Davis v. Adler ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GAVIN B. DAVIS, Case No.: 19-cv-834-AJB-JLB 12 Plaintiff, ORDER: 13 v. (1) GRANTING DEFENDANT 14 JASON M. ADLER, an individual, JASON ADLER’S MOTION TO CAMERON FIFE, an individual, U.S. 15 DISMISS PLAINTIFF’S NAVY COMMANDER, SEAL TEAM COMPLAINT; AND 16 10, an individual, SAMI RASHID, an individual, JONATHAN NEWTON, an 17 (2) GRANTING DEFENDANTS individual, TIMOTHY P. O’HARA, an SAMI RASHID, JONATHAN 18 individual, CORNELL UNIVERSITY, NEWTON, AND TIMOTHY P. JOHN DOE AFFILIATES OF ADLER, 19 O’HARA’S MOTION TO DISMISS as individuals or entities, and JOHN DOE PLAINTIFF’S COMPLAINT 20 MEMBERS OF THE FORMER CHI CHAPTER OF PSI UPSILON, 21 (Doc. Nos. 4, 6) CORNELL UNIVERSITY, as individuals, 22 Defendants. 23 24 Currently pending before the Court are Defendant Jason Adler’s motion to dismiss 25 Plaintiff Gavin Davis’s (“Plaintiff”) complaint, (Doc. No. 6), and Defendants Sami Rashid, 26 Jonathan Newton, and Timothy P. O’Hara’s motion to dismiss Plaintiff’s complaint, (Doc. 27 No. 4). Plaintiff opposes the motion. (Doc. No. 43.) For the reasons explained more fully 28 below, the Court GRANTS Defendant Adler’s motion to dismiss and GRANTS 1 Defendants Rashid, Newton and O’Hara’s motion to dismiss. 2 BACKGROUND 3 A. Davis I 4 On February 27, 2017, Plaintiff, proceeding pro se, filed his initial complaint against 5 Defendants Jason M. Adler, Odessa R. Jorgensen, and Jane Does (Case No. 3:17-cv-00387- 6 AJB-JLB) (hereinafter referred to as “Davis I”). On March 21, 2017, Defendant Adler filed 7 a motion to dismiss, which the Court granted on April 26, 2017. (Davis I, Doc. No. 3) The 8 Court stated that “[f]rom a practical viewpoint . . . it is impossible for the Court to designate 9 the cause or causes of action attempted to be alleged, or the events leading up to Plaintiff 10 instituting this action.” (Id. at 4.) Moreover, the Court found dismissal based on a failure 11 to adhere to Federal Rule of Civil Procedure 8 proper.1 (Id.) Furthermore, the Court 12 cautioned Plaintiff against grouping all of the Defendants together without distinguishing 13 between the alleged conduct of each individual Defendant. (Id.) Based upon the foregoing, 14 the Court dismissed Plaintiff’s complaint with leave to amend. (Id. at 5–6.) 15 The day after his complaint was dismissed, Plaintiff filed his first amended 16 complaint (“FAC”). (Davis I, Doc. No. 16.) On June 2, 2017, the Court again dismissed 17 Plaintiff’s operative complaint finding that it suffered from many of the same defects as 18 his previously-filed complaint. (Davis I, Doc. No. 20.) Specifically, the Court found that 19 Plaintiff had again failed to comply with Rule 8 and found the FAC replete with fragmented 20 discussions that failed to plead sufficient facts to state a claim on which relief could be 21 granted. (Id. at 4.) Consequently, despite construing Plaintiff’s pleading liberally, the Court 22 again found dismissal appropriate. (Id. at 5.) However, noting Plaintiff’s pro se status, the 23 Court again granted Plaintiff leave to amend. (Id. at 6.) 24 Plaintiff then filed a motion for relief from judgment on June 28, 2017. (Davis I , 25 26 27 1 Federal Rule of Civil Procedure 8 states that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled 28 to relief[.]” Fed. R. Civ. P. 8(a)(2). 1 Doc. No. 32.) Plaintiff then filed his second amended complaint (“SAC”), and a reply to 2 support his motion for relief. (Davis I, Doc. Nos. 38, 40.) Based on the filing of his SAC, 3 the Court found Plaintiff’s motion for relief from judgment moot. (Davis I, Doc. No. 39.) 4 Defendant Adler then filed his motion to dismiss the SAC on July 26, 2017. (Davis I, Doc. 5 No. 41.) The Court granted Defendant Adler’s motion to dismiss the SAC without leave to 6 amend. (Davis I, Doc. No. 46.) The Court explained that Defendant Adler again failed to 7 adhere to Rule 8 and failed to state a claim. (See generally id.) 8 Plaintiff then filed a notice to appeal the Court’s Order denying his motion for relief 9 from judgment, the Order dismissing his SAC without leave to amend, and the Clerk of 10 Court’s entry of judgment. (Davis I, Doc No. 55.) The Ninth Circuit subsequently 11 dismissed the appeal for failure to prosecute on April 3, 2018. See Davis v. Adler, No. 18- 12 56168, 2019 WL 1777446, at *1 (9th Cir. Apr. 23, 2019). 13 B. The Instant Action 14 On May 6, 2019, Plaintiff initiated this new action. (Doc. No. 1.) The Complaint 15 renames Jason Adler as a defendant and identifies five new defendants: Cameron Fife, 16 Sami Rashid, Timothy P. O’Hara, Jonathan Newton, and Cornell University. The 17 Complaint asserts five causes of action: (1) intrusion of seclusion, (2) misappropriation, 18 (3) public disclosure of private facts, (4) false lights, and (5) conspiracy. (See generally 19 Doc. No. 1.) The Complaint alleges that Defendants “have intentions of commercialization 20 of the Plaintiff, a non-public figure, or his likeness, in violation of each of the laws of 21 privacy…” (Doc. No. 1 ¶ 1(b).) Further, Plaintiff alleges that Defendants have intentionally 22 intruded into his private life and affairs, have misappropriated his life, have no rights to 23 commercialize him or his likeness, have attempted to case Plaintiff in a false light in their 24 commercialization efforts, and that Defendants are involved in a civil conspiracy regarding 25 these privacy violations and intentions to commercialize Plaintiff or his likeness. (Id. ¶¶ 2– 26 6.) He alleges that Defendants are members of Psi Upsilon and attended Cornell University. 27 (Id. ¶¶ 11–13.) 28 / / / 1 LEGAL STANDARD 2 A. Federal Rule of Civil Procedure 8 3 Complaints must comply with Federal Rule of Civil Procedure 8, which requires that 4 pleadings include a “short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and 5 that “each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A district 6 court may dismiss a complaint for failure to comply with Rule 8. See Hatch v. Reliance 7 Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) (holding that dismissal of plaintiff’s complaint 8 was appropriate as it exceeded seventy pages in length, was confusing, conclusory, and not 9 in compliance with Rule 8); see also McHenry v. Renne, 84 F.3d 1172, 1177–80 (9th Cir. 10 1996) (upholding a Rule 8 dismissal of a complaint that was “argumentative, prolix, replete 11 with redundancy, and largely irrelevant”). 12 B. Federal Rule of Civil Procedure 12(b)(1) 13 A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(1) if, 14 considering the factual allegations in the light most favorable to the plaintiff, the action: 15 (1) does not arise under the Constitution, laws, or treaties of the United States, or does not 16 fall within one of the other enumerated categories of Article III, Section 2, of the 17 Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) 18 is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962). 19 When considering a motion to dismiss pursuant to Rule 12(b)(1), the court is not restricted 20 to the face of the pleadings, but may review any evidence to resolve factual disputes 21 concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th 22 Cir.1988), cert. denied, 489 U.S. 1052 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 23 1375, 1379 (9th Cir.1983). A federal court is presumed to lack subject matter jurisdiction 24 until the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 25 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th 26 Cir.1989). Therefore, the plaintiff bears the burden of proving the existence of subject 27 matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publishing Co., Inc. v. Gen’l 28 Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 1 DISCUSSION 2 A. Amendment of Plaintiff’s Pleading from the Davis I Action 3 Defendants contend that Plaintiff’s Complaint should be dismissed because it is an 4 unauthorized amendment of his pleading from the Davis I action. (Doc. No. 4-1 at 10, Doc. 5 No. 6-1 at 3.) Specifically, Defendants point to paragraph 23 of the Complaint that states: 6 Plaintiff has previously brought a case (17-387) against [Defendant Adler] for one or more claims, which was dismissed, 7 pre-trial, for technical inaccuracy. Plaintiff attempted to move 8 within the one (1) year timeframe for relief pursuant to FRCP 59 and to add defendants to the case and claims, which was denied. 9 On April 12, 2019, the Ninth Circuit dismissed an appeal of such 10 narrow matter of law and pursuit. 11 (Doc. No. 1 ¶ 23.) Plaintiff argues in both his oppositions that his Complaint should not be 12 dismissed on the basis of claim or party preclusion. (Doc. No. 11 at 11–14, Doc. No. 17 at 13 8–10.) However, Defendants do not argue that the Complaint should be dismissed on the 14 basis of claim or party preclusion. Rather Defendants argue that the core allegations in all 15 three Davis I pleadings and those asserted in this instant Complaint are essentially identical. 16 The Court agrees. Plaintiff has attempted to improperly amend his Davis I operative 17 complaint by filing this new lawsuit. Plaintiff even admits, as evidenced by the quote 18 above, that the Complaint in the instant action is predicated on the Davis I action. The 19 Court specifically granted Defendant Adler’s motion to dismiss the SAC without leave to 20 amend in Davis I. The Court will not allow Plaintiff to simply try to circumvent the Court’s 21 prior ruling that the case was dismissed without leave to amend. 22 B. Federal Rule of Civil Procedure 8 23 Furthermore, Plaintiff has again failed to adhere to Federal Rule of Civil Procedure 24 8 (“Rule 8”). Plaintiff takes several different stances in opposition including that his 25 complaint includes facts that can be reasonably inferred and that Plaintiff finds his five 26 claims are based in fact. (Doc. No. 11 at 17.) However, Plaintiff’s Complaint consists of 27 forty-seven pages of allegations mixed with law. (See generally Doc. No. 1.) Rule 8 states 28 that “[a] pleading that states a claim for relief must contain . . . a short and plain statement 1 of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). As 2 currently pled, Plaintiff’s Complaint fails to present a succinct and straightforward 3 statement alleging the wrongdoings of each Defendant. Thus, the Court finds dismissal 4 pursuant to Rule 8 appropriate. See e.g., McHenry, 84 F.3d at 1177–80 (upholding a Rule 5 8(a) dismissal of a complaint that was “argumentative, prolix, replete with redundancy, and 6 largely irrelevant”); Hatch, 758 F.2d at 415 (upholding a Rule 8(a) dismissal of a complaint 7 that was confusing and conclusory); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 8 674 (9th Cir. 1981) (holding that Rule 8(a) is violated when a complaint is excessively 9 “verbose, confusing and almost entirely conclusory”); Zinzuwadia v. Mortg. Elec. Reg. 10 Sys., Inc., No. 2:12-cv-02281-KJM-KJN PS, 2012 WL 6737837, at *7 (E.D. Cal. Dec. 28, 11 2012) (“Prolix, confusing complaints such as the ones plaintiffs filed in this case impose 12 unfair burdens on litigants and judges.”). 13 The Court notes that even applying the liberal pleading standard under Rule 8, 14 Plaintiff’s Complaint is still deficient. The Court highlights that the Rule 8 standard does 15 not require “detailed factual allegations,” but “naked assertion[s] devoid” of any factual 16 enhancement do not suffice. Ashcroft, 556 U.S. at 678 (citation and internal quotation 17 marks omitted). Presently, at this juncture, Plaintiff’s claims are still visibly unsupported 18 by even a minutia of contentions. Moreover, Plaintiff’s inability to provide details 19 surrounding his causes of action as a whole fails to demonstrate the proper standing to be 20 in this Court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 555 (1992) (holding that a 21 plaintiff has standing when he can demonstrate that he has suffered an injury in fact, i.e., 22 “a concrete and particularized, actual or imminent invasion of a legally protected interest”). 23 Furthermore, Plaintiff’s Complaint impermissibly groups all of the Defendants 24 together without distinguishing between the alleged conduct of each Defendant. This type 25 of group pleading fails to put the opposing party on notice of the wrong they allegedly 26 committed so that they can adequately defend themselves. Fed. R. Civ. P. 8; see McHenry, 27 84 F.3d at 1180 (“Something labeled a complaint but . . . without simplicity, conciseness 28 and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential 1 functions of a complaint.”); see also Adobe Sys. Inc. v. Blue Source Grp., Inc., No. 14-CV- 2 02147-LHK, 2015 WL 5118509, at *10 (N.D. Cal. Aug. 31, 2015) (“As a general rule, 3 when a pleading fails ‘to allege what role each Defendant played in the harm,’ this ‘makes 4 it exceedingly difficult, if not impossible, for individual Defendants to respond to 5 Plaintiffs’ allegations.’”) (citation omitted). 6 C. Subject Matter Jurisdiction 7 Finally, Defendants contend that Plaintiff’s Complaint should be dismissed for lack 8 of subject matter jurisdiction. (Doc. No. 4-1 at 13.) Plaintiff relies upon diversity 9 jurisdiction. (Doc. No. 1 ¶ 18.) However, both Defendants Adler and Fife are citizens of 10 California, which is also the state in which Plaintiff resides. Accordingly, complete 11 diversity is lacking in this matter. See Johnson v. Columbia Props. Anchorage, LP, 437 12 F.3d 894, 899 (9th Cir. 2006) (“The federal court’s basic diversity jurisdiction extends to 13 ‘all civil actions where the matter in controversy exceeds … $75,000 … and is between … 14 [c]itizens of different States.’”) (quoting 28 U.S.C. § 1332(a)(1)); Allstate Ins. Co. v. 15 Hughes, 358 F.3d 1089, 1095 (9th Cir. 2004) (“Diversity jurisdiction under § 1332 requires 16 complete diversity of citizenship, each of the plaintiffs must be a citizen of a different state 17 than each of the defendants.”)(citation omitted). 18 Plaintiff also alleges that he invokes federal question jurisdiction based on his civil 19 conspiracy claim. (Doc. No. 11 at 18.) In Plaintiff’s Complaint, he specifically alleges that 20 “Plaintiff finds that the privacy violations alleged herein, normally State claims, are 21 elements of Conspiracy, a priori, in regard to jurisdiction.” (Doc. No. 1 ¶ 19.) A suit may 22 be dismissed “for want of jurisdiction where the alleged claim under the Constitution or 23 federal statutes clearly appears to be immaterial and made solely for the purpose of 24 obtaining jurisdiction or where such claim is wholly insubstantial and frivolous.” Bell v. 25 Hood, 327 U.S. 678, 682–83 (1946). Simply because Plaintiff finds that he invokes federal 26 question jurisdiction is insufficient to establish federal question jurisdiction. Furthermore, 27 Plaintiff himself acknowledges that his claims for privacy violations are normally state 28 claims. Accordingly, the Court lacks subject matter jurisdiction. 1 CONCLUSION 2 As set forth more fully above, the Court GRANTS Defendants’ motions to dismiss 3 |}and DISMISSES Plaintiff's complaint WITHOUT LEAVE TO AMEND. Foman □□□ 4 || Davis, 371 U.S. 178, 182 (1962) (holding that the grant or denial of a motion to amend is 5 ||committed to the discretion of the district court); see also Vaillette v. Fireman’s Fund Ins. 6 || Co., 18 Cal. App. 4th 680, 685 (1993) (holding that leave to amend should not be granted 7 || where in all probability, amendment would be futile). The Clerk of Court is directed to 8 || CLOSE this case. 9 10 || IT ISSO ORDERED. 11 12 Dated: January 23, 2020 C ) ZS : 13 Hon, Anthony J.Battaglia 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28