Linlor v. The National Rifle Association of America

Filing 17

ORDER Denying Plaintiff's 5 Motion to Remand; Granting Defendant's 3 Motion to Dismiss and Denying Defendant's 11 Motion for Sanctions. The Court grants Defendant's motion to dismiss and dismisses Plaintiff's FAC with prejudice. The Court denies Plaintiff's request for sanctions, and denies Defendant's motion for sanctions. The Court defers ruling on Defendant's request for attorneys' fees and costs to afford Plaintiff an opportunity to respond. Plaintiff's response, if any, must be filed on or before 5/17/2017. Signed by Judge Michael M. Anello on 5/8/2017. (All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES LINLOR, an individual, 12 13 14 15 16 Case No.: 17cv203-MMA (JMA) ORDER DENYING PLAINTIFF’S MOTION TO REMAND; Plaintiff, v. [Doc. No. 5] THE NATIONAL RIFLE ASSOCIATION OF AMERICA, GRANTING DEFENDANT’S MOTION TO DISMISS; Defendant. [Doc. No. 3] 17 AND DENYING DEFENDANT’S MOTION FOR SANCTIONS 18 [Doc. No. 11] 19 20 21 Plaintiff James Linlor (“Plaintiff”), proceeding pro se, filed the instant action 22 against Defendant the National Rifle Association of America (“NRA” or “Defendant”) in 23 San Diego County Superior Court. See Doc. No. 1. In his First Amended Complaint 24 (“FAC”), Plaintiff alleges Defendant violated California Civil Code Section 3344 by 25 addressing and mailing membership renewal notices and other marketing material to 26 27 28 -1- 17cv203-MMA (JMA) 1 Plaintiff. See Doc. No. 1-2 at 81 (hereinafter “FAC”).2 Defendant removed the action to 2 this Court on February 2, 2017. See id. 3 On February 9, 2017, Defendant filed a motion to dismiss Plaintiff’s Complaint 4 pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 5 No. 3. On February 14, 2017, Plaintiff filed a motion to remand this action back to state 6 court and requested the Court sanction Defendant pursuant to Federal Rule of Civil 7 Procedure 11. Doc. No. 5. Defendant filed a reply brief in support of its motion to 8 dismiss, despite the fact that Plaintiff did not file an opposition to such motion. See Doc. 9 No. 9. On March 24, 2017, Plaintiff filed a “Declaration of Non-Service” claiming 10 Defendant did not serve Plaintiff with a copy of Defendant’s motion to dismiss. See Doc. 11 No. 12. Finally, on March 27, 2017, Defendant filed a motion for sanctions under 12 Federal Rule of Civil Procedure 11. Doc. No. 11. Plaintiff did not file an opposition to 13 Defendant’s motion for sanctions. The Court found these matters suitable for 14 determination on the papers and without oral argument pursuant to Civil Local Rule 15 7.1.d.1. See Doc. Nos. 10, 15. For the reasons set forth below, the Court DENIES 16 Plaintiff’s motion to remand, GRANTS Defendant’s motion to dismiss, and DENIES 17 Defendant’s motion for sanctions. 18 /// 19 /// 20 21                                                 22 1 23 2 24 25 26 27 28 The Court refers to the CM/ECF pagination when citing to this document. The Court notes there is some confusion about whether Mr. Linlor’s daughter is a party to this action. On December 28, 2016, Plaintiff filed a Complaint on behalf of himself, and on behalf of his minor daughter. See Doc. No. 1-2 at 2. In his FAC, Plaintiff removed his minor daughter’s name from the caption and explicitly indicated that he “remov[ed] the second Plaintiff” from the action. Id. Parties not named and any claim not re-alleged in the amended complaint will be considered waived. See S.D. CAL. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.”). Accordingly, Mr. Linlor is the sole plaintiff in this action. -2- 17cv203-MMA (JMA) BACKGROUND3 1 2 Plaintiff James Linlor is an individual residing in the County of San Diego. The 3 NRA is a foreign corporation chartered in New York, with its principal place of business 4 in Fairfax, Virginia. See Doc. No. 8-2 (hereinafter “Frazer Decl.”) ¶¶ 3-4. 5 In July 2016, Plaintiff began receiving membership renewal notices and other 6 marketing material from the NRA in the mail. Plaintiff never requested the NRA contact 7 him. After receiving several marketing letters, Plaintiff contacted the NRA by telephone 8 to request that he be removed from the NRA’s mailing list. The NRA agreed to cease 9 sending Plaintiff marketing material. Within the following two months, Plaintiff received 10 at least two additional marketing letters from the NRA. In total, Plaintiff received six 11 letters. 12 Plaintiff alleges one cause of action for commercial misappropriation under 13 California Civil Code Section 3344. Plaintiff contends the NRA sent marketing material 14 “knowing that it lacked consent to advertise” to Plaintiff, and that in sending Plaintiff 15 such letters, the NRA hoped Plaintiff would “open a membership or credit card offer.” 16 FAC at 12. Thus, Plaintiff claims the NRA sent Plaintiff marketing material on six 17 occasions with Plaintiff’s full name via mail “in violation of California Civil Code 18 Section 3344.” FAC at 11. 19 20 21 22 23 PLAINTIFF’S MOTION TO REMAND As an initial matter, Plaintiff moves to remand this action to state court, arguing that the parties are not diverse. Defendant opposes the motion. 1. Legal Standard Title 28 of the United States Code, section 1441(a), provides for removal of a civil 24 action from state to federal court if the case could have originated in federal court. The 25                                                 26 27 28 3 Because this case comes before the Court on a motion to dismiss, the Court must accept as true all material allegations in the complaint and must also construe the complaint, and all reasonable inferences drawn therefrom, in the light most favorable to Plaintiff. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). All facts are taken from the FAC (Doc. No. 1-2 at 8) unless otherwise noted. -3- 17cv203-MMA (JMA) 1 statute is construed strictly against removal, and “[f]ederal jurisdiction must be rejected if 2 there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 3 980 F.2d 564, 566 (9th Cir.1992). As the removing party, the defendant bears the burden 4 of establishing that the court has subject matter jurisdiction. Abrego Abrego v. The Dow 5 Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006). 6 When a state case is removed to federal court based on diversity jurisdiction, “an 7 amount-in-controversy requirement must be met,” in addition to the diversity of 8 citizenship requirement. Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 9 547, 551 (2014). Diversity of citizenship requires that the parties be “citizens of different 10 states,” and the amount in controversy meet or exceed $75,000. 28 U.S.C §§ 1332(a), 11 1446(a). Moreover, “a corporation shall be deemed a citizen of every State and foreign 12 state by which it has been incorporated and of the State or foreign state where it has its 13 principal place of business[.]” 28 U.S.C. § 1332(c)(1). A corporation’s principal place 14 of business “is best read as referring to the place where the corporation’s officers direct, 15 control, and coordinate the corporation’s activities.” Hertz Corp v. Friend, 559 U.S. 77, 16 92-93 (2010). 17 A defendant must comply with certain procedural requirements when removing an 18 action, including timely filing the notice of removal within thirty days after the service of 19 the summons and complaint. See 28 U.S.C. § 1446(b)(1). A renewed thirty-day removal 20 period begins when a defendant receives “an amended pleading, motion, order or other 21 paper from which it may first be ascertained that the case is one which is or has become 22 removable . . . .” Id. § 1446(b)(3). Although “the statutory time limit for removal 23 petitions is merely a formal and modal requirement and is not jurisdictional,” it “is 24 mandatory and a timely objection to a late petition will defeat removal.” Fristoe v. 25 Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980). 26 27 28 2. Analysis Here, the Court finds that complete diversity exists between the parties. In his FAC, Plaintiff claims he “is a natural person residing in the County of San Diego, State -4- 17cv203-MMA (JMA) 1 of California.” Doc. No. 1-2 at 9. In his motion to remand, however, Plaintiff asserts he 2 is a citizen of Nevada. See Doc. No. 5 at 3 (“However, pro se Plaintiff’s primary 3 residence is located in Nevada, where Plaintiff is a citizen.”). Defendant is a foreign 4 corporation chartered in New York, with its principal place of business in Fairfax, 5 Virginia. Frazer Decl. ¶¶ 3-4. Plaintiff contends the parties are not diverse because 6 “Defendant has many business contacts in California, dispelling Defendant’s assertion of 7 diversity of jurisdiction.” Doc. No. 5 at 2. However, Defendant’s board of directors 8 meet, direct, control and coordinate Defendant’s activities in Virginia, and the board has 9 never met for a directors’ meeting in California, nor has the board made major business 10 decisions in California. Frazer Decl. ¶ 3. Accordingly, regardless of whether Plaintiff is 11 a citizen of California or Nevada, complete diversity exists between the parties because 12 the parties are citizens of different states. 13 Further, the Court finds the amount in controversy requirement is satisfied. 14 Plaintiff’s FAC alleges $200,000 in punitive damages and $4,500 in statutory damages. 15 See Doc. No. 1-2 at 13. See Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) 16 (articulating that punitive damages may be considered in determining the amount in 17 controversy in a civil action). 18 Finally, Plaintiff claims Defendant “suddenly filed for removal to Federal Court in 19 San Diego.” Doc. No. 5 at 3. The Court notes that Plaintiff filed his FAC in state court 20 on January 4, 2017, and Defendant filed its notice of removal on February 2, 2017. See 21 Doc. No. 1. Thus, to the extent Plaintiff raises an argument about the timeliness of 22 Defendant’s removal, Defendant timely removed this action within the thirty (30) day 23 removal period set forth in the statute. See 28 U.S.C. § 1446(b)(3). 24 In sum, because the parties are diverse, and the amount in controversy exceeds 25 $75,000, diversity jurisdiction exists in this case. Accordingly, the Court DENIES 26 Plaintiff’s motion to remand. 27 /// 28 /// -5- 17cv203-MMA (JMA) 1 DEFENDANT’S MOTION TO DISMISS 2 Defendant moves to dismiss Plaintiff’s FAC for failure to state a claim pursuant to 3 Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 3. Before considering the 4 substance of Defendant’s motion, the Court addresses Plaintiff’s declaration of non- 5 service and Plaintiff’s failure to oppose Defendant’s motion to dismiss. 6 A. Plaintiff’s Declaration of Non-Service 7 As an initial matter, Plaintiff filed a declaration of non-service claiming Defendant 8 did not serve Plaintiff with its motion to dismiss. See Doc. No. 12. Federal Rule of Civil 9 Procedure 5(b) provides that “[a] paper is served under this rule by . . . mailing it to the 10 person’s last known address—in which event service is complete upon mailing[.]” Fed. 11 R. Civ. P. 5(b)(2)(c). Rule 5(d) further requires the serving party to file a certificate of 12 service with the Court. See Fed. R. Civ. P. 5(d). 13 Here, service is presumed because Defendant filed a “Proof of Service” with the 14 Court indicating that Defendant’s motion to dismiss was mailed to Plaintiff’s address on 15 February 9, 2017—the same day Defendant electronically filed the motion with the 16 Court. See Doc. No. 3 at 3. Thus, because Defendant adhered to the requirements set 17 forth by Federal Rule of Civil Procedure 5, the Court finds service was properly effected. 18 B. 19 Plaintiff’s Failure to Oppose To date, Plaintiff has not filed an opposition to Defendant’s motion to dismiss. 20 Accordingly, the Court considers Defendant’s motion to dismiss to be unopposed. 21 Defendant filed a reply brief arguing that because Plaintiff does not oppose the motion to 22 dismiss, Defendant is entitled to attorneys’ fees and costs as a “prevailing party.” See 23 Doc. No. 9. 24 The Ninth Circuit has held a district court may properly grant an unopposed 25 motion to dismiss pursuant to a local rule where the local rule permits, but does not 26 require, the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 27 46 F.3d 52, 53 (9th Cir. 1995). Civil Local Rule 7.1.f.3.c provides that “[i]f an opposing 28 party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that -6- 17cv203-MMA (JMA) 1 failure may constitute a consent to the granting of a motion or other request for ruling by 2 the court.” 3 Here, the Court declines to grant Defendant’s motion on the basis of Plaintiff’s 4 failure to oppose. Generally, public policy favors disposition of cases on their merits. 5 See, e.g., Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). As such, the 6 Court proceeds to address the substance of Defendant’s motion to dismiss. 7 C. 8 9 10 11 12 Plaintiff Fails to State a Claim Under Rule 12(b)(6) Defendant argues the Court should dismiss Plaintiff’s FAC with prejudice because Plaintiff fails to allege sufficient facts to support a legal claim against Defendant. Doc. No. 3-1 at 2. 1. Legal Standard A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro 13 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain 14 statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 15 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is 16 plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 17 570 (2007). The plausibility standard thus demands more than a formulaic recitation of 18 the elements of a cause of action, or naked assertions devoid of further factual 19 enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must 20 contain allegations of underlying facts sufficient to give fair notice and to enable the 21 opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 22 2011). 23 In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth 24 of all factual allegations and must construe them in the light most favorable to the 25 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). 26 The court need not take legal conclusions as true merely because they are cast in the form 27 of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 28 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to -7- 17cv203-MMA (JMA) 1 2 defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not 3 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 4 908 (9th Cir. 2003). “A court may, however, consider certain materials—documents 5 attached to the complaint, documents incorporated by reference in the complaint, or 6 matters of judicial notice—without converting the motion to dismiss into a motion for 7 summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 8 2001). “However, [courts] are not required to accept as true conclusory allegations 9 which are contradicted by documents referred to in the complaint.” Steckman v. Hart 10 Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). Where dismissal is appropriate, a 11 court should grant leave to amend unless the plaintiff could not possibly cure the defects 12 in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 13 Generally, courts must broadly construe pleadings filed by pro se litigants, 14 affording pro se plaintiffs any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 15 94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). A pro se complaint 16 “can only be dismissed for failure to state a claim if it appears ‘beyond doubt that the 17 plaintiff can prove no set of facts in support of his claim which would entitle him to 18 relief.’” Estelle v. Gamble, 429 U.S. 91, 106 (1976) (citing Haines v. Kerner, 404 U.S. 19 519, 521 (1972)). 20 2. Analysis 21 Plaintiff alleges a statutory cause of action for commercial misappropriation. 22 Plaintiff contends that “[w]ithout prior consent, Defendant six times sent marketing 23 material with the Plaintiff’s . . . full name through the US Mail, in violation of California 24 Civil Code 3344.” Complaint ¶ 9. Defendant argues Plaintiff’s Complaint “is 25 completely devoid of any facts that suggest that the names were misappropriated in the 26 manner required under the statute.” Doc. No. 3-1 at 5. 27 28 “California has long recognized a common law right of privacy for the protection of a person’s name and likeness against appropriation by others for their advantage.” -8- 17cv203-MMA (JMA) 1 Newcombe v. Adolf Coors Co., 157 F.3d 686, 691 (9th Cir. 1998). “California law 2 provides two vehicles for asserting such a right: a common law cause of action for 3 commercial misappropriation, and a statutory remedy for commercial misappropriation 4 under California Civil Code § 3344.” Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 803 5 (N.D. Cal. 2011). The California common law cause of action has been complemented 6 by the enactment of California Civil Code Section 3344. Newcombe, 157 F.3d at 691-92. 7 Section 3344 “neither replaces nor codifies the common law cause of action.” Id. at 692. 8 To state a common law cause of action for commercial misappropriation, a plaintiff must 9 prove: “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of 10 plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack 11 of consent; and (4) resulting injury.” Eastwood v. Superior Court of Los Angeles County, 12 198 Cal. Rptr. 342, 347 (Cal. Ct. App. 1983). To state a statutory cause of action under 13 Section 3344, “a plaintiff must prove all of the elements of the common law cause of 14 action. In addition, the plaintiff must allege a knowing use by the defendant as well as a 15 direct connection between the alleged use and the commercial purpose.” Downing v. 16 Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001). 17 California Civil Code Section 3344 provides in pertinent part: 18 Any person who knowingly uses another’s name . . . in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. 19 20 21 22 23 24 Cal. Civ. Code § 3344(a). Here, the Court finds that Plaintiff fails to state a claim for commercial 25 misappropriation under California Civil Code § 3344. “The common form of invasion of 26 privacy under the rule here stated is the appropriation and use of the plaintiff’s name or 27 likeness to advertise the defendant’s business or product, or for some similar commercial 28 purpose.” Restatement (Second) of Torts § 652C, comment b (emphasis added). Even -9- 17cv203-MMA (JMA) 1 construing Plaintiff’s FAC broadly, Plaintiff does not allege that Defendant used 2 Plaintiff’s likeness or name to endorse the NRA. Instead, Plaintiff alleges that “[w]ithout 3 prior consent, Defendant six times sent marketing material with the Plaintiff’s . . . full 4 name through the US Mail, in violation of California Civil Code 3344.” Complaint ¶ 9. 5 While Plaintiff alleges Defendant addressed advertising material to Plaintiff, Plaintiff 6 does not allege any facts to support the notion that the NRA used Plaintiff’s name to 7 endorse a product or solicit a purchase. 8 Plaintiff asserts Defendant sent “mailers knowing that it lacked consent to 9 advertise to . . . the pro se Plaintiff[.]” Complaint ¶ 10. Thus, Plaintiff asserts affixing 10 his name to a mailing label constitutes statutory misappropriation. “Generally, ‘a 11 plaintiff’s name is not appropriated by mere mention of it.’” Yeager v. Cingular Wireless 12 LLC, 673 F. Supp. 2d 1089, 1110 (E.D. Cal. 2009) (citing Restatement (Second) of Torts 13 § 652C, comment d). The Court is not aware of any case law supporting Plaintiff’s 14 contention that affixing a recipient’s name to mailing label is a violation of Section 3344. 15 Such a broad reading of the statute would effectively prohibit any company from sending 16 advertising material in the mail. Accordingly, the Court finds Plaintiff has failed to 17 allege any facts to support his claim that Defendant appropriated Plaintiff’s name or 18 likeness to advertise Defendant’s business. Accordingly, the Court GRANTS Plaintiff’s 19 motion to dismiss with prejudice.4 20 21 3. Defendant’s Request for Attorneys’ Fees and Costs In its reply brief, Defendant requests the Court award Defendant $18,255.00 in 22 attorneys’ fees and $545.61 in costs as a “prevailing party” in this action pursuant to 23 California Civil Code § 3344. Doc. No. 9. Because Defendant requested fees and costs 24 25 26 27 28                                                 4 Dismissal is with prejudice because any amendment to cure the deficiencies addressed herein would be futile. See AE v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (noting that “a district court abuses its discretion by denying leave to amend unless amendment would be futile or the plaintiff has failed to cure the complaint’s deficiencies despite repeated opportunities.”). -10- 17cv203-MMA (JMA) 1 in its reply brief, Plaintiff has not yet had an opportunity to respond to Defendant’s 2 request for fees and costs. Accordingly, the Court DEFERS ruling on Defendant’s 3 request for attorneys’ fees and costs at this time. 4 5 MOTION FOR SANCTIONS A. 6 Defendant’s Request for Judicial Notice Defendant requests the Court take judicial notice of fifteen (15) documents 7 Plaintiff filed in various lawsuits in support of its motion for sanctions. See Doc. No. 11- 8 6. Defendant requests judicial notice of such documents primarily to identify Plaintiff’s 9 “repeated averments of his residency in San Diego County,” despite the fact that Plaintiff 10 claims to be a resident of Nevada in his motion to remand. Id. at 1. Plaintiff currently 11 has three cases pending before the Undersigned. Thus, the Undersigned need not look 12 beyond the pleadings filed in those cases to determine that Plaintiff’s representations 13 about his residency are inconsistent. Accordingly, the Court DENIES AS MOOT 14 Defendant’s request for judicial notice. 15 B. 16 17 18 Rule 11 Sanctions Both parties request sanctions pursuant to Federal Rule of Civil Procedure 11. See Doc. Nos. 5, 11. The Court addresses each request in turn. 1. Legal Standard 19 Federal Rule of Civil Procedure 11 states, in pertinent part, that when an attorney 20 or unrepresented party presents a signed paper to a court, that attorney or unrepresented 21 party is certifying that to the best of his or her “knowledge, information and belief, 22 formed after an inquiry reasonable under the circumstances” that: 23 24 25 26 (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing law or for establishing new law; 27 28 (3) the factual contentions have evidentiary support or, if specifically so -11- 17cv203-MMA (JMA) 1 identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and 2 3 4 (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. 5 6 Fed. R. Civ. P. 11(b)(1)-(4). Sanctions under Rule 11 are warranted when a party files a 7 lawsuit or motion that is frivolous, legally unreasonable, without factual foundation, or is 8 otherwise brought for an improper purpose. Warren v. Guelker, 29 F.3d 1386, 1388 (9th 9 Cir. 1994) (citing Conn v. Borjorquez, 967 F.3d 1418, 1420 (9th Cir. 1992); Operating 10 Engineers Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988)). A filing is “frivolous” 11 when it is “both baseless and made without a reasonable and competent inquiry.” 12 Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1992). Either 13 improper purpose or frivolousness is sufficient to sustain a sanction. Id. 14 When one party seeks sanctions against another, the Court must first determine 15 whether any provision of Rule 11(b) has been violated. Warren, 29 F.3d at 1389. A 16 finding of subjective bad faith is not required under Rule 11. See Smith v. Ricks, 31 F.3d 17 1478, 1488 (9th Cir. 1994) (quoting Zuniga v. United Can Co., 812 F.2d 443, 452 (9th 18 Cir. 1987)) (“Counsel can no longer avoid the sting of Rule 11 sanctions by operating 19 under the guise of a pure heart and empty head.”). “Instead, the question is whether, at 20 the time the paper was presented to the Court (or later defended) it lacked evidentiary 21 support or contained ‘frivolous’ legal arguments.” Odish v. CACH, LLC, 2012 WL 22 5382260, at *3 (S.D. Cal. Nov. 1, 2012). Where such a violation is found, Rule 11 23 provides that “the court may impose an appropriate sanction on any attorney, law firm, or 24 party that violated the rule or is responsible for the violation.” Fed. R. Civ. P. 11(c)(1) 25 (emphasis added). 26 Although Rule 11 applies to pro se plaintiffs, courts are required to take into 27 consideration a plaintiff’s pro se status when it determines whether the conduct at issue 28 was reasonable. See Warren, 29 F.3d at 1390. However, a court cannot decline to -12- 17cv203-MMA (JMA) 1 impose sanctions where a violation of Rule 11 occurred “simply because [the] plaintiff is 2 proceeding pro se.” Id.; see also Simpson v. Lear Elecs. Corp., 77 F.3d 1170, 1177 (9th 3 Cir. 1995). 4 5 2. Plaintiff’s Request for Sanctions In his motion to remand, Plaintiff claims defense counsel improperly removed the 6 instant action to this Court “with the exact intention to harass, [and] cause undue delay . . 7 . .” Doc. No. 5 at 4. Thus, Plaintiff requests the Court sanction defense counsel in the 8 amount of $5,000 for counsel’s “willful violation of FRCP 11(b).” Id. 9 As an initial matter, the Court notes that Plaintiff did not comply with the 10 procedural requirements set forth in Rule 11 prior to filing his request for sanctions. See 11 Fed. R. Civ. P. 11(c)(2) (“A motion for sanctions must be made separately from any 12 other motion . . . The motion . . . must not be filed or be presented to the court if the 13 challenged paper, claim, defense, contention, or denial is withdrawn or appropriately 14 corrected within 21 days after service . . . .”) (emphasis added). Plaintiff did not file a 15 separate motion for sanctions, but instead filed his request for sanctions together with his 16 motion to remand. See Doc. No. 5. Further, Plaintiff presents no evidence that he 17 complied with the 21-day safe harbor provision prior to filing his request for sanctions. 18 As such, Plaintiff’s request is procedurally defective. Even if the Court were to address 19 the merits of Plaintiff’s request for sanctions, however, Defendant properly removed the 20 instant action to this Court for the reasons set forth above. Accordingly, the Court finds 21 no violation of Rule 11(b) and DENIES Plaintiff’s request for sanctions. 22 23 3. Defendant’s Motion for Sanctions Defendant contends sanctions under Rule 11 are warranted because (1) Plaintiff’s 24 Complaint is legally and factually baseless; (2) Plaintiff makes false representations to 25 the Court in his motion to remand for an improper purpose; (3) Plaintiff did not have a 26 reasonable basis for filing Rule 11 sanctions against Defendant; and (4) Plaintiff 27 improperly disclosed settlement negotiations in his motion to remand. See Doc. No. 11. 28 Here, based on a liberal reading of Plaintiff’s filings, the Court finds sanctions are -13- 17cv203-MMA (JMA) 1 not warranted. Defendant contends Plaintiff’s Complaint lacks a legal and factual basis. 2 While Rule 11 applies to pro se plaintiffs, the Court “must take into account a plaintiff’s 3 pro se status when it determines whether the filing was reasonable.” Warren, 29 F.3d at 4 1390. Defendant does not dispute that it sent numerous advertisements to Plaintiff in the 5 mail, despite Plaintiff’s alleged request that Defendant remove Plaintiff from its mailing 6 list. See Doc. No. 3-1 at 5 (“[T]he National Rifle Association simply affixed Plaintiff and 7 his daughter’s name onto a mailing label in order to ensure that the membership renewal 8 notices, and other marketing materials, reached their intended recipient through the U.S. 9 mails.”). While the Court finds that Plaintiff cannot state a claim for relief under 10 California Civil Code § 3344, the Court is not persuaded that Plaintiff lacked an 11 objectively unreasonable basis in filing his Complaint. Defendant notes that “Plaintiff 12 seems motivated to creatively use [California’s] right of publicity statute” in an attempt 13 to address the harm suffered from “receiving unsolicited membership renewal notices[.]” 14 Doc. No. 3-1 at 8. Thus, the Court finds that Plaintiff’s “creative” interpretation of 15 Section 3344, while ultimately unsuccessful, does not amount to a violation of Rule 11. 16 Further, this is not a case in which Plaintiff filed a complaint that he should have known 17 was frivolous “in the face of previous dismissals involving the exact same parties under 18 the same legal theories.” Warren, 29 F.3d at 1390 (quoting Kurkowski v. Volcker, 819 19 F.2d 201, 204 (8th Cir. 1987)). 20 The Court similarly finds Plaintiff’s motion to remand, which incorporates 21 Plaintiff’s request for sanctions, does not amount to a violation of Rule 11. The Court 22 notes that Plaintiff initially claimed to be a resident of San Diego County in FAC, but 23 later argued that he was a citizen of Nevada in his motion to remand. However, Plaintiff 24 clarifies that his “primary residence is located in Nevada, where Plaintiff is a citizen,” but 25 he also “maintains a second residence in California near San Diego . . . .” Doc. No. 5 at 26 3. By giving Plaintiff the benefit of the doubt, the Court finds that Plaintiff did not 27 intentionally misrepresent his state of citizenship for an improper purpose in this case. 28 Likewise, the Court finds Plaintiff’s references to settlement discussions in his motion to -14- 17cv203-MMA (JMA) 1 remand do not rise to the level of Rule 11 violations. Finally, Plaintiff’s request for 2 sanctions is premised on Defendant’s alleged improper removal. In construing Plaintiff’s 3 filings liberally, the Court finds that though ultimately unsuccessful, Plaintiff’s request 4 for sanctions did not lack an objectively unreasonable basis. See Bus. Guides, Inc. v. 5 Chromatic Commc’ns Enters., Inc., 892 F.2d 802, 811 (9th Cir. 1989) (noting that 6 although pro se litigants are held to an objective standard of reasonableness under Rule 7 11, “what is objectively reasonable for a pro se litigant and for an attorney may not be the 8 same . . . .”) (emphasis added). Accordingly, the Court DENIES Defendant’s motion for 9 sanctions. 10 11 CONCLUSION Based on the foregoing, the Court DENIES Plaintiff’s motion to remand. The 12 Court GRANTS Defendant’s motion to dismiss and DISMISSES Plaintiff’s FAC with 13 prejudice. The Court DENIES Plaintiff’s request for sanctions, and DENIES 14 Defendant’s motion for sanctions. 15 The Court DEFERS ruling on Defendant’s request for attorneys’ fees and costs to 16 afford Plaintiff an opportunity to respond. Plaintiff’s response, if any, must be filed on or 17 before May 17, 2017. 18 19 IT IS SO ORDERED. 20 21 22 23 24 Dated: May 8, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 25 26 27 28 -15- 17cv203-MMA (JMA)

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