Bruce Hampton v. Fred Steen , 690 F. App'x 998 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE HAMPTON, et al., No. 14-36025
Plaintiffs - Appellants,
D.C. No. 2:12-cv-00470-AA
v.
FRED STEEN, et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann Aiken, Chief Judge, Presiding
Submitted May 10, 2017**
Portland, Oregon
Before: BYBEE and HURWITZ, Circuit Judges and RAKOFF,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiffs’ request for oral
argument is denied. Pro se defendant-appellee Lloyd Trackwell, Jr.’s request to file
a motion for appointment of counsel non-electronically (Docket Entry No. 56) is
granted; but the motion for appointment (Docket Entries Nos. 55, 57) is denied.
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Plaintiffs Bruce Hampton and Venese Hampton appeal the district court’s
decisions dismissing their complaint, quashing their subpoenas, and entering a pre-
filing order against them as vexatious litigants. We have jurisdiction under 28
U.S.C. § 1291. We affirm in part, vacate in part, and remand for further
proceedings consistent with this decision.
We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim. Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1020 (9th Cir.
2017) (citation omitted). We review for abuse of discretion “a pre-filing order
entered against a vexatious litigant,” Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1056 (9th Cir. 2007), and the grant of a motion to quash a subpoena, Mueller
v. Auker, 700 F.3d 1180, 1194 (9th Cir. 2012).
We affirm the dismissal of plaintiffs’ claims under 42 U.S.C. § 1983 and the
Racketeer Influenced and Corrupt Organizations Act (RICO). Plaintiffs’
deprivation of goodwill claim fails because the complaint alleges only an injury to
reputation. See WMX Techs., Inc. v. Miller, 197 F.3d 367, 374-76 (9th Cir. 1999).
Plaintiffs’ contract-based procedural due process claim fails because the complaint
does not allege that the defendants terminated any agreements within the class of
contracts that create constitutionally protected property interests. See San
Bernardino Physicians’ Servs. Med. Grp., Inc. v. Cty. of San Bernardino, 825 F.2d
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1404, 1407-10 (9th Cir. 1987). We affirm the dismissal of the remaining Section
1983 and RICO claims substantially for the reasons set forth in detail in the district
court’s opinion. We agree that the complaint fails to allege any constitutional
violations supporting a Section 1983 claim, see Long v. Cty. of L.A., 442 F.3d
1178, 1185 (9th Cir. 2006) (requiring “(1) that a right secured by the Constitution .
. . was violated, and (2) that the alleged violation was committed by a person acting
under the color of State law”), and fails to allege a RICO “associated-in-fact
enterprise,” see Odom v. Microsoft Corp., 486 F.3d 541, 548-53 (9th Cir. 2007) (en
banc).
However, we vacate the judgment to the limited extent that it dismissed
plaintiffs’ Fair Debt Collection Practices Act (FDCPA) claim. The district court
dismissed this claim because the complaint fails to allege that Trackwell was a
“debt collector” within the meaning of the statute, a ground not raised by the
parties. Because this defect could be remedied with further factual allegations, this
is not a claim for which plaintiffs “cannot possibly win relief,” and dismissal on
this ground without giving the plaintiffs notice and “some opportunity to respond”
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was therefore erroneous. Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 638
(9th Cir. 1988) (citation omitted).1
We find no error in the district court’s conclusion that Trackwell’s attack on
plaintiffs’ standing is premature. See Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039-40 (9th Cir. 2004). We decline to reach in the first instance the
defendants’ many other proposed alternative grounds for affirmance.
We vacate the pre-filing order entered against the plaintiffs. “When district
courts seek to impose pre-filing restrictions, they must: (1) give litigants notice and
an opportunity to oppose the order before it is entered; (2) compile an adequate
record for appellate review, including a listing of all the cases and motions that led
the district court to conclude that a vexatious litigant order was needed; (3) make
substantive findings of frivolousness or harassment; and (4) tailor the order
narrowly so as to closely fit the specific vice encountered.” Ringgold-Lockhart v.
Cty. of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014) (citation, alterations, and internal
quotation marks omitted). The district court entered the order without giving the
plaintiffs notice and an opportunity to oppose. In addition, the order made no
substantive findings of frivolousness or harassment, and was insufficiently tailored
1
Plaintiffs’ request for leave to file a fourth amended complaint, raised
for the first time on appeal, can be directed to the district court on remand.
4
to the perceived vice, because it applied to all filings by the plaintiffs against
Trackwell, and not merely those arising out Trackwell’s allegedly harassing “debt
collection” efforts.
We find no abuse of discretion in the district court’s quashing of plaintiffs’
subpoenas. See Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225,
229 (9th Cir. 1975). The parties’ requests for judicial notice (Docket Entry Nos. 38
and 45) are denied.
In sum, we affirm the dismissal of plaintiffs’ Section 1983 and RICO claims
and vacate the dismissal of plaintiffs’ FDCPA claim; vacate the pre-filing order;
affirm the quashing of plaintiffs’ subpoenas; and remand for further proceedings
consistent with this decision.
The parties shall bear their own costs.
AFFIRMED in part, VACATED in part, and REMANDED.
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