Ezike v. Mittal et al

Filing 99

ORDER by Judge Saundra Brown Armstrong, GRANTING 80 Motion to Dismiss (lrc, COURT STAFF) (Filed on 5/20/2009) Modified on 5/21/2009 (jlm, COURT STAFF).

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R. SCOTT ERLEWINE (State Bar No. 095106) MEAGAN MCKINLEY-BALL (SBN 245375) PHILLIPS, ERLEWINE & GIVEN LLP 50 California Street, 35th Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK AND BRIAN NOLAN

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROMEO EZIKE,

) ) Plaintiff, ) ) v. ) ) MR. LAKSHMI MITTAL, et al., ) ) Defendants. ) ________________________________________ )

CASE NO. C08-1867 (SBA)

ORDER GRANTING DEFENDANT BRIAN NOLAN'S MOTION TO DISMISS; MOTION FOR A MORE DEFINITE STATEMENT; MOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE; MOTION TO TRANSFER FOR CONVENIENCE Date: May 12, 2009 Time: 1:00 P.M. Ctrm: 3 Hon. Saundra B. Armstrong

Before the Court is Defendant BRIAN NOLAN's motion to dismiss plaintiff's claims against him or quash service, or in the alternative, for a more definite statement, and to dismiss this action or transfer it to the Northern District of Illinois for improper venue or convenience. The Court having considered the moving, opposition and reply papers, IT IS HEREBY ORDERED that:

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PHILLIPS, ERLEWINE & GIVEN LLP 50 California Street, 35th Floor San Francisco, CA 94111 [phone]

[PROPOSED] ORDER GRANTING DEF. NOLAN'S MOTION TO DISMISS - C 08-1867 SBA
G:\Sbalc1\CYNTHIA\Civil\08-1867 Ezike-Nolan Order.wpd

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Plaintiff's claims against Officer Nolan are dismissed for defective service of

process pursuant to F.R.C.P. Rule 12(b)(5). The proof of service filed by plaintiff as to Officer Nolan purports to have served him at his former employer's corporate headquarters at a time when Officer Nolan had not worked for that employer in over two years. 2. The action against Officer Nolan is dismissed for lack of personal jurisdiction

pursuant to F.R.C.P. Rule 12(b)(2). Officer Nolan lacks sufficient minimum contacts with California for the imposition of California jurisdiction to comport with due process. International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). 3. Plaintiff's allegations against Officer Nolan are dismissed for

failure to state a claim upon which relief may be granted pursuant to F.R.C.P. Rule 12(b)(6). Plaintiff has failed to adequately plead a substantive violation of RICO, since plaintiff has failed to allege that Officer Nolan engaged in conduct of an enterprise through a pattern of racketeering behavior. See Howard v. America Online, Inc., 208 F.3d 741, 746 (9th Cir. 2000). Further, plaintiff has failed to allege any non-RICO claim against Officer Nolan, since 18 U.S.C. Section 1503 (influencing or injuring officer or juror generally) does not provide for a private cause of action (Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997)), California Penal Code Section 836 does not govern an arrest in Illinois, and plaintiff does not articulate which Constitutional rights he was allegedly deprived of and what claim he is asserting based on that deprivation.

DATED: 5/19/09

UNITED STATES DISTRICT JUDGE

_____________________________________________________________________________________________________________
PHILLIPS, ERLEWINE & GIVEN LLP 50 California Street, 35th Floor San Francisco, CA 94111 [phone]

[PROPOSED] ORDER GRANTING DEF. NOLAN'S MOTION TO DISMISS - C 08-1867 SBA
G:\Sbalc1\CYNTHIA\Civil\08-1867 Ezike-Nolan Order.wpd

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA EZIKE et al, Plaintiff, v. MITTAL et al, Defendant. /

Case Number: CV08-01867 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 20, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Romeo Ezike P.O. Box 425126 San Francisco, CA 94142 Dated: May 20, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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PHILLIPS, ERLEWINE & GIVEN LLP 50 California Street, 35th Floor San Francisco, CA 94111 [phone]

[PROPOSED] ORDER GRANTING DEF. NOLAN'S MOTION TO DISMISS - C 08-1867 SBA
G:\Sbalc1\CYNTHIA\Civil\08-1867 Ezike-Nolan Order.wpd

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