Allison v. American Dental Association et al

Filing 23

ORDER: The Clerk is directed to reassign this case to a District Judge for consideration of entry of an order as outlined herein. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (J.A.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JACKLIN ALLISON, et. al.,
Case No. 2:12-cv-00160-CWD
Plaintiffs,
ORDER RE: DKT. 2, 3, 4, 5, 6, 7, 10, 15,
16, 20, and 21.

v.
THE AMERICAN DENTAL
ASSOCIATION, THEIR
CONSTITUENT ASSOCIATIONS
AND/OR SOCIETIES, THEIR
MEMBERS AND THE MEMBERS
MARITAL ESTATES, ALL STATE
DENTAL
ASSOCIATIONS/SOCIETIES,
ALONG WITH THEIR MEMBERS
AND THE MEMBERS MARITAL
ESTATES,
Defendants.

INTRODUCTION
The Court has before it eleven motions, ten of which were filed by pro se plaintiffs
in this matter, listed above. Although numerous defendant organizations, as well as all of
the members of the named defendants, are named as defendants, only one Defendant, the
American Dental Association, has appeared in this matter. Defendant has requested an

ORDER - 1

extension of time to file a response to the various motions and the Complaint. Therefore,
no responses have been filed to the motions.
Upon review, the Court finds that the facts and legal arguments are adequately
presented in the briefs and record without the need for additional briefing. Accordingly,
in the interest of avoiding delay, and because the Court conclusively finds that the
decisional process would not be significantly aided by oral argument or further
responsive briefs, the motions will be decided on the record before this Court without
oral argument. Dist. Idaho L. Rule 7.1(d). In addition, the Court will decide the motions
without benefit of a response from Defendant under its inherent power to manage its
affairs so as to achieve the orderly and expeditious disposition of cases. See, e.g., U.S. v.
W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008).
Further, not all parties who have appeared have consented to the jurisdiction of a
United States Magistrate Judge to enter final orders in this case. Several orders discussed
below may be construed as the entry of a final order. Therefore, the Court will ask the
Clerk of the Court to reassign this case to a United States District Judge to consider the
Court’s recommended order on the pending motions.
BACKGROUND
On March 29, 2012, Plaintiffs filed a complaint against the above named
defendants alleging various constitutional violations related to Plaintiffs’ practice of
denturity. (Dkt. 1.) Plaintiff Jacklin Allison is the only named plaintiff who signed the
complaint, although a signature page was submitted later, on September 6, 2012. (Dkt. 1,
17.) On March 29, 2012, April 13, 2012, and May 4, 2012, “Movant Keith Allison”
ORDER - 2

submitted a request to submit a “friend of the court brief,” a “motion for submission of
facts,” and a “motion to submit statement of case.” (Dkt. 2, 3, 6.) On May 1, 2012, and
May 3, 2012, Plaintiff Jacklin Allison submitted two motions and affidavits for default
judgment. (Dkt. 4, 5.) On May 22, 2012, Plaintiff Jacklin Allison submitted a motion to
“submit attachments as additional evidence.” (Dkt. 7.) On June 12, 2012, a summons was
issued as to the Defendant American Dental Association. (Dkt. 8.) On June 29, 2012,
Jacklin Allison caused the summons to be returned executed and filed with the Court.
(Dkt. 9.) On July 25, 2012, Plaintiff Jacklin Allison again filed a motion for default
judgment. (Dkt. 10.)
On August 27, 2012, the American Dental Association filed a notice of
appearance, and on August 30, 2012, filed a motion for extension of time to file a
response to the various pleadings on file at that time. (Dkt. 11, 15.)
On August 27, 2012, the Clerk of Court caused to be issued a Notice of
Assignment to Magistrate Judge and Requirement for Consent to both Plaintiff Jacklin
Allison and Defendant American Dental Association. (Dkt. 12.) Presumably in response
to that notice, Plaintiff Jacklin Allison filed a “Motion to Dismiss/Ignore Defendant’s
Motion to Change Judges.” (Dkt. 16.) On September 17, 2012, Plaintiff Jacklin Allison
filed a motion for temporary restraining order. (Dkt. 20.) And on September 19, 2012,
Plaintiff Jacklin Allison filed a “demand for jury trial on this matter on 28 November
2012.” (Dkt. 21.)
To manage the docket and the numerous serial filings, the Court on September 19,
2012, entered an order deeming the motions filed under advisement, and ordering
ORDER - 3

Plaintiffs to cease filing any further motions until the eleven pending motions were ruled
upon by the Court. (Dkt. 22.)
DISPOSITION
1.

Motions to Submit Evidence, Docket 2, 3, 6, and 7
Movant Keith Allison submitted a “motion to submit a friend of the court brief,”

“motion for submission of facts,” and “motion to submit statement of case and/or
statutory laws.” The motion to submit a friend of the court brief appears to be a motion
requesting the filing of an amicus brief. The Court has broad discretion to appoint amicus
curiae. Knox v. U.S. Dept. of Interior, 2011 WL 2837219 *1 (D. Idaho July 9, 2011).
However, leave to file an amicus brief should be denied unless a party is not represented
competently or at all, a decision in the present case may affect the interest of the amicus
in another case in which he has an interest, or the amicus has “unique information or
perspective that can help the court beyond the help that the lawyers for the parties are
able to provide.” Greater Yellowstone coalition v. Timchak, 2008 WL 4911410 *6 (D.
Idaho Nov. 13, 2008) (quoting Community Ass'n for Restoration of Environment (CARE)
v. DeRuyter Bros. Dairy, 54 F.Supp.2d 974, 975 (E.D.Wash.1999)).
The Court finds that Keith Allison, who incidentally is named in the caption of the
Complaint, does not meet any of the criteria to justify amicus status. He has not presented
“unique information or perspective,” considering the same information in the motion is
presented in the Complaint in which he is named as a plaintiff in the caption. As a named
plaintiff, his interests are represented in this lawsuit. And, Mr. Allison has not identified

ORDER - 4

any other case in which he has an interest that the outcome of this matter may affect.
Accordingly, the motion (Dkt. 2) should be denied.
The two additional motions filed by Mr. Allison, Docket Nos. 3 and 6, appear to
contain factual assertions, claims, and argument in support of or in addition to Plaintiffs’
claims set forth in the Complaint. They do not request any particular court order, as
required by Fed. R. Civ. P. 7. Nor do the motions conform with the requirements of Dist.
Idaho L. Rule 7.1. And the motions do not comply with Fed. R. Civ. P. 15, which
governs motions to amend the complaint prior to trial. Further, the motions do not seek
any particular relief other than what is stated already in the Complaint. For all of those
reasons, the motions will be denied.
Plaintiff’s Motion to Submit Attachments Numbers One and Two as “additional
evidence,” on the other hand, does seek specific relief from the Court other than what is
already described in the Complaint. Docket 7 seeks to have the attachments considered
along with the complaint. Accordingly, Docket No. 7 may be granted, and the
attachments considered as attachments to the Complaint.
2.

Motions for Default Judgment, Docket 4, 5, 10
Fed. R. Civ. P. 55(a) permits a party to request the Clerk of Court to enter a

party’s default if the failure to plead or otherwise defend is shown by affidavit or
otherwise. Once the Clerk has entered default, the plaintiff can move the Court for a
default judgment if the claim is for anything other than a sum certain. Fed. R. Civ. P.
55(b).

ORDER - 5

The first two motions, Docket Nos. 4 and 5, do not contain the proper affidavit
indicating that any defendant had been served with a copy of the summons and complaint
prior to Plaintiff Allison filing the motions for default on May 1 and 3, 2012,
respectively. According to the record, no summons was issued until June 12, 2012. (Dkt.
8.) Therefore, Plaintiffs have not satisfied Rule 55. Defendants cannot defend something
of which they have no notice. Docket Nos. 4 and 5 should therefore be denied.
As for Docket No. 10, another motion for default judgment filed on July 25, 2012,
it, too, is non-compliant with Rule 55. Although it appears from the record that the
summons issued to the American Dental Association was returned, the motion itself does
not contain the required affidavit contemplated by Fed. R. Civ. P. 55 and 4. Further, the
Court cannot enter a default judgment without a hearing, since no sum certain capable of
ready computation is stated in the Complaint. Finally, albeit late, Defendant American
Dental Association filed a notice of appearance on August 27, 2012, (Dkt. 11), and
indicated it wished to respond to the various motions, as well as to the complaint, in its
motion for extension (Dkt. 15.) The Court therefore finds in this case that Defendant
American Dental Association has indicated its intent to defend and a Clerk’s default
would not be appropriate.
Moreover, even if the Court entered default against Defendant, the Court would
not enter default judgment as such a decision is discretionary and not justified in this case
for the reasons expressed in Goodrick v. Anderson, 2009 WL 4548984 at *2 (D. Idaho

ORDER - 6

Nov. 27, 2009). 1 Defendant’s motion for extension indicates that service of process may
have been defective, thereby constituting a legally valid reason for the late response. For
all of these reasons, the motion (Dkt. 10) should be denied.
3.

Motion to Dismiss/Ignore, Docket 16
Plaintiffs filed this motion on September 6, 2012, seeking “to not dismiss the

current judge from this case and bring in another . . . .” The motion references
Washington state court judge F. James Gavin, but it is unclear what relationship Judge
Gavin has to this matter. Plaintiffs assert that the Court should “ignore the defendants
[sic] request for a different judge.”
However, no such defense motion seeking to disqualify the undersigned
Magistrate Judge has been filed. Rather, this Court caused to be sent on August 27, 2012,
a Notice of Assignment to Magistrate Judge and Requirement for consent to both
Plaintiff Allison and Defendant American Dental Association. The Notice explained to
the parties that the exercise of jurisdiction over this matter was conditioned upon the
consent of the parties who have appeared in this matter, referencing 28 U.S.C. § 636 and
Fed. R. Civ. P. 73. The Court provided an explanation of what that meant, and informed
the parties that they could return the consent form, or request reassignment of this matter
to a District Judge. If all consents are not received by October 29, 2012, the Notice
explained that the matter would automatically be reassigned to a District Judge.

1

Goodrick set forth seven factors which may be considered by courts in exercising discretion as to the entry of a
default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive
claims, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a
dispute concerning material facts, (6) whether the default was due to excusable neglect; and (7) the strong policy
underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 2009 WL 4548984 *2.

ORDER - 7

Accordingly, the parties may follow the instructions in the Notice, and either
consent to magistrate judge jurisdiction, or request reassignment to a district judge to
conduct all further proceedings in this matter. Therefore, to the extent Plaintiff’s motion
purports to seek any relief, no relief is required because the motion is not responsive to
any motion filed by Defendant. The motion (Dkt. 16) should be denied. 2
4.

Defendant’s Motion for Extension of Time, Docket 15
Defendant American Dental Association on August 30, 2012, requested an

extension of time to file a response to Plaintiffs’ complaint, as well as to the various
motions. In its motion, Defendant explained that counsel had recently been retained, and
was evaluating the sufficiency of process and sufficiency of service of process, as well as
the merits of the allegations in the Complaint, including defenses thereto, such as the
failure to state a claim upon which relief can be granted. Defendant filed its motion more
than sixty days after the June 28, 2012, deadline for responding to the Complaint. (Dkt.
9.) Plaintiffs contend that the motion should be denied, because it will delay adjudication
of the complaint. Plaintiffs reference also “two 20 day extensions to respond with which
they have failed to comply.”
Fed. R. Civ. P. 6 applies to the motion for extension. Under Rule 6(b)(1)(B),
“[w]hen an act may or must be done within a specified time, the court may, for good
cause, extend the time . . . on motion made after the time has expired if the party failed to
act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Whether neglect is
2

Despite the Notice, however, this Court will be reassigning this matter to a United States District Judge for entry of
the recommended order. Nevertheless, the parties may, at any time, indicate their consent to proceed before a United
States Magistrate Judge.

ORDER - 8

excusable requires consideration of four factors: “(1) the danger of prejudice to the
opposing party; (2) the length of delay and its potential impact on the proceedings; (3) the
reason for the delay; and (4) whether the movant acted in good faith.” Bateman v. United
States Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir.2001) (citing Pioneer Inv. Services
Co. v. Brunswick Assoc. P’ship, 507 U.S. 380, 395 (1993).
First, Defendant appeared August 27, 2012, not long after the docket on June 29,
2012, reflected Defendant had potential notice of this lawsuit. Thus, the length of delay is
not significant. Second, this Court has not granted either party any extensions, and there
is no indication Defendant acted in bad faith in waiting to file its motion. Defendant’s
motion explained counsel recently had been retained, and was evaluating the sufficiency
of the Complaint. Prejudice to the Defendant would be greater than to the Plaintiffs if the
extension request is denied, considering the lawsuit is in its early stages and Plaintiffs
have not demonstrated any prejudice other than mere delay. Further, there is a strong
policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
Goodrick, 2009 WL 4548984 at *2. If the Court were to deny the motion, Defendant
would be denied the opportunity to respond to the allegations, even though it has
expressed intent to do so. And finally, the Court notes one of the reasons for Defendant’s
tardy response and late-filed motion for extension may be the result of insufficient
service, which provides a plausible explanation for the delay.
Accordingly, on the record before the Court, Plaintiffs have not demonstrated
prejudice, and Defendant has satisfied the excusable neglect standard for its late filed
motion for extension. The motion (Dkt. 15) should be granted.
ORDER - 9

5.

Motion for Temporary Injunction, Docket 20
Temporary restraining orders are designed to preserve the status quo pending the

ultimate outcome of litigation. They are governed by Federal Rule of Civil Procedure
65(b), which requires the moving party to show that “it clearly appears from specific
facts shown by affidavit or by the verified complaint that immediate and irreparable
injury, loss, or damage will result to the applicant before the adverse party ... can be
heard in opposition....” Under Rule 65(b) and Ninth Circuit case law, a plaintiff may
obtain a temporary restraining order only where he or she can “demonstrate immediate
threatened injury.” See, e.g., Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668,
674 (9th Cir.1988) (emphasis in original). The party seeking the temporary restraining
order or preliminary injunction must prove the prerequisites by clear and convincing
evidence. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 441
(1974).
The standards for a restraining order are basically the same as for a preliminary
injunction. While courts are given considerable discretion in deciding whether a
preliminary injunction should enter, and injunctive relief is not obtained as a matter of
right, it is also considered to be an extraordinary remedy that should not be granted unless
the movant, by a clear showing, carries the burden of persuasion. See Sampson v.
Murray, 415 U.S. 61 (1974); Brotherhood of Locomotive Engineers v. Missouri-KansasTexas R. Co ., 363 U.S. 528 (1960); Stanley v. Univ. of Southern California, 13 F.3d
1313 (9th Cir.1994).

ORDER - 10

In the case of Martin v. Int'l Olympic Comm., 740 F.2d 670, 674-675 (9th
Cir.1984), the Ninth Circuit stated that a party seeking preliminary injunctive relief must
meet one of two tests. Under the first,
a court may issue a preliminary injunction if it finds that: (1) the [moving
party] will suffer irreparable harm if injunctive relief is not granted, (2) the
[moving party] will probably prevail on the merits, (3) in balancing the
equities, the [non-moving] party will not be harmed more than [the moving
party] is helped by the injunction, and (4) granting the injunction is in the
public interest.

Id. (internal quotations and citations omitted); Stanley v. Univ. of Southern California, 13
F.3d 1313, 1319 (9th Cir.1994). Under the second, the movant must show “either (1) a
combination of probable success on the merits and the possibility of irreparable harm, or
(2) the existence of serious questions going to the merits, the balance of hardships tipping
sharply in its favor, and at least a fair chance of success on the merits.” Miller v.
California Pacific Medical Center, 19 F.3d 449, 456 (9th Cir.1994) (en banc). This
alternative test is on a sliding scale: the greater the likelihood of success, the less risk of
harm must be shown, and vice versa. Id.
Speculative injury is insufficient to support a finding of irreparable harm. As the
Ninth Circuit has stated in Carribean Marine Service Co. v. Baldridge, 844 F.2d 668, 674
(9th Cir.1988):
Speculative injury does not constitute irreparable injury sufficient to
warrant granting a preliminary injunction ... a plaintiff must do more than
merely allege imminent harm to establish standing, a plaintiff must
demonstrate immediate threatened injury as a prerequisite to preliminary
injunctive relief.

ORDER - 11

The Court finds at this time Plaintiff, or Plaintiffs, 3 have failed to establish that
this Court can grant the relief requested, and failed to establish irreparable harm. As an
initial matter, this Court does not appear to be able to grant Plaintiffs the relief requested.
Plaintiff seeks an injunction to restrain “defendants and/or any and all state government
entities” from enforcing certain legislation against denturists. However, the text of this
legislation has not been provided to the Court. It is unclear whether the referenced
legislation has even been considered by any state legislature, including the State of
Idaho’s legislature. Even if the referenced legislation were on the brink of being enacted,
the Court cannot provide nationwide relief. See Idaho Code § 5-514(b) and 28 U.S.C. §
1391(a). 4And no state government, including the State of Idaho, has been sued or named
in this lawsuit.
Finally, Defendant American Dental Association does not appear to be able to
enact laws. Plaintiffs have not set forth what acts, if any, of the American Dental
Association need to be enjoined. Thus, there is nothing, at least as to the American Dental
Association, that the Court can enjoin. Rather, the State of Idaho enacts laws, and has
entrusted the regulation of professions such as Denturists to a state agency, the Idaho
Bureau of Occupational Licenses. See Idaho Code § 54-3301 et. seq.; IDAPA 24.16.01.
Currently, denturists are required to obtain a license in order to practice denturity in the
state of Idaho. Idaho Code § 54-3304. This law has been in effect from and after April 1,
1983. Plaintiffs have not provided this Court, as previously stated, with the text of any
3

Only Plaintiff Allison appears to be filing motions. No other plaintiff has filed a motion, even though some of the
named plaintiffs appear to have signed the instant motion.
4
If Plaintiffs are indeed encompassing other state laws within their complaint, venue would not be appropriate in
Idaho, nor would Idaho have jurisdiction to enjoin passage of another state’s laws.

ORDER - 12

legislation that proposes to change the current law, or how the American Dental
Association is involved with its passage.
Second, Plaintiffs have failed to establish irreparable harm. Plaintiffs represent
that they seek a restraining order against Defendants to allow Plaintiffs to return to their
practice of denturity. However, Plaintiffs have not set forth facts, by affidavit or
otherwise, that there are any acts by Defendant American Dental Association, or any
other named defendant, that would prevent Plaintiffs from either becoming a denturist or
continuing to practice denturity in the State of Idaho or elsewhere. Denturity is currently
a licensed profession in the State of Idaho. Provided one meets the requirements set forth
in Idaho Code § 54-3301 et. seq., an individual can practice denturity in the State of
Idaho. Thus, this Court fails to see the harm that exists.
Finally, an injunction is designed to protect the status quo, which in this case, is
the maintenance of the current laws and rules governing the practice of denturity in the
State of Idaho. The Denturity Practice Act has been in effect since April of 1983.
Provided Plaintiffs meet the requirements of this law, they may practice Denturity in the
State of Idaho. 5 Other than the existing state statute, the Plaintiffs have not identified any
other law or act of Defendants that the Court may enjoin from being enforced such that
the status quo may be maintained. Thus, there is no relief that can be granted, and the
motion should be denied.

5

All of the Plaintiffs appear to be from states other than Idaho, including one Plaintiff who hails from Barbados,
several from Washington, and three from Texas. Plaintiffs Jacklin Allison and Keith Allison are from Yakima,
Washington. It is unclear from Plaintiff’s motion for injunction how these Plaintiffs have been harmed by Idaho’s
laws.

ORDER - 13

6.

Plaintiff’s Demand for Jury Trial, Docket 21
In this motion, Plaintiffs demand a jury trial and request the Court to set it for a

hearing before a jury on November 28, 2012, in the afternoon, before Judge Dale. While
the Court appreciates that Plaintiffs wish to move this matter along, the Federal Rules of
Civil Procedure allow for motion practice, a scheduling conference hearing, the setting of
deadlines as a result of that hearing, an opportunity to conduct discovery, and finally, the
scheduling of a trial on a date or dates amenable to both sides, as well as dictated by the
demands of the Court’s schedule. See Fed. R. Civ. P. 6; 12; 15; 16; 26—37; 40 and 56;
Dist. Idaho L. Rule 7.1, 16.1, 16.2, and 16.3. Furthermore, Plaintiff’s motion conflicts
with its numerous filings. On the one hand, Plaintiffs seek default and a restraining order,
yet now wish for a jury trial on a specific date a mere two months from now.
Plaintiff’s motion will therefore be denied. Instead, the Court will order that
Defendant American Dental Association submit an answer or otherwise respond to the
Complaint on or before October 22, 2012. At that time, the Court will issue any further
orders it deems necessary under Dist. Idaho L. Rule 16.1.

ORDER - 14

CONCLUSION
Other than Plaintiff’s Motion to Submit Attachments, (Dkt. 7), the remaining
motions filed by Plaintiffs either lack merit, or request relief which cannot be granted.
There is good cause, however, to grant Defendant’s motion for extension, and it should
be granted. However, as explained above, the parties who have appeared have not yet
consented to the jurisdiction of a United States Magistrate Judge to enter final orders in
this case. See 28 U.S.C. § 636. Therefore, the Court will reassign this case to a United
States District Judge to consider the Court’s recommendations set forth herein, and to
enter the below order.

ORDER - 15

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
The Clerk is directed to reassign this case to a District Judge for consideration of
entry of an order as follows:
1) DENY Plaintiff’s Motion to Submit a Friend of the Court Brief (Dkt. 2);
2) DENY Plaintiff’s Motion for Submission of Facts (Dkt. 3);
3) DENY Plaintiff’s Motion and/or Affidavit for Default Judgment (Dkt. 4);
4) DENY Plaintiff’s Motion and/or Affidavit for Default Judgment (Dkt. 5);
5) DENY Plaintiff’s Motion to Submit Statement of Case and/or Statutory
Laws (Dkt. 6);
6) GRANT Plaintiff’s Motion to Submit Attachments (Dkt. 7). The
attachments will be considered as attachments to the Complaint;
7) DENY Plaintiff’s Motion for the Court to Issue a Default Judgment (Dkt.
10);
8) GRANT Defendant American Dental Association Motion for Extension of
Time to File (Dkt. 15), and order Defendant to submit an answer or
otherwise respond to the Complaint on or before October 22, 2012;
9) DENY Plaintiff’s Motion to Dismiss/Ignore Defendants Motion to Change
Judges (Dkt. 16);
10) DENY Plaintiff’s Motion for Temporary Restraining Order (Dkt. 20); and
11) DENY Plaintiff’s Demand for a Jury Trial On This Matter on 28
November 2012 (Dkt. 21).
ORDER - 16

September 24, 2012