United States District Court, D. Arizona
Michael A. Leon, Plaintiff,
Meggitt PLC, a corporation; Pacific Scientific Energetic Materials Company/Pacific Scientific, a subsidiary of Meggitt PLC, or corporation; Boeing, a corporation, Securaplane Technologies, Inc., a corporation, Fiona Grieg, and John Doe1-50; Mary Roe 1-50; XYZ Corp. 1-50; ABC LLC 1-50 named as unknown. fictitious defendants Defendants.
DAVID C. BURY, District Judge.
Defendants: Motions to Dismiss and Requests for Sanctions
Plaintiff sues named Defendants: Meggitt PLC (Meggitt); Pacific Scientific Energetic Materials Company/Pacific Scientific (Pacific Scientific), Boeing Corporation (Boeing); Securaplane Technologies Inc. (Securaplane), and Fiona Grieg (Greig). He seeks leave to file a Second Amended Complaint to add: Exponent Inc.; McKinsey & Company; Marc R. Birtel, and the Office of the Mayor, City of Philadelphia. Boeing and Securaplane answered with Motions to Dismiss for failure to state a claim and frivolousness. They seek sanctions against Plaintiff for what they assert is vexatious litigation. Defendants Grieg, Meggitt, and Pacific Scientific seek dismissal for improper service. Plaintiff appears to have served the proposed Second Amended Complaint on the defendants he seeks to add, and Exponent Inc., has filed a Motion to Dismiss, and joined in the Boeing and Securaplane motions for sanctions.
Standard of Review
The Supreme Court has explained that to survive a motion to dismiss for failure to state a claim upon which relief can be granted, "factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotations omitted). Under Rule 12(b)(6), all factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500, 1504 (9th Cir.1994).
Dismissal is appropriate if the facts alleged do not state a claim that is "plausible on its own face." Twombly, 550 U.S. at 570. The Supreme Court has found this reflects Rule 8(a)(2)'s threshold requirement that the "plain statement" possess enough heft to "sho[w] that the pleader is entitled to relief." Id. at 557. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 561 (abrogating long-standing "no set of facts" to support a claim for relief standard established in Conley v. Gibson, 355 U.S. 41 (1957)). "[F]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact." Id. at 555-556. Put another way, a complaint must be supported by specific, non-conclusory factual allegations sufficient to support a finding by the court that the claims are more than merely possible, they are plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Both Iqbal and Twombly justified establishing "plausible" as the Rule 8(a) standard to curb the expense of discovery related to frivolous law suits. Twombly, 550 U.S. at 558-560, 595; Iqbal, 129 S.Ct. at 678-679.
Plaintiff proceeds in forma pauperis, pursuant to 28 U.S.C. § 1915, which allows a Court to authorize commencement of a suit without prepayment of the filing fee and requires the United States Marshall to serve the Complaint on defendants on behalf of a plaintiff. 28 U.S.C. § 1915(a)(1). An in forma pauperis, pro se litigant should be given an opportunity to amend the compliant to overcome a deficiency unless it is clear that no amendment can cure the defect. See eg., Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superceded by statute; Lopez v. Smith, 203 F.3d 1122, 1129-1131 (9th Cir. 2000) (subsequent to Prisoner's Litigation Reform Act (PLRA), district court retains discretion to dismiss a pro se prisoner's in forma pauperis complaint with or without leave to amend, depending on whether amendment can cure the defect).
"District judges have no obligation to act as counsel or paralegal to pro se litigants" because this would undermine district judges' role as impartial decisionmakers. Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131, n.13 (declining to decide whether the court was required to inform a litigant of pleading deficiencies under the PLRA, but noting that the pro se litigant, unskilled in the law, is far more prone to making errors in pleading than the person who has the benefit of being represented by counsel) (citing Noll, 809 F.2d at 1448). So while the Court may not serve as advocate for the pro se litigant nor act as legal advisor, the Court does explain the pleading deficiencies and afford the pro se litigant an opportunity to amend the Complaint, unless the Court is convinced that the action is frivolous. Section 1915(e) provides for dismissal of a Complaint filed in forma pauperis if the Court is convinced that the action is frivolous.
For the reasons explained below, the Court grants the Defendants' motions to dismiss, including the requests for sanctions. The Court dismisses this action, with prejudice and without leave to amend, and finds the Plaintiff to be a vexatious litigant.
Plaintiff's Litigious Record: The 2013 Internet Defamation Tort Claims.
On January 8, 2014, the United States District Court for the District of Illinois transferred this case here, accordingly, returning Plaintiff to this Court to adjudicate tort claims previously dismissed by the Honorable Cindy K. Jorgenson. Plaintiff charges that Defendant Fiona Greig, an alleged representative of Defendants Securaplane and Boeing, made defamatory statements about Plaintiff which were published on the internet in January and February 2013. Allegedly, Fiona Gregg stated that Plaintiff was a convicted felon and Boeing stated he was fired for email violations. The Court refers to these tort claims as the 2013 internet defamation claims.
On March 26, 2013, Judge Jorgenson sua sponte dismissed Leon's case against Meggitt PLC, Securaplane, Boeing, Pacific Science, and Grieg, CV 13-111 TUC CKJ. As he does now, Plaintiff proceeded in forma pauperis, requiring Judge Jorgenson to screen the Complaint before ordering it served by the United States Marshal. 28 U.S.C. § 1915(a)(1), (e)(2). In her screening Order, she dismissed two federal claims brought by the Plaintiff under the False Claims Act (FCA) alleging fraud on the government related to the lithium ion battery. Then, finding no federal jurisdiction over the action, she dismissed the pendant state law tort claims: intentional infliction of emotional distress (IIED); negligent infliction of emotional distress (NIED); libel; slander, and invasion of privacy. Plaintiff based these tort claims on allegations that the defendants continued misrepresenting facts to the FAA, ASHA, NTSB, and the FBI since 2006 and the 2013 internet defamation claims. Judge Jorgenson's dismissal was without prejudice. (Order (Doc. 8) (CV 13-111 TUC CKJ)).
Subsequently, Plaintiff dropped his federal FCA claims, and filed the tort claims in the Pima County Superior Court, Leon v. Meggitt, PLC, et al., (C-2013-2950), but was prevented from proceeding there because the state court has declared him to be a vexatious litigant. Plaintiff may not file lawsuits, without approval of the Presiding Judge for the Arizona Superior Court, against: Danahare Corporation, Pacific Scientific, and Securaplane Technologies, Inc. His complaint was reviewed, and on June 19, 2013, he was denied leave to file it. (Doc. 63), Ex. O.)
On April 25, 2013, Plaintiff again filed these same tort claims in federal court: Leon v. Boeing (CV 13-286 TUC JGZ); Leon v. Meggitt (CV 13-287 TUC JGZ); Leon v. Pacific Scientific (CV 13-288 TUC JGZ), and Leon v. Greig (CV 13-289 TUC DCB). The Honorable Jennifer G. Zipps consolidated the three cases, CV 13-287 TUC JGZ, CV 13-286 TUC JGZ, and CV 13-288 TUC JGZ, with the lead case being: CV 13-287 TUC JGZ. On July 19, 2013, Plaintiff filed Leon v. Meggitt (CV 13-673 TUC CKJ).
On May 10, 2013, this Court dismissed the action, Leon v. Greig (CV 13-289 TUC DCB), and on August 5, 2013, Judge Jorgenson dismissed Leon v. Meggitt (CV 13-673 TUC CKJ). Both of these cases were dismissed as duplicative of the consolidated case Leon v. Meggitt (CV 13-287 TUC JGZ).
As well, Plaintiff filed the same "2013 internet defamation" tort claims in the federal court in Illinois, adding the FCA claims again without stating them with any more specificity than he had when he urged them before Judge Jorgenson. (Complaint ((CV 13-1679); (CV 14-226 TUC DCB)) (Doc. 1)). On November 10, 2013, Plaintiff filed a First Amended Complaint (FAC), dropping the FAC claims and adding a claim of retaliation under Title VII, (FAC (Doc. 14). This is the instant case, transferred here and pending before this Court as: CV 14-226 TUC DCB. Except for the Title VII retaliation claim, the tort claims brought in this action are duplicitous of the consolidated cases considered by Judge Zipps: Leon v. Boeing (CV 13-286 TUC JGZ); Leon v. Meggitt (CV 13-287 TUC JGZ), and Leon v. Pacific Scientific (CV 13-288 TUC JGZ), which were dismissed by Judge Zipps as consolidated: CV 13-287 TUC JGZ.
Judge Zipps also afforded the Plaintiff in forma pauperis status, consolidated and screened the complaints, which again alleged the 2013 internet defamation claims allegedly made by Fiona Greig and Boeing. See (Order (CV 13-287 TUC JGZ) at 1 n.1 (describing other two cases as "identical Complaints"). A review of the three complaints reflects the only difference were the named defendants. The lead case, CV 13-287 TUC JGZ, named Meggitt PLC; CV 13-286 TUC JGZ named Boeing, and CV 13-288 TUC JGZ named Pacific Scientific Energetic Materials Comp./Pacific Scientific. Judge Zipps described the crux of the First Amended Complaint relates to the publishing of a January 22, 2013 on-line article, including alleged Boeing spokesman Birtel's statement that a 2006 battery fire resulted from improper testing, not design; Securaplane through Greig made alleged statements that Plaintiff was a convicted felon, who lied to FAA investigators, falsified his employment history, and statements plaintiff violated e-mail policies). Judge Zipps addressed the merits of Plaintiff's tort claims. Id. at 4-5. In addition to substantial pleading deficiencies, she dismissed the cases because Plaintiff failed to state any tort claim against the parties he named.
Judge Zipps found the claims meritless because: 1) Plaintiff cannot link the named defendant to the publication of the internet article, and even if he could the information summarized in the internet article appears to have come from a published opinion readily located at the United States Department of Labor website and so Plaintiff is unable to prove a person reciting this information would have no reason to know that it is false; 3) the facts alleged do not support extreme and outrageous conduct or even negligence for IIED or NIED claims, and 4) Plaintiff cannot sue as a private citizen to enforce various federal and state criminal statutes against cyber stalking. (Order (CV 13-287 TUC JGZ) at 4-8.)
Plaintiff sought an appeal. Judge Zipps found the Plaintiff's appeal was not taken in good faith, the Ninth Circuit Court considered the Plaintiff-Appellant's motion to proceed on appeal in forma pauperis. It denied in forma pauperis status and held: "Because the court has found that this appeal is frivolous, the district court judgment may be summarily affirmed even if appellant pays the fees, " unless the appellant can show cause why the judgment challenged in this appeal should not be summarily affirmed. (Order (Doc. 51) (CV 13-287 TUC JGZ5): United States Court of Appeals Case No. 14-15543 Order at 2 (citing Cir. R. 3-6 (where it is manifest that the question raised in the appeal are so insubstantial as not to justify further proceedings the Court may issue appropriate dispositve order).
The tort claims alleged here, (CV 14-226 TUC DCB), like those alleged in Leon v. Meggitt, (CV 13-673 TUC CKJ), dismissed by Judge Jorgenson and the claims against Greig alleged in Leon v. Grieg, et al., (CV 13-289 TUC DCB), dismissed by this Court, are duplicative of the tort claims urged before Judge Zipps in the consolidated case CV 13-287 TUC JGZ. They all in one way or another assert that defendants committed defamation, libel, slander, via the internet in 2013. The Court dismisses the tort claims alleged, here, because they are identical to the claims adjudicated by Judge Zipps, with the exception of the addition of Defendant Securaplane, here, and the other defendants the Plaintiff seeks to add in this case by a proposed Second Amended Complaint. (SAC): Exponent, Inc. McKinsey & Company, Marc R. Birtel, and Office of the Mayor, City of Philadelphia. Judge Zipps' findings in respect to the lack of merit of Plaintiff's tort claims against Defendants Meggitt, Boeing, Grieg and Pacific Scientific apply equally to Securaplane and the new defendants Plaintiff proposes to add, here.
Additionally, this Court declines to adjudicate pendent state tort claims because it dismisses the federal Title VII claim of retaliation, without leave to amend. The federal courts are courts of limited jurisdiction and may only adjudicate those cases over which they have subject matter jurisdiction, which are cases involving diversity of citizenship or a federal question. Kikkonen v. Guardian Life Insur. Co. of America, 511 U.S. 375 (1994). Where the Complaint fails to reflect federal jurisdiction, it must be dismissed. Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). Generally, when federal claims are dismissed before trial, supplemental state claims should ordinarily also be dismissed. Jones v. Cmty. Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 651 (9th Cir. ...