Eric Swallow v. William Torngren ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC G. SWALLOW, No. 18-16051
Plaintiff-Appellant, D.C. No. 5:17-cv-05261-BLF
v.
MEMORANDUM*
WILLIAM P. TORNGREN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted December 5, 2019
San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and BOUGH,** District Judge.
Plaintiff-Appellant Eric Swallow appeals the district court’s dismissal of his
claims of substantive due process and equal protection violations under 42 U.S.C.
§ 1983, RICO and RICO conspiracy violations under 18 U.S.C. § 1962(c) and (d),
and tax fraud under 26 U.S.C. § 7434(a), against Defendants-Appellees Peter and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Jeanine Lunardi (collectively, “the Lunardis”)1 and Deputy Attorney General
William Torngren with prejudice and without leave to amend. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Swallow appeals the district court’s dismissal of his § 1983 and RICO
claims against the Lunardis. We review the district court’s dismissal on the ground
of Noerr-Pennington immunity de novo. Sosa v. DIRECTV, Inc., 437 F.3d 923,
929 (9th Cir. 2006). The Noerr-Pennington doctrine provides that “those who
petition any department of the government for redress are generally immune from
statutory liability for their petitioning conduct.” Id. The immunity extends to
protect defendants from § 1983 and RICO causes of action. Kearney v. Foley &
Lardner, LLP, 590 F.3d 638, 643–48 (9th Cir. 2009).
Swallow challenges the Lunardis’ communications with Deputy Torngren
concerning their testimony in the administrative and commission hearings, the case
against Swallow, and the settlement negotiations with the Bureau of Gambling
Control. These communications are protected under the Noerr-Pennington
doctrine as communications “sufficiently related to petitioning activity” and
necessary to “preserve the breathing space required for the effective exercise of the
rights [the Petitions Clause] protects.” Sosa, 437 F.3d at 933, 35. The sham
1
Peter Lunardi died after Swallow filed the Notice of Appeal; Jeanine Lunardi, as
Personal Representative of Peter Lunardi’s estate, is the substitute party.
2
litigation exception does not apply because Swallow has not sufficiently alleged
that any misrepresentations made in the administrative hearing so corroded the
disciplinary proceeding as to “deprive the litigation of its legitimacy.” See id. at
938 (internal quotation marks and citation omitted). The Lunardis are immune
from suit under § 1983 and RICO for their protected petitioning activity.
Swallow argues that the Lunardis’ filings of Garden City’s 2015 and 2016
tax returns fall outside the scope of Noerr-Pennington immunity. That is correct:
filing tax returns is not sufficiently related to petitioning activity to trigger Noerr-
Pennington immunity. But Swallow has not plausibly alleged that the filings alone
would support claims for substantive due process and equal protection violations
under § 1983, or under § 1962. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Swallow’s § 1983 and RICO claims based on the allegedly fraudulent tax return
filings thus fail to state plausible claims to relief. See Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2001) (equal protection); H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 240, 243 (1989) (RICO); United States v. Salerno, 481 U.S. 739,
746 (1987) (substantive due process).
2. Swallow appeals the district court’s dismissal of his § 1983 and
RICO claims against Deputy Torngren. We review the district court’s dismissal on
the ground of prosecutorial immunity de novo. Milstein v. Cooley, 257 F.3d 1004,
1007 (9th Cir. 2001). Prosecutors who act within the scope of their duties enjoy
3
absolute immunity from suit. Imbler v. Pachtman, 424 U.S. 409, 410 (1976). The
functions Deputy Torngren performed, and which Swallow now challenges, were
prosecutorial in nature and closely related to advocacy duties. See Forrester v.
White, 484 U.S. 219, 229 (1988); see also Malley v. Briggs, 475 U.S. 335, 341–43
(1986). Deputy Torngren was entitled to absolute immunity from suit under
§ 1983 and RICO.2
3. Swallow appeals the district court’s dismissal of his tax fraud claims
against the Lunardis. We review the district court’s dismissal de novo. Reese v.
BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). Swallow claims that the
Lunardis engaged in tax fraud under 26 U.S.C. § 7434(a) because Peter Lunardi, as
President and CEO of Garden City, personally signed and filed Garden City’s tax
returns for the 2015 and 2016 calendar years, even though he allegedly knew that
the returns overstated the actual payments made to Swallow.
When alleging fraud, the plaintiff “must state with particularity the
circumstances constituting fraud.” Fed. R. Civ. P. 9(b). Swallow did not state a
plausible claim of tax fraud against Jeanine Lunardi because he did not claim that
she was personally involved in the alleged wrongdoing. See Swartz v. KPMG LLP,
476 F.3d 756, 764–65 (9th Cir. 2007). Swallow did claim that Peter Lunardi was
2
Even if Deputy Torngren was not entitled to absolute prosecutorial immunity,
Swallow’s § 1983 and RICO claims would still be dismissed for failure to state
plausible claims to relief.
4
involved in the alleged wrongdoing, but he did not plausibly allege that Peter
Lunardi willfully filed fraudulent tax returns or that he intended to defraud the IRS.
Swallow did not state claims to relief under § 7434(a) against either Lunardi.3
4. Swallow challenges the district court’s denial of his request for leave
to amend his Complaint. We review the district court’s denial of leave to amend
for abuse of discretion. A.E. ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636
(9th Cir. 2012). A district court’s discretion to deny leave to amend is
“particularly broad” when the plaintiff has previously amended his complaint.
Salamah v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013). Here, Swallow
previously amended his Complaint once as a matter of right. The district court did
not abuse its discretion by determining that there was an apparent futility of further
amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962).
AFFIRMED.
3
We need not reach the question of who may be held liable as the “filer” under
§ 7434(a).
5