Deslauriers et al v. First Magnus Financial Corporation
Filing
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AMENDED ORDER DISMISSING PLAINTIFFS' COMPLAINT WITHOUT LEAVE TO AMEND re 4 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/19/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electron ic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Andre E. Deslauriers and David Wynn Miller shall be served by first class mail at the addresses of record on December 20, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANDRE-E. DESLAURIERS; DAVIDWYNN MILLER,
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Plaintiffs,
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vs.
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FIRST MAGNUS FINANCIAL
CORPORATION,
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Defendant.
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_____________________________ )
CIV. NO. 12-00670 SOM/KSC
AMENDED ORDER DISMISSING
PLAINTIFFS’ COMPLAINT WITHOUT
LEAVE TO AMEND
AMENDED ORDER DISMISSING PLAINTIFFS’
COMPLAINT WITHOUT LEAVE TO AMEND
On December 12, 2012, pro se Plaintiffs Andre-E
Deslauriers and David-Wynn Miller1 (“Plaintiffs”) filed their
“Quo-Warranto-Complaint &: Lis-Pendens.”2
This Complaint is only one of many filed by David-Wynn
Miller in this court (as well as many other federal courts).
1
The Complaint refers to David-Wynn Miller as a federal
judge, although he is not a judge of any United States tribunal.
Miller is cautioned not to make false representations.
2
In the earlier version of the present order, this court
noted that Plaintiffs had paid a filing fee. The present amended
order deletes that statement because, although Plaintiffs had
offered to pay the fee, it had not been processed in light of the
court’s directions to the Clerk of Court. Those directions
reflected the court’s anticipation of the now-pending Order
Directing David Wynn Miller to Show Cause Why He Should Not Be
Required to Obtain Leave of Court Before Filing Any New Action,
and of the dismissal of this case. In response to a deficiency
notice they received after a case file was opened in the present
action, Plaintiffs are again offering to pay the filing fee, but
the court, in light of the circumstances and to minimize the
impact on Plaintiffs, directs that it not be received, even
though filing fees are generally assessed without regard to
whether actions are subject to prompt dismissal.
Like his other filings, the Complaint consists of a collection of
disjointed words, symbols, letters, and phrases and is completely
unintelligible.
As a result, those of Miller’s other complaints
that have been the subject of court rulings have been dismissed
for failure to comply with Rule 8 of the Federal Rules of Civil
Procedure 8 and/or Rule 12(b)(6).
See, e.g., Castillon v. GMAC
Mortg. Corp., Civ. No. 12-00568 JMS-BMK; Lacabanne, v. GMAC
Mortg., LLC., Civ. No. 12-00060 SOM/BMK; Paet v. Argent Mortg.
Co., Civ. No. 12-00048 SOM/BMK; Kaihana v. Dist. Ct. of the First
Circuit, Waianae, Civ. No. 12-00041 HG/BMK; Chau v. BNC Mortg.
Inc., Civ. No. 11-00656 SOM/BMK; Miller v. Argent Mortg. Co.,
Civ. No. 11-00649 LEK/BMK; Bailey v. BAC Home Loan Servicing, LP,
Civ. No. 11-00648 LEK/BMK.
The Complaint in this action must be
dismissed for the same reasons-–it is unintelligible and
frivolous on its face.
Indeed this court has just filed an Order
Directing David Wynn Miller To Show Cause Why He Should Not Be
Required To Obtain Leave of Court Before Filing Any New Action.
The court may dismiss a complaint pursuant to Rule
12(b)(6) of the Federal Rule of Civil Procedure on its own
motion.
See Omar v. Lea-Lane Serv., Inc. 813 F.2d 986, 991 (9th
Cir. 1987) (“A trial court may dismiss a claim sua sponte under
[Rule] 12(b)(6).
Such a dismissal may be made without notice
where the claimant cannot possibly win relief.”); Ricotta v.
California, 4 F. Supp. 2d 961, 968 n.7 (S.D. Cal. 1998) (“The
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Court can dismiss a claim sua sponte for a Defendant who has not
filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6).”); see
also Baker v. U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir.
1990) (holding that a district court may dismiss cases sua sponte
pursuant to Rule 12(b)(6) without notice if the plaintiff could
not prevail on the complaint as alleged).
In fact, faced with a
complaint that is “obviously frivolous,” a court must wonder
whether it has subject matter jurisdiction and whether it should
dismiss sua sponte before service of process.
See Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984); see also Fed. R.
Civ. P. 12(h)(3); Grupo Dataflux v. Atlas Global Grp., L.P., 541
U.S. 567, 593 (2004) (“[I]t is the obligation of both district
court and counsel to be alert to jurisdictional requirements.”);
Branson v Nott, 62 F.3d 287, 291 (9th Cr. 1995) (“[D]ismissal of
Branson’s complaint was required because the district court
lacked subject matter jurisdiction”).
Because Plaintiffs are appearing pro se, the court
construes their pleading liberally.
See Edlridge v. Block, 832
F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag .v MacDougall, 454
U.S. 364, 365 (1982) (per curiam))).
Even liberally construed,
the Complaint makes no sense, and the court is unable to discern
what claims Plaintiffs are asserting and against whom those
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claims are asserted.
The Complaint is a collection of garbled
phrases that do not offer even a hint as to what Plaintiffs are
complaining about.
And although the Complaint appears to be
referring to federal civil and criminal statutes, it includes no
facts providing any basis for a claim.
This court is at a loss
as to what is at issue in this action, and the incoherence
appears to be deliberate.
Dismissal of Plaintiffs’ Complaint
without notice is proper.
See Omar, 813 F.2d at 991 (“A trial
court may dismiss a claim sua sponte under [Rule] 12(b)(6).
Such
a dismissal may be made without notice where the claimant cannot
possibly win relief.”).3
This dismissal is WITHOUT leave to amend because it is
apparent from the Complaint as well as Plaintiff David-Wynn
Miller’s numerous other filings in this court that this action
has been filed in bad faith, and that granting leave to amend
would be futile.
See W. Shoshone Nat’l Council v. Molini, 951
F.2d 200, 204 (9th Cir. 1991) (grounds for denying amendment
include bad faith and futility).
If Plaintiffs other than Miller
3
Notice is required prior to dismissal if a plaintiff’s
complaint as drafted could possibly provide him relief. See Omar
v. Sea-Lane Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); Wong
v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981) (“A trial court may
act on its own initiative to note the inadequacy of a complaint
and dismiss it for failure to state a claim, . . . but the court
must give notice of its sua sponte intention to invoke Rule
12(b)(6) and afford plaintiffs ‘an opportunity to at least submit
a written memorandum in opposition to such motion.”’ (citation
omitted)). That is not the case here.
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wish, they may file another complaint asserting cognizable claims
as a separate action.
Any new action that includes Miller may,
however, be governed by the outcome of the pending Order
Directing David Wynn Miller To Show Cause Why He Should Not Be
Required To Obtain Leave of Court Before Filing Any New Action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 19, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Andre-E. Deslauriers, et al. v. First Magnus Financial
Corporation, Civ. No. 12-00670 SOM/KSC, Amended Order Dismissing
Plaintiffs’ Complaint Without Leave to Amend
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