Whitehead v. Grand Canyon University ( 2024 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Whitehead, No. CV-23-02497-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Grand Canyon University, et al., 13 Defendants. 14 15 16 At issue is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint 17 (Doc. 45, MTD), to which Plaintiff filed an Amended Response (Doc. 59, Dismissal 18 Response) and Defendants filed a Reply (Doc. 69, Dismissal Reply). Also at issue is 19 Plaintiff’s Motion for Leave to Amend Adding New Defendants (Doc. 51, Motion for 20 Leave to Amend), to which Defendants filed a Response (Doc. 67, Amendment Response) 21 and Plaintiff filed a Reply (Doc. 70, Amendment Reply). The Court finds these matters 22 appropriate for resolution without oral argument. See LRCiv 7.2(f). For the reasons set 23 forth below, the Court grants Defendants’ Motion to Dismiss and denies Plaintiff’s Motion 24 for Leave to Amend. 25 I. Background 26 The facts of this case are rather opaque. In December 2022, Plaintiff was a student 27 at Defendant Grand Canyon University (“GCU”), at which Defendant Araxi 28 Hovhannessian was an instructor. (Doc. 42, Operative Complaint at 2.) Plaintiff alleges 1 that Instructor Hovhannessian “slandered plaintiff’s good name . . . by writing that plaintiff 2 and [a classmate named] Ms. Amaechi had something special going on (important 3 discussion) in the academic environment of [an] online class.” (Id. at 2.) Although this 4 statement could be construed as vaguely romantic, Plaintiff clarifies that the remark 5 referred only to “special academic communications” between Plaintiff and Ms. Amaechi. 6 (Id. at 3.) As best the Court can glean from the pleadings, Plaintiff is averring that Instructor 7 Hovhannessian simply stated that Plaintiff and Ms. Amaechi were carrying on a discussion 8 related to their classwork. Plaintiff provides no additional context regarding Instructor 9 Hovhannessian’s utterance, but he does allege that it caused Ms. Amaechi to reduce her 10 scholastic collaboration with Plaintiff. (Id.) Without elaboration, Plaintiff claims that 11 Instructor Hovhannessian’s statement was improper, slanderous, defamatory, biased, fear- 12 inducing, and malicious. (Id.) 13 Plaintiff also alleges that GCU and two “unnamed” instructors, whom Plaintiff 14 promptly names as Instructors Hester and Tennial, discriminated against Plaintiff on the 15 basis of age and race by denying him the opportunity to write a dissertation on critical race 16 theory while permitting other students to do so. (Id. at 4.) Plaintiff is “Afro American” and 17 65 years old. (Id. at 4.) Plaintiff provides no further allegations to support his discrimination 18 claim, other than that Instructor Tennial shouted that Plaintiff “can’t save the world.” (Id. 19 at 5.) Plaintiff does not indicate the age of any student permitted to write on critical race 20 theory, nor does he provide any details regarding what specific facets of critical race theory 21 he or any of his classmates sought to address, nor does he assert any facts regarding his or 22 his classmates’ grades or general academic performance, nor does he proffer any 23 explanation as to whether he was an otherwise qualified candidate to write a dissertation 24 on critical race theory, nor does he allege any information about GCU’s policies in advising 25 students on their dissertations and providing feedback on their selected topics. Plaintiff 26 does not even clearly allege the race of anybody involved in this case except his own. The 27 closest he gets is saying that he “believes” that white students were permitted to dissert 28 upon critical race theory and that such students were “possibly” all white. (Id. at 4–5.) 1 Plaintiff next alleges that one of his classmates, Wendell Layne, “placed his disk in 2 plaintiff’s lap-top computer” without Plaintiff’s consent and that this constituted “cyber 3 theft.” (Id. at 5–6.) Plaintiff apparently reported this incident to GCU but claims that GCU 4 “obstructed justice by failing to notify law enforcement of the alleged cyber theft.” (Id. 5 at 5.) Plaintiff does not address whether he himself reported the purported theft to law 6 enforcement or how GCU’s inaction obstructed any resulting investigation. 7 Finally, Plaintiff avers that Instructor “Hovhannessian illegally taped a conference 8 with plaintiff without his consent violating his privacy attempting to coverup [sic] her 9 actions.” (Id. at 11.) Plaintiff provides no further details regarding this allegedly tortious 10 taping. 11 Plaintiff’s Operative Complaint states claims for (1) slander (defamation of 12 character), (2) age and race discrimination, (3) retaliation, (4) conspiracy, (5) cyber theft 13 and invasion of privacy, (6) obstruction of justice, (7) negligence, (8) civil rights violations 14 with intent to inflict emotional distress, (9) illegal taping, and (10) breach of implied and 15 express contract. (Id. at 7–11.) Plaintiff requests $2 million in damages. Defendants have 16 moved to dismiss all of Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 17 12(b)(6). 18 After Defendants moved for dismissal, Plaintiff moved to amend his complaint in 19 order to add new defendants. This is not Plaintiff’s first attempt to amend his pleading. He 20 has already filed a procedurally improper amended complaint (Doc. 9), which the Court 21 struck, as well as three prior motions to amend (Doc. 19; Doc. 27; Doc. 30), which the 22 Court effectively granted. Now Plaintiff seeks to add six additional defendants: (1) 23 Instructor Bridgette Hester, (2) Instructor Derrick Tennial, (3) Michael Berger, (4) the 24 Grand Canyon Police Department, (5) the Chandler Police Department, and (6) the 25 “Crowne Plaza Resort Phoenix – Chandler Golf Resort.” (Doc. 52, Lodged Amendment 26 at 1.) Additionally, although not denominated as a new defendant in accord with LRCiv 27 15.1(a), Wendell Layne is named as a formal defendant for the first time. (Compare 28 Operative Complaint at 1, with Lodged Amendment at 1.) 1 Plaintiff’s proposed pleading does not allege anything materially new with respect 2 to Instructor Hester, Instructor Tennial, or Mr. Layne, all of whom Plaintiff has already 3 identified in his extant pleading. The most important new facts alleged in Plaintiff’s 4 proposed amendment are that, following the alleged cyber theft by Mr. Layne, “[t]he 5 investigation by Defendants Grand Canyon Police Department, Chandler Police 6 Department, and Crowne Plaza Resort Phoenix – Chandler Golf Resort were fraudulent.” 7 (Lodged Amendment at 9.) Plaintiff further alleges that “Crowne Plaza Resort hotel has 8 photographic evidence of the occurrence and owed a duty to provide the information to the 9 plaintiff and authorities resulting to negligence [sic].” (Lodged Amendment at 9.) Plaintiff 10 does not allege any specific facts about Mr. Berger, other than that he generally “approved” 11 the allegedly violative behavior of Instructors Hovhannessian, Hester, and Tennial. (See 12 Lodged Amendment at 12.) Plaintiff’s proposed pleading does not identify who Mr. Berger 13 is or what his relation to this case is, but his Reply intimates that Mr. Berger is the Dean of 14 GCU (Amendment Reply at 2, 4), whom Plaintiff named in his Operative Complaint 15 simply as “Dean.” (Operative Complaint at 10, 11.) 16 II. Discussion 17 A. Defendants’ Motion to Dismiss 18 1. Legal Standard 19 Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v. 20 Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to 21 state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the 22 absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v. 23 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for 24 failure to state a claim, the well-pled factual allegations are taken as true and construed in 25 the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 26 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is 27 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 28 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 1 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility 3 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 4 possibility that a defendant has acted unlawfully.” Id. 5 “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 6 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 7 requires more than labels and conclusions, and a formulaic recitation of the elements of a 8 cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted). 9 Legal conclusions couched as factual allegations are not entitled to the assumption of truth 10 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal, 11 556 U.S. at 679–80. 12 2. Analysis 13 The Court will examine Plaintiff’s ten claims in turn. The long and short of it, 14 however, is that each claim suffers from a fatal lack of factual support. Plaintiff’s Operative 15 Complaint consists almost entirely of conclusory legal statements, and none of his ten 16 claims make the necessary crossing from “sheer possibility” into the realm of 17 “plausibility.” See Iqbal, 556 U.S. at 678. Therefore, because no aspect of Plaintiff’s 18 Operative Complaint rests upon the factual basis necessary to survive a 12(b)(6) motion, 19 the Court must dismiss Plaintiff’s Operative Complaint in its entirety. 20 a. Defamation 21 In Arizona, a claim of slander falls within the tort of defamation. Breeser v. Menta 22 Grp., Inc., NFP, 934 F. Supp. 2d 1150, 1161 (D. Ariz. 2013). “One who publishes a false 23 and defamatory communication concerning a private person . . . is subject to liability, if, 24 but only if, [she] (a) knows that the statement is false and it defames the other, (b) acts in 25 reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.” 26 Reynolds v. Reynolds, 231 Ariz. 313, 317 ¶ 8 (Ct. App. 2013) (quoting Dube v. Likins, 216 27 Ariz. 406, 417 ¶ 35 (Ct. App. 2007)). “To be defamatory, a publication must be false and 28 must bring the defamed person into disrepute, contempt, or ridicule, or must impeach 1 plaintiff's honesty, integrity, virtue, or reputation.” Godbehere v. Phoenix Newspapers, 2 Inc., 162 Ariz. 335, 341 (1989). 3 “The court determines as a matter of law ‘whether a communication is capable of 4 bearing a particular meaning,’ and, if so, ‘whether that meaning is defamatory.’” Id. ¶ 9 5 (quoting Restatement (Second) of Torts § 614(1)). Only if the Court answers both of the 6 preceding questions in the affirmative does the Court send the issue to a jury for 7 determination of whether a defamatory meaning was actually conveyed to a recipient. Id. 8 A statement is not defamatory unless it is capable of bearing a defamatory 9 meaning. As a matter of law, a statement is not actionable if it cannot reasonably be interpreted as stating or implying facts susceptible of being 10 proved true or false. Put simply, the plaintiff must show that the statement is 11 provable as false before a defamation action can lie. Accordingly, [t]he key inquiry is whether the challenged expression, however labeled by [the] 12 defendant, would reasonably appear to state or imply assertions of objective 13 fact. 14 In determining whether a statement is defamatory, the court must consider the impression created by the words used as well as the general tenor of the 15 expression, from the point of view of a reasonable person at the time the 16 statement was uttered and under the circumstances it was made. If a court determines that the publication is incapable of a defamatory meaning, the 17 claim is subject to dismissal. 18 19 BLK III, LLC v. Skelton, 252 Ariz. 583, 588 ¶ 12 (Ct. App. 2022) (internal citations and 20 quotation marks omitted). 21 Plaintiff’s Operative Complaint does not even come close to stating an actionable 22 claim for defamation. First, Instructor Hovhannessian’s alleged statement is not a 23 publication “stating or implying facts susceptible of being proved true or false.” The 24 assertion that Plaintiff and one of his classmates were engaged in an “important discussion” 25 or “special academic communications,” (Operative Complaint at 2–3), is not an 26 “assertion[] of objective fact,” see BLK, 252 Ariz. at 588 ¶ 12. Second, even if Instructor 27 Hovhannessian’s alleged utterance was a falsifiable, positive statement, it was incapable 28 of bearing a defamatory meaning. The assertion that Plaintiff and his classmate were 1 having an “interesting discussion,” (Operative Complaint at 7), could not bring Plaintiff 2 into disrepute in the eyes of any reasonable person. In determining whether a statement can 3 bear a defamatory meaning, courts should examine the context and surrounding 4 circumstances of the statement, as well as the general tenor of the expression. However, 5 Plaintiff has failed to include any such context in his Operative Complaint or his Response, 6 (see Dismissal Response at 2–8). As a result, the Court has no choice but to view Instructor 7 Hovhannessian’s alleged utterance in a vacuum. Having done so, the Court concludes that 8 Plaintiff has failed to state a claim of defamation upon which relief can be granted. 9 Accordingly, the Court must dismiss Plaintiff’s claim. 10 b. Age and Race Discrimination 11 Plaintiff claims that Defendants violated Title VI of the Civil Rights Act of 1964 by 12 allowing other students to dissert upon the subject of critical race theory while denying 13 Plaintiff the same opportunity. (Operative Complaint at 7.) The private right of action 14 created by Title VI applies only to intentional discrimination. Alexander v. Sandoval, 532 15 U.S. 275, 293 (2001). The sufficiency of a discrimination claim is assessed according to 16 the McDonnell Douglas test, under which the plaintiff bears the initial burden of 17 establishing a prima facie case of discrimination. Rashdan v. Geissberger, 764 F.3d 1179, 18 1182 (9th Cir. 2014). In carrying his initial burden, a plaintiff may rely on direct or indirect 19 evidence. Id. at 1183. In this case, Plaintiff offers no facts that would directly prove a 20 discriminatory intent. Therefore, Plaintiff’s claim depends upon the existence of sufficient 21 facts permitting an indirect inference of discrimination. A crucial element of any claim 22 positing an indirect allegation of discrimination is evidence meeting “a minimum threshold 23 of identifying students who are similarly situated to” the plaintiff. See id. 24 Plaintiff has utterly failed to provide any factual allegations that would permit the 25 Court to draw a reasonable inference of discrimination by Defendants. Plaintiff has not 26 alleged the age of any of the students who were permitted to dissert upon critical race 27 theory, not even on an approximate basis. And although Plaintiff has alleged the race of 28 the students whom he contends were impermissibly favored over him, he has only done so 1 in a vague and equivocal manner. But regardless of the paucity of Plaintiff’s allegations 2 concerning race and age, his discrimination claim would fail in any event due to the 3 complete absence of any allegation that Plaintiff and his classmates were similarly situated. 4 Plaintiff offers no averments regarding his own qualifications to dissert upon critical race 5 theory or the qualifications of his classmates. He has also failed to plead any information 6 regarding the general process by which Defendants determine the acceptability of a 7 dissertation topic. Because Plaintiff’s claim includes no factual allegations concerning the 8 core elements of his discrimination claim, Plaintiff has failed to state a claim for 9 discrimination upon which relief can be granted. The Court will therefore dismiss the 10 claim. 11 c. Retaliation 12 Plaintiff claims that “[b]ased on the above claims Defendants engaged in retaliation 13 designed to obstruct plaintiff’s academic pursuit of doctoral degree [sic], denying plaintiff 14 the right to conduct his research on Critical Race Theory.” (Operative Complaint at 8.) 15 Although Plaintiff’s Operative Complaint contains almost no description of what Plaintiff 16 perceives the factual predicate of his retaliation claim to be, he states in his Response that 17 “[t]he University instructors Tennial and Hester engaged in retaliation against plaintiff for 18 him filing an appeal against the action of Defendant Hovhannessian.” (Dismissal Response 19 at 9.) Plaintiff provides no additional explanation as to how the allegedly discriminatory 20 rejection of his dissertation topic relates to his appeal of the defamation accusation such 21 that the former constitutes retaliation for the latter. 22 Plaintiff asserts his retaliation claim under Title VI. (Operative Complaint at 8.) As 23 the Northern District of California recently held, however, it is unclear whether Title VI 24 supports a cause of action for retaliation. Paschal v. City & County of San Franisco, No. 25 22-CV-03604-WHO, 2023 WL 1927738, at *7 (N.D. Cal. Feb. 10, 2023). In the absence 26 of a specific judicial standard applicable to Plaintiff’s claim, the Court looks to generalized 27 pleading standards for retaliation claims. Under the jurisprudence of Title VII and of 28 Arizona law, “[t]he plaintiff must first establish a prima facie case of retaliation by showing 1 that (1) he or she engaged in activity protected under the statute, (2) the employer imposed 2 an adverse employment action, and (3) there was a causal connection between the two 3 actions.” Najar v. State, 198 Ariz. 345, 347–48 ¶ 8 (Ct. App. 2000). 4 Plaintiff has failed to plead any facts permitting the Court to reasonably infer a 5 causal connection between the rejection of his dissertation topic and his appeal of the 6 defamation claim. As noted above, Plaintiff has submitted no allegations regarding his 7 qualifications to dissert upon critical race theory, the qualifications of his classmates, or 8 the overall process by which Defendants oversee the doctoral program. There is simply 9 nothing in Plaintiff’s Operative Complaint or responsive briefing indicating a retaliatory 10 motive. Such ipse dixit legal conclusions are insufficient to withstand a motion to dismiss. 11 Accordingly, the Court will dismiss Plaintiff’s claim for retaliation. 12 d. Conspiracy 13 Plaintiff’s claim for conspiracy is so devoid of facts as to preclude any meaningful 14 analysis. He claims that “[b]ased on the above claims and information Plaintiff believes 15 and assert [sic] that Defendants committed Conspiracy to violate plaintiff’s civil rights 16 harming plaintiff’s government loan process and his ability to continue his doctoral 17 education.” (Operative Complaint at 8.) This claim constitutes nothing more than a 18 formulaic incantation of a cause of action, which is insufficient to overcome a motion to 19 dismiss. The Court will dismiss Plaintiff’s claim for conspiracy. 20 e. Theft and Invasion of Privacy 21 Plaintiff claims that Defendants committed “cyber theft” and “invasion of privacy” 22 by virtue of non-party Wendell Layne’s alleged interference with Plaintiff’s computer. 23 (Operative Complaint at 9.) Even assuming arguendo that Mr. Layne committed a tort, 24 Plaintiff’s claims against Defendants fail. Arizona generally follows the Restatement 25 (Second) of Torts. See Reynolds, 231 Ariz. at 317–18 ¶¶ 8–14. The Restatement provides: 26 For harm resulting to a third person from the tortious conduct of another, one 27 is subject to liability if he (a) orders or induces the conduct, if he knows or should know of 28 circumstances that would make the conduct tortious if it were his own, 1 or (b) conducts an activity with the aid of the other and is negligent in 2 employing him, or 3 (c) permits the other to act upon his premises or with his instrumentalities, knowing or having reason to know that the other is 4 acting or will act tortiously, or 5 (d) controls, or has a duty to use care to control, the conduct of the other, who is likely to do harm if not controlled, and fails to exercise 6 care in the control, or 7 (e) has a duty to provide protection for, or to have care used for the protection of, third persons or their property and confides the 8 performance of the duty to the other, who causes or fails to avert the 9 harm by failing to perform the duty. 10 Restatement (Second) of Torts § 877. Plaintiff has adduced no facts indicating that 11 Defendants ordered or induced Mr. Kayne’s alleged tort or possessed any knowledge that 12 Mr. Layne might act tortiously on Defendants’ premises. Plaintiff has therefore failed to 13 state a cognizable claim against Defendants for theft or invasion of privacy. Accordingly, 14 the Court will dismiss Plaintiff’s claim. 15 f. Obstruction of Justice 16 Plaintiff pleads a civil claim against Defendants for “obstruction of justice.” 17 (Operative Complaint at 9.) In Arizona, obstruction of justice is a purely criminal offense, 18 not a civil tort. Liberti v. City of Scottsdale, No. 1 CA-CV 22-0599, 2023 WL 4078539, 19 at *2–3 ¶¶ 12–16 (Ariz. Ct. App. June 20, 2023). Accordingly, the Court will dismiss 20 Plaintiff’s claim for obstruction of justice. 21 g. Negligence 22 Plaintiff claims that Defendants were “negligent relating to denying plaintiff the 23 right to write on CRT and failing to notify authorities of the cyber theft.” Plaintiff identifies 24 no law or facts, and the Court is aware of none, giving rise to a legal duty borne by 25 Defendants to permit Plaintiff to write a dissertation on critical race theory. And the Court 26 is similarly unaware of any duty that Defendants bore to notify the authorities of the alleged 27 cyber theft. Even assuming arguendo that Defendants knew about Mr. Layne’s alleged 28 cyber theft (for which assumption there is no evidence whatsoever), “[t]he fact that the 1 actor realizes or should realize that action on his part is necessary for another's aid or 2 protection does not of itself impose upon him a duty to take such action.” See Restatement 3 (Second) of Torts § 314. Accordingly, the Court will dismiss Plaintiff’s claim for 4 negligence. 5 h. Civil Rights Violations with Intent to Inflict Emotional 6 Distress 7 Plaintiff’s eighth claim is a vague recapitulation of his claims for discrimination and 8 retaliation, adding that Defendants acted with intent to inflict emotional distress. (Operative 9 Complaint at 10.) The Court has already rejected Plaintiff’s claims for discrimination and 10 retaliation as resting upon insufficient factual support. The additional assertion that 11 Defendants acted with intent to inflict emotional distress makes this claim even less viable. 12 A claim for intentional infliction of emotional distress requires a showing of “extreme and 13 outrageous conduct.” Watkins v. Arpaio, 239 Ariz. 168, 170 ¶ 8 (Ct. App. 2016). Plaintiff’s 14 Operative Complaint does not allege any conduct that is even objectionable, much less 15 extreme or outrageous. Accordingly, the Court will dismiss Plaintiff’s claim. 16 i. Illegal Taping 17 Plaintiff claims that “Defendant Hovhannessian illegally taped a conference with 18 Plaintiff without his consent violating his privacy attempting to coverup [sic] her actions. 19 The violation (unauthorized taping) occurred in the States of Arizona and Louisiana.” 20 (Operative Complaint at 11.) That is the totality of the allegations supporting Plaintiff’s 21 claim for illegal taping. Plaintiff’s averment is so lacking in detail that it does not provide 22 notice of what Plaintiff’s claim is about, much less state a claim upon which relief could 23 be granted. The Court will therefore dismiss the claim. 24 j. Breach of Contract 25 Plaintiff’s final claim is for breach of contract, both express and implied. However, 26 Plaintiff neither attached a contract to his pleading nor described the relevant terms of the 27 alleged contract. Plaintiff’s only substantive allegation is that he “had good faith that the 28 University would be fair when he signed contractual agreements with the University.” 1 (Operative Complaint at 11.) Although the Court can only guess at the terms of these 2 “contractual agreements,” it will construe Plaintiff’s claim as an assertion that Defendants 3 breached the covenant of good faith and fair dealing that attaches to all contracts, regardless 4 of their terms. See Cavallo v. Phx. Health Plans, Inc., 254 Ariz. 99, 104 ¶ 17 (2022). 5 However, in the absence of any specific allegations of bad faith or unfair dealing, Plaintiff’s 6 contractual claim is simply an alternative means of pleading his claims for discrimination 7 and retaliation. Accordingly, the Court rejects this claim for the same reasons set forth 8 above. 9 In sum, Plaintiff’s Operative Complaint fails to state any claims upon which relief 10 could be granted. The Court will therefore grant Defendants’ Motion to Dismiss. The Court 11 will next address whether Plaintiff should be granted leave to amend his pleading. 12 B. Plaintiff’s Motion for Leave to Amend 13 1. Legal Standard 14 A party may amend a pleading once as a matter of course within 21 days after 15 serving it, or within 21 days of service of, inter alia, a Rule 12(b)(6) motion. Fed. R. Civ. 16 P. 15(a). In all other circumstances, absent the opposing party’s written consent, a party 17 must seek leave to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the decision 18 to grant or deny a motion to amend is within the trial court's discretion, “Rule 15(a) declares 19 that leave to amend shall be freely given when justice so requires.” Foman v. Davis, 371 20 U.S. 178, 182 (1962) (citation and internal quotation marks omitted). “In exercising its 21 discretion with regard to the amendment of pleadings, a court must be guided by the 22 underlying purpose of Rule 15—to facilitate a decision on the merits rather than on the 23 pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) 24 (citation and internal quotation marks omitted). 25 However, the policy in favor of allowing amendments is subject to limitations. After 26 a defendant files a responsive pleading or a motion under Rule 12(b), (e), or (f), the 27 propriety of leave to amend is determined by consideration of five factors: “bad faith, 28 undue delay, prejudice to the opposing party, futility of amendment, and whether the 1 plaintiff has previously amended the complaint.” United States v. Corinthian Colleges, 655 2 F.3d 984, 995 (9th Cir. 2011). “[W]hen a district court has already granted a plaintiff leave 3 to amend, its discretion in deciding subsequent motions to amend is ‘particularly broad.’” 4 Chodos v. W. Publ'g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (quoting Griggs v. Pace Am. 5 Grp., Inc., 170 F.3d 877, 879 (9th Cir. 1999)). In modifying Rule 15(a) to provide that “the 6 right to amend once as a matter of course terminates 21 days after service of a motion under 7 Rule 12(b),” the Rules Committee explained that the new provision was designed to “force 8 the pleader to consider carefully and promptly the wisdom of amending to meet the 9 arguments in the motion.” Fed. R. Civ. P. 15(a) advisory committee’s note to 2009 10 amendment. 11 2. Analysis 12 Here, several factors militate against granting leave to amend, both with respect to 13 Plaintiff’s proposed amendment and in general. First, the amended complaint that Plaintiff 14 has lodged with the Court is futile. “Futility alone can justify the denial of a motion for 15 leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003). “A proposed 16 amended complaint is futile if it would be immediately subject to dismissal. Thus, the 17 proper test to be applied when determining the legal sufficiency of a proposed amendment 18 is identical to the one used when considering the sufficiency of a pleading challenged under 19 Rule 12(b)(6).” Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011) (quotations and 20 citations omitted), aff’d on reh’g en banc on other grounds, 681 F.3d 1041 (9th Cir. 2012). 21 As noted above, Plaintiff’s proposed pleading names seven additional defendants, 22 but it adds no new claims and pleads virtually no additional facts. With respect to 23 Instructors Hester and Tennial in particular, the new complaint contains no supplementary 24 substance and instead merely associates the two instructors with the same claims that they 25 were already intimately bound up with as “unnamed” parties in Plaintiff’s Operative 26 Complaint. Similarly, with respect to Michael Berger, whom Plaintiff’s Reply identifies as 27 “Dean” of what the Court presumes to be Grand Canyon University, the proposed 28 complaint alleges nothing materially different from what is already alleged in the Operative 1 Complaint, which names a “Dean” in several of its claims. (Operative Complaint at 10, 2 11.) Therefore, Plaintiff’s proposed pleading is subject to dismissal for the same reasons 3 that his Operative Complaint is subject to dismissal, at least insofar as potential defendants 4 Hester, Tennial, and Berger are concerned. 5 With respect to potential defendants Grand Canyon Police Department and 6 Chandler Police Department, the proposed complaint’s sole allegation supporting its 7 claims against them is that the investigation they conducted following the alleged cyber 8 theft was “fraudulent” and “negligent.” (Lodged Amendment at 9, 10.) Plaintiff does not 9 support that accusation with any factual allegations. Plaintiff’s claims against the two 10 police departments are therefore so lacking in factual support as to be mere invocations of 11 legalese. Such claims are subject to immediate dismissal and are thus futile. 12 Plaintiff’s claims against the Crowne Plaza Resort fare no better. His proposed 13 pleading asserts that the hotel was “fraudulent” and “negligent” because it failed to notify 14 the authorities of the alleged cyber theft and failed to provide “photographic evidence of 15 the occurrence” to Plaintiff and the authorities. (Lodged Amendment at 9, 10.) Plaintiff has 16 identified no law and no facts that would permit the Court to conclude that the Crowne 17 Plaza Resort was under an affirmative duty to call the police regarding an alleged theft or 18 to turn over evidence of such theft prior to the issuance of a subpoena. As noted above, 19 “[t]he fact that the actor realizes or should realize that action on his part is necessary for 20 another's aid or protection does not of itself impose upon him a duty to take such action.” 21 See Restatement (Second) of Torts § 314. 22 The final defendant named in Plaintiff’s proposed amendment is Mr. Layne, whom 23 Plaintiff claims engaged in “cyber theft.” However, despite bringing a claim for “theft,” 24 neither the Operative Complaint nor the proposed amendment alleges that Mr. Layne 25 actually stole anything. Instead, Plaintiff claims in both pleadings that “plaintiff attempted 26 to obtain information on his original subject matter research but could not due to unnamed 27 student Wendell Layne acts [sic] on his computer involving cyber theft.” (Operative 28 Complaint at 6; Lodged Amendment at 6.) Later, in the paragraph addressing obstruction 1 of justice, Plaintiff states that his “computer had movie scripts (Screenplays) on its hard- 2 drive. The screenplays on the Computer are extremely valuable.” (Operative Complaint 3 at 9; Lodged Amendment at 10.) However, Plaintiff never alleges that Mr. Layne stole or 4 otherwise appropriated the screenplays. 5 Even if the Court were to construe Plaintiff’s claim for theft as one for trespass to 6 chattels, the claim would still fail. In Arizona, trespass to chattels can occur in the context 7 of digital property and “electronic touching,” McAlister v. Loeb & Loeb, LLP, No. 1 CA- 8 CV 23-0212, 2024 WL 372214, at *7–8 (Ariz. Ct. App. Feb. 1, 2024), but the cause of 9 action still requires, at the very least, a showing that the defendant intentionally 10 intermeddled with the plaintiff’s chattel. Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 11 330–31 (Ct. App. 1988); Restatement (Second) of Torts § 217. In Plaintiff’s proposed 12 amendment, there is no evidence, and indeed not even an allegation, that Mr. Layne 13 intended to interfere with Plaintiff’s “original subject matter research” or his screenplays. 14 But even if the Court were to further clean up the proposed pleading and assess his theft 15 claim against Mr. Layne as a claim for simple negligence, the claim still fails for lack of 16 factual specificity. The Complaint provides no information whatsoever concerning which 17 files Plaintiff was allegedly unable to access, what form those files were in, where they 18 were stored on Plaintiff’s computer, how Plaintiff attempted to access those files, and, most 19 importantly, why Plaintiff believes his purported inability to access those files has anything 20 to do with Mr. Layne’s placement of a “disk” in Plaintiff’s computer. In short, there is not 21 the slightest intimation of the element of causation. Moreover, whether Plaintiff intends to 22 sue Mr. Layne for theft or instead some lesser offense, the proposed pleading is so light on 23 details that it does not adequately describe what exactly Mr. Layne is supposed to defend 24 against. “[T]he pleading standard Rule 8 announces does not require ‘detailed factual 25 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed- 26 me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 27 Plaintiff’s proposed amendment is therefore futile in its entirety. The Court will 28 consequently deny Plaintiff’s Motion for Leave to Amend. However, the Court still must 1 consider whether Plaintiff should be afforded an additional opportunity to file a new 2 amended complaint following dismissal of his Operative Complaint. Although the 3 particular amendment that Plaintiff seeks to file is futile, the Court cannot say that any 4 conceivable amendment would be futile. Although some of Plaintiff’s claims suffer from 5 incurable legal defects, the majority of the claims fail for lack of factual support. With 6 respect to the latter set of claims, it is at least imaginable that Plaintiff could adduce new 7 facts that might render the claims plausible. Therefore, futility does not provide grounds 8 for a general denial of leave to amend. See Kroessler v. CVS Health Corp., 977 F.3d 803, 9 815 (9th Cir. 2020). However, three of the other four amendment factors militate strongly 10 against permitting further amendment. 11 First, the Court has already allowed Plaintiff to amend his complaint in this case. In 12 addition to filing a procedurally improper amended complaint as a matter of course, 13 Plaintiff has also filed three prior motions for leave to amend his complaint, the last of 14 which the Court granted. Although only one of Plaintiff’s prior attempts to amend his 15 complaint was successful, Plaintiff’s numerous attempted amendments nonetheless 16 contravene the purpose of Rule 15. None of Plaintiff’s past amendments have ameliorated 17 the shortcomings of their predecessors. For instance, none of Plaintiff’s attempted 18 amendments have redressed the factual paucity of his initial complaint, which Defendants 19 expressly attacked in their first motion to dismiss. (Doc. 23.) The purpose of permitting 20 amendment following a 12(b)(6) motion is so that the plaintiff can “meet the arguments in 21 the motion,” but Plaintiff has repeatedly demonstrated that he has no interest in, and likely 22 no ability to, amend his complaint in a substantively productive manner. Accordingly, the 23 Court finds that Plaintiff’s amendment history weighs against permitting further 24 amendment. 25 Second, further amendment would be prejudicial to Defendants. In addition to the 26 four motions for leave to amend, Plaintiff has also filed in this case an “emergency” motion 27 to recuse (Doc. 16), a “motion to unseal federal (FBI) investigation” (Doc. 44), two 28 premature motions for partial summary judgment (Doc. 47; Doc. 60), two frivolous 1 motions for sanctions (Doc. 55; Doc. 77), and three motions for reconsideration (Doc. 19; 2 Doc. 75; Doc. 76). Plaintiff has also filed an interlocutory appeal and a petition for writ of 3 mandamus with the Ninth Circuit (Doc. 32; Doc. 68), both of which were disposed of 4 summarily. (Doc.43; Doc. 74.) Plaintiff has appealed the denial of mandamus to the 5 Supreme Court (Doc. 79), and his petition for a writ of certiorari remains pending. Plaintiff 6 has also filed a large number of briefs in this case, many of which have been flagrantly 7 improper. The Court has already stricken six of Plaintiff’s filings. (Doc. 9; Doc. 47; Doc. 8 48; Doc. 49; Doc. 53; Doc. 71.) In its June 13 Order, the Court wrote: 9 In conclusion, the Court notes that it has just addressed—and stricken or 10 denied—another six motions filed by Plaintiff in this matter because they were all unsupported by fact or law, not permitted by the applicable rules, 11 incomprehensible, unintelligible, or specious. These filings are in addition to 12 the other approximately eight motions the Court has found Plaintiff to have filed without merit in this matter. And the Court observes that each of these 13 motions have cost Defendants significant attorney time and commensurate 14 funds to respond to, and has required this Court to divert its own scarce time and resources from its approximately 400 other pending matters to address 15 them, only to conclude they were all ungrounded. The Court has treated Plaintiff’s filings in this matter with the patience and permissiveness 16 appropriate for unrepresented parties not legally trained, but once again 17 observes that the motions at issue by and large have been utterly devoid of merit and justification. Should Plaintiff continue to engage in filings in this 18 matter on a whim, lacking factual support and justification under the 19 applicable rules or law, the Court will reconsider its prior denial of Defendants’ request for a vexatious litigant Order or other appropriate 20 sanctions, as well as any conclusions about Plaintiff’s purpose in filing and 21 maintaining this action. 22 (Doc. 66 at 3.) Since issuing that Order, the Court has struck two more of Plaintiff’s filings, 23 denied two of Plaintiff’s motions for reconsideration, and denied one of Plaintiff’s motions 24 for sanctions. Defendants have already been prejudiced by Plaintiff’s incessant filings 25 regarding frivolous matters. Affording Plaintiff yet another opportunity to amend his 26 Complaint would only work further prejudice upon Defendants. The prejudice factor 27 therefore weighs strongly against permitting further amendment. 28 1 Third, Plaintiff’s most recent attempt to amend his complaint is marked by undue 2 delay. There is nothing in Plaintiff’s proposed pleading that he could not have pled in his 3 original complaint or his various attempted amendments. The events that form the basis of 4 Plaintiff’s proposed amendment all occurred months prior to Plaintiff’s initiation of this 5 lawsuit on December 1, 2023. Although the Court assigns little weight to this factor, the 6 history of delay increases the Court’s hesitation to permit Plaintiff to further amend his 7 complaint. 8 Fourth and finally, the Court concludes that Plaintiff is pursing this litigation in bad 9 faith. In his Motion for Leave to Amend, Plaintiff represents to the Court that the basis of 10 his motion is “new evidence.” (Doc. 51 at 1.) However, the vast majority of Plaintiff’s 11 proposed amendment is unrelated to any new evidence. His claims against Instructor 12 Hester, Instructor Tennial, Dean Berger, and Mr. Layne hinge upon exactly the same 13 assertions that were present in his prior complaints. And his claims against the two police 14 departments are not predicated on any evidentiary averments at all. The only “new 15 evidence” in Plaintiff’s proposed amendment is his allegation that the Crowne Plaza Resort 16 committed fraud and negligence by not divulging certain photographic evidence. It would 17 be absurd to pretend as if this piece of evidence by itself provides justification for Plaintiff’s 18 Motion for Leave to Amend. Given Plaintiff’s history of frivolous filings in this case, the 19 manifest absence of any rationale supporting his most recent attempt to amend his 20 complaint, and the misleading invocation of “new evidence,” the Court cannot avoid the 21 conclusion that Plaintiff is acting with, at a minimum, reckless disregard for the resources 22 of his opponents and of the Court. 23 This conclusion is buttressed by the innumerable determinations by other courts that 24 Plaintiff is a vexatious litigant. Plaintiff has been subjected to prefiling injunctions by, at 25 least, the District of Maryland, the District of D.C., the Eastern District of Virginia, the 26 Central District of California, the Western District of Louisiana, and the Superior Court of 27 D.C.1 In an especially scalding reprimand predicated on unrebutted testimony that 28 1 Whitehead v. Viacom, 233 F. Supp. 2d 715, 726 (D. Md. 2002), aff'd, 63 F. App'x 175 (4th Cir. 2003); Whitehead v. Paramount Pictures Corp., 145 F. Supp. 2d 3, 3–6 1 Plaintiff’s “self-proclaimed purpose for bringing his multiple copyright lawsuits is to 2 extract nuisance settlements,” Judge Friedman of the District of D.C. wrote: 3 Lest it be inferred from such a dismal track record that Mr. Whitehead is but 4 an unsophisticated naïf tilting at windmills, one need only look at his own stated intent for bringing many of these cases to know that Mr. Whitehead 5 has no regard for our judicial system or the drain on its resources caused by 6 his actions. Both this Court and the D.C. Circuit have separately found it necessary to impose sanctions and/or award attorneys' fees to defendants' 7 counsel—at least in part as a deterrent to Mr. Whitehead's deplorable 8 conduct. . . . . 9 Plaintiff's most recent filings—which is as opaque, nonsensical and frivolous as those that preceded them—prove that neither adverse decisions, nor 10 monetary sanctions, nor the award of attorneys' fees will deter him. This 11 Court will tolerate Mr. Whitehead's egregious abuses of the judicial system no longer and will sanction him accordingly. 12 13 Whitehead v. Paramount Pictures Corp., 145 F. Supp. 2d 3, 3–6 & n.1 (D.D.C. 2001), 14 aff'd, No. 01-7062, 2001 WL 936260 (D.C. Cir. July 27, 2001) (internal citations omitted). 15 Similarly, over a decade after Judge Friedman’s rebuke, which itself was based on years of 16 frivolous litigation history, the Firth Circuit wrote: 17 In his myriad pleadings, Whitehead makes a variety of disjointed and 18 conclusory allegations of copyright violations, judicial conflicts of interest, and a wide ranging conspiracy to retaliate against him for his claims. As the 19 district court noted, Whitehead has raised similar claims in other courts, which have often been dismissed as frivolous and for which he has been 20 sanctioned for his vexatious litigation. Whitehead's claims in the instant 21 proceeding represent another attempt to raise the same frivolous and vexatious claims in a new forum. 22 . . . . 23 As he has done in other courts, Whitehead has inundated this court with multiple motions and filings that are largely incomprehensible or fanciful. In 24 (D.D.C. 2001), aff'd, No. 01-7062, 2001 WL 936260 (D.C. Cir. July 27, 2001); Whitehead 25 v. Paramount Pictures Corp., No. 1:08CV792(AJT/TRJ), 2009 WL 1491402, at *4 (E.D. Va. May 26, 2009), aff'd in part, 366 F. App'x 457 (4th Cir. 2010); Whitehead v. Netflix, 26 Inc., 830 F. App'x 967, 968 (9th Cir. 2020); Whitehead v. White & Case, LLP, No. 12-CV- 0399, 2012 WL 1795151, at *4–5 (W.D. La. Apr. 19, 2012), report and recommendation 27 adopted, No. 12-CV-0399, 2012 WL 1795148 (W.D. La. May 16, 2012); Whitehead v. Wickham, No. 05-CA-3346, 2005 WL 2874975, at *4–5 (D.C. Super. Ct. Sept. 6, 2005). 28 The foregoing cases are only a sampling of the universal judicial disapproval that Plaintiff has incurred as a result of his lengthy campaign of vexatious litigation. 1 this appeal alone he has filed more than twenty motions, which have consumed countless hours of court personnel time and resulted thus far in 2 five court orders and eight clerk orders. 3 Whitehead v. White & Case, L.L.P., 519 F. App'x 330, 332 (5th Cir. 2013) (internal citation 4 omitted). 5 6 Moreover, many of Plaintiff’s previous lawsuits from other jurisdictions bear a 7 striking resemblance to his claims in the case at bar. For instance, he previously brought 8 suit in the Eastern District of Virginia against a smattering of defendants for, inter alia, 9 race discrimination, retaliation, defamation, and breach of contract. Similarly, Plaintiff has 10 brought frivolous lawsuits in the past concerning his “screenplay[s].” See Whitehead v. 11 CBS/Viacom, Inc., 315 F. Supp. 2d 1 (D.D.C. 2004); Whitehead v. Sony Pictures, No. CV 12 16-580 (SRN/BRT), 2016 WL 8732631 (D. Minn. Apr. 22, 2016). The Court is loath to 13 permit Plaintiff to amend his complaint in order to subject a new set of defendants to yet 14 another round of unhinged litigation predicated upon unsupported legal conclusions. Of 15 course, if any of Plaintiff’s filings had revealed a viable claim, the Court would not shut its 16 doors and stopper its ears to his pleas for relief. However, the apparent unseriousness of 17 the pleadings that Plaintiff has filed in the Court up to this point, combined with his 18 decades-long history of frivolous and vexatious litigation, convinces the Court that Plaintiff 19 is operating in bad faith.2 20 Thus, even absent general futility, the Court concludes that the presence of prior 21 amendments, prejudice, undue delay, and bad faith caution against permitting further 22 amendment. Accordingly, the Court exercises its “particularly broad” discretion in this case 23 to deny future amendment and dismiss Plaintiff’s complaint with prejudice. 24 IT IS THEREFORE ORDERED granting Defendants’ Motion to Dismiss with 25 prejudice. (Doc. 45.) 26 2 The Court reviews Plaintiff’s history as a litigant not for the purpose of imposing its own pre-filing injunction but instead merely to determine whether the bad-faith factor 27 of the discretionary amendment analysis weighs against further amendment. Should Plaintiff continue to impose harassing filings upon Defendants in this case, the Court will 28 reconsider Defendants’ Motion to Declare Plaintiff a Vexatious Litigant (Doc. 24), which the Court previously dismissed without prejudice. (Doc. 41.) 1 IT IS FURTHER ORDERED denying Plaintiff's Motion for Leave to Amend. 2\| (Doc. 51.) 3 IT IS FURTHER ORDERED denying as moot Plaintiff's Motion to Amend 4|| Certificate of Service. (Doc. 50.) 5 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in || favor of Defendants and close this case. 7 Dated this 7th day of October, 2024. CN iy. 9 weffelee— Unifgd State#District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21-