Wakefield v. Apple, Inc et al

Filing 75

ORDER GRANTING DEFENDANTS MOTION TO DISMISS WITH PREJUDICE; REQUIRING PRE-FILING REVIEW FOR ALL FUTURE PRO SE COMPLAINTS FILED BY PLAINTIFF Without Prior Judicial Authorization. Plaintiff Franz A. Wakefield is declared a vexatious litigant. The Court orders that the Clerk of this Court SHALL not accept for filing any pro se action by plaintiff Franz A. Wakefield in the United States District Court for the Northern District of California until such complaint HAS BEEN subjected to pre-filing review by a Judge of this Court. This Order SHALL remain in effect for ten (10) years. by Judge James Ware granting 45 Motion to Dismiss; finding as moot 73 Motion to Appear by Telephone; granting 22 Motion to Dismiss (jwlc3, COURT STAFF) (Filed on 6/15/2010) Modified on 6/16/2010 (cv, COURT STAFF).

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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 JOSE DIVISION
NO. C 09-05420 JW

Franz A. Wakefield,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS WITH
PREJUDICE; REQUIRING PRE-FILING
REVIEW FOR ALL FUTURE PRO SE
COMPLAINTS FILED BY PLAINTIFF

Plaintiff,
v.

For the Northern District of California

United States District Court

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Apple, Inc., et al.,
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Defendants.
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/

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I. INTRODUCTION
Franz A. Wakefield (“Plaintiff”) brings this action against Apple, Inc. (“Apple”), Steve Jobs

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(“Jobs”), and Sarah Jessica Parker (“Parker”) (collectively, “Defendants”), alleging, inter alia,

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misappropriation of trade secrets and breach of contract. Plaintiff alleges that Defendants

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misappropriated Plaintiff’s trade secrets for the iPod, iPhone, and iTunes, and conspired to

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commercialize them without compensating Plaintiff.

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Presently before the Court is Defendants Apple and Jobs’ Motion to Dismiss and for an

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Order Enjoining Further Pro Se Complaints Without Prior Judicial Authorization.1 The Court

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conducted a hearing on May 10, 2010. Based on the papers submitted to date and oral argument, the

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Court GRANTS Defendants’ Motion.

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(hereafter, “Motion,” Docket Item No. 22.)

II. BACKGROUND

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A.

Factual Allegations
In a Complaint filed on January 29, 2010,2 Plaintiff alleges as follows:

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In August, 1989, Plaintiff won the Congressional Art Award in the Seventeenth

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Congressional District Arts Competition sponsored by Congressman William Lehman.

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(Complaint at 3.) A reception was held for Plaintiff in Washington, D.C., where he was

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honored by Congressman Lehman and film stars Robert Downey, Jr. and Defendant Parker.

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(Id. at 3-4.) At the reception, Plaintiff confided in the Congressman that Plaintiff would be

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contacting the Federal Bureau of Investigation (“FBI”) to disclose his trade secrets, which
Plaintiff believed to constitute issues of national security. (Id. at 4.) Plaintiff requested that

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the Congressman invest in him by providing oversized canvases, a professional sketch book,

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supplies, and shatterproof framing in which Plaintiff could record the trade secrets. (Id.)

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Plaintiff’s trade secrets included, among other things, the portable digital media device iPod,

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the music management software application process iTunes, what Plaintiff referred to as an

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iPhone, and iBOONKA!, a cartoon character used as a mobile Smart Toy. (Id.) Plaintiff

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also requested that the FBI seize the art that he created at New World School of the Arts

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between 1990 and 1991 that portrayed these trade secrets. (Id.) Plaintiff then created the

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oversized art and sketch book of his trade secrets during 1990 to 1991, which persons

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representing themselves as FBI agents then seized. (Id. at 5.) Many years between 1990 and

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2002, Plaintiff continued to contact the FBI to document and report his trade secrets,

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business intentions, planned alliances to commercialize, and the theft of his intellectual

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property rights. (Id.) Defendants misappropriated Plaintiff’s trade secrets created from 1990

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to 1991 to create a sleek and “sexy” bundle of digital media devices and software

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applications. (Id. at 10.)

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(Complaint for Trade Secret Misappropriation, RICO, Copyright Infringement, Injunctive
Relief, and Breach of an Oral Contract Made in Florida, hereafter, “Complaint,” Docket Item No. 1.)

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During the awards ceremony in 1989 and years after, Plaintiff developed a friendship

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with Defendant Parker, who visited him at New World School of the Arts, Norland Senior

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High School, the University of Florida, and at the various companies in which Plaintiff

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interned during college. (Complaint at 5.) During their friendship, Plaintiff made deals with

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Defendant Parker to commercialize his trade secrets iPod (including all models: classic,

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nano, mini, shuffle, video, touch, and photo), iTunes, and iPhone. (Id. at 5-6.) Pursuant to

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this agreement, Plaintiff would be paid 2% of the gross revenues generated by all iPod,

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iTunes, and iPhone products and their constituent services and applications. (Id. at 6.)

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Plaintiff was to be paid for past sales after the release of the first iPhone product line. (Id.)
On October 27, 2006, Defendant Parker’s attorney responded to Plaintiff that she had no

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recollection of the agreement or matters concerning Plaintiff’s trade secrets. (Id.)

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On the basis of the allegations outlined above, Plaintiff alleges three causes of action: (1)

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Breach of an Oral Contract Made in Florida; (2) Misappropriation of Trade Secrets; and (3)

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Violation of Racketeer Influenced and Corrupt Organizations Act (“RICO”).

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B.

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Procedural History
On November 17, 2009, Plaintiff filed his Complaint and application to proceed in forma

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pauperis (“IFP”). (See Docket Item Nos. 1-2.) On December 23, 2009, the Court granted Plaintiff’s

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IFP application. (See Docket Item No. 5.)

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Presently before the Court is Defendants Apple and Jobs’ Motion to Dismiss.
III. STANDARDS
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed against

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a defendant for failure to state a claim upon which relief may be granted against that defendant.

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Dismissal may be based on either the lack of a cognizable legal theory or the absence of sufficient

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

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(9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). For

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purposes of evaluating a motion to dismiss, the court “must presume all factual allegations of the

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complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v.

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City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Any existing ambiguities must be resolved

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in favor of the pleading. Walling v. Beverly Enters., 476 F.2d 393, 396 (9th Cir. 1973).

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However, mere conclusions couched in factual allegations are not sufficient to state a cause

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of action. Papasan v. Allain, 478 U.S. 265, 286 (1986); see also McGlinchy v. Shell Chem. Co., 845

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F.2d 802, 810 (9th Cir. 1988). The complaint must plead “enough facts to state a claim for relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

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plausible on its face “when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129

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S. Ct. 1937, 1949 (2009). Thus, “for a complaint to survive a motion to dismiss, the non-conclusory
‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a

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claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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Courts may dismiss a case without leave to amend if the plaintiff is unable to cure the defect by

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amendment. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000).

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“[D]ocuments whose contents are alleged in a complaint and whose authenticity no party

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questions, but which are not physically attached to the pleading, may be considered in ruling on a

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Rule 12(b)(6) motion to dismiss.” Fecht v. Price Co., 70 F.3d 1078, 1080 (9th Cir. 1995).

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IV. DISCUSSION

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Defendants move to dismiss Plaintiff’s Complaint on multiple grounds. Since Section

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1915(e) may be dispositive, the Court considers this ground first.

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A.

28 U.S.C. § 1915(e)

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Defendants move to dismiss Plaintiff’s claims on the ground, inter alia, that they are

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frivolous under 28 U.S.C. 1915(e). (Motion at 3.) Plaintiff responds that the government certifies

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the existence of information and records proving Plaintiff’s case.3

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(Response in Opposition to the Defendants “Apple” and “Jobs” Motion to Dismiss and
Motion for an Order Enjoining further Pro Se Complaints without Prior Judicial Authorization at 27,
hereafter, “Opposition,” Docket Item No. 52.)

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Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court must dismiss an in forma pauperis

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complaint at any time if the court determines that it “is frivolous or malicious, fails to state a claim

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on which relief may be granted, or seeks monetary relief against a defendant who is immune from

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such relief.” “[A] finding of factual frivolousness is appropriate when the facts alleged rise to the

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level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts

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available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). When reviewing a

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complaint for frivolity, a trial court may “pierce the veil of the complaint’s factual allegations and

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dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S.

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319, 325 (1989).
Here, Plaintiff alleges:

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In 1989 and years after, Plaintiff developed a friendship with Parker and was graced
with her appearance at New World School of the Arts, Norland Senior High School, the
University of Florida, and on Plaintiff’s internships while he attended college.
Plaintiff made a trade secret deal with Parker to commercialize his trade secrets iPod,
iTunes, the iPhone, and other products and brands that Plaintiff created.
Defendants’ actions by transmitting, manufacturing, and selling Plaintiff’s trade
secrets has threatened the financial stability of the broadcasting, digital media device, and
software industries and has undermined the Constitution of the United States.
Plaintiff’s trade secret ergonomic designs, techniques and processes were
misappropriated and incorporated in the products to create a sleek and “sexy” bundle of
digital media devices and software applications that would make it effortless to
communicate, carry, manage, access, and use digital information. Plaintiff’s detailed trade
secret product specifications and marketing method was communicated by Parker to Jobs,
and employed in the open market by Apple.

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(Complaint at 5-8.)
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Based on the allegations above and similar factual allegations throughout the Complaint, the
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Court finds that Plaintiff’s Complaint is frivolous. Plaintiff’s allegations rise to the level of the
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irrational and wholly unbelievable.4 Even if the Court construes Plaintiff’s allegations liberally and

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take as true that Plaintiff has talent, as evidenced by his art award at age fifteen, it is wholly
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unbelievable that from 1989 to 1991 he was able to befriend Parker, contact the FBI, and create the
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entire line of iPods and iPhones, including their respective marketing campaigns. (See Complaint.)
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See Denton, 504 U.S. at 33.
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It is also unbelievable that the FBI, after being contacted by Plaintiff, confiscated his trade secrets

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for national security purposes. (See id.)

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Plaintiff’s allegations are similar to those that have been found frivolous by multiple district

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courts within the Ninth Circuit.5 In these actions, the court labeled a complaint frivolous when there

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were multiple unbelievable or delusional elements.6 Similar to these cases, Plaintiff alleges a string

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of unbelievable facts that grows with each successive pleading. Not only has Plaintiff claimed that

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he invented the iPod, but also that he had a contract with a major film star to sell the idea to Apple

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ten years after the agreement. (Complaint at 6.) In his Opposition, Plaintiff now claims that in 1992

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he created a computer game that could track terrorists and that he warned the FBI of a plan to attack
the United States using commercial airliners. (Opposition at 11 n.1.) Further, in his Opposition,

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Plaintiff represents that he has a secret deal with the FBI based on his creation of the algorithm

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behind Google’s web search. (Opposition at 11-12.) Since these claims are all unbelievable and

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irrational, the Court must dismiss Plaintiff’s claims as frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).

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Accordingly, the Court GRANTS Defendants’ Motion to Dismiss. Since Plaintiff’s claims
are patently frivolous, the Complaint is dismissed with prejudice.7

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Disney v. Brown, 2006 U.S. Dist. LEXIS 87595 (E.D. Cal. Dec. 1, 2006) (labeling as
frivolous plaintiff’s claim that he designed and patented the Great Seal of California in 1972; that
Jerry Brown, the governor, was impressed with his design and offered to pardon plaintiff if he ever
went to prison, in exchange for a sum of money); Griffin v. Metro. Det. Ctr., No. CV 10-1658-PA,
2010 U.S. Dist. LEXIS 32650 (C.D. Cal. Apr. 2, 2010) (labeling as frivolous plaintiff’s claims that
federal agents are using a chemically implanted device to torture, rape and otherwise harm him);
Wollner v. Bush, 2009 U.S. Dist. LEXIS 41953 (D. Ariz. Apr. 29, 2009) (labeling as frivolous
plaintiff’s claim that he should have been compensated for the plan he sent to Laura Bush, entitled
“The Ultimate Solution for Terrorism,” that would defeat and subdue terrorism); Watkins v. Nippy,
Inc., 1993 U.S. Dist. LEXIS 17025 (D. Haw. Mar. 26, 1993) (labeling as frivolous plaintiff’s claims
of copyright infringement of her poems by multiple recording artists after filing nineteen actions in
two weeks).
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See note 5.

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Plaintiff’s claims, even if non-frivolous, would be barred. Under California’s Uniform
Trade Secrets Act, an action for misappropriation of a trade secret must be brought “within three
years after the misappropriation is discovered or by the exercise of reasonable diligence should have
been discovered.” Cal. Civ. Code § 3426.6. Since Plaintiff would have been on notice that his trade
secrets were being used when the first iPod was released in 2001, his trade secret misappropriation
claims are time-barred.

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B.

Vexatious Litigant

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Defendants move the Court to enter an order prohibiting Plaintiff from filing pro se cases in

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this district on the ground that he is a vexatious litigant. (Motion at 23.) Plaintiff responds that his

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losing every one of his previous cases does not mean that they were without merit. (Opposition at

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28.)

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The All Writs Act, 28 U.S.C. § 1651, vests federal courts with the discretion to enjoin certain

1961). A court may exercise its discretion to prevent litigants from subjecting others to “repeated,

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baseless and vexatious suits at law on some particular subject matter.” Id. at 901 (quoting First State

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Bank v. Chicago R.I. & P.R. Co., 63 F.2d 585 (8th Cir. 1933) and Lee v. Bickell, 292 U.S. 415, 421

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For the Northern District of California

litigants from engaging in wasteful litigation. Clinton v. United States, 297 F.2d 899, 901 (9th Cir.

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United States District Court

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(1934)). Under the statute, a court may restrict litigants with abusive and lengthy histories from

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submitting future filing of actions or papers provided that the court: (1) gives the litigant an

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opportunity to oppose the order before it is entered; (2) creates an adequate record for review; (3)

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makes substantive findings as to the frivolous or harassing nature of the litigant’s actions; and (4)

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drafts a sufficiently detailed order. De Long v. Hennessey, 912 F.2d 1144, 1145-48 (9th Cir. 1990).

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Defendants contend that Plaintiff has had an opportunity to oppose this Order on the ground

Opportunity to Oppose Order

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that he has been served with the Motion which has the specific request for the Court to declare

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Plaintiff vexatious. (Motion at 23.)

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The De Long court has emphasized that a litigant must be given an opportunity to oppose the
order before it is entered. See De Long, 912 F.2d at 1147.

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The limitations period for a RICO claim is four years. Grimmett v. Brown, 75 F.3d 506, 511
(9th Cir. 1996). Here, assuming a RICO claim existed, Plaintiff should have known of his injury on
October 27, 2006, when he received the letter from Parker’s attorney communicating Parker’s lack
of recollection of an agreement with Plaintiff after the iPod had been released. (Complaint at 6.)
Thus, Plaintiff’s RICO claim is time barred.
Further, Plaintiff’s contract claim is barred by the statute of frauds. An oral agreement
lasting beyond one year is unenforceable under Florida’s Statute of Frauds. Fla. Stat. § 725.01.
Here, Plaintiff alleges he made an oral agreement with Parker that was to last from 1999 until at
least 2007. (See Complaint at 6, 10-12.)

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Here, Plaintiff was given an opportunity to oppose the Order. On April 19, 2010, Plaintiff

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filed an Opposition with the Court. (See Docket Item No. 52.) In his Opposition, Plaintiff

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specifically addresses Defendants’ Motion, contending that losing a lawsuit does not mean that the

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suit was meritless. (Opposition at 28.) Thus, the Court finds that Plaintiff has been afforded an

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opportunity to oppose the Motion.

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Defendants contend that a record exists showing that Plaintiff has a history of filing frivolous

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Adequate Record for Review and Substantive Findings

or harassing litigation. (Motion at 30.)
The De Long court indicated that the record for review needs to show in some manner “the
litigant’s activities were numerous or abusive.” De Long, 912 F.2d at 1147. Before the court can

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issue a pre-filing injunction against a pro se litigant, it must make “substantive findings as to the

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frivolous or harassing nature of the litigant’s actions.” Id. at 1148. A court is not limited to the

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consideration of a litigant’s activities within its district. See Molski v. Evergreen Dynasty Corp.,

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500 F.3d 1047, 1059 (9th Cir. 2007) (finding that a district court in the Central District of California

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court created a proper record by discussing suits filed in the Northern District of California to find

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plaintiff vexatious); Buesgens v. Travis County, Texas, No. 07-0427-SS, 2007 U.S. Dist. LEXIS

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98146 (W.D. Texas June 20, 2007) (considering suits filed in Oregon, Maryland, Washington, D.C.

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and Texas to find plaintiff vexatious).

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Here, Plaintiff has already been sanctioned and labeled a vexatious litigant in the Southern

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District of Florida.8 Plaintiff began filing his actions in 2005 and has filed numerous frivolous

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actions in the district courts, appealing all cases to the point of seeking writs of certiorari. (See RJN,

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(Request for Judicial Notice in Support of Defendants Apple, Inc. and Steve Jobs’ Motion
to Dismiss and for an order Enjoining Further Pro Se Complaints without Prior Judicial
Authorization, Ex. 6, hereafter, “RJN,” Docket Item No. 23-6 (Plaintiff was levied with over
$20,000 in sanctions before being labeled vexatious).) The Court GRANTS Defendants’ Request
for Judicial Notice on the ground that Exhibits 1-45 attached to Defendants’ Request for Judicial
Notice are public documents that are capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b).
Plaintiff has also filed a suit identical to the one at bar in the Central District of California
that has been transferred to this Court and dismissed as duplicative. (See Case No.
09-cv-05779-HRL, Docket Item No. 8.)

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Exs. 1-45.) Plaintiff has a history of filing actions against individuals that he comes into contact

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with in person or sees on film or television, claiming harm to himself and his companies.9 In fact,

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based on Plaintiff’s prior pattern of litigation, in his Opposition, he seems to be planning an action

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against Google. (See Opposition at 11-12.) This is apparent because Plaintiff has sued companies

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mentioned in his declaration from a prior case, in which he stated his intentions to sue Apple,

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Disney, and numerous other defendants that he believes to have stolen his ideas for software,

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hardware, television shows, and songs.10 None of Plaintiff’s actions have been decided in his favor.

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(See RJN, Exs. 1-45.) Further, Plaintiff’s damages claims have been frivolous because his requests,

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even for the most minimal harm, are all for at least thirty-five million dollars, with most reaching

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near or over a billion dollars.11 (RJN, Exs. 2, 12, 23, 28, 31, 35; see also Complaint.)
In sum, the Court finds there is an adequate record for its review and to make substantive

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findings as to the frivolous and harassing nature of Plaintiff’s claims here and in prior actions.

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Plaintiff’s actions are all based in a world of fantasy, where Plaintiff’s ideas do not match up with

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reality. (See RJN, Exs. 2, 12, 23, 28, 31, 35; Complaint; Opposition.)

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3.

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The De Long court emphasized that a court’s order limiting a litigant’s access to the courts

Breadth of the Order

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“must be narrowly tailored to closely fit the specific vice encountered.” De Long, 912 F.2d at 1148.

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More recently, the Ninth Circuit has held that when prefiling requirements are imposed, a court can

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“preclude a litigant from proceeding . . . when it is clear from the face of the [plaintiff]’s pleadings

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that . . . the facts presented are fanciful or in conflict with facts of which the court may take judicial

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notice.” In re Thomas, 508 F.3d 1225, 1227 (9th Cir. 2007) (upholding the Circuit’s prefiling

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(See, e.g., RJN, Exs. 11-21 (Plaintiff brought suit against Disney implicating Eva
Longoria, a star of ABC’s “Desperate Housewives,” as a confidant of Plaintiff’s to whom he
allegedly trusted such secrets as the idea for “Desperate Housewives” itself).)
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(Declaration of Plaintiff Franz A. Wakefield in Support of his Response in Opposition,
Ex. 4, Docket Item No. 33.)
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Plaintiff requested $30,500,000.00 in a case where Plaintiff alleged that a police officer
should not have given him a traffic ticket for an expired vehicle registration. (RJN, Ex. 28.)
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requirements as narrowly tailored when the appellant could not file an appeal unless he (1) appeared

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through counsel, (2) the district court certified that his appeal was taken in good faith, or (3) the

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Circuit determined that the appeal or petition had sufficient merit to proceed). Here, the Court finds

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that monetary sanctions are insufficient to deter Plaintiff from filing frivolous suits. (See RJN, Ex.

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6.)

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Accordingly, the Court GRANTS Defendants’ Motion for an Order Enjoining Further Pro Se
Complaints without prior judicial authorization.

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V. CONCLUSION
The Court GRANTS Defendants’ Motions to Dismiss and for an Order Enjoining Further
Pro Se Complaints Without Prior Judicial Authorization. For the reasons stated above, Plaintiff

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Franz A. Wakefield is declared a vexatious litigant.12

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Accordingly, the Court hereby orders that the Clerk of this Court shall not accept for filing

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any pro se action by Plaintiff Franz A. Wakefield in the United States District Court for the

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Northern District of California until such complaint has been subjected to pre-filing review by a

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Judge of this Court. To obtain the approval of the Court to file a pro se action, Plaintiff must first

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file with the Court an application which shall include the proposed complaint and (i) the evidence

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that supports the allegations in the complaint or (ii) in the absence of such evidence, a declaration

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setting forth a good faith basis for concluding that Plaintiff could obtain the evidence necessary to

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support his allegations. In deciding whether to allow Plaintiff to proceed with any new action, the

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Court will consider whether the new action raises any non-frivolous or plausible issues. The Court

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may, in its discretion, require that Plaintiff post a bond in the amount of the fees and costs that the

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defendants will likely incur in defending against the action. This Order shall remain in effect for ten

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(10) years unless further modified by this Court upon duly noticed motion or Order to Show Cause.

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In light of this Order, the Court DENIES as moot Defendant Sarah Jessica Parker’s
Motion to Dismiss and for an Order Enjoining Further Pro Se Complaints Without Prior
Authorization. (Docket Item No. 45.) Accordingly, the Court VACATES the hearing on Defendant
Parker’s Motion set for June 21, 2010. Defendant Parker’s Motion to Appear by telephone is
DENIED as moot. (Docket Item No. 73.)

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Judgment shall be entered in favor of Defendants against Plaintiff.

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JAMES WARE
United States District Judge

Dated: June 15, 2010
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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

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Emily L. Maxwell [e-mail]
Ronald D. Arena [e-mail]

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Franz A Wakefield
17731 North West 14th Court
Miami, FL 33169

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Dated: June 15, 2010

Richard W. Wieking, Clerk

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By:
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For the Northern District of California

United States District Court

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/s/ JW Chambers
Elizabeth Garcia
Courtroom Deputy