Casavelli v. Johanson ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Nicholas Casavelli, et al., No. CV-20-00497-PHX-JAT 10 Plaintiffs, ORDER 11 v. 12 Donna J Johanson, et al., 13 Defendants. 14 15 Pending before the Court are three motions to dismiss (Docs. 87, 90, 101), responses 16 to each motion (Docs. 96, 97, 104), and replies for each motion (Docs. 98, 99, 109). 17 Additionally pending before the Court is a motion to enjoin (Doc. 84), a motion for entry 18 of judgment under Rule 54(b) (Doc. 103), a motion to seal (Doc. 111) and a motion to 19 strike (Doc. 112). The Court now rules on the motions.1 20 I. BACKGROUND 21 In short, Plaintiffs claim that Defendants have conspired against them in a pending 22 state court action in Maricopa County Superior Court. (Doc. 82). Defendants include the 23 parties to that state court action, counsel, Maricopa County Superior Court judges, and a 24 bank. (Id. at 2–3). Plaintiffs’ Third Amended Complaint (Doc. 82) asserts thirty causes of 25 action, includes 48 numbered paragraphs of allegations that span ninety-seven pages, and 26 1 The Court finds that a hearing is unnecessary for any of the pending motions (Docs. 87, 90, 101) as the issues have been fully briefed and oral argument would not have aided the 27 Court’s decisional process. Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas Inv’rs Grp. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991); Prison 28 Legal News v. Ryan, No. CV-15-02245-PHX-ROS, 2019 WL 1099882, at *1 n.1 (D. Ariz. Mar. 8, 2019). 1 cites violations arising from varying sources of law, including the United States 2 Constitution, the United States Code, and Arizona law. (Doc. 82). 3 II. LEGAL STANDARD 4 Federal Rule of Civil Procedure 8(a) requires that a complaint include, among other 5 things, “a short and plain statement of the claim showing that the pleader is entitled to 6 relief.” Fed. R. Civ. P. 8(a)(2). This statement “need not contain detailed factual 7 allegations; rather, it must plead ‘enough facts to state a claim to relief that is plausible on 8 its face.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) 9 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a) “demands more 10 than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 11 556 U.S. 662, 678 (2009). Although a court must accept all factual allegations at the 12 pleading stage, courts may not accept legal conclusions couched as factual allegations. Id. 13 at 678–79. As such, “threadbare recitals of the elements of a cause of action, supported by 14 mere conclusory statements” are not sufficient to state a claim. Id. Indeed, the short and 15 plain statement required by Rule 8(a) must “give the defendant fair notice of what the . . . 16 claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (alteration in 17 original) (citation omitted). 18 Further, “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 19 8(d)(1); see also Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in 20 numbered paragraphs, each limited as far as practicable to a single set of circumstances.”). 21 “Where a complaint contains the factual elements of a cause, but those elements are 22 scattered throughout the complaint without any meaningful organization, the complaint 23 does not set forth a ‘short and plain statement of the claim’ for purposes of Rule 8.” 24 Chagolla v. Vullo, No. CV-17-01811-PHX-SPL, 2018 WL 10602297, at *2 (D. Ariz. Mar. 25 30, 2018) (citing Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988)). 26 A complaint may be dismissed where it “fail[s] to state a claim upon which relief 27 can be granted.” See Fed. R. Civ. P. 12(b)(6). All facts are read in the light most favorable 28 to the plaintiff. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Moreover, 1 a pro se litigant’s pleadings must be liberally construed. See Blaisdell v. Frappiea, 729 2 F.3d 1237, 1241 (9th Cir. 2013). But the liberal construction owed to pro se pleadings is 3 not a form of immunity from the Federal Rules of Civil Procedure, including federal 4 pleading requirements. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). 5 When the complaint does not state a claim upon which relief can be granted, the 6 next inquiry is whether amendment can cure the defect. See Lacey v. Maricopa County, 7 693 F.3d 896, 926 (9th Cir. 2012) (en banc); see also Fed. R. Civ. P. 15(a)(2) (providing 8 that courts should “freely give leave [to amend] when justice so requires”). Rule 15(a)(2) 9 establishes a “policy favoring liberal amendment.” Verizon Del., Inc. v. Covad Commc’ns 10 Co., 377 F.3d 1081, 1091 (9th Cir. 2004). Nonetheless, leave to amend should be denied if 11 amendment would be futile. See Airs Aromatics, LLC v. Op. Victoria’s Secret Stores Brand 12 Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014). 13 III. ANALYSIS 14 The Third Amended Complaint includes thirty causes of action. (Doc. 82). 15 Defendants seek dismissal of all of them. (Docs. 87, 90, 101). As will be discussed, 16 Plaintiffs’ Third Amended Complaint fails to meet federal pleading standards as it 17 constitutes an impermissible “shotgun pleading.” In addition to the global issues, the 18 individual causes of action in the Third Amended Complaint fail to meet federal pleading 19 standards. The Court will examine those causes of action in turn before discussing the 20 global issues with the Third Amended Complaint. 21 a. First–Seventh Causes of Action: Forgery 22 Plaintiffs assert causes of action against Defendants Brian Eastin, Provident Law 23 PLLC, Donna Johanson, the Estate of Gary T. Johanson, Garpdon LLC, and the Johanson 24 Family Revocable Trust for forgery under 42 U.S.C. § 1983. (Doc. 82 at 32–45). To prevail 25 on a claim under 42 U.S.C. § 1983, Plaintiffs must allege a violation of a federal 26 constitutional or statutory right by a state actor. See Paul v. Davis, 424 U.S. 693, 700–01 27 (1976); Ketchum v. County of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987). Plaintiffs fall 28 short on both requirements. 1 1. Violation of a Federal Constitutional or Statutory Right 2 Plaintiffs assert that their First Amendment rights “to redress grievances and 3 freedom of speech,” Fourth Amendment rights “to be secure in their persons, houses, 4 papers, and effects,” and Fourteenth Amendment rights “to due process and equal 5 protection under the law” were violated by Defendants’ alleged acts of forgery. (See Doc. 6 82 at 32–45) None of these alleged violations, however, satisfy Rule 8(a)’s pleading 7 requirements. 8 A. First Amendment 9 Plaintiffs aver that they have been denied their First Amendment right to a forum to 10 redress their grievances. (See Doc. 82 at 32–45). As this Court noted previously though, 11 “based on the facts alleged in the Complaint, Plaintiffs successfully exercised their right to 12 petition—once in Arizona Superior Court for Maricopa County and, again, before this 13 Court.” (Doc. 13 at 5). Plaintiffs’ Third Amended Complaint contains multiple references 14 to their use of the courts. (See, e.g., Doc. 82 at 18 (noting that on February 14, 2020, 15 Plaintiffs filed a motion in state court that was subsequently fully briefed and ruled on)). 16 While Plaintiffs may not like the outcomes of their cases, the Constitution provides no 17 guarantee of a successful petition for redress of grievances. See Petersen v. Cazemier, 164 18 F.Supp.2d 1217, 1225 (D. Or. 2001). 19 Plaintiffs also argue that their First Amendment rights to free speech were violated. 20 (See Doc. 82 at 32–45). Yet, Plaintiffs do not point to any specific actions undertaken by 21 the Defendants at issue that work to deny Plaintiffs’ rights to free speech. Plaintiffs instead 22 argue that their rights to free speech were limited when Judge Duncan refused to let Mr. 23 Casavelli speak during a state court proceeding for “no sound reason.” (Doc. 82 at 23–24). 24 Yet, Plaintiffs’ own response shows that Judge Duncan only refused to allow Mr. Casavelli 25 to speak after he was argumentative and repeatedly interrupted her. (See Doc. 96 at 25– 26 41); (see also Doc. 87-2 at 4). A court may limit certain of a party’s rights to ensure that 27 an orderly proceeding can be conducted. See Escarcega v Frauenheim, No. CV 14-1749- 28 PA (PLA), 2016 WL 9108856, at *25 (C.D. Cal. Sept. 30, 2016), report and 1 recommendation adopted, No. CV 14-1749-PA (PLA), 2017 WL 2468772 (C.D. Cal. June 2 6, 2017) (limiting a party’s right to represent himself, in part, because he repeatedly 3 interrupted the court); Pantchev v. Martel, No. 2:17-CV-02807-CJC-JC, 2020 WL 4 4005651, at *20 (C.D. Cal. June 22, 2020), report and recommendation adopted, No. 2:17- 5 CV-02807-CJC-JC, 2020 WL 4003021 (C.D. Cal. July 15, 2020) (holding that it was 6 appropriate to remove a criminal defendant from closing arguments due to his repeated 7 interruptions of the court). Thus, the Court finds that Plaintiffs do not state a valid claim 8 that their First Amendment rights were violated by any of the Defendants. 9 B. Fourth Amendment 10 Plaintiffs additionally argue that their Fourth Amendment rights “to be secure in 11 their persons, houses, papers, and effects” were violated. (See Doc. 82 at 32–45). While it 12 is not clear from the Third Amended Complaint, Plaintiffs seem to argue that the property 13 at issue was their bank records, their litigation costs, and the costs of judgments against 14 them (See id. at 15). To state a claim under the Fourth Amendment regarding their bank 15 records, however, Plaintiffs must show that the Defendants at issue violated Plaintiffs’ 16 “reasonable expectation of privacy.” Price v. Turner, 260 F.3d 1144, 1148 (9th Cir. 2001) 17 (citations omitted); see In re Grand Jury Proceedings, 40 F.3d 959, 962 (9th Cir. 1994) 18 (per curiam). “In general, an American depositor has no reasonable expectation of privacy 19 in copies of his or her bank records, such as checks, deposit slips, and financial statements 20 maintained by the bank.” In re Grand Jury Proceedings, 40 F.3d at 962 (citing United 21 States v. Miller, 425 U.S. 435, 442 (1976)). Acquisition of Plaintiffs’ bank records did not 22 violate the Fourth Amendment as Plaintiffs have not sufficiently alleged that there was any 23 violation of their reasonable expectation of privacy. In fact, a “depositor takes the risk, in 24 revealing his affairs to another, that the information will be conveyed by that person” to 25 others. See id. (quoting Miller, 425 U.S. at 443). 26 Regarding Plaintiffs’ claims that their Fourth Amendment rights were violated by 27 their need to pay litigation costs and the costs of judgments against them, Plaintiffs cite no 28 legal authority for this proposition. The Fourth Amendment protects only against 1 “unreasonable searches and seizures.” U.S. Const. amend. IV. Plaintiffs’ claims that their 2 costs and adverse judgments were an unreasonable seizure are conclusory and do not 3 satisfy the Rule 8(a) requirements. See Iqbal, 556 U.S. at 678–79; (see, e.g., Doc. 96 at 11 4 (claiming that fees awarded to Defendants because of Plaintiffs’ contemptuous conduct 5 were unreasonable simply because Plaintiffs believe their conduct was not contemptuous)). 6 Thus, the Court finds that Plaintiffs do not state a valid claim that their Fourth Amendment 7 rights were violated by any of the Defendants. 8 C. Fourteenth Amendment 9 Plaintiffs next argue that their Fourteenth Amendment rights “to due process and 10 equal protection under the law” were violated. (See Doc. 82 at 32–45). It is unclear from 11 the Third Amended Complaint how the Defendants at issue allegedly violated Plaintiffs’ 12 Fourteenth Amendment rights, but Plaintiffs seem to argue that unfavorable outcomes in 13 the state court proceeding are the cause of these violations. Plaintiffs have not been denied 14 due process as they state throughout their complaint that they have been engaged in the 15 state court litigation. (See, e.g., Doc. 82 at 18 (noting that on February 14, 2020, Plaintiffs 16 filed a motion in state court that was subsequently fully briefed and ruled on)). Plaintiffs’ 17 claims that the sanctions against them are a denial of due process fail as the Constitution 18 provides no guarantee to success in court. See Petersen, 164 F.Supp.2d at 1225 (D. Or. 19 2001). 20 Further, Plaintiffs’ claim that their rights to equal protection have been violated 21 because they have been unsuccessful in the state court action due to their “class base of 22 Italian American.” (Doc. 82 at 19). Plaintiffs offer no facts or reasoning to support such a 23 claim, and simply argue that “the only plausible explanation [for their lack of success in 24 the state court action] is plaintiffs are of a class base Italian American.” (Id. at 81). Such 25 claims are conclusory and do not satisfy the Rule 8(a) requirements. See Iqbal, 556 U.S. at 26 678–79. Thus, the Court finds that Plaintiffs do not state a valid claim that their Fourteenth 27 Amendment rights were violated by any of the Defendants. 28 Because Plaintiffs do not validly assert that any of their federal Constitutional or 1 statutory rights were violated, Plaintiffs’ Third Amended Complaint does not establish an 2 actionable § 1983 claim. 3 2. State Actor 4 Plaintiffs argue that Defendants were state actors when committing the alleged acts 5 of forgery. (See Doc. 82 at 32–45) When a court determines whether a party is a state actor, 6 the court asks: “‘is the alleged infringement of federal rights fairly attributable to the 7 [government]?’” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 8 1999) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). There are four different 9 tests used by the Ninth Circuit to identify state action: “(1) public function; (2) joint action; 10 (3) governmental compulsion or coercion; and (4) governmental nexus.” Kirtley v. Rainey, 11 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton, 192 F.3d at 835–36). 12 “Under the public function test, ‘when private individuals or groups are endowed 13 by the State with powers or functions governmental in nature, they become agencies or 14 instrumentalities of the State and subject to its constitutional limitations.’” Lee v. Katz, 276 15 F.3d 550, 554–55 (9th Cir. 2002) (quoting Evans v. Newton, 382 U.S. 296, 299 (1966)). 16 “To satisfy the public function test, the function at issue must be both traditionally and 17 exclusively governmental.” Id. Under the joint action test, a court considers whether “the 18 state has so far insinuated itself into a position of interdependence with the private entity 19 that it must be recognized as a joint participant in the challenged activity.” Parks Sch. of 20 Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995) (internal citations, brackets and 21 quotation marks omitted). “The compulsion test considers whether the coercive influence 22 or ‘significant encouragement’ of the state effectively converts a private action into a 23 government action.” Kirtley, 326 F.3d at 1094. The nexus test considers whether “there is 24 such a close nexus between the State and the challenged action that the seemingly private 25 behavior may be fairly treated as that of the State itself.” Id. (quoting Brentwood Acad. v. 26 Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)). 27 “While these factors are helpful in determining the significance of state 28 involvement, there is no specific formula for defining state action.” Howerton v. Gabica, 1 708 F.2d 380, 383 (9th Cir. 1983) (citation and internal quotation marks omitted); see also 2 Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (“[T]o fashion and apply a 3 precise formula for recognition of state responsibility under the Equal Protection Clause is 4 an impossible task which [t]his Court has never attempted.”) (citation and internal 5 quotation marks omitted). “Instead, ‘[c]ontemporary decisions stress the necessity of a 6 close nexus between the state and the challenged conduct rather than application of a 7 mechanistic formula.’” Sutton, 192 F.3d at 836. “‘Under any formula, however, the inquiry 8 into whether private conduct is fairly attributable to the state must be determined based on 9 the circumstances of each case.’” Id. (quoting Bass v. Parkwood Hosp., 180 F.3d 234, 242 10 (5th Cir. 1999). 11 Plaintiffs make clear that their forgery causes of action apply only to Defendants 12 Brian Eastin, Provident Law PLLC, Donna Johanson, the Estate of Gary T. Johanson, 13 Garpdon LLC, and the Johanson Family Revocable Trust. (See Doc. 82 at 32–45). None 14 of these Defendants are state actors under any of the tests endorsed by the Ninth Circuit. 15 Plaintiffs assert that the Defendants at issue are state actors by virtue of their serving of 16 subpoenas through a state court proceeding. (See id. at 29–31). Merely going through a 17 state court to serve a subpoena, however, is not enough to transform a party into a state 18 actor. See Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983) (holding that a party 19 does not become a state actor merely by employing state authorized subpoena power); 20 Broadley v. Hardman, 301 F. App’x 4, 5 (1st Cir. 2008) (holding that a party’s use of a 21 subpoena “did not transform him into a state actor”); Angelico v. Lehigh Valley Hosp., Inc., 22 184 F.3d 268, 278 (3d Cir. 1999) (holding that a party does not become a state actor simply 23 by employing the state’s subpoena laws). While there are potential legal consequences for 24 failure to obey a subpoena, which might ultimately involve state officials, the mere serving 25 of a subpoena does not involve an exclusive function of, joint action with, compulsion by, 26 or a clear nexus with the government. See Angelico, 184 F.3d 268, 278 (3d Cir. 1999) 27 (noting that, while there may be legal consequences for failure to obey a subpoena, there 28 is no state action in simply resorting to the state procedure for subpoena unless state 1 officials are actually used to enforce or carry out that procedure). 2 Further, Plaintiffs argue that the possession of a state license to practice law by 3 certain Defendants makes them state actors. (See Doc. 82 at 32–45). Holding a state license 4 to practice law as an attorney in private practice, however, does not transform a party into 5 a state actor. See Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th 6 Cir. 2003) (holding that a state-licensed lawyer in private practice was not a state actor); 7 Briley v. State of Cal., 564 F.2d 849, 855 (9th Cir. 1977) (“We have repeatedly held that a 8 privately-retained attorney does not act under color of state law [for the purposes of 9 § 1983].”); Tanasescu v. State Bar of Cal., No. SACV 11-00700-CJC, 2012 WL 1401294 10 (C.D. Cal. Mar. 26, 2012), report and recommendation adopted, No. SACV 11-00700- 11 CJC, 2012 WL 1401254 (C.D. Cal. Apr. 19, 2012), aff’d, 569 F. App’x 502 (9th Cir. 2014) 12 (“[I]t is well-established that lawyers in private practice generally do not act under color of 13 state law when they represent parties in court proceedings.”). Mere possession of a state 14 license does not meet any of the four factors approved by the Ninth Circuit. If it did, then 15 anyone holding a state-issued driver’s license would be a state actor when behind the 16 wheel. 17 Plaintiffs also argue that the Defendants at issue are state actors because of their 18 alleged bribery of Maricopa County Superior Court judges. (See Doc. 82 at 32–45). Private 19 parties can be considered to act under color of state law if the official act of a judge was 20 the product of a corrupt conspiracy involving the private parties’ bribery of that judge. See 21 Dennis v. Sparks, 449 U.S. 24, 28 (1980). Plaintiffs claim that Defendant Donna J. 22 Johanson withdrew money and bribed Judge Flores and Judge Duncan with it. (See Doc. 23 82 at 26–27). While Plaintiffs allege facts to support the claim that Defendant Donna J. 24 Johanson withdrew money from her bank account, Plaintiffs allege no facts to support their 25 claim that the money was paid to Judge Flores and Judge Duncan. (See id.). Plaintiffs 26 simply argue “[u]pon information and belief” that the alleged bribery occurred. (Id.). Such 27 allegations are conclusory and do not satisfy the Rule 8(a) requirements. See Iqbal, 556 28 U.S. at 678–79. 1 Additionally, Plaintiffs claim the conspiratorial communications between 2 Defendants and the state court judges were made in open court at a rule 16 conference in a 3 state court proceeding. (See Doc. 82 at 81). Plaintiffs allege that these communications 4 were conspiratorial because they did not favor Plaintiffs and were made after Plaintiffs 5 voluntarily left the proceeding. (Id. at 25–26). “[M]erely resorting to the courts and being 6 on the winning side of a lawsuit does not make a party a co–conspirator or a joint actor 7 with the judge.” Dennis, 449 U.S. at 28. Further, an ex parte judicial proceeding cannot 8 constitute a conspiracy unless it works to deprive a party of their rights or accomplish an 9 unlawful purpose. See 42 U.S.C. § 1985; Ares Funding, LLC v. MA Maricopa, LLC, No. 10 06-1102-PHX-ROS, 2006 WL 8440402, at *3 (D. Ariz. Sept. 29, 2006). The 11 communications in question did not deprive Plaintiffs of any rights or pursue an unlawful 12 purpose as Plaintiffs voluntarily left the hearing and the state court only discussed 13 procedural matters in their absence. See Roberts v. MacDonald, 967 F.2d 590 (9th Cir. 14 1992) (noting that an ex parte hearing only violates a party’s rights if the party was denied 15 the “opportunity to participate in determination of the relevant issues,” and that an ex parte 16 hearing does not violate a party’s rights if that party was not prejudiced); (see also Docs. 17 96 at 25–41, 87-2 at 4). Thus, Plaintiffs’ Third Amended Complaint does not establish that 18 the Defendants at issue were state actors as required for a § 1983 claim. 19 3. Conclusion Regarding Forgery Claims 20 Plaintiffs’ causes of action against Defendants for forgery under 42 U.S.C. § 1983 21 are inadequate because they did not validly allege a violation of a federal constitutional or 22 statutory right or conduct by a state actor. As this is the Third Amended Complaint and 23 Plaintiffs have repeatedly failed to allege any valid forgery claims under § 1983, the Court 24 finds that further leave to amend would be a futile exercise and dismisses these claims with 25 prejudice. See Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002) (holding that leave 26 to amend need not be granted if it would be “a futile exercise”); Airs Aromatics, 744 F.3d 27 at 600 (holding that leave to amend should be denied if amendment would be futile). 28 b. Eighth–Twenty-Fourth Causes of Action: Fraud 1 Plaintiffs assert causes of action against Defendants Brian Eastin, Provident Law 2 PLLC, Donna Johanson, the Estate of Gary T. Johanson, Garpdon LLC, and the Johanson 3 Family Revocable Trust for fraud under 42 U.S.C. § 1983. (Doc. 82 at 45–79). To prevail 4 on a claim under 42 U.S.C. § 1983, Plaintiffs must allege a violation of a federal 5 constitutional or statutory right by a state actor. See Paul, 424 U.S. at 700–01; Ketchum, 6 811 F.2d at 1245. Plaintiffs, again, fall short on both requirements. 7 The fraud causes of action are similar to the forgery causes of action. Each cause of 8 action contains similar conclusory statements to the forgery causes of action alleging the 9 violation of constitutional rights, but do not set forth facts that satisfy the Rule 8(a) pleading 10 standards. (See Doc. 82 at 45–79); see also supra Section III.a.1. Further, as discussed 11 supra, none of the Defendants to whom these claims apply are state actors. See supra 12 Section III.a.2. Thus, because they did not validly allege a violation of a federal 13 constitutional or statutory right or conduct by a state actor, Plaintiffs do not adequately 14 plead their causes of action against Defendants for fraud under 42 U.S.C. § 1983.2 15 As this is the Third Amended Complaint and Plaintiffs have repeatedly failed to 16 allege any valid fraud claims under § 1983, the Court finds that further leave to amend 17 would be a futile exercise and dismisses these claims with prejudice. See Gompper, 298 18 F.3d at 898 (holding that leave to amend need not be granted if it would be “a futile 19 exercise”); Airs Aromatics, 744 F.3d at 600 (holding that leave to amend should be denied 20 if amendment would be futile). 21 c. Twenty-Fifth–Twenty-Eighth Causes of Action: Conspiracy 22 Plaintiffs assert causes of action against numerous Defendants for conspiracy. (See 23 Doc. 82 at 79–86). The Court will address the separate causes of action below. 24 1. Causes of Action Against Defendants Lisa Flores and Sally 25 2 To the extent that Plaintiffs claim their damages stem from erroneous rulings against them 26 in their state court proceeding, this court is not the proper forum to address such concerns. See Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003) (“[W]hen a losing plaintiff in state 27 court brings a suit in federal district court asserting as legal wrongs the allegedly erroneous legal rulings of the state court and seeks to vacate or set aside the judgment of that court, 28 the federal suit is a forbidden de facto appeal.); Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029–30 (9th Cir. 2001). 1 Schneider Duncan 2 Plaintiffs assert causes of action against Defendants Lisa Flores and Sally Schneider 3 Duncan for conspiracy under 42 U.S.C. § 1983 and § 1985(2). (Doc. 82 at 79–80, 84–86). 4 To prevail on a claim under 42 U.S.C. § 1983, Plaintiffs must allege a violation of a federal 5 constitutional or statutory right by a state actor. See Paul, 424 U.S. at 700–01; Ketchum, 6 811 F.2d at 1245. 42 U.S.C. § 1985(2) provides a cause of action under two scenarios: The 7 first scenario is where a conspiracy “deter[s,] by force, intimidation, or threat[,] a party or 8 witness in federal court.” See Bagley v. CMC Real Estate Corp., 923 F.2d 758, 763 (9th 9 Cir. 1991) (citation omitted). The other scenario prohibited by 42 U.S.C. § 1985(2) occurs 10 where a conspiracy, motivated by class-based animus, “obstruct[s] the due course of justice 11 in any State or Territory with intent to deny equal protection.” See Bagley, 923 F.2d at 763. 12 Plaintiffs’ claims against these Defendants revolve around Defendants’ actions as 13 Maricopa County Superior Court judges. In the twenty-fifth cause of action, Plaintiffs 14 allege that Judge Flores conspired with Defendant Brian Eastin at a March 11, 2020, rule 15 16 hearing which resulted in her May 12, 2020, order to extend the dispositive motion 16 deadlines in Plaintiffs’ state court case. (See Doc. 82 at 79). In the twenty-eighth cause of 17 action, Plaintiffs allege that Judge Duncan conspired with Defendant Brian Eastin by 18 signing an order awarding attorney’s fees and granting a motion to strike in Plaintiffs’ state 19 court case. (See id. at 84–85). 20 “Judges and those performing judge-like functions are absolutely immune from 21 damage liability for acts performed in their official capacities.” Ashelman v. Pope, 793 22 F.2d 1072, 1075 (9th Cir. 1986). An act by a judge is a “judicial” act when “it is a function 23 normally performed by a judge,” and when the parties at issue have “dealt with the judge 24 in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). Judges have 25 immunity for their judicial acts “even when such acts are in excess of their jurisdiction, 26 and are alleged to have been done maliciously or corruptly.” Id. at 356. A judge “will be 27 subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’” Id. at 28 356–57. Judicial immunity applies even if a judge’s actions are ex parte, so long as the 1 actions are not taken in the clear absence of jurisdiction. Id. at 363 n.12. Notably, judicial 2 immunity applies even to alleged acts of conspiracy or bribery. Ashelman, 793 F.2d at 3 1078. 4 The actions of Judge Flores and Judge Duncan at issue are certainly judicial acts 5 entitled to immunity. Conducting hearings, ruling on motions, and awarding attorney’s fees 6 are acts routinely undertaken by judges. To sidestep this reality, Plaintiffs cite the following 7 passage in Ashelman: “Relying on Ninth Circuit authority, we held that a judge and 8 prosecutor are not protected by immunity when they conspire to deprive a defendant of 9 constitutional rights.” Ashelman, 793 F.2d at 1074 (citing Beard v. Udall, 648 F.2d 1264 10 (9th Cir. 1981) overruled by Ashelman, 793 F.2d 1072). This portion of Ashelman, 11 however, refers to a decision that was subsequently withdrawn. Id. at 1075. The Ashelman 12 court found that the prior reasoning construed judicial immunity too narrowly, and that 13 judicial immunity applied to claims of conspiracy. Id. at 1078. 14 Next, Plaintiffs argue that Judge Flores and Judge Duncan are not entitled to judicial 15 immunity because their actions were taken ex parte and as a result of bribery. (See Doc. 82 16 at 26–27). Yet, judicial immunity applies to ex parte actions, Stamp, 435 U.S. at 363 n.12, 17 and actions allegedly motivated by bribery, Ashelman, 793 F.2d at 1078.3 Thus, so long as 18 Judge Flores and Judge Duncan had jurisdiction when acting, they are covered by judicial 19 immunity. 20 Plaintiffs’ complaint vaguely argues that Judge Flores and Judge Duncan acted in 21 absence of jurisdiction when furthering the alleged conspiracy because they had been 22 divested of jurisdiction by notices of appeal and removal. (See Doc. 82 at 22–24, 25–26). 23 Even if Plaintiffs are right that the notices of appeal and removal divested Judge Flores and 24 3 Even if judicial immunity did not apply to the bribery claims against Judge Flores and 25 Judge Duncan, Plaintiffs’ claims of bribery are conclusory. Plaintiffs argue that Defendant Donna J. Johanson withdrew money and paid it to Judge Flores and Judge Duncan as 26 bribes. (See Doc. 82 at 26–27). While Plaintiffs allege facts to support the claim that Defendant Donna J. Johanson withdrew money from her bank account, Plaintiffs allege no 27 facts to support their claims that the money was paid to Judge Flores and Judge Duncan. (See id.). Plaintiffs simply argue that “[u]pon information and belief” that the alleged 28 bribery occurred. (Id.). Such allegations are conclusory and do not satisfy the Rule 8(a) requirements. See Iqbal, 556 U.S. at 678–79. 1 Judge Duncan of jurisdiction, their actions could, at worst, be described as acts in excess 2 of existing jurisdiction because the state court litigation was filed in the Maricopa County 3 Superior Court which is a court of general jurisdiction. See Miller v. Davis, 521 F.3d 1142, 4 1145–48 (9th Cir. 2008) (affirming district court’s finding of judicial immunity for 5 governor who performed judicial act—despite the fact that governor had no jurisdiction— 6 because act was not done in the “clear absence of all jurisdiction,” but in excess of existing 7 jurisdiction); see also Ariz. Const., art. 6, § 14 (listing jurisdiction of Arizona superior 8 courts). Even if erroneously undertaken in excess of existing jurisdiction, a judicial act is 9 still immune from litigation so long as it is not done “in the clear absence of jurisdiction.” 10 See Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (holding that an act 11 erroneously undertaken in excess of a judge’s jurisdiction is not the same as an act that is 12 taken “in clear absence of all jurisdiction.”). 13 Because Defendants Flores and Duncan are judicially immune from damages for 14 their judicial actions, the Court will dismiss Plaintiffs’ causes of action against these 15 Defendants for conspiracy under 42 U.S.C. § 1983 and § 1985(2). Further, any claim for 16 injunctive or declaratory relief for the allegedly erroneous rulings of Judge Flores or Judge 17 Duncan would be futile as such claims would constitute forbidden de facto appeals. See 18 Noel, 341 F.3d at 1156 (“[W]hen a losing plaintiff in state court brings a suit in federal 19 district court asserting as legal wrongs the allegedly erroneous legal rulings of the state 20 court and seeks to vacate or set aside the judgment of that court, the federal suit is a 21 forbidden de facto appeal.); Henrichs v. Valley View Dev., 474 F.3d 609, 616 (9th Cir. 22 2007) (holding that the Rooker-Feldman doctrine bars a district court from determining 23 that a state court’s decision was wrong and thus void). 24 Plaintiffs have repeatedly failed to allege any valid conspiracy claims against Judge 25 Flores or Judge Duncan, and Judge Flores and Judge Duncan have judicial immunity for 26 their judicial actions. Thus, the Court finds that further leave to amend would be a futile 27 exercise and dismisses these claims with prejudice. See Gompper, 298 F.3d at 898 (holding 28 that leave to amend need not be granted if it would be “a futile exercise”); Airs Aromatics, 1 744 F.3d at 600 (holding that leave to amend should be denied if amendment would be 2 futile). 3 2. Causes of Action Against Defendants Brian Eastin, Provident 4 Law PLLC, Donna Johanson, the Estate of Gary T. Johanson, 5 Garpdon LLC, and the Johanson Family Revocable Trust 6 Plaintiffs further assert a cause of action against Defendants Brian Eastin, Provident 7 Law PLLC, Donna Johanson, the Estate of Gary T. Johanson, Garpdon LLC, and the 8 Johanson Family Revocable Trust for conspiracy under 42 U.S.C. § 1983 and § 1985(3). 9 (See id. at 80–82). To prevail on a claim under 42 U.S.C. § 1983, Plaintiffs must allege a 10 violation of a federal constitutional or statutory right by a state actor. See Paul, 424 U.S. at 11 700–01; Ketchum, 811 F.2d at 1245. Under 42 U.S.C. § 1985(3), Plaintiffs must show a 12 conspiracy motivated by class-based animus to deprive them of equal protection of the 13 laws. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). 14 As stated supra, Defendants in these causes of action are not state actors. See supra 15 Section III.a.2. Thus, any claims against them under 42 U.S.C. § 1983 fail and are 16 dismissed. Further, as stated supra, Plaintiffs’ claims of class-based animus are conclusory 17 and do not satisfy the Rule 8(a) requirements. See supra Section III.a.1. Thus, any claims 18 against the instant Defendants under 42 U.S.C. § 1985(3) fail and are dismissed. 19 As this is the Third Amended Complaint and Plaintiffs have repeatedly failed to 20 allege any valid conspiracy claims against the instant Defendants, the Court finds that 21 further leave to amend would be a futile exercise and dismisses these claims with prejudice. 22 See Gompper, 298 F.3d at 898 (holding that leave to amend need not be granted if it would 23 be “a futile exercise”); Airs Aromatics, 744 F.3d at 600 (holding that leave to amend should 24 be denied if amendment would be futile). 25 3. Cause of Acton Against Defendant Gregory E. Hinkel4 26 4 Defendant Gregory E. Hinkel did not file a motion to dismiss but requested that the Third Amended Complaint be dismissed in his Answer. (See Doc. 94). Per Federal Rule of Civil 27 Procedure 12(h), a party may, in their answer, raise the argument that a complaint should be dismissed for failure to state a claim. Fed. R. Civ. P. 12(h)(2)(a). Additionally, “[a] 28 [d]istrict [c]ourt may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving 1 Plaintiffs additionally assert a cause of action against Defendant Gregory E. Hinkel 2 for conspiracy under 42 U.S.C. § 1983. (See id. at 82–84). To prevail on a claim under 42 3 U.S.C. § 1983, Plaintiffs must allege a violation of a federal constitutional or statutory right 4 by a state actor. See Paul, 424 U.S. at 700–01; Ketchum, 811 F.2d at 1245. 5 As with Defendants discussed supra, Defendant Gregory E. Hinkel is not a state 6 actor. See supra Section III.a.2. Plaintiffs allege no facts that implicate any of the Ninth 7 Circuit tests for finding state action, and Plaintiffs’ claims of bribery and a conspiracy with 8 state actors are conclusory and do not satisfy the Rule 8(a) requirements. See id.; (see also 9 Doc. 82 at 24–25). Plaintiffs also claim the same violations of constitutional rights by 10 Defendant Gregory E. Hinkel as the other Defendants in the Third Amended Complaint. 11 (See Doc. 82 at 82–84). As discussed supra, these allegations do not state a viable claim 12 under 42 U.S.C. § 1983. See supra Section III.a.1. Thus, any claims against Defendant 13 Gregory E. Hinkel under 42 U.S.C. § 1983 necessarily fail. 14 Further, Plaintiffs’ claims of conspiracy between Defendants Gregory E. Hinkel and 15 Brian Eastin are conclusory or simply fail to allege a conspiracy. Plaintiffs claim that “Greg 16 Hinkle [sic] violated attorney-client privilege in a settlement conference by making false 17 statements to the arbitrator.” (Doc. 82 at 24). Plaintiffs do not describe what these 18 statements were, how they were privileged, or why making false statements would violate 19 attorney-client privilege. (See id.). Next, Plaintiffs assert that “Defendant Greg Hinkle [sic] 20 contacted defendant Brian Eastin and divulged pertinent and confidential case information. 21 Plaintiffs know of two other occasions where defendant Greg Hinkle [sic] and defendant 22 Brian Eastin met in person.” (Id.). Plaintiffs do not describe what information was 23 divulged, how they learned the information was divulged, or how the mere fact that two 24 people communicated and met in person supports a conclusory allegation of conspiracy. 25 (See id.). Finally, Plaintiffs allege that Gregory E. Hinkel obtained privileged information 26 from Plaintiffs while representing them in a state court action and communicated this 27 information to Brian Eastin. (See id. at 83). Plaintiffs do not detail what this information 28 defendants.” Abigninin v. AMVAC Chem. Corp., 545 F.3d 733, 743 (9th Cir. 2008). 1 was, nor do they offer any facts to substantiate this conclusory statement. (See id.). Thus, 2 any claims of conspiracy against Defendant Gregory E. Hinkel fail to meet the Rule 8(a) 3 requirements. 4 As this is the Third Amended Complaint and Plaintiffs have repeatedly failed to 5 allege any valid conspiracy claims, the Court finds that further leave to amend would be a 6 futile exercise and dismisses these claims with prejudice. See Gompper, 298 F.3d at 898 7 (holding that leave to amend need not be granted if it would be “a futile exercise”); Airs 8 Aromatics, 744 F.3d at 600 (holding that leave to amend should be denied if amendment 9 would be futile). 10 d. Twenty-Ninth Cause of Action: Breach of Privacy 11 Plaintiffs assert a cause of action against Defendants Brian Eastin and BBVA Bank 12 for breach of privacy under 5 U.S.C. § 552a and 42 U.S.C. § 1983. (Doc. 82 at 86–88). To 13 have a private right of action under 5 U.S.C. § 552a, Plaintiffs must show that Defendants 14 are “agencies of the United States Government.” Unt v. Aerospace Corp., 765 F.2d 1440, 15 1447 (9th Cir. 1985). As stated supra, Defendant Brian Eastin is a private individual, not 16 a state actor, and Plaintiffs allege no facts that would make Brian Eastin an agency of the 17 United States Government. See supra Section III.a.2; (Doc. 82 at 86–88). Thus, because 5 18 U.S.C. § 552a provides no private right of action against “private individuals,” Unt, 765 19 F.2d at 1447, Plaintiffs’ 5 U.S.C. § 552a claims against Brian Eastin will be dismissed. 20 Further, BBVA is a private entity as an Alabama banking corporation. (See Doc. 90 21 at 6). Plaintiffs use the same arguments discussed supra to argue that BBVA is a state actor, 22 but these arguments fail for the same reasons. See supra Section III.a.2; (see also Doc. 82 23 at 30). Plaintiffs also argue that the fact that BBVA is regulated by the Federal Deposit 24 Insurance Corporation creates a sufficiently close nexus with the government to make 25 BBVA an agency of the United States Government. (See Doc. 82 at 30). However, “[t]he 26 mere fact that a business is subject to state regulation does not by itself convert its action 27 into that of the State.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999) (quoting 28 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974)). Thus, because 5 U.S.C. 1 § 552a provides no private right of action against “private entities,” Unt, 765 F.2d at 1447, 2 Plaintiffs’ 5 U.S.C. § 552a claims against BBVA will be dismissed. 3 To prevail on a claim under 42 U.S.C. § 1983, Plaintiffs must allege a violation of 4 a federal constitutional or statutory right by a state actor. See Paul, 424 U.S. at 700–01; 5 Ketchum, 811 F.2d at 1245. Plaintiffs, again, fall short on both requirements. 6 As discussed above, both Brian Eastin and BBVA Bank are private actors, not state 7 actors. Additionally, the constitutional violations alleged by Plaintiffs are the same 8 violations the Court discussed, and rejected, supra. See supra Section III.a.1. Finally, 9 Plaintiffs argue a “breech [sic] of privacy” cause of action, but as discussed supra, “[i]n 10 general, an American depositor has no reasonable expectation of privacy in copies of his 11 or her bank records, such as checks, deposit slips, and financial statements maintained by 12 the bank.” In re Grand Jury Proceedings, 40 F.3d at 962. As Plaintiffs’ only claim 13 supporting breach of privacy is that their financial records were obtained via allegedly 14 fraudulent subpoenas, Plaintiffs fail to state a valid privacy violation. Because they did not 15 validly allege a violation of a federal constitutional or statutory right, conduct by a state 16 actor, or a breach of privacy, Plaintiffs do not adequately plead their cause of action against 17 Defendants for breach of privacy under 42 U.S.C. § 1983. 18 As this is the Third Amended Complaint and Plaintiffs have repeatedly failed to 19 allege any valid breach of privacy claims, the Court finds that further leave to amend would 20 be a futile exercise and dismisses these claims with prejudice. See Gompper, 298 F.3d at 21 898 (holding that leave to amend need not be granted if it would be “a futile exercise”); 22 Airs Aromatics, 744 F.3d at 600 (holding that leave to amend should be denied if 23 amendment would be futile). 24 e. Thirtieth Cause of Action: Civil RICO 25 Plaintiffs assert a cause of action against Defendants Brian Eastin and Provident 26 Law PLLC for Civil Racketeering under A.R.S. § 13-2314.04 and 18 U.S.C. § 1961–1968. 27 (Doc. 82 at 88–97). A.R.S. § 13-2314.04 provides: 28 A person who sustains reasonably foreseeable injury to his person, business 1 or property by a pattern of racketeering activity, or by a violation of § 13- 2312 involving a pattern of racketeering activity, may file an action in 2 superior court for the recovery of up to treble damages and the costs of the 3 suit, including reasonable attorney fees for trial and appellate representation. 4 Ariz. Rev. Stat. Ann. § 13-2314.04(A). To establish a claim of civil racketeering, a plaintiff 5 must show a pattern of racketeering, which requires establishing at least two predicate acts 6 of racketeering that are “related” and “continuous.” Lifeflite Med. Air Transp., Inc. v. 7 Native Am. Air Servs., Inc., 7 P.3d 158, 161 ¶ 12 (Ariz. Ct. App. 2000); Sedima, S.P.R.L. 8 v. Imrex Co., 473 U.S. 479, 497 n.14 (1985) (“It is this factor of continuity plus relationship 9 which combines to produce a pattern.”); see also Ariz. Rev. Stat. Ann. § 12-2314.04(T)(3) 10 (defining “pattern of racketeering activity”). The plaintiff must also show an injury that 11 was proximately caused by the pattern of racketeering. Rosier v. First Fin. Capital Corp., 12 889 P.2d 11, 15 (Ariz. Ct. App. 1994). 13 While Plaintiffs cite the entirety 18 U.S.C. § 1961–1968 when alleging civil 14 racketeering under federal law, it appears they are relying upon § 1962(c) which prohibits 15 racketeering by “any person employed by or associated with any enterprise engaged in, or 16 the activities of which affect, interstate or foreign commerce . . . .” 18 U.S.C. § 1962(c). 17 To state a claim under § 1962(c), a plaintiff must validly allege: “(1) conduct (2) of an 18 enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 19 473 U.S. 479, 496 (1985) (footnote omitted). A pattern “requires at least two acts of 20 racketeering activity.” 18 U.S.C. § 1961(5). While two predicate acts are the minimum 21 requirement for a pattern, merely claiming two predicate acts may not be sufficient as 22 “there is something to a RICO pattern beyond simply the number of predicate acts 23 involved.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238 (1989). “The term ‘pattern’ 24 itself requires the showing of a relationship between the predicates and of the threat of 25 continuing activity. It is this factor of continuity plus relationship which combines to 26 produce a pattern.” Id. at 239 (internal punctuation, alterations, and quotations omitted). A 27 plaintiff must also show an injury that was proximately caused by the pattern of 28 racketeering. Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008) (citing 1 Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 274 (1992)). 2 For both their state and federal claims, Plaintiffs do not adequately plead the 3 continuity required for a pattern of racketeering activity or an injury proximately caused 4 by racketeering activity. 5 1. Continuity 6 The federal standard for continuity is used under both A.R.S. § 13-2314.04 and 18 7 U.S.C. § 1962(c). See Lifeflite Med., 7 P.3d at 161 ¶ 12 (Ariz. Ct. App. 2000). “‘Continuity’ 8 is both a closed- and open-ended concept, referring either to a closed period of repeated 9 conduct, or to past conduct that by its nature projects into the future with a threat of 10 repetition.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989). “‘Closed-ended’ 11 continuity is established by showing that related predicate acts occurred over a ‘substantial 12 period of time.’” Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995) (quoting H.J. 13 Inc., 492 U.S. at 242). “Predicate acts extending over a few weeks or months and 14 threatening no future criminal conduct do not satisfy this requirement.” H.J. Inc., 492 U.S. 15 at 242. “Open-ended continuity is the threat that criminal conduct will continue into the 16 future. It is established by showing either that the predicate acts ‘include a specific threat 17 of repetition extending indefinitely into the future’ or that the predicate acts were ‘part of 18 an ongoing entity’s regular way of doing business.’” Allwaste, 65 F.3d at 1527. 19 Plaintiffs claim that Bryan Eastin and Provident Law PLLC regularly use forgery 20 and fraud to engage in prolonged, vexatious litigation so they may collect excessive legal 21 fees. (See Doc. 82 at 88–90). To show continuity, rather than isolated acts of forgery and 22 fraud within their case, Plaintiffs assert that Defendants have perpetrated this scheme in 23 other litigations by forging repair invoices, altering rental leases, and forging an 24 “irrevocable assignment of interest.” (See id.). Such claims of forgery and fraud are subject 25 to the heightened pleading standards of Federal Rule of Civil Procedure 9(b). Wescott v. 26 SC Anderson, Inc., No. 17-CV-05676-LB, 2018 WL 5849012, at *3 (N.D. Cal. Nov. 6, 27 2018); In re Nat’l W. Life Ins. Deferred Annuities Litig., 467 F. Supp. 2d 1071, 1082 (S.D. 28 Cal. 2006); Ness v. W. Sec. Life Ins., 851 P.2d 122, 128 (Ariz. Ct. App. 1992) (“[A] ‘scheme 1 or artifice’ is some ‘plan, device, or trick’ to perpetrate a fraud.” (citation omitted)). Rule 2 9(b) requires a party to “state with particularity the circumstances constituting fraud,” 3 which means “the who, what, when, where, and how of the misconduct charged.” Ebeid ex 4 rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (citation omitted). 5 Plaintiffs’ claims of previous fraud and forgery by Defendants fail to meet the 6 pleading standards of Rule 8(a) or 9(b). They argue that documents were forged and altered 7 without giving any other facts or details to substantiate such claims. Such “naked assertions 8 devoid of further factual enhancement” do not satisfy the Rule 8(a) requirements, let alone 9 the heightened Rule 9(b) requirements. See Iqbal, 556 U.S. at 678 (internal alterations and 10 punctuation omitted). Thus, the Court will not consider Plaintiffs’ conclusory statements 11 regarding Defendants’ alleged past fraud and forgery. 12 Similarly, Plaintiffs’ claims that Defendants’ alleged fraud and forgery are part of 13 their business model or will continue in the future are conclusory. Plaintiffs aver that 14 Defendants’ business model is to prolong litigation through forgery and fraud and that 15 “[t]his is a continuing threat” because “Defendants are more embolden [sic] with each act 16 and are brazen with impunity.” (Doc. 82 at 89–90). Again, Plaintiffs provide no facts or 17 details to substantiate these bombastic claims. Such conclusions regarding future wrongs 18 fail to meet the pleading standards of Rule 8(a) or 9(b), so the Court will not consider them. 19 Plaintiffs further assert that the billing rates, judgment amounts, and number of 20 cases brought by Defendants are proof of their continuing illicit activity. (See Doc. 82 at 21 88–89). These actions simply reflect a functioning legal practice, however, and the practice 22 of law is not racketeering. Donahoe v. Arpaio, 869 F. Supp. 2d 1020, 1053 (D. Ariz. 2012), 23 aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 2013). 24 Even if Plaintiffs properly assert claims of forgery and fraud in their state court 25 litigation with Defendants, such isolated acts in a single litigation do not show the 26 continuity required for a civil racketeering claim. See Allwaste, 65 F.3d at 1527. Because 27 they fail to show continuity, Plaintiffs’ claims of civil racketeering lack the necessary 28 showing of a pattern of activity. 1 2. Injury 2 Under both A.R.S. § 13-2314.04 and 18 U.S.C. § 1962(c), a plaintiff must show an 3 injury that was proximately caused by the pattern of racketeering. See Rosier, 889 P.2d at 4 15; Canyon Cty., 519 F.3d at 972. To prove proximate causation necessary for a civil 5 racketeering claim, a party must prove “some direct relation between the injury asserted 6 and the injurious conduct alleged.” Holmes, 503 U.S. at 268. 7 Plaintiffs assert a myriad of injuries stemming from Defendants’ alleged fraud and 8 forgery, but all of these damages are connected generally to Plaintiffs’ litigation costs in 9 their state court action against Defendants. (See Doc. 82 at 93, 96–97). The state court 10 litigation itself, however, is not racketeering activity.5 Instead, it is the fraud and forgery 11 alleged by Plaintiffs that would constitute racketeering activity. The acts alleged by 12 Plaintiffs that constitute the civil racketeering claim all center around subpoenas served on 13 banks to obtain Plaintiffs’ financial records. (See id. at 91–92, 94–96). Thus, Plaintiffs’ 14 claims must assert damages proximately caused by the alleged fraud and forgery itself, not 15 the state court litigation in general. 16 Plaintiffs’ claims do not validly assert damages stemming from Defendants’ alleged 17 fraud and forgery. The state court found that Defendants were entitled to discover 18 Plaintiffs’ bank records. (See Doc. 87-1 at 8). Thus, even if Defendants obtained these 19 records via forgery, Plaintiffs have no damages as Defendants had the right to obtain the 20 records. Likewise, any damages resulting from Defendants obtaining Plaintiffs’ financial 21 records, (See Doc. 82 at 21 (claiming that Defendants distributed Plaintiffs’ financial 22 information at will which led to it “appearing on the dark web”)), do not stem from the 23 alleged fraud and forgery because Defendants had the right to obtain Plaintiffs’ records. 24 Even if Plaintiffs properly assert claims of forgery and fraud in their state court 25 5 To the extent that Plaintiffs would argue that the state court litigation itself is a part of the 26 Defendants’ alleged pattern of racketeering, the Court notes that “[i]t cannot possibly be racketeering, or anything else actionable, to hire attorneys to present matters to the courts 27 or for the judges to rule on the matters presented.” Donahoe, 869 F. Supp. 2d at 1053; see also Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006) (holding that the Noerr- 28 Pennington doctrine applies to civil RICO claims and disallows the maintenance of a RICO action for asserting legal claims that do not amount to a sham). 1 litigation with Defendants, Plaintiffs do not adequately claim any injuries directly related 2 to the alleged acts of forgery and fraud. Plaintiffs’ claims of damages stemming generally 3 from the state court litigation do not suffice. Thus, Plaintiffs’ claims of civil racketeering 4 fail to adequately plead injury. 5 3. Conclusions Regarding Civil Racketeering 6 Plaintiffs’ cause of action asserting civil racketeering does not satisfy the necessary 7 pleading requirements. At a minimum, Plaintiffs’ claims fail to show the necessary 8 continuity or injury required to assert a claim for civil racketeering. Because Plaintiffs do 9 not adequately plead civil racketeering under A.R.S. § 13-2314.04 or 18 U.S.C. § 1962(c), 10 the Court will dismiss these claims. 11 As this is the Third Amended Complaint and Plaintiffs have repeatedly failed to 12 allege any valid civil racketeering claims, the Court finds that further leave to amend would 13 be a futile exercise and dismisses these claims with prejudice. See Gompper, 298 F.3d at 14 898 (holding that leave to amend need not be granted if it would be “a futile exercise”); 15 Airs Aromatics, 744 F.3d at 600 (holding that leave to amend should be denied if 16 amendment would be futile). 17 f. Global Issues with the Complaint 18 Plaintiffs’ Third Amended Complaint is what has become known as a “shotgun 19 pleading.” The key characteristic of a shotgun pleading is that it “fail[s] to one degree or 20 another, and in one way or another, to give the defendants adequate notice of the claims 21 against them and the grounds upon which each claim rests,” which renders them disfavored 22 and usually subject to dismissal. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 23 1313, 1323 (11th Cir. 2015). A complaint is a shotgun pleading where it has at least one of 24 the following characteristics: (1) it “contain[s] multiple counts where each count adopts 25 the allegations of all preceding counts,” (2) it is “replete with conclusory, vague, and 26 immaterial facts not obviously connected to any particular cause of action,” (3) it “assert[s] 27 multiple claims against multiple defendants without specifying which of the defendants are 28 responsible for which acts or omissions[] or which of the defendants the claim is brought 1 against.” See id. at 1321–23. Plaintiffs’ Third Amended Complaint suffers from at least the 2 first two defects.6 3 While Plaintiffs’ Third Amended Complaint is more comprehensible than their 4 Amended Complaint (Doc. 14), it is still a vague, hard to follow, devoid of the necessary 5 factual assertions, and replete with conclusory statements. These are the same issues that, 6 in part, led the Court to dismiss Plaintiffs’ Amended Complaint. (See Doc. 75 at 15–17). 7 Because this is the Third Amended Complaint and Plaintiffs have repeatedly failed to 8 correct their pleading errors or offer the underlying facts necessary to support their myriad 9 claims, the Court finds that further leave to amend would be a futile exercise and dismisses 10 Plaintiffs’ Third Amended with prejudice. See Gompper, 298 F.3d at 898 (holding that 11 leave to amend need not be granted if it would be “a futile exercise”); Airs Aromatics, 744 12 F.3d at 600 (holding that leave to amend should be denied if amendment would be futile). 13 g. Motion to Seal 14 Defendants request that the Court seal Doc. 105, a reply regarding the pending 15 Motion to Enjoin (Doc. 84), arguing that it contains attorney-client privileged information. 16 (See Doc. 111 at 4). The Court has read the submissions of the parties and finds the parties 17 materially dispute the facts of how Plaintiffs came to be in possession of the document at 18 issue. On this record, the Court cannot determine whether there was waiver of the attorney- 19 client privilege as argued by Plaintiffs. (See Doc. 114 at 4). However, as indicated above, 20 Plaintiffs’ Third Amended Complaint will be dismissed in its entirety, so the Court did not 21 need to rely on the document in question to resolve the pending Motion to Enjoin (Doc. 22 84). Accordingly, out of an abundance of caution, the Court will seal the document in its 23 entirety. 24 IV. CONCLUSION 25 Accordingly, 26 6 The Court notes that, while the beginning of each cause of action in the Third Amended 27 Complaint clearly states the Defendants against whom the claim is asserted, claims reference Defendants not listed at the beginning of the cause of action. (See, e.g., Doc. 82 28 at 79 (Twenty-Fifth Cause of Action notes that it is against Defendant Lisa Flores but speaks about a conspiracy led by Defendant Brian Eastin)). 1 IT IS ORDERED that Defendants’ Motions to Dismiss (Docs. 87, 90, 101) are 2|| GRANTED. 3 IT IS FURTHER ORDERED that Defendant Gregory E. Hinkel’s request that the 4|| Third Amended Complaint be dismissed in his Answer (Doc. 94) is GRANTED. 5 IT IS FURTHER ORDERED that the Motion to Enjoin (Doc. 84), the Motion to 6|| Strike (Doc. 112), and the Motion for Entry of Judgment under Rule 54(b) (Doc. 103) are 7\|| denied as moot. 8 IT IS FURTHER ORDERED that the Motion to Seal (Doc. 111) is GRANTED, 9|| and the Clerk of the Court shall seal Doc. 105 in its entirety. 10 IT IS FURTHER ORDERED that this case is dismissed in its entirety WITH 11 || PREJUDICE, and the Clerk of the Court shall enter judgment accordingly. 12 IT IS FINALLY ORDERED that Defendants’ requests for fees and costs found 13 || within their motions to dismiss are denied without prejudice to Defendants (collectively or 14]| individually) filing a timely motion(s) for fees and/or bill(s) of costs consistent with the 15 || local rules. 16 Dated this 23rd day of December, 2020. 17 18 a 3 19 0 _ James A. Teil Org Senior United States District Judge 21 22 23 24 25 26 27 28 -25 -