Free Motion to Dismiss/Lack of Jurisdiction - District Court of California - California

Case 4:07-cv-05747-CW

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ARLO H. SMITH #96971 66 San Fernando Way San Francisco, CA 94127 (415) 681-9572 Attorney for Matthew D. Sawyer U.S. District Court, Northern District of California Rodney Martin et al. Plaintiffs vs. [FRCP 12(b)(1), (2), (3) & (6)] Wilda Burroughs et al., Defendants ___________________________________ Hearing: Jan. 23, 2008 10:30 AM Courtroom C Magistrate Chen NO. CV 07-05747 EMC NOTICE OF MOTION TO DISMISS

Notice is hereby that on January 23, 2008, at 10:30 AM, Courtroom C, 15th Floor, 400 Golden Gate Avenue, San Francisco, CA, defendant Matthew D Sawyer will move for dismissal of this action, or in the alternative, for abstention under the doctrine of forum nonconveniens. Said motion will be made on the following grounds: (1) This court lacks subject matter jurisdiction over this dispute,

which is within the sole jurisdiction of the Federal Election Commission ("FEC") FRCP 12 (b) (1). (2) This court lacks personal jurisdiction over defendant, who is a

resident of Texas and who lacks minimum contacts with CA. Assuming arguendo, that minimum contacts did exist California. Would not be a convenient forum. FRCP 12 (b) (2) (3) This court lacks venue over this dispute since no defendant resides

Notice of Motion To Dismiss

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in CA, and the claim did not arise in CA. FRCP 12 (b) (3) (4) Defendant has failed to state a claim upon which relief can be

based, including but not limited to the following issues: (a) (b) The FEC has exclusive jurisdiction over this dispute. The requisite allegations of distinctive, directness and predicate

acts necessary to support a RICO claim are lacking (c ) Defendant has alleged a conspiracy between three attorneys and

their clients but has not complied with the pre-filing judicial approval requirements of California Civil Code 1714.10 (d) The action is barred by California Code of Civil Procedure Section

425.16, since it is brought against defendants for engaging in constitutionallyprotected activities, including litigation, and plaintiff cannot factually show a reasonable probability of prevailing on such claims. FRCP 12 (b) (6) DATED: 12/19/07 ___________________________________ ARLO H. SMITH , Attorney for Matthew D. Sawyer

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ARLO H. SMITH #96971 66 San Fernando Way San Francisco, CA 94127 (415) 681-9572 Attorney for Matthew D. Sawyer U.S. District Court, Northern District of California Rodney Martin et al. Plaintiffs vs. [FRCP 12(b)(1), (2), (3) & (6)] Wilda Burroughs et al., Defendants ___________________________________ Hearing: Jan. 23, 2008 10:30 AM Courtroom C Magistrate Chen NO. CV 07-05747 EMC MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

FACTS This prolix and confusing complaint was filed in pro se. To the extent that the complaints contains any specifics, it alleges (1) failure to file or improper filings by defendants with the Federal Elections Commission ("FEC") [Complaint. Para. 26] and (2) allegedly vexatious litigation, of which the only examples plaintiff gives are actions in TEXAS and FLORIDA [Complaint. Para. 25, 29, 31, 32, 33, 34, 35, 36, 37, 38, 41] The Complaint alleges NO ACTIVITIES by ANY DEFENDANT in California. Moreover, NO DEFENDANT resides in CA. On the contrary, the complaint admits that the residences of defendants are as follows: TEXAS ­ Matthew D. Sawyer, Charles Foster, Rebecca Foster, Beverly Kennedy [Complaint. Para. 5, 13, 14, 15] Memorandum In Support of Motion To Dismiss 1

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NEW YORK - D. Andrew Byrne [Complaint. Para. 3] FLORIDA ­ Jackson W. Mayanrd, Jr., Ruben J. Hernandez, Jr. [Complaint. Para. 4, 15] NEBRASKA ­ Janelle Skinner-Weill, Winan Wichapi To, Inc. [Complaint. Para. 6, 7] MISSISSIPPI ­ Theodore C. Weill, Terry P. Weill, Universal Wearparts, Inc. [Complaint. Para. 8, 9, 10] RHODE ISLAND - David C. Richardson, R.I. Refrigeration Supply Co., Inc. [Complaint. Para. 11, 12] The Complaint also specifically alleges that D. Andrew Byrne, Jackson W. Maynard, Jr. and Matthew D. Sawyer are attorneys and are being sued for their activities as attorneys representing clients. [Complaint. Para. 25]

LEGAL ARGUMENT I. THE FEC HAS EXCLUSIVE JURISDICTION OVER THIS DISPUTE

Though inartfully pleaded, the Complaint is explicit in claiming defendants are allegedly guilty of violations of federal elections laws. [Complaint. Para. 26] The law is clear that the FEC has EXCLUSIVE jurisdiction over federal campaign finances. 21 USC Sec. 437(e) provides: Except as provided in section 437g(a)(8) of this title, the power of the Commission to initiate civil actions under Subsection (a)(6) of this section shall be the exclusive civil remedy for enforcement of this provisions of this Act. Emphasis added. 21 USC Sec. 437g (a)(8) allows plaintiff to file a civil action

in the United States Court for the District of Columbia only if plaintiffs FIRST have exhausted remedies before the FEC. Since this case was not brought in the United States Court for the District of Memorandum In Support of Motion To Dismiss 2

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Columbia, and plaintiff has not alleged exhaustion of remedies before the FEC, the action must be dismissed for lack of subject matter jurisdiction. II. THE COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS, AND CALIFORNIA WOULD BE AN INCONVENIENT FORM IN ANY EVENT

The Complaint alleges NO ACTIVITIES by ANY DEFENDANT in California. Moreover, NO DEFENDANT resides in CA. On the contrary, the complaint admits that the residences of defendants are as follows: TEXAS ­ Matthew D. Sawyer, Charles Foster, Rebecca Foster, Beverly Kennedy [Complaint. Para. 5, 13, 14, 15] NEW YORK - D. Andrew Byrne [Complaint. Para. 3] FLORIDA ­ Jackson W. Mayanrd, Jr., Ruben J. Hernandez, Jr. [Complaint. Para. 4, 15] NEBRASKA ­ Janelle Skinner-Weill, Winan Wichapi To, Inc. [Complaint. Para. 6, 7] MISSISSIPPI ­ Theodore C. Weill, Terry P. Weill, Universal Wearparts, Inc. [Complaint. Para. 8, 9, 10] RHODE ISLAND - David C. Richardson, R.I. Refrigeration Supply Co., Inc. [Complaint. Para. 11, 12] Based on plaintiff's OWN PLEADING, minimum jurisdictional contacts with California are lacking. Moreover, even assuming such contacts barely existed, California is obviously an inconvenient forum. Inconvenience is established by defendants OWN COMPLAINT. Said Complaint seeks to attach liability based (1) failure to file or improper filings by defendants with the Federal Elections Commission ("FEC") - which is in Washington, DC [Complaint. Para. 26] and (2) allegedly vexatious litigation, of

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which the only examples plaintiff gives are actions in TEXAS and FLORIDA [Complaint. Para. 25, 29, 31, 32, 33, 34, 35, 36, 37, 38, 41] Obviously, the convenient forum to try this case would be TX or FL, not CA!

III.

THE COURT LACKS VENUE OVER THIS ACTION

The Complaint alleges NO ACTIVITIES by ANY DEFENDANT in California. Moreover, NO DEFENDANT resides in CA. On the contrary, the complaint admits that the residences of defendants are as follows: TEXAS ­ Matthew D. Sawyer, Charles Foster, Rebecca Foster, Beverly Kennedy [Complaint. Para. 5, 13, 14, 15] NEW YORK - D. Andrew Byrne [Complaint. Para. 3] FLORIDA ­ Jackson W. Mayanrd, Jr., Ruben J. Hernandez, Jr. [Complaint. Para. 4, 15] NEBRASKA ­ Janelle Skinner-Weill, Winan Wichapi To, Inc. [Complaint. Para. 6, 7] MISSISSIPPI ­ Theodore C. Weill, Terry P. Weill, Universal Wearparts, Inc. [Complaint. Para. 8, 9, 10] RHODE ISLAND - David C. Richardson, R.I. Refrigeration Supply Co., Inc. [Complaint. Para. 11, 12] Based on plaintiff's OWN PLEADING, it is clear that venue will not lie in CA, since venue exists only where "all defendants reside" or where "the claim arose." 28 USC Section 1391 (b).

IV. A.

PLAINTIFF HAS FAILED TO STATE A CLAIM FOR RELIEF REQUISITE ALLEGATIONS OF DISTINCTIVE, DIRECTNESS AND PREDICATE ACTS NECESSARY TO SUPPORT A RICO CLAIM ARE LACKING

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To state a claim under RICO, plaintiff must plead and prove defendants influenced an "enterprise" SEPARATE FROM the persons alleged to have violated RICO. New Beckley vs. International Union (4th Cir. 1994) 18 F.3d 1161. Plaintiff has alleged no such separate "enterprise" but merely claims THESE defendants comprise the enterprise!

Secondly, the high court has held that plaintiff must show it was DIRECTLY injured by defendant's RICO violations. For example, a businessperson cannot sue a competitor under RICO for failing to collect or pay taxes, even if non-payment of taxes gives the competitor an advantage, because the STATE is the DIRECTLY injured party. Anza vs. Ideal Steel Supply Corp. (2006) 126 S.Ct. 1991. Here, even if defendants REALLY DID file false campaign reports, or bring vexatious suits, defendant never says how PLAINTIFF was injured. Finally, since plaintiff has repeatedly claimed "fraud" he must comply with the specificity requirements of FRCP 9(b), which requires: "In all averments of fraud or mistake, the circumstances constituting such fraud or mistake must be stated with particularity." Because plaintiff has failed to do so, he has failed to adequately allege predicate acts to support a RICO claim. B. DEFENDANT HAS ALLEGED A CONSPIRACY BETWEEN THREE ATTORNEYS AND THEIR CLIENTS BUT HAS NOT COMPLIED WITH THE PRE-FILING JUDICIAL APPROVAL REQUIREMENTS OF CALIFORNIA

The Complaint also specifically alleges that D. Andrew Byrne, Jackson W. Maynard, Jr. and Matthew D. Sawyer are attorneys and are being sued for their activities as attorneys representing clients. [Complaint. Para. 25]

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California Civil Code 1714.10 generally requires PRE-FILING JUDICIAL APPROVAL for any allegation of conspiracy between an attorney and his/her clients: (a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed. (b) Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof. The defense shall be raised by the attorney charged with civil conspiracy upon that attorney's first appearance by demurrer, motion to strike, or such other motion or application as may be appropriate. . . . "The Legislature enacted section 1714.10 to eliminate frivolous allegations of conspiracy between attorneys and clients." Castro v. Higaki (1994) 31 Cal. App. 4th 350, 356. ". . . Civil Code section 1714.10 unambiguously applies to all alleged conspiracies between an attorney and his client. . . . The statute expressly states: `No cause of action against an attorney based upon a civil conspiracy with his or her client ....' ( Civ. Code, § 1714.10; italics added.) We note further that the existence of other coconspirators, who are neither attorneys nor clients, does not preclude the applicability of the Memorandum In Support of Motion To Dismiss 6

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section. It is frequently the case that alleged attorney-client conspiracies involve third parties. . . . " Pierce v. Lyman (1991) 1 Cal. App. 4th 1093, 1109-1110 Because a pleading filed in violation of Civil Code section 1714.10 is NOT ALLOWED, any party named in such a pleading is entitled to demur to such a cause of action: "Insofar as section 1714.10 is concerned, respondents' civil conspiracy count must survive or fall as a single unit. In this case it fails because it includes PMS, which is entitled to the protections of the prefiling procedures. The conspiracy cause of action was therefore an unauthorized filing, no better than a courtroom trespasser, and subject to a motion to strike. Sustaining the special section 1714.10 demurrer in these circumstances has the same effect as granting a motion to strike an unauthorized pleading: the subject of the demurrer is no longer a pleading and may not be treated as one. (E.g., Code Civ. Proc., § 436, subd. (b) [court may strike "all or any part of any pleading not . . . filed in conformity with the laws of this state"]; 5 Witkin, Cal. Procedure, supra, Pleading, § 940, p. 398 ["the demurrer destroys the complaint as a pleading"]; 49 Cal.Jur.3d, Pleading, § 220, p. 668.) Appellants' demurrer should have been sustained." Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal. App. 4th 599, 607. As the foregoing authorities indicate, Civil Code Section 1714.10 is part of the substantive law of CA, which must be applied by federal courts sitting in CA, absent a contrary federal law or rule. Because plaintiff has filed a pleading in a California district court which alleges a conspiracy between three attorneys and their clients, this case must be dismissed for plaintiff's noncompliance with with Civil Code Section 1714.10. C. THE ACTION IS BARRED BY CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.16, SINCE IT IS BROUGHT AGAINST DEFENDANTS FOR ENGAGING IN CONSTITUTIONALLY-PROTECTED ACTIVITIES, INCLUDING LITIGATION, AND PLAINTIFF CANNOT FACTUALLY SHOW A

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REASONABLE PROBABILITY OF PREVAILING ON SUCH CLAIMS The complaint herein alleges vexatious litigation by defendants of which the only examples plaintiff gives are actions in TEXAS and FLORIDA [Complaint. Para. 25, 29, 31, 32, 33, 34, 35, 36, 37, 38, 41]

California Code of Civil Procedure Section 425.16 provides (a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. (b) (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding. (c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. . . . ... (e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official Memorandum In Support of Motion To Dismiss 8

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proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. . . . "Section 425.16, subdivision (b)(1) defines the types of claims that are subject to the anti-SLAPP procedures. These claims include causes of action "arising from" an "act of that person in furtherance of the person's right of petition . . . under the United States or California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1), italics added.) "It is well established that filing a lawsuit is an exercise of a party's constitutional right of petition. . . . ' [T]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action.' . . . Further, the filing of a judicial complaint satisfies the `in connection with a public issue' component of section 425.16, subdivision (b)(1) because it pertains to an official proceeding. . . ." Chavez v. Mendoza (2001) 94 Cal. App. 4th 1083, 1087, some internal quotation marks omitted. Since defendants are being sued in a federal court sitting in CA for litigation activities, this case is subject to the provisions of California CCP Section 425.16. "Section 425.16 posits instead a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) `A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' . . . . If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1) . . .)" Navellier v. Sletten (2002) 29 Cal. 4th 82, 88.

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Since the Complaint arises out of constitutionally protected litigation activities "the burden shifts to the plaintiff to show a probability of prevailing in the litigation." Shekhter v. Fin. Indem. Co., supra, 89 Cal. App. 4th at p. 151. To meet this burden, plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." Navellier, supra, 29 Cal. 4th at pp. 88-89, citations and internal quotation marks omitted. Here, the plaintiff has not even alleged ­ much less proven ­ a prima facie case. CONCLUSION For all of the foregoing reasons, this action must be dismissed

DATED: 12/19/07 ___________________________________ ARLO H. SMITH , Attorney for Matthew D. Sawyer

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