Lu v. Baker., Jr et al

Filing 32

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered denying 14 Motion to Compel; granting 18 Motion to Dismiss for Failure to State a Claim; denying 25 Motion to Strike Answer; denying 26 Motion to Strike Motion to Dismiss; denying 28 Motion to Disqualify Counsel; and granting in part and denying in part 23 Motion - denying as to dismissal for Lack of Jurisdiction and granting as to dismissal for Failure to State a Claim. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FRIEDRICH LU,
Plaintiff,
v.
CHARLES D. BAKER, JR., et al.,
Defendants.

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Civ. Action No. 15-10615-PBS

MEMORANDUM AND ORDER
March 9, 2016
SARIS, C.D.J.
For the reasons set forth below, the Court will deny Lu’s
motions to compel, to strike and disqualify counsel (Docket Nos.
14, 25-26, 28); and will grant the pending motions to dismiss
(Docket Nos. 18, 23).
INTRODUCTION
On March 2, 2015, pro se plaintiff Friedrich Lu (“Lu”), who
is homeless, filed his one-page complaint pursuant to 42 U.S.C.
§ 1983 (civil action for deprivation of rights) against the
Governor of Massachusetts and Lauren M. Mitchell and Michael
O’Connor, two notaries public/court reporters, complaining that
the notaries refused to swear in plaintiff at the beginning of
depositions scheduled on January 16, 2013 and December 22, 2014.
See Complaint (“Compl.”), Docket No. 1.
One month later, on April 3, 2015, Lu filed a two-page
amended complaint adding as defendants the companies that
employed the notaries public.

Mitchell’s employer Jones &

Fuller Reporting and its owner Stephen D. Fuller were named as
defendants along with O’Connor’s employer G&M Court Reporters
and its owner Mary Piccirilli.

See Amended Complaint (“Am.

Compl.”), Docket No. 12.
Lu alleges that the court reporter defendants “cast their
lot with attorney general Maura Healey, in a joint venture to
obstruct justice, in part by filing a series of papers in the
instant action.”

Id. at ¶ 5.

Lu further alleges that Governor

Baker violated 42 U.S.C. § 1983 by depriving Lu’s rights that
are “secured by Supremacy Clause of and Fourteenth Amendment
(due process and equal protection clauses) to the federal
constitution.”

Id. at ¶ 6.

Lu contends that he was unable to provide adequate
identification at the depositions because “deputy sheriffs and
police officers unconstitutionally took away all Lu’s worldly
belongings, including ID cards [in 1999].”

Id. at ¶ 4.

Through

this action, Lu seeks to invalidate the standards of conduct for
notaries public in Massachusetts pursuant to an executive order
of then-Governor Mitt Romney in 2004 (Revised Executive Order
No. 455 (04-04)).
Lu filed a request to default defendants Mitchell and
O’Connor explaining that, as of May 27, 2015, neither Mitchell
nor O’Connor answered or otherwise defended.

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See Docket No. 20.

On May 1, 2015 defendant Baker filed a motion to dismiss the
amended complaint, and on July 30, 2015, defendant O’Connor
filed an answer to the original complaint.

See Docket Nos. 18,

22.
On August 3, 2015, Defendants Mitchell, Fuller and Jones &
Fuller Reporting filed a motion to dismiss the original
complaint.

See Docket No. 23.

Lu has filed motions (1) to

compel Governor to take a stand on Executive Orders; (2) to
disqualify counsel; and (3) to strike Mitchell and Fuller’s
motion to dismiss.

See Docket Nos. 14, 25, 28.

Additionally, Lu filed oppositions to the motions to
dismiss of Baker and Mitchell, Fuller and Jones & Fuller
Reporting.

See Docket Nos. 19, 27.
LU’S MOTION TO DISQUALIFY

As an initial matter, Lu seeks to disqualify counsel for
defendants Mitchell, Fuller and Jones & Fuller Reporting.

Lu

complains that at the deposition in question, this attorney had
been counsel for a defendant in the lawsuit where defendant
Mitchell is alleged to have refused to swear in Lu.
A party may seek the disqualification of an adversary's
counsel. See Lu v. Hulme, No. CA 12-11117-MLW, 2013 WL 1331028,
at *3 (D. Mass. Mar. 30, 2013).
is a “drastic measure.”

However, such disqualification

Id. (citing Adoption of Erica, 426

Mass. 55, 58, 686 N.E.2d 967 (1997)).
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It should only be granted

as “a measure of last resort” when necessary to assure “the
ethical and orderly administration of justice.”

Id. (citing In

re Grand Jury Proceedings, 859 F.2d 1021, 1026 (1st Cir. 1988)).
Here, Lu contends that counsel is a witness to the events
in question.

However, Lu has failed to raise a significant

concern that counsel would be required to testify in this
action, and because there is no other source of a potential
conflict, the request to have defense counsel removed from this
action is denied.
LU’S REQUEST TO COMPEL
On April 14, 2015, approximately six weeks after filing his
original complaint, Lu filed a motion seeking to “Compel
[Governor] Baker to Take a Stand on Executive Orders.”
Docket No. 14.

See

Through this motion, Lu seeks to have Governor

Baker provide a “pronouncement of his stance” before “we embark
on certification of questions to state court.”

Id.

The

following month, on May 1, 2015, Governor Baker filed a motion
to dismiss.

See Docket No. 18.

This motion, among other

things, addresses Lu’s challenge to the Executive Order.
infra, ¶ B.

See

Thus, Lu’s motion to compel will be denied.
LU’S MOTION TO STRIKE

Lu has moved to strike defendant O’Connor’s answer as well
as the motion to dismiss filed by defendants Mitchell, Fuller
and Jones & Fuller Reporting, Inc.
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See Docket Nos. 25-26.

Lu

states that defendants O’Connor and Mitchell are not entitled to
answer or file a responsive pleading based on Lu’s contention
that they are both in default.

Id.

Lu notes that counsel for

Governor Baker initially filed an appearance on behalf of the
Governor as well as O’Connor and Mitchell, but the following day
filed an amended appearance on behalf of the Governor alone.
Id.

However, the docket shows that defendant O’Connor filed an

answer and Mitchell a motion to dismiss.

See Docket.

Under Federal Rule of Civil Procedure 12(f), “[t]he court
may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Courts generally do not view motions to strike affirmative
defenses favorably. See 5C C. Wright & A. Miller, Federal
Practice & Procedure § 1381 (3d ed. 2004); Boreri v. Fiat,
S.P.A., 763 F.2d 17, 23 (1st Cir. 1985) (such motions are
“disfavored in practice”).

“[E]ven when technically appropriate

and well-founded, Rule 12(f) motions often are not granted in
the absence of a showing of prejudice to the moving party.” 5C
Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1381, at 421–22 (3d ed. 2004).
Here, defendants O’Connor and Mitchell are not in default,
having responded to plaintiff’s complaint.

As plaintiff has not

shown prejudice, there is no reason to allow Lu’s motions to
strike.
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DISCUSSION
A.

Standard of Review
A 12(b)(6) motion is used to dismiss complaints that do not

“state a claim upon which relief can be granted.” See Fed. R.
Civ. P. 12(b)(6).

In evaluating a Rule 12(b)(6) motion, the

Court must accept the factual allegations in Lu's amended
complaint as true, construe reasonable inferences in his favor,
and “determine whether the factual allegations in the
plaintiff's complaint set forth a plausible claim upon which
relief may be granted.”

Foley v. Wells Fargo Bank, N.A., 772

F.3d 63, 71 (1st Cir. 2014) (citation and internal quotation
marks omitted).

“Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(court is
“not bound to accept as true a legal conclusion couched as a
factual allegation”).
Despite his pro se status, Lu must comply with these
requirements.

“[T]he fact that [Lu is proceeding] pro se

militates in favor of a liberal reading” of his allegations and
the Court’s “task is not to decide whether the plaintiff
ultimately will prevail but, rather, whether he is entitled to
undertake discovery in furtherance of the pleaded claim[s.]”
Rodi v. Southern New England Sch. of Law, 389 F.3d 5, 13 (1st
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Cir. 2004) (citations omitted); see Ahmed v. Rosenblatt, 118
F.3d 886, 890 (1st Cir. 1997).
B.

Governor Baker’s Motion to Dismiss
Governor Baker argues that Lu’s amended complaint fails to

state a claim against him because (1) the factual allegations do
not involve any action or inaction by Governor Baker or former
Governor Romney, and (2) the Revised Executive Order No. 455
(04-04) survives Lu’s constitutional attack.

In his opposition,

Lu argues that he is suing Baker in his official capacity and
clarifies that he challenges the constitutionality of the
Executive Order on an as-applied basis.
Section 1983 in itself does not confer substantive rights,
but provides a venue for vindicating federal rights elsewhere
conferred. See Graham v. M.S. Connor, 490 U.S. 386, 394 (1989)
(“The validity of the [§ 1983] claim must ... be judged by
reference to the specific constitutional standard which governs
that right.”); see also Baker v. McCollan, 443 U.S. 137, 144 n.
3 (1979) (observing that Section 1983 “is not itself a source of
substantive rights, but a method for vindicating federal rights
elsewhere conferred”).
To state a claim for relief under 42 U.S.C. § 1983, “a
plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under
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color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988).

The requirements for notarization of all documents were
changed significantly in May of 2004 by the Executive Order
“Standards of Conduct for Notary Public.”
Legal Forms § 92:1 (5th ed.).

See 16A Mass. Prac.,

Among other things, the Executive

Order imposed a specific requirement that an individual be
“identified by the notary public through satisfactory evidence
of identity.”

Id.

Courts have held that the requirements of

the Executive Order do not supersede existing statutes, other
forms under state law, or regulations.

In re Dessources, 430

B.R. 330, 335 (Bankr. D. Mass. 2010) (holding that violation of
Revised Executive Order No. 455 did not affect the validity of a
mortgage when notary failed to state the manner in which the
notary identified the mortgagor); see also In re Greater Love
Tabernacle Church of Boston, 536 B.R. 38, n. 6 (Bankr. D. Mass.
Aug. 21, 2015) (citing In re Dessources, 430 B.R. at 335) (the
forms for notaries to use when issuing certificates of
acknowledgment that are listed in Revised Executive Order No.
455 (04–04), promulgated by the Governor of the Commonwealth of
Massachusetts, are not mandatory and they do not supersede the
statutory scheme).
Initially, plaintiffs asserted a facial challenge to the
Executive Order. Generally, “a plaintiff can only succeed in a
facial challenge by ‘establish[ing] that no set of circumstances
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exists under which [the law] would be valid,’ i.e., that the law
is unconstitutional in all its applications.”

Washington State

Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008) (quoting United States v. Salerno, 481 U.S. 739, 745
(1987)); Cf. Tulsa Fire Fighters Ass’n, IAFF Local 176, AFL-CIO
v. City of Tulsa, Oklahoma, 834 F. Supp. 2d 1277, 1289 (N.D.
Oklahoma 2011) (denying request to enjoin enforcement of a
mayor’s executive order that prohibited firefighters from
participating in political campaigns because executive order
broadly encompasses actions for which a city could properly
discipline employees such as campaigning in an official
uniform). He has abandoned this facial challenge and instead
claims the Executive Order was unconstitutional as applied to
him. This argument fails because plaintiff does not allege that
Baker in his individual capacity deprived him of any protected
liberty or property interest as a result of the identification
requirements at the deposition. He is sued only in his official
capacity.

Accordingly, the claim against Governor Baker is

dismissed.
C.

Motion to Dismiss of Defendants Lauren
Mitchell, Jones & Fuller Reporting and Stephen Fuller
The initial contention of defendants Lauren Mitchell, Jones

& Fuller Reporting and Stephen Fuller is that the Court lacks
subject-matter jurisdiction over plaintiff's claim and, if the

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court finds jurisdiction, they contend that Lu fails to state a
claim against these defendants.

Because plaintiff asserts a

constitutional claim, the Court finds it has subject matter
jurisdiction.1
Mitchell submits an affidavit stating that the deposition
went forward on January 16, 2013, and she did swear in Lu based
upon agreement of the parties that he was, in fact, Friedrich
Lu.

It is well established that at the motion to dismiss stage,

“any consideration of documents not attached to the complaint,
or not expressly incorporated therein, is forbidden, unless the
proceeding is properly converted into one for summary judgment
under Rule 56.”

Watterson v. Page, 987 F.2d 1, 3 (1st

Cir.1993); see Fed. R. Civ. P. 12(d).

However, the Court need

not consider the affidavit because the claim is without merit.
Plaintiff argues that the defendant notaries public
deprived him of his constitutional rights at the deposition.
Under the Fourteenth Amendment of the Constitution, no State
shall “deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1.

In order to

establish a due process claim under 42 U.S.C. § 1983, Lu must
first prove that he has a liberty or property interest and,
second, that defendants, acting under color of state law,

1

 The same would be said for defendants Jones & Fuller and Fuller
individually. 

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deprived him of that interest without a constitutionally
adequate process.

See Logan v. Zimmerman Brush Co., 455 U.S.

422, 428 (1982); PFZ Properties, Inc. v. Rodríguez, 928 F.2d 28,
30 (1st Cir. 1991).

Here, Lu does not allege what protected

liberty or property interest he was deprived of.

Because

plaintiff is pro se, and the pleadings must be construed
liberally, the complaint could be read to assert that the
identification requirements at the deposition interfered with
his access to the courts because he was homeless and did not
have identification documents.

See generally Boddie v.

Connecticut, 401 U.S. 371, 379 (1971)(sustaining a challenge
under the Due Process Clause of the Fourteenth Amendment on the
ground that indigent plaintiff was denied access to divorce
proceedings because of the court’s filing fee requirement).
Even if Lu had been denied access to the court because of
the refusal of the court reporter to notarize his deposition, Lu
must also demonstrate the absence of a “sufficient
countervailing justification for the state’s action.”
380-381.

Id. at

Here, the Executive Order provides alternatives to the

notary public for identifying the deponent, like a governmentissued identification, the oath of a credible witness who is
personally known to the public notary and who personally knows
the deponent, or the personal knowledge of the public notary
taking the deposition.

Revised Executive Order No. 455 (04-04).
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Lu has not alleged that he could not fulfill any of the
requirements for identification.

The requirements that a notary

public verify for identification of the deponent is reasonably
related to the state interest in guarding against fraud.

The

Court concludes that the as-applied challenge to the Executive
Order must fail.
In any event, the Court has not found any case law stating
that a court reporter/notary is a state actor acting under the
color of state law when taking and transcribing a deposition.
Cf. Broadley v. Hardman, 301 Fed. App'x 4, 6 (1st Cir. 2008)
(per curiam) (holding that the issuance of a subpoena by the
notary public was insufficient to create state action).
Moreover, Lu has not pled any personal involvement by
defendants Stephen Fuller and Jones & Fuller, in the alleged
constitutional violations.

Thus, his claims against these

defendants should be dismissed. See supra, ¶ B.
Accordingly, plaintiff’s claims against the Governor in his
official capacity and against Lauren Mitchell, Jones & Fuller
Reporting and Stephen Fuller fail to state a claim upon which
relief can be granted.
ORDER
Based upon the foregoing, it is hereby Ordered that:
1.

Plaintiff’s Motion (Docket No. 14) to Compel is
DENIED;

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2.

Defendant Baker’s Motion (Docket No. 18) to Dismiss is
GRANTED;

3.

Defendants’ Motion (Docket No. 23) is granted in part
and denied in part. The motion is denied as to
dismissal for lack of subject matter jurisdiction and
granted for failure to state a claim;

4.

Plaintiff’s Motion (Docket No 25) to Strike Answer is
DENIED;

5.

Plaintiff’s Motion (Docket No. 26) to Strike Motion to
Dismiss is DENIED; and

6.

Plaintiff’s Motion (Docket No. 28) to Disqualify
Counsel is DENIED.

SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF UNITED STATES DISTRICT JUDGE

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