Lamont v. Rothman et al

Filing 19

ORDER ACCEPTING MAGISTRATE JUDGES REPORT AND RECOMMENDATION AND DISMISSING ACTION. Signed by Judge Saundra Brown Armstrong on 8/29/18. (dtmS, COURT STAFF) (Filed on 8/29/2018)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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P. STEPHEN LAMONT,

Case No: C 18-02997 SBA

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Plaintiff,
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vs.
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ORDER ACCEPTING
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION AND
DISMISSING ACTION

NOREEN T ROTHMAN, et al.,
Dkt. 13

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Defendants.
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Plaintiff P. Stephen Lamont (“Plaintiff”), acting pro se and in forma pauperis, brings

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the instant civil action under the Racketeer Influenced and Corrupt Organizations Act

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(“RICO”), 18 U.S.C. §1961 et seq. Dkt. 1. The matter before the Court is the Report and

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Recommendation to Dismiss for Lack of Personal Jurisdiction (“R&R) prepared by

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Magistrate Judge Virginia K. DeMarchi (“Magistrate Judge”). Dkt. 13. Having read and

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considered the papers filed in connection with this matter and being fully informed, the

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Court hereby ADOPTS the R&R and DISMISSES the action, for the reasons stated below.

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I.

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BACKGROUND
The factual and procedural background is set forth in greater detail in the R&R. In

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brief, the instant action arises out of a New York state court proceeding, wherein Plaintiff’s

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parental rights were terminated. R&R at 1-2. Plaintiff names as defendants various actors

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in the state court proceeding, i.e., Westchester County, the Assistant and Deputy County

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Attorneys for Westchester, and two senior caseworkers for the “New York State Office of

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Children and Maltreatment Register.” Id. It is apparent that “the factual allegations,

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events, and people described in the complaint are in New York.” Id. at 4.

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As noted by the Magistrate Judge, Plaintiff has previously filed at least four other

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actions in this district against various New York defendants, some of whom are also named

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in the instant action. Id. at 3-4 (citing Lamont v. Pilkington, No. 3:17-cv-05942-WHO,

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Dkt. 24 (N.D. Cal. May 10, 2018) (dismissing action for lack of personal jurisdiction);

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Lamont v. Edwards, No. 3:18-cv-01079-WHO, Dkt. 26 (N.D. Cal. May 10, 2018) (same);

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Lamont v. Reyes, No. 3:18-cv-01421-WHO, Dkt. 24 (N.D. Cal. May 10, 2018) (same);

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Lamont v. Petrucelli, No. 5:18-cv-02790-BLF, Dkt. 12 (N.D. Cal. July 12, 2018) (same)).

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In addition, he has filed suits in both this district and the Southern District of New York

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concerning the events underlying the instant action. Id.

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On May 22, 2018, Plaintiff filed the instant Complaint for Violation of 18 U.S.C.A.

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§§ 1961 et seq. Dkt. 1. Plaintiff alleges that the Court has personal jurisdiction over the

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defendants “because all factual allegations derive from violations of 18 U.S.C.A. §§ 1961

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et seq.” Id. ¶ 1. As noted by the Magistrate Judge, Plaintiff also invokes 18 U.S.C.

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§ 1965(a) and (b) in support of his claim of proper venue. Id. ¶ 79.

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Under 18 U.S.C. § 1965(b), a district court may exercise personal jurisdiction over

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nonresident participants in an alleged RICO conspiracy, even if those defendants otherwise

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would not be subject to the court’s jurisdiction. Butcher’s Union Local No. 498 v. SDC

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Inv., Inc., 788 F.2d 535, 538-39 (9th Cir. 1986). In order to establish such jurisdiction, the

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plaintiff must show that (1) the court has personal jurisdiction over at least one of the

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participants in the alleged multidistrict conspiracy; and (2) there is no other district in

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which a court will have personal jurisdiction over all of the alleged co-conspirators. Id.

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On August 17, 2018, the Magistrate Judge issued the R&R, finding that Plaintiff

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fails to satisfy either of the requirements for jurisdiction under section 1965(b). R&R at 4-

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5. First, it has not been shown that any defendant has the requisite minimum contacts with

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the forum to support the exercise of personal jurisdiction. Id. at 5-6. Second, it has not

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been shown that no other district court would have personal jurisdiction over all of the

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alleged co-conspirators. Id. at 6. To the contrary, the allegations of the Complaint tend to

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show that the Southern District of New York would have personal jurisdiction over each of
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the defendants. Id. The Magistrate Judge therefore recommends dismissal for lack of

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personal jurisdiction over the nonresident defendants. Id. at 7.

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On August 17, 2018, Plaintiff filed an Objection to the R&R. Dkt. 14. The next

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day, he also filed a Memorandum of Law in support of his objections. Dkt. 15. As

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discussed in detail below, the Court finds that Plaintiff’s objections lack merit.

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II.

LEGAL STANDARDS

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A.

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A district court may authorize the commencement of an action without prepayment

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IFP PLEADINGS

of fees by a litigant who demonstrates that he is unable to pay. 28 U.S.C. §1915(a)(1). The

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Court has a continuing duty to dismiss such an action, however, if it determines that the

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action: (1) is frivolous or malicious; (2) fails to state a claim on which relief may be

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granted; or (3) seeks monetary relief against a defendant who is immune from such relief.

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Id. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)

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(“It is also clear that section 1915(e) not only permits but requires a district court to dismiss

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an in forma pauperis complaint that fails to state a claim.”) (emphasis added).

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B.

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A magistrate judge may prepare findings and recommendations on dispositive

REVIEW OF MAGISTRATE’S R&R

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matters without the consent of the parties pursuant to 28 U.S.C. § 636(b)(1). Reynaga v.

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Cammisa, 971 F.2d 414, 416 (9th Cir. 1992). Once findings and recommendations are

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served, the parties have fourteen days to file specific written objections thereto. 28 U.S.C.

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§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). A district judge must review de novo “those

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portions of the report or specified proposed findings or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that the district judge must

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review the magistrate judge’s findings and recommendations de novo if objection is made,

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but not otherwise.”). A district judge may “accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

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III.

DISCUSSION

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As discussed above, the Magistrate Judge recommends dismissal of the instant

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action upon the finding that the Court lacks personal jurisdiction over the nonresident

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defendants. Much of Plaintiff’s Objection fails to respond to the Magistrate Judge’s

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findings and recommendations. For example, Plaintiff reiterates that “[his son] has been

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wrongly placed in foster care” and that “no amount of money damages will ever erase the

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indelible emotional scare [sic] that Plaintiff and [his son] will carry for the rest of their

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lives.” Obj. ¶¶ 3, 5. These assertions go to the substance of Plaintiff’s alleged injury, and

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do not address the threshold issue of personal jurisdiction.

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The only matter of potential relevance in the Objection is Plaintiff’s assertion that

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“[t]he Southern District of New York has already notified Plaintiff that they will not allow

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this action to proceed in SDNY for violations that occurred in State Court.” Id. ¶ 1.1

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Plaintiff appears to offer this information in an attempt to refute the Magistrate Judge’s

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finding that Plaintiff has failed to show that no other court would have personal jurisdiction

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over the alleged co-conspirators. Plaintiff’s unsupported assertion regarding the Southern

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District of New York is insufficient for at least two reasons, however.

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First, Plaintiff has made no showing that the Southern District of New York rejected

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his claims for lack of personal jurisdiction. The fact that his claims may be barred or fail in

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the Southern District of New York for reasons other than a lack of personal jurisdiction

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does not satisfy the requirements of section 1965(b). Butcher’s Union Local No. 498, 788

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F.2d at 538-39 (there must be no other district in which a court will have personal

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jurisdiction over all of the alleged co-conspirators). Second, even if no other district

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court—including the Southern District of New York—would have personal jurisdiction

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over all of the defendants, section 1965(b) remains unsatisfied in this Court for want of

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personal jurisdiction over at least one defendant. Id. (the court must have personal

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jurisdiction over at least one of the participants in the alleged conspiracy). On that matter,

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Plaintiff offers no evidence in support of his assertion regarding the outcome of
any proceedings in the Southern District of New York.
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Plaintiff does not dispute that the nonresident defendants lack the requisite minimum

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contacts with the forum to support the exercise of individual personal jurisdiction.

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Plaintiff’s Memorandum of Law fares no better. Plaintiff relies on World-Wide

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Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) for the proposition that the Court

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may, in its discretion, keep the action on its docket. Mem. of Law at 4. In particular

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Plaintiff cites the reasonableness factors set forth in World-Wide Volkswagen, arguing that

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these factors support the exercise of jurisdiction. The reasonableness factors are: (1) “the

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burden on defendant;” (2) “the forum State’s interest in adjudicating the dispute;” (3) “the

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plaintiff’s interest in obtaining convenient and effective relief;” (4) “the interstate judicial

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system’s interest in obtaining the most efficient resolution of controversies;” and (5) the

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“shared interest of the several States in furthering fundamental substantive social policies.”

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Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985) (quoting World-Wide

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Volkswagen, 444 U.S. at 292). Plaintiff misreads World-Wide Volkswagen, however.

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Personal jurisdiction is a two-pronged inquiry: “The contacts prong asks whether the

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defendant has sufficient contacts with the forum State to support personal jurisdiction; the

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reasonableness prong asks whether the exercise of jurisdiction would be unreasonable

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under the circumstances.” Daimler AG v. Bauman, 571 U.S. 117, 144 (2014) (Sotomayor,

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J., concurring) (citing Burger King, 471 U.S. at 475-78). If a defendant has the requisite

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minimum contacts with the forum state, a court may consider the reasonableness factors set

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forth in World-Wide Volkswagen to determine whether the exercise of personal jurisdiction

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over the defendant comports with traditional notions of “fair play and substantial justice.”

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Burger King, 471 U.S. at 476-77 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 320

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(1945)). “These considerations sometimes serve to establish the reasonableness of

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jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.”

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Id. at 477 (emphasis added). Nonetheless, “the fairness factors cannot of themselves invest

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the court with jurisdiction over a nonresident [defendant]” without a showing of minimum

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contacts. Entek Corp. v. Sw. Pipe & Supply Co., 683 F. Supp. 1092, 1097 (N.D. Tex.

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1988) (citing World-Wide Volkswagen, 444 U.S. at 294).
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Here, given the absence of any showing of minimum contacts between the

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defendants and the forum, the Magistrate Judge correctly found personal jurisdiction to be

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lacking. Accordingly, IT IS HEREBY ORDERED THAT Plaintiff’s objections are

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OVERRULED, the report and recommendation of the Magistrate Judge is ADOPTED, and

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the instant action is DISMISSED without leave to amend. Said dismissal is without

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prejudice to Plaintiff’s ability to bring his claims before a court that enjoys personal

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jurisdiction over the defendants. The Court certifies that any appeal taken from this order

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will not be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). The Clerk shall

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terminate all pending matters and close the file.

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IT IS SO ORDERED.
Dated: 8/29/18

______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge

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