Evans v. Leap Frog Group et al

Filing 25

ORDER TO SHOW CAUSE WHY SECOND AMENDED COMPLAINT SHOULD NOT BE DISMISSED AND WHY APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS SHOULD NOT BE DENIED - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/29/13. "This court now dire cts Evans to file a memorandum showing cause why his Second Amended Complaint should not be dismissed and his latest IFP application should not be denied. The memorandum must be filed by August 15, 2013, and may not exceed 2,500 words (not includi ng any exhibits, declarations, or affidavits)." " Failure to submit the required memorandum shall result in the dismissal of this action." Show Cause Response due by 8/15/2013. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Brian Evans served by first class mail at the address of record on July 30, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRIAN EVANS,

)
)
Plaintiff,
)
)
vs.
)
)
THE LEAPFROG GROUP; LEAH
)
BINDER; and THE ROBERT
)
JOHNSON FOUNDATION,
)
)
)
Defendants.
_____________________________ )

CIVIL NO. 13-00269 SOM/KSC
ORDER TO SHOW CAUSE WHY
SECOND AMENDED COMPLAINT
SHOULD NOT BE DISMISSED AND
WHY APPLICATION TO PROCEED
WITHOUT PREPAYING FEES OR
COSTS SHOULD NOT BE DENIED

ORDER TO SHOW CAUSE WHY SECOND AMENDED COMPLAINT SHOULD NOT BE
DISMISSED AND WHY APPLICATION TO PROCEED WITHOUT PREPAYING FEES
OR COSTS SHOULD NOT BE DENIED
On May 28, 2013, Plaintiff Brian Evans filed a
Complaint in this action.

ECF No. 1.

That same day, Evans filed

an application to proceed without prepayment of fees and costs
(the “IFP application”).

ECF No. 3.

On May 31, 2013, this court

dismissed the Complaint and denied as moot the motion to proceed
without prepayment of fees because Evans failed to allege subject
matter jurisdiction sufficiently.

ECF No. 5.

Evans filed his First Amended Complaint on June 18,
2013.

ECF No. 8.
This court dismissed that pleading, stating in its

Order Dismissing Plaintiff’s First Amended Complaint and Denying
Application to Proceed Without Prepaying Fees or Costs as Moot,
ECF No. 10, that Evans had to comply with the Federal Rules of
Civil Procedure.

Specifically, the court said that Evans had to

comply with Rule 8, which requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).

While Rule 8 does not require detailed

factual allegations, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“[O]nly a complaint that states a

plausible claim for relief survives a motion to dismiss.”

Id.

To state a plausible claim, the complaint must, at a minimum,
“plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

On July 1, 2013, Evans filed his Second Amended
Complaint and a new IFP application.

ECF Nos. 15 and 16.

Evans’s Second Amended Complaint asserts fraud,
negligent misrepresentation, false advertising, wrongful death,
intentional infliction of emotional distress, loss of love, loss
of consortium, and conspiracy to commit fraud.

However, Evans

has not included sufficient factual allegations going to the
claims.

The legal bases for his claims remain unclear.

Even

construing Evans’s Second Amended Complaint liberally, see
Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir.
2003), the court cannot identify any plausible ground for either
of Evans’s claims.

See Iqbal, 556 U.S. at 678 (“To survive a

motion to dismiss, a complaint must contain sufficient factual

2

matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
The Second Amended Complaint names as Defendants the
following:

The Leapfrog Group, Leah Binder, individually and in

her official capacity as CEO of The Leapfrog Group, and The
Robert Wood Johnson Foundation.

The fraud, negligent

misrepresentation, and false advertising claims appear to stem
from Defendants’ alleged rating of hospitals “[d]espite never
even walking into the hospitals they rate.”

Sec. Am. Compl. ¶ 8.

The wrongful death claim asserts that The Leapfrog Group is
responsible for the death of Evans’s mother because “Leapfrog
misled her” into choosing a particular hospital, where she
unexpectedly died.

Id. ¶ 11.

The intentional infliction of

emotional distress, loss of love, and loss of consortium claim
hinges on the preceding claims.

Finally, the conspiracy to

commit fraud claim asserts that Evans “believes that after he
went public with The LeapFrog Group’s ‘Letter of Support’” the
hospital complained and, as a result, The Leapfrog Group issued a
fraudulent “A” rating to the hospital.

Id. ¶ 13.

All of Evans’s claims appear to be based on the
assumption that Defendants were required by law to physically
visit each hospital that The Leapfrog Group rated.

The claims

also appear to assert that The Leapfrog Group caused Evans and

3

his mother to believe that The Leapfrog Group “personally
attended the hospital” because “the perception that The Leapfrog
Group was ‘hands on’ is promoted throughout their website and
advertisements.”

Id. ¶ 1.

Evans provides no source for any

requirement he says the law imposes on a rating agency.
A very basic problem with respect to Evans’s naming of
The Robert Wood Johnson Foundation as a Defendant is that there
are no allegations even suggesting that this party has any
connection whatsoever to Evans’s mother, The LeapFrog Group, or
any of the incidents underlying this case.
All iterations of Evans’s pleading have raised serious
questions about whether any Defendant has the constitutionally
required minimum contacts with Hawaii to support the exercise of
personal jurisdiction.

See Bancraft & Masters, Inc. v. Augusta

Nat’l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (explaining that,
while a defendant can be haled into court if the defendant has
“substantial” or “continuous and systematic” contacts with the
jurisdiction, a court’s personal jurisdiction over a defendant is
limited by a defendant’s right to due process).

Although the

Second Amended Complaint does state that “the Defendants have
numerous contacts with the State of Hawaii, in that they rate
hospitals in this state, which Plaintiff believes the Defendants
also do fraudulently,” Sec. Am. Compl. at 3, this allegation
appears to apply only to The LeapFrog Group.

4

In any event, it is

not at all clear from Evans’s Second Amended Complaint that the
nature of The LeapFrog Group’s alleged rating of hospitals in
this state supports the exercise of personal jurisdiction.
This court now directs Evans to file a memorandum
showing cause why his Second Amended Complaint should not be
dismissed and his latest IFP application should not be denied.
The memorandum must be filed by August 15, 2013, and may not
exceed 2,500 words (not including any exhibits, declarations, or
affidavits).

The memorandum must indicate at least some basis in

law for holding a rating agency liable for the agency’s alleged
negligence in the manner in which it developed its rating of any
person or business that is later itself accused of wrongdoing.
It is not clear, for example, that a restaurant critic could be
sued by a customer who relies on the critic’s review in
patronizing a restaurant but becomes ill following a meal there,
or that a client who relies on a rating by a lawyer rating
service such as Martindale Hubbell may sue the rating service if
the client ends up hiring a lawyer who allegedly commits
malpractice.
his claims.

Evans must provide some rudimentary authority for
Evans should also include in his memorandum some

indication as to why this court may exercise personal
jurisdiction (as opposed to diversity jurisdiction, which goes to
subject matter jurisdiction only), over each Defendant.

5

Failure to submit the required memorandum shall result
in the dismissal of this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 29, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Evans v. Leapfrog, et al.; Civil No. 13-00269 SOM/BMK; ORDER TO SHOW

CAUSE WHY SECOND AMENDED COMPLAINT SHOULD NOT BE DISMISSED AND
WHY APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS SHOULD
NOT BE DENIED

6