Villers et al v. Nelson et al

Filing 35

MEMORANDUM DECISION AND ORDER denying 29 Motion to Stop Defense Counsel Providing Improper Legal Counsel to Defendants ; granting 10 Motion to Dismiss; denying as moot 10 Motion for More Definite Statement; denying 21 Motion for Monetary Relief and Motion to Stop Frivilous Motions by Defense Counsel. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

BILL VILLERS and IBR INC.,
Plaintiffs,

Case No.: 4:11-cv-00387-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
KIMBERLY D. NELSON, DISTRICT RANGER;
BILL WOOD, SALMON/CHALLIS
SUPERVISOR; DENNIS KRASOWSKI, BLM
GEOLOGIST; RUSS BJORKLUND, USFS
GEOLOGIST,
Defendants.

DEFENDANTS’ MOTION TO
DISMISS OR, IN THE
ALTERNATIVE, FOR A MORE
DEFINITE STATEMENT
(Docket No. 10)
PLAINTIFFS’ MOTION FOR
MONETARY RELIEF AND MOTION
TO STOP FRIVOLOUS MOTIONS
BY DEFENSE COUNSEL
(Docket No. 21)
PLAINTIFFS’ MOTION TO STOP
DEFENSE COUNSEL PROVIDING
IMPROPER LEGAL COUNSEL TO
DEFENDANTS
(Docket No. 29)

Currently pending before the Court are: (1) Defendants’ Motion to Dismiss or, in the
Alternative, for a More Definite Statement (Docket No. 10); (2) Plaintiffs’ Motion for Monetary
Relief and Motion to Stop Frivolous Motions by Defense Counsel (Docket No. 21); and (3)
Plaintiffs’ Motion to Stop Defense Counsel Providing Improper Legal Counsel to Defendants
(Docket No. 29). Having carefully reviewed the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order:

MEMORANDUM DECISION AND ORDER - 1

I. BACKGROUND
1.

On or about July 14, 2011, Plaintiffs initiated this action in the District Court of

the Seventh Judicial District in the State of Idaho in and for Lemhi County. See Affirmation of
Lien; Report; and Notice of Payment on Demand (Docket No. 1, Atts. 2-4).
2.

On August 19, 2011, Defendants removed the action to this Court, pursuant to 28

U.S.C. § 1442(a)(1). See Notice of Removal (Docket No. 1).
3.

Also on August 19, 2011, Defendants requested that this Court “screen this action

before the case proceeds any further,” pursuant to 28 U.S.C. § 1915(e)(2)(B). See Request for
Screening of Case (Docket Nos. 2 & 5).
4.

The undersigned denied Defendants’ request, but invited Defendants to separately

move to dismiss the action. See 10/27/11 Order, p. 5 (Docket No. 8) (“Therefore, the Court will
not dismiss Plaintiffs’ action absent a motion outlining what appears to be a variety of potential
bases for dismissal, coupled, then, with Plaintiffs’ opportunity to respond.”).
5.

On November 14, 2011, Defendants filed a Motion to Dismiss or, in the

alternative, Motion for a More Definite Statement (“Defendants’ Motion”) (Docket No. 10). The
bases for Defendants’ Motion are (1) lack of personal jurisdiction, (2) insufficient process, (3)
insufficient service of process, and (4) failure to state a claim upon which relief can be granted.
See Mem. in Supp. of Mot. to Dismiss, p. 1 (Docket No. 10, Att. 1). Additionally, Defendants
argue that IBR, Inc., the corporation, should be dismissed as a plaintiff because it is not
represented by counsel. See id. at p. 2.
6.

On November 15, 2011, this Court issued a Notice to Pro Se Litigants of the

Summary Judgment Rule Requirements (“First Notice”), outlining the protocol for responding to

MEMORANDUM DECISION AND ORDER - 2

either motions to dismiss or motions for summary judgment. See Notice to Pro Se Litigants
(Docket No. 11). As of the date of the First Notice, Plaintiffs’ response to Defendants’ Motion
was due on December 8, 2011.
7.

On November 22, 2011, Plaintiffs filed their Motion to Allow “Amicus Curia” A

Friend of the Court. See Mot. to Allow “Amicus Curiae” a Friend of the Court (Docket No. 12).
At that time, it was not clear to the Court whether this motion constituted Plaintiffs’ response to
Defendants’ Motion.
8.

On November 29, 2011, Plaintiffs also filed a Motion for Expedited Hearing. See

Mot. for Expedited Hearing (Docket No. 13). At that time, it was also not clear to the Court
what, exactly, Plaintiffs sought an expedited hearing about.
9.

Despite these questions, in a December 2, 2011 Order, this Court (1) denied

Plaintiffs’ Motion to Allow “Amicus Curia” A Friend of the Court (Docket No. 12), and (2)
denied Plaintiff’s Motion for Expedited Hearing (Docket No. 13). See 12/2/11 Order at pp. 1-3
(Docket No. 15). Within the December 2, 2011 Order, however, the Court indicated that
Plaintiffs’ response to Defendants’ Motion was now due on December 15, 2011 (“Second
Notice”). See id. at p. 3 (“For the foregoing reasons, IT IS HEREBY ORDERED THAT
Plaintiffs’ (1) Motion to Allow “Amicus Curiae” A Friend of the Court [and (2) Motion for
Expedited Hearing] (Docket Nos. 12 & 13 are both DENIED. However, to the extent necessary,
Plaintiffs shall be given until December 15, 2011 to respond to Defendants’ Motion.”)
(Emphasis in original). Importantly, in denying these two motions, this Court did not address
Defendants’ Motion, let alone dismiss Plaintiffs’ claims.

MEMORANDUM DECISION AND ORDER - 3

10.

On or around December 7, 2011, Plaintiffs filed a Notice of Appeal (Docket No.

16). Within their Notice of Appeal, Plaintiffs alleged in full:
THE PLAINTIFF,S BILL VILERS & IBR INC. PAID UP FRONT MONIES TO
HAVE A HEARING IN THE LOWER COURT. THE PLAINTIFF,S NEVER
received NOTICE FROM THE LOWER COURT AS WHY OR AN
EXPLANATION GIVEN TO THE PLAINTIFFS LEIN WAS MOVED TO
FEDRAL COURT. THIS WOULD BE A VIOLATION OF TITLE, (42 USC
SECTION 1983;) (DEPERIVATION OF CIVIL RIGHT,S;) THERE ARE NO
LEGITIMATE REASONS FOR THIS VIOLATION. WITH THIS IN MIND THE
PLAINTIFF,S ARE ASKING THE COURT TO RESCIND IT,S DECISION’S
THAT IT GAVE TO THE DEFENDANT’S. ON DECEMBER 2, 2011. BY
KEEPING IN MIND THAT PLAINTIFF’S ASKED THE LOWER COURT FOR
AN INCOURT HEARING. WHERE AS BOTH PARTIES CAN BRING
EVIDENCE FOR their RESPECTIVE POINT’S OF VIEW. IN RESPONSE TO
DEFENDANT’S’ MOTION’S.
See Not. of Appeal (Docket No. 16) (Emphasis in original).
11.

On or around January 11, 2012, the United States Court of Appeals for the Ninth

Circuit dismissed Plaintiffs’ appeal for lack of jurisdiction. As a result, Defendants’ Motion, and
the arguments contained therein, remained before this Court for the undersigned’s consideration.
Plaintiff still had not responded to Defendants’ Motion.
12.

On January 13, 2012, the Court indicated that Plaintiffs’ response to Defendants’

Motion was now due on February 6, 2012 (“Third Notice”). See Third Notice, p. 4 (Docket No.
20) (“Therefore, on or before February 6, 2012, Plaintiffs shall respond to Defendants’
Motion. In the event Plaintiffs altogether fail to respond to Defendants’ Motion or submit
a “response” that does not address the arguments raised within Defendants’ Motion,
Plaintiffs run the risk of having their action dismissed. No further extensions will be
granted.”) (Emphasis in original).

MEMORANDUM DECISION AND ORDER - 4

13.

On February 2, 2012, Plaintiffs responded to Defendants’ Motion. See Resp. to

Defs.’ Motion (Docket No. 22).
14.

Also on February 2, 2012, Plaintiffs filed a Motion for Monetary Relief and

Motion to Stop Frivolous Motions by Defense Counsel. See Mot. for Monetary Relief and Mot.
to Stop Frivolous Mots. (Docket No. 21). Therein, Plaintiffs argue that “LEGAL COUNCIL
CAN ONLY BE GIVEN TO GOVERNMENT EMPLOYEES IF IT IS DETERMINED THAT
A FRIVOLOUS CHARGE IS PENDING. HOWEVER, IN THIS CASE, NONE OF THE
COURTS HAS MADE THIS DETERMINATION.” See id. at p. 1 (Emphasis in original).
15.

Following Defendants’ submission of a reply memorandum in support of

Defendants’ Motion (Docket No. 25), as well as Defendants’ response to Plaintiffs’ Motion to
Stop Frivolous Motions by Defense Counsel (Docket No. 23), on February 17, 2012, Plaintiffs
filed a related Motion to Stop Defense Counsel Providing Improper Legal Council to
Defendants. See Motion to Stop Defense Counsel Providing Improper Legal Counsel. (Docket
No. 29). Therein, Plaintiffs again argue that “THE DEFENSE COUNCIL HAS GONE
BEYOND THE SCOPE FOR WHICH SHE CAN GIVE LEGAL COUNCIL TO THE
DEFENDANTS.” See id. at p. 1 (Emphasis in original).
16.

On February 22, 2012, Plaintiff Bill Villers submitted a letter the Court,

“SUGGESTING THE COURT TO RE-EVALUATE THE OUTRAGEIOUS GOVERNMENT
CONDUCT BY THE BLM, USF, AND THE DEPARTMENT OF JUSTICE. THE GRAVITY
OF THE MISCONDUCT BY MS. RODRIGUEZ CAN NOT BE CONSIDERED PROPER OR
JUSTIFYED.” See 2/22/12 Ltr. (Docket No. 30) (Emphasis in original). Therein, Plaintiffs
requested that the Court order Defendants to produce certain information relating to Plaintiffs’
underlying claims. See id.
MEMORANDUM DECISION AND ORDER - 5

17.

On March 21, 2012, Plaintiffs submitted a second letter, this time, acknowledging

that their “MOTION TO STOP PROVIDING IMPROPER LEGAL COUNCEL TO THEIR
CLIENTS MAY HAVE BEEN IMPROPER” while also supplying the Court with various
excerpted material “FOR THE COURTS ENJOYMENT.” See 3/21/12 Ltr. (Docket No. 32)
(Emphasis in original).
18.

On April 6, 2012, Plaintiffs submitted a third letter, outlining Defendants’ alleged

misfeasance, malfeasance, and nonfeasance, while also apparently arguing in favor of this Court
applying concepts of strict liability, products liability, “criminal damage,” “the Criminal Damage
Act 1971,” conspiracy, “the Criminal Law Act 1977,” the “Criminal Attempts Act 1981,” Title
28 Section 2635.502, Title 42 Section 1983. See 4/6/12 Ltr. (Docket No. 33).
19.

On July 18, 2012, Plaintiff submitted a fourth letter to determine the status of the

action and the pending motions. See 7/18/12 Ltr. (Docket No. 34) (“I APPRECIATE YOUR
EFFORTS IN THIS CASE AND ACCORDINGLY WILL WAIT AN ADITIONAL THIRY
DAYS BEFORE IMPLEMENTING MY, PLAN. SHOULD YOU, HAVE ANY FURTHER
ADVICE, etc., I, WOULD BE PLEASED TO RECEIVE IT.” See id. (Emphasis in original).
II. DISCUSSION
Recognizing Plaintiffs’ challenge to Defendants’ counsel’s participation in this action to
begin with, it would seem prudent to address those motions before addressing Defendants’
Motion. With that in mind, the Court turns first to Plaintiffs’ (1) Plaintiffs’ Motion for Monetary
Relief and Motion to Stop Frivolous Motions by Defense Counsel (Docket No. 21) and (2)
Plaintiffs’ Motion to Stop Defense Counsel Providing Improper Legal Counsel to Defendants
(Docket No. 29), followed by (3) Defendants’ Motion to Dismiss or, in the Alternative, for a
More Definite Statement (Docket No. 10).
MEMORANDUM DECISION AND ORDER - 6

A.

Plaintiffs’ Motion for Monetary Relief and Motion to Stop Frivolous Motions by
Defense Counsel (Docket No. 21) and Motion to Stop Defense Counsel Providing
Improper Legal Counsel to Defendants (Docket No. 29)
Plaintiffs’ Motion for Monetary Relief and Motion to Stop Frivolous Motions by Defense

Counsel (Docket No. 21) appears to make two requests: (1) that this Court award Plaintiff
“MONETARY DAMAGES IN THE AMOUNT OF $21,589,020.00, PLUS INTEREST OF
10% IN THE AMOUNT OF $2,158,902.00, PLUS 3 TIMES PUNITIVE DAMAGES UNDER
IDAHO LAW WHICH COMES TO THE AMOUNT OF $71,243,766.00”; and (2) that this
Court censure Defendants’ counsel for “CROSS[ING] THE LINE IN OFFERING MORE
LEGAL AID THAN WOULD BE AFFORDED TO A NON-GOVERNMENT OFFICIAL.” See
Mot. for Monetary Relief and Mot. to Stop Frivolous Mots., pp. 1-6 (Docket No. 21) (Emphasis
added).
As to the first request, the Court understands Plaintiffs’ request to be, more-or-less, a
reiteration of the relief requested via the underlying action. To the extent that is not the case,
such a motion more closely resembles a dispositive motion, of which Plaintiff must comply with
the procedural protocols outlined within FRCP 56. Under either scenario (and disregarding any
issues presented by Plaintiffs’ pleadings to date (see infra)), Plaintiffs’ request in this respect
cannot prevail based upon the record now before the Court. Even assuming, but without
deciding, that viable causes of action have been properly plead, Plaintiffs’ request is simply too
premature. The record is not fully developed in such a way to warrant the award of damages in
Plaintiffs’ favor as a matter of law. Accordingly, Plaintiffs’ request in this respect is denied.
As to the second request (and also as to Plaintiffs’ related Motion to Stop Defense
Counsel Providing Improper Legal Counsel to Defendants (Docket No. 29)), Defendants have

MEMORANDUM DECISION AND ORDER - 7

properly filed two motions to date: (1) a Request for Screening of Case (Docket No. 5); and (2) a
Motion to Dismiss (Docket No. 10). Nothing prevents Defendants from filing such motions.
Furthermore, Defendants’ counsel is properly representing Defendants’ interests in defending
Plaintiffs’ allegations against them. See 28 U.S.C. § 516 (“Except as otherwise authorized by
law, the conduct of litigation in which the United States, an agency, or officer thereof is a party,
or is interested, and securing evidence therefor, is reserved to officers of the Department of
Justice, under the direction of the Attorney General.”); 28 U.S.C. § 547(2) (“Except as otherwise
provided by law, each United States attorney, within his district, shall prosecute or defend, for
the Government, all civil actions, suits or proceedings in which the United States is concerned.”).
In other words, as Defendants’ counsel puts it: “Counsel is simply doing her job.” See Defs.’
Opp. to Mot. to Stop Defense Counsel Providing Improper Legal Counsel to Defs., pp. 1-2
(Docket No. 31). Accordingly, Plaintiffs’ request in this respect is also denied.
As a result, Plaintiffs’ Motion for Monetary Relief and Motion to Stop Frivolous Motions
by Defense Counsel (Docket No. 21) is DENIED and Plaintiffs’ Motion to Stop Defense
Counsel Providing Improper Legal Counsel to Defendants (Docket No. 29) is DENIED.
B.

Defendants’ Motion to Dismiss or, in the Alternative, for a More Definite Statement
(Docket No. 10)
Defendants argue that Plaintiffs’ claims should be dismissed due to (1) lack of personal

jurisdiction; (2) insufficient process; (3) insufficient service of process; and (4) failure to state a
claim upon which relief can be granted. See Defs.’ Mem. in Supp. of Mot. to Dismiss, pp. 1-2
(Docket No. 10, Att. 1). In essence, Defendants argue that, because they were not properly
served under the applicable procedural rules, this Court lacks personal jurisdiction over them.
See id. at pp. 2-3. (“Unless a defendant has been served in accordance with Federal Rule of
MEMORANDUM DECISION AND ORDER - 8

Civil Procedure 4, the federal court lacks personal jurisdiction over the defendant.”). Separately,
Defendants argue that Plaintiff IBR, Inc. must be dismissed because it cannot be represented by
an individual – in this case Plaintiff Villers – who is not licensed to practice law in Idaho. See
id. at p. 5. Alternatively, Defendants argue that Plaintiffs be required to provide a more definite
statement as to the actual claims asserted against Defendants, supported by specific allegations in
relation to those claims. See id. at pp. 5-6.
1.

Personal Jurisdiction, Process, and Service of Process

Though similar in nature, challenges to a plaintiff’s process and service of process
implicate state law rather than federal law when dealing with removed actions. See Lee v. City
of Beaumont, 12 F. 3d 933, 937 (9th Cir. 1993) (“[FRCP] 4(j) does not apply to service of process
which was attempted prior to removal; the sufficiency of service in this case is determined
according to state law because service of process occurred before removal.”) (Emphasis in
original); see also Fed. R. Civ. P. 81(c) (requiring application of federal rules to procedures
“after it is removed from a state court.”) (Emphasis added). Regardless of which law applies,
Defendants’ arguments in these respects remain the same. See Defs.’ Mem. in Supp. of Mot. to
Dismiss, p. 2 (Docket No. 10, Att. 1) (“In Idaho, the procedures for service are the same.”).
First, Defendants argue that the United States was not properly served in accordance with
FRCP 4(i)(1)(A) and, likewise, its employees (also Defendants here) were not properly served in
accordance with FRCP 4(i)(3) (requiring service upon the United States and also upon the officer
or employee under FRCP 4(e)). See id. at p. 2. Plaintiffs offer no argument disputing this point
and the Court, on its own, finds none. See Pls.’ Resp. to Defs.’ Mot. to Dismiss (Docket No. 22).
Second, Defendants argue that Defendant Wood was never properly served with any
summons or complaint. See Defs.’ Mem. in Supp. of Mot. to Dismiss, p. 2 (Docket No. 10, Att.
MEMORANDUM DECISION AND ORDER - 9

1); compare also Fed. R. Civ. P. 4(e) with Id. R. Civ. P. 4(d)(2). Moreover, Defendants claim
that Defendant Nelson, Defendant Krasowski, and Defendant Bjorklund were never properly
served with a legal summons – each receiving the documents in the mail from Plaintiff Villers.
See id. at p. 3; compare also Fed. R. Civ. P. 4(e) with Id. R. Civ. P. 4(d)(2). Again, Plaintiffs
offer no argument disputing this point and the Court, on its own, finds none. See Pls.’ Resp. to
Defs.’ Mot. to Dismiss (Docket No. 22).
Third, Defendants argue that Plaintiffs’ summonses do not contain the signature of the
clerk and the court seal. See Defs.’ Mem. in Supp. of Mot. to Dismiss, p. 3 (Docket No. 10, Att.
1); compare also Fed. R. Civ. P. 4(a) with Id. R. Civ. P. 4(b). Again, Plaintiffs offer no
argument disputing this point and the Court, on its own, finds none. See Pls.’ Resp. to Defs.’
Mot. to Dismiss (Docket No. 22).
Fourth, Defendants argue that Plaintiff Villers himself mailed the document titled
“Summons in a Civil Case” to Defendant Krasowski, Defendant Nelson, and Defendant
Bjorklund rather than by an officer authorized by law to serve process. See Defs.’ Mem. in
Supp. of Mot. to Dismiss, p. 3 (Docket No. 10, Att. 1); compare also Fed. R. Civ. P. 4(c)(2) with
Id. R. Civ. P. 4(c)(1). In doing so, Defendants additionally argue that, by mailing these
materials, Defendants were never personally served as is required under the applicable rules. See
Defs.’ Mem. in Supp. of Mot. to Dismiss, p. 3 (Docket No. 10, Att. 1); compare also Fed. R.
Civ. P. 4(e) with Id. R. Civ. P. 4(d)(2). Again, Plaintiffs offer no argument disputing this point
and the Court, on its own, finds none. See Pls.’ Resp. to Defs.’ Mot. to Dismiss (Docket No. 22).
These unrebutted shortcomings reflect insufficient process and insufficient service of
process and, thus, a lack of personal jurisdiction. Compare Fed. R. Civ. P. 12(b) with Id. R. Civ.
P. 12(b). The time for curing these deficiencies has passed and no good cause exists as to why
MEMORANDUM DECISION AND ORDER - 10

service was not made within the applicable period of time – either 120 days or 180 days as the
case may be. Compare Fed. R. Civ. P. 4(m) with Id. R. Civ. P. 4(a). Indeed, Plaintiff has never
attempted to explain or address these procedural issues – even after being apprised of them
following Defendants’ Motion and being given numerous extensions to respond to Defendants’
Motion. Such deficiencies apply regardless and independent of the substantive merits, if any, of
Plaintiffs’ claims. Compare Fed. R. Civ. P. 4(m) with Id. R. Civ. P. 4(a). Therefore, the action
is dismissed, without prejudice.
2.

Failure to State a Claim

FRCP 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
While a complaint attacked by an FRCP 12(b)(6) motion to dismiss “does not need detailed
factual allegations,” it must set forth “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 555. To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. at 557.

MEMORANDUM DECISION AND ORDER - 11

In a more recent case, the Supreme Court identified two “working principles” that
underlie the decision in Twombly. See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). First, the
tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. See id. “Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Second,
only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679.
“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id.
Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be
appropriate when the plaintiff has included sufficient allegations disclosing some absolute
defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n.1 (9th Cir.
1997) (stating that “[i]f the pleadings establish facts compelling a decision one way, that is as
good as if depositions and other . . . evidence on summary judgment establishes the identical
facts.”).
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737
(9th Cir. 2009) (issued two months after Iqbal).1 The Ninth Circuit has held that “in dismissals

1

The Court has some concern about the continued vitality of the liberal amendment
policy adopted in Harris v. Amgen, based as it is on language in Conley v. Gibson, 355 U.S. 41,
45-46 (1957), suggesting, in part, that “a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim . . . .” Given Twombly and Iqbal’s rejection of the liberal pleading standards adopted by
Conley, a question arises whether the liberal amendment policy of Harris v. Amgen still exists.
Nevertheless, the Circuit has continued to apply the liberal amendment policy even after
MEMORANDUM DECISION AND ORDER - 12

for failure to state a claim, a district court should grant leave to amend even if no request to
amend the pleading was made, unless it determines that the pleading could not possibly be cured
by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection
Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether the plaintiff will prevail
but whether he “is entitled to offer evidence to support the claims.” Diaz v. Int’l Longshore and
Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2008) (citations omitted).
Here, there is no Complaint; instead, Plaintiffs submitted in state court (1) an Affirmation
of Lien (Docket No. 1, Att. 2); (2) a “Report” (Docket No. 1, Att. 3); and (3) a “Notice of
Payment on Demand” (Docket No. 1, Att. 4).
The Affirmation of Lien references 18 code sections (mostly criminal in nature) relating
to an alleged theft. See Affirmation of Lien, pp. 1-2 (Docket No. 1, Att. 2) (“THE PROPERTY
THAT WAS STOLEN BY THE DEFENDANTS WAS SETTING ON COUNTY PROPERTY
RIGHT AWAY, JUST OFF THE ROAD ON McKIM CREEK, IN LEMHI COUNTY, IDAHO.
THE PROPERTY IN QUESTION WAS 300 TON’S OF ORE BELONGING TO BILL
VILLERS AND IBR INC. SINCE 1994, THERE HAS BEEN NO QUESTION OF OWNER
SINCE THAT TIME.”) (Emphasis in original); see also Kendall v. City of Boise, 2010 WL
3540453, *3 (D. Idaho 2010) (“To the extent Kendall is seeking to bring claims under criminal
statutes, it is recommended that those claims be dismissed, with prejudice. Criminal statutes
generally do not provide a basis for civil liability.” (citing Aldabe v. Aldabe, 616 F.2d 1089,
1092 (9th Cir. 1980)). As Defendants point out, the Affirmation of Lien makes no reference to

dismissing claims for violating Iqbal and Twombly. See, e.g., Market Trading, Inc. v. AT&T
Mobility, LLC, 2010 WL 2836092 (9th Cir. July 20, 2010) (not for publication). Accordingly, the
Court will continue to employ the liberal amendment policy.
MEMORANDUM DECISION AND ORDER - 13

the date(s) of the alleged theft or to the individual Defendants. See Defs.’ Mem. in Supp. of Mot.
to Dismiss, p. 4 (Docket No. 10, Att. 1).
The Report, dated August 29, 2010 (nearly a year before this action was instituted), deals
with Plaintiff Villers’ meeting with BLM Officer Dennis Krasowski and USF Officer Russ
Bjorklund. See Report, p. 1 (Docket No. 1, Att. 3). The substance of the Report, while difficult
to follow at times, is a subjective account of certain activities at a period of time preceding this
action and cannot on its own constitute a pleading, stating any claim of relief against Defendants
under FRCP 8.
The “Notice of Payment on Demand” again discusses Defendants’ alleged theft of
Plaintiffs’ personal property. See Notice of Payment on Demand. However, as with the
Affirmation of Lien, the date of the alleged theft is not mentioned, the individual Defendants are
not discussed, and two of the three referenced code sections represent criminal statutes. See
Kendall, 2010 WL 3540453 at *3.
Defendants claim that these three documents do not comply with FRCP 8 as they fail to
set forth a short and plain statement of a claim showing that Plaintiffs are entitled to relief. See
Defs.’ Mem. in Supp. of Mot. to Dismiss, pp. 4-5 (Docket No. 10, Att. 1). Defendants therefore
ask the Court to dismiss Plaintiffs’ claims pursuant to FRCP 12(b)(6). See id. While Plaintiffs
make some general allegations of theft, they give no clear indication of what they are talking
about, citing to all types of statutes with no corresponding tie to their claims. In sum, while the
Court could guess at the nature of Plaintiffs’ dispute, more from Plaintiff is needed in the form of
allegations of fact, followed by specifically-identified and described causes of action asserting
legal claims that are brought against Defendants. As of now, it is impossible to comprehend the

MEMORANDUM DECISION AND ORDER - 14

scope of Plaintiffs’ claims, which in turn makes it impossible for Defendants to fairly respond to
those claims. Further, Plaintiffs’ response to Defendants’ Motion is of the same unfocused and
inapposite form as the documents filed earlier on by Plaintiffs, and therefore is of no real help to
the Court in making sense of Plaintiffs’ claims.
Under these circumstances, the Court will grant Defendants’ Motion. In most such
settings, an opportunity to amend the “Complaint” (or perhaps, here, an opportunity to create a
Complaint in the first instance) that conforms with applicable law and court rules would be
allowed. However, given the insufficiencies with respect to Plaintiffs’ process and service of
process (see supra), such amendments may be unavailing in the context of this very action.
Compare Fed. R. Civ. P. 4(m) with Id. R. Civ. P. 4(a). Still, Plaintiffs’ claims (whatever they
may be) may still exist within the applicable statutes of limitation. If so (and this Court makes
no ruling in this respect), Plaintiffs may be able to renew their claim in a separate action. In such
an event, Plaintiffs are cautioned that, if they file a pleading which again simply lists statutes
without tying them to their claims and explaining their claims in a more intelligible way, they
run the risk of having such claims dismissed once again.
3.

Plaintiff Villers’ Representation of Plaintiff IBR, Inc. Pro Se

Although an individual may proceed pro se in federal court, a corporation may appear in
federal court only through licensed counsel. See U.S. v. High Country Broad. Co., 3 F.3d 1244
(9th Cir. 1993). Plaintiff Villers is not licensed to practice law in Idaho and, therefore, cannot
represent Plaintiff IBR, Inc. If Plaintiffs file a new case, IBR, Inc. must be represented by an
attorney admitted to practice in this court.

MEMORANDUM DECISION AND ORDER - 15

4.

Defendants’ Motion for a More Definite Statement

Because this Court has already dismissed this action for insufficient process and
insufficient service of process, coupled with Plaintiffs’ failure to state a claim under FRCP
12(b)(6), there is no need to address Defendants’ alternate Motion for a More Definite
Statement. Even if the Court allowed Plaintiffs to amend their complaint to address any
procedural weaknesses that, up to that point, existed (see supra), the failure to meet service of
process requirements compels that the action be dismissed, regardless. Therefore, Defendants’
Motion for a More Definite Statement is rendered moot.
III. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED THAT:
1.

Plaintiffs’ Motion for Monetary Relief and Motion to Stop Frivolous Motions by

Defense Counsel (Docket No. 21) is DENIED;
2.

Plaintiffs’ Motion to Stop Defense Counsel Providing Improper Legal Counsel to

Defendants (Docket No. 29) is DENIED; and
3.

Defendants’ Motion to Dismiss or, in the Alternative, for a More Definite

Statement (Docket No. 10) is GRANTED in part and DENIED in part. Defendants’ Motion to
Dismiss is granted and Plaintiffs’ claims are dismissed, without prejudice. Defendants’ alternate
Motion for a More Definite Statement is denied as moot.
DATED: September 7, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 16