court‟s subject matter jurisdiction Dismissed without prejudice for failure to show cause as to why the case should not be dismissed for lack of service Granted defendant‟s unopposed motion on the pleadings (appeal pending) Granted defendant‟s motion to dismiss; complaint dismissed with prejudice Granted defendant‟s unopposed motion to dismiss without leave to amend Granted defendant‟s unopposed motion to dismiss with prejudice Dismissed with leave to amend; case pending Case pending Case pending 7

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