Stevens v. Nkwo-Okere et al

Filing 30

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 10 Defendant Fightmaster's Motion to Dismiss; denying 24 Plaintiff's Motion to Stay. Plaintiff's First Amended Complaint due by 9/27/2013. (hrllc2, COURT STAFF) (Filed on 8/27/2013) Modified on 8/27/2013 (hrllc2, COURT STAFF).

1
2

*E-FILED: August 27, 2013*

3
4
5
6
NOT FOR CITATION

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11
For the Northern District of California

United States District Court

7

FRANCINE STEVENS,

12
13
14

No. C13-01974 HRL

Plaintiff,

ORDER (1) GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS; AND (2)
DENYING PLAINTIFF’S MOTION TO
STAY

v.

15

ANTHONY NKWO-OKERE; MARLA
JOHANNING; JOANNE HUE; ARLEEN
ROZUL; RACHEL FIGHTMASTER,

16

Defendants.

[Re: Docket Nos. 10, 24]
/
17
18

Pro se plaintiff Francine Stevens filed this civil rights action arising from ongoing state

19

court child-dependency proceedings involving her children. Although plaintiff’s complaint lists

20

a litany of statutes,1 the only ostensible basis for her claims as to the named defendants is 42

21

U.S.C. § 1983. Defendant Rachel Fightmaster, the court-appointed legal representative of

22

plaintiff’s minor children in the underlying proceeding, is an attorney with the Law Foundation

23

of Silicon Valley (Law Foundation), in its LACY (Legal Advocates for Children & Youth)

24

program. According to Fightmaster, the Law Foundation is a non-governmental, non-profit

25
For instance, Stevens lists various sections of the California and federal
criminal codes for which there is no private right of action. Additionally, she lists claims
under 28 U.S.C. §§ 1346(b), 2680(a), and 2680(h), all of which concern claims or bases for
immunity for federal employees. The complaint also references section 7206 of the United
States Internal Revenue Code, which has no relevance whatsoever to plaintiff’s allegations.
Moreover, none of the named defendants is a federal employee. And, while plaintiff made a
handwritten notation adding the United States to the caption of her in forma pauperis
application, there is nothing in the record indicating that the federal government or any
federal officer or employee had anything to do with the complained-of conduct.
1

26
27
28

1

organization that contracts directly with Santa Clara County, and LACY provides legal

2

representation to dependent children in proceedings before the Santa Clara County Juvenile

3

Court.

4

Pursuant to Fed. R. Civ. P. 12(b)(6), Fightmaster now moves to dismiss the complaint,

5

arguing that plaintiff’s suit is barred by the Noerr-Pennington doctrine. Alternatively,

6

Fightmaster requests an order requiring Stevens to provide a more definite statement pursuant to

7

Fed. R. Civ. P. 12(e). Over a week after the August 5 filing deadline, Stevens filed an

8

opposition and motion for an “order of stay.” Although Stevens is representing herself, that

9

does not excuse her from making timely filings, and she is warned against future noncompliance with rules that all litigants are obliged to follow. The court nevertheless has

11
For the Northern District of California

United States District Court

10

considered all of the papers, including plaintiff’s tardy submission, and the arguments presented

12

at oral argument. For the reasons discussed below, defendant’s motion to dismiss is granted in

13

part and denied in part.2

14
15

LEGAL STANDARD
Fed. R. Civ. P. 12(b)(6)b

16

A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests

17

the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th

18

Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of

19

sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica

20

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in

21

the complaint must be taken as true and construed in the light most favorable to the claimant.

22

Id. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

23

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

24

Moreover, “the court is not required to accept legal conclusions cast in the form of factual

25

allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v.

26

Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

27
28

All parties have expressly consented that all proceedings in this matter may be
heard and finally adjudicated by the undersigned. 28 U.S.C. § 636(c); FED. R. CIV. P. 73.
2

2

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

1
2

claim showing that the pleader is entitled to relief.” This means that the “[f]actual allegations

3

must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

4

Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted)

5

However, only plausible claims for relief will survive a motion to dismiss. Iqbal, 129 S.Ct. at

6

1950. A claim is plausible if its factual content permits the court to draw a reasonable inference

7

that the defendant is liable for the alleged misconduct. Id. A plaintiff does not have to provide

8

detailed facts, but the pleading must include “more than an unadorned, the-defendant-

9

unlawfully-harmed-me accusation.” Id. at 1949.
Documents appended to the complaint or which properly are the subject of judicial

11
For the Northern District of California

United States District Court

10

notice may be considered along with the complaint when deciding a Fed. R. Civ. P. 12(b)(6)

12

motion.3 See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19

13

(9th Cir. 1990); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

14

Fed. R. Civ. P. 12(e)

15

“A party may move for a more definite statement of a pleading to which a responsive

16

pleading is allowed but which is so vague or ambiguous that the party cannot reasonably

17

prepare a response.” FED. R. CIV. P. 12(e). Generally, a more definite statement is required

18

“only when the pleading is so vague or ambiguous that the opposing party cannot respond, even

19

with a simple denial, in good faith or without prejudice to himself.” Margarita Cellars v. Pacific

20

Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999) (internal quotations and citations

21

omitted).

22
23
24
25
26
27
28

Fightmaster requests that the court take judicial notice of several documents
from the underlying state court matter, apparently for the purpose of establishing her
involvement in that case. Plaintiff argues that, in doing so, defendant has violated
confidentiality rules pertaining to juvenile court proceedings. Inasmuch as there is no
dispute about Fightmaster’s role in the child dependency case, the court finds it unnecessary
to take judicial notice of those papers. Nevertheless, the court takes judicial notice of
Fightmaster’s Exhibit G (a printout from the Law Foundation’s website) as to the nature of
the organization and the services it provides.
3

3

1

DISCUSSION

2

In her opposition papers, Stevens requests that this action be stayed. She apparently

3

bases that request upon the Federal Tort Claims Act (FTCA), which governs civil actions

4

against the United States for tortious conduct by a federal employee. As noted above, there is

5

absolutely no basis for application of the FTCA in this action. Plaintiff’s request for a stay is

6

denied.

7

The complaint is not the model of clarity. As to the moving defendant, the only thing

8

that the court is able to glean from the complaint’s allegations is that Fightmaster allegedly

9

made “false statements” on a March 28, 2012 report in the course of the underlying childdependency proceedings. Plaintiff claims that the (unidentified) “false statements” prolonged

11
For the Northern District of California

United States District Court

10

the child reunification process in violation of her Fourteenth Amendment rights. Fightmaster

12

contends that plaintiff’s suit is barred by the Noerr-Pennington doctrine.

13

“The Noerr-Pennington doctrine is rooted in the Petition Clause of the First

14

Amendment, which provides that ‘those who petition any department of the government for

15

redress are generally immune from statutory liability for their petitioning conduct.’” Feld

16

Entertainment, Inc. v. Am. Society for the Prevention of Cruelty to Animals, 873 F. Supp.2d

17

288, 306 (D.D.C. 2012) (quoting Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006)).

18

The doctrine “immunizes petitions directed at any branch of government, including the

19

executive, legislative, judicial and administrative agencies.” Manistee Town Ctr. v. City of

20

Glendale, 227 F.3d 1090, 1092 (9th Cir. 2000). The Ninth Circuit has “held that Noerr-

21

Pennington immunity applies to claims under 42 U.S.C. § 1983 that are based on the petitioning

22

of public authorities.” Id. See also Empress LLC v. City & Cnty. of San Francisco, 419 F.3d

23

1052, 1056 (9th Cir. 2005) (“Although the Noerr-Pennington doctrine originally immunized

24

individuals and entities from antitrust liability, Noerr-Pennington immunity now applies to

25

claims under § 1983 that are based on the petitioning of public authorities.”).

26

Here, all indications are that plaintiff’s claims against Fightmaster arise from

27

Fightmaster’s representation of plaintiff’s minor children in the underlying juvenile dependency

28

matter. But, while Noerr-Pennington immunity is broad, it is not limitless. The immunity
4

Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1184 (9th Cir. 2005). Additionally,

3

“‘[s]ham’ petitions don’t fall within the protection of the doctrine.” Id. at 1183-84. See also

4

Feld Entertainment, Inc., 873 F. Supp.2d at 307 (“Neither the Noerr–Pennington doctrine nor

5

the First Amendment more generally protects petitions predicated on fraud or deliberate

6

misrepresentation.”) (citation omitted). Thus, if the alleged wrongful conduct “consists of

7

making intentional misrepresentations to the court, litigation can be deemed a sham if a party’s

8

knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of

9

its legitimacy.” Freeman, 410 F.3d at 1184 (citations omitted). As noted above, Stevens says

10

that Fightmaster made “false statements” in a report. Nevertheless, plaintiff’s allegations are

11
For the Northern District of California

“applies only to what may fairly be described as petitions, not to litigation conduct generally.”

2

United States District Court

1

highly conclusory and exceedingly vague. Without more, the court is unable to properly

12

evaluate whether Noerr-Pennington immunity might apply.

13

Accordingly, Fightmaster’s Fed. R. Civ. P. 12(b)(6) motion to dismiss based on the

14

Noerr-Pennington doctrine is denied, and her alternate Fed. R. Civ. P. 12(e) motion for a more

15

definite statement is granted. No later than September 27, 2013, plaintiff shall file a First

16

Amended Complaint, providing specific information as to what she claims Fightmaster did that

17

was wrong, and to whom her report was given, i.e., was it submitted to the state court in the

18

underlying child dependency case? The court’s ruling is without prejudice to Fightmaster to

19

renew a motion based on the Noerr-Pennington doctrine, if appropriate, following the filing of

20

plaintiff’s amended pleading.

21

Plaintiff is advised that her amended pleading is limited to those claims pled in the

22

complaint and consistent with the rulings above. Plaintiff may not assert new or different

23

claims for relief or add new parties unless she makes an appropriate application pursuant to Fed.

24

R. Civ. P. 15. Failure to comply with this order may result in sanctions.

25

Further, plaintiff is encouraged to contact the Federal Legal Assistance Self-Help Center

26

(FLASH), located on the second floor of the Federal Courthouse in San Jose. Appointments

27

with FLASH may be made by signing up at the Center or by calling 408-297-1480.

28
5

1
2

ORDER
Based on the foregoing, Fightmaster’s Fed. R. Civ. P. 12(b)(6) motion to dismiss is

3

granted in part and denied in part. Plaintiff’s amended complaint must be filed no later than

4

September 27, 2013.

5

SO ORDERED.

6

Dated: August 27, 2013

7
HOWARD R. LLOYD
8

UNITED STATES MAGISTRATE JUDGE

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

1

5:13-cv-01974-HRL Notice has been electronically mailed to:

2

Bryan Leland Patrick Saalfeld [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail], [e-mail]

3
4

Melissa R. Kiniyalocts [e-mail],
[e-mail]

5
6

5:13-cv-01974-HRL Notice sent by U.S. Mail to:

7

Francine Stevens
80 S. Market Street
San Jose, CA 95113

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7