Lemke v. Jander, No. 3:2020cv00362 - Document 17 (S.D. Cal. 2021)
Court Description: ORDER granting 9 Defendant's Motion to Dismiss. Plaintiffs First and Second Causes of Action is dismissed WITHOUT PREJUDICE. Plaintiffs Third and Fourth Causes of Action are dismissed WITH PREJUDICE. Plaintiff may file an amended complaint, if any, within thirty (30) days from the date thisOrder is electronically docketed. Signed by Judge Janis L. Sammartino on 3/1/2021. (All non-registered users served via U.S. Mail Service)(jmr)
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Lemke v. Jander Doc. 17 Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.798 Page 1 of 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD G. LEMKE, Plaintiff, 12 13 v. 14 GARY D. JANDER, 15 Case No.: 20-CV-362 JLS (KSC) ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (ECF No. 9) Defendant. 16 17 Presently before the Court is Defendant Gary Jander’s Motion to Dismiss Plaintiff’s 18 First Amended Complaint (“Mot.,” ECF No. 9). Plaintiff Richard Lemke, proceeding pro 19 se, filed an Opposition to the Motion (“Opp’n,” ECF No. 11), and Defendant filed a Reply 20 in Support of the Motion (“Reply,” ECF No. 12). The Court took the matter under 21 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 22 13. Having carefully reviewed Plaintiff’s First Amended Complaint (“FAC,” ECF No. 8), 23 the Parties’ arguments, and the law, the Court GRANTS Defendant’s Motion. 24 BACKGROUND 25 Plaintiff’s claims stem from a probate action in the San Diego Superior Court’s 26 Central Probate Division, Case No. 27-2017-00000227-PR-TR-CTL. See generally FAC. 27 Plaintiff alleges he was appointed to serve as successor trustee to the Moore Family Trust. 28 FAC ¶ 12. However, Plaintiff claims the state court judge overseeing the probate action 1 20-CV-362 JLS (KSC) Dockets.Justia.com Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.799 Page 2 of 10 1 “abused his discretion, violation Judicial Canons 1 – 4 and committed fraud upon the court” 2 by removing Plaintiff as trustee. Id. ¶ 18. The state court appointed Interim Trustee 3 Elizabeth del Pozo. Id. ¶ 19. Plaintiff claims that the “California Superior Court County 4 of San Diego Probate Division did not have jurisdiction over the Marvin G. Moore Trust 5 . . . . Yet they proceeded with litigation against the Plaintiff[’]s real and personal property 6 . . . .” Id. Defendant is an attorney who represents Ms. del Pozo and was Plaintiff’s 7 opposing counsel in the probate action, Mot. at 1; however, Plaintiff alleges that Defendant 8 is not the attorney of record for Ms. del Pozo because Defendant intentionally 9 misrepresented that he has standing to file documents in California state court, FAC ¶¶ 51– 10 56. 11 Plaintiff alleges that Defendant made “misrepresentation[s] of material fact,” filed 12 fraudulent pleadings, and made false and untrue statements to the court in the state court 13 probate action. FAC ¶¶ 21–22, 24–25, 34, 41, 48–49, 51–56, 62, 65. Plaintiff contends 14 that the state courts, including the California Court of Appeal, issued orders related to the 15 Moore Family Trust based on Defendant’s fraudulent misrepresentations. See id. Plaintiff 16 further alleges that Defendant “aided and abetted” Ms. del Pozo in failing to pay state and 17 federal taxes. Id. ¶ 60. Plaintiff alleges Defendant conspired with others to defraud the 18 Internal Revenue Services (“IRS”). Id. ¶ 61. Plaintiff claims Defendant “intentionally 19 made misrepresentation[s] of material fact which involved conspiracy with” several 20 parties, including other attorneys in state court proceedings and the state court judge. Id. 21 ¶ 62. 22 perpetuate fraud upon the court and “steal Plaintiff’s inheritance.” Id. 23 Additionally, Plaintiff alleges that Defendant conspired with these parties to LEGAL STANDARD 24 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 25 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 26 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 27 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 28 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 2 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.800 Page 3 of 10 1 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 2 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 3 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 5 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 7 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 8 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 9 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 10 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 11 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 12 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 13 when the facts pled “allow the court to draw the reasonable inference that the defendant is 14 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 15 556). That is not to say that the claim must be probable, but there must be “more than a 16 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 17 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 18 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” 19 contained in the complaint. Id. This review requires context-specific analysis involving 20 the Court’s “judicial experience and common sense.” 21 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 22 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 23 pleader is entitled to relief.’” Id. Id. at 678 (citation omitted). 24 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 25 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 26 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 27 unless the court determines that “the pleading could not possibly be cured by the allegation 28 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 3 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.801 Page 4 of 10 1 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 2 901 F.2d 696, 701 (9th Cir. 1990)). 3 ANALYSIS 4 In his operative First Amended Complaint, Plaintiff alleges four causes of action: 5 (1) fraud upon the court pursuant to Federal Rules of Civil Procedure 60(b)(3), (c)(1), and 6 (d)(3); (2) civil action for deprivation of rights pursuant to 42 U.S.C. § 1983; (3) attempt 7 to evade or defeat tax pursuant to 26 U.S.C. § 7201; and (4) conspiracy to commit an 8 offense or defraud the United States pursuant to 18 U.S.C. § 371. FAC ¶¶ 50–62. The 9 Court addresses the sufficiency of these claims in turn. 10 I. Rules 60(b)(3), (c)(1), and (d)(3) 11 Defendant argues that Plaintiff “makes conclusory allegations” in support of his 12 fraud on the court claim. Mot. at 6. Further, Defendant argues that “Plaintiff’s entire 13 Amended Complaint stems from Plaintiff’s dissatisfaction in the Probate action, which is 14 governed by state law. Federal courts are without jurisdiction of Probate matters.” Id. 15 (citing Fouvergne v. New Orleans, 59 U.S. 470 (1856); Carstensen v. United States Fidelity 16 & Guaranty Co., 27 F.2d 11 (9th Cir. 1928)). 17 Rule 60(b)(3) provides that a court “may relieve a party” from a “final judgment, 18 order, or proceeding” for “fraud . . . , misrepresentation, or misconduct by an opposing 19 party.” Rule 60(c)(1) sets a one-year time limit for a Rule 60(b)(3) motion; however, Rule 20 60(d)(3) provides that “[t]his rule does not limit a court’s power to . . . set aside a judgment 21 for fraud on the court.” Rule 60(d)(1) empowers the court to “entertain an independent 22 action to relieve a party from a judgment, order, or proceeding.” Generally, the rendering 23 court is the preferred forum for an independent action seeking relief from judgment. 24 Treadway v. Acad. of Motion Picture Arts & Scis., 783 F.2d 1418, 1421 n.2 (9th Cir. 1986). 25 “[C]onsiderations of comity and orderly administration of justice demand[] that the 26 nonrendering court should decline jurisdiction of such an action and remand the parties to 27 the rendering court, so long as it is apparent that a remedy is available there.” Id. at 1421 28 /// 4 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.802 Page 5 of 10 1 (internal quotation marks and brackets omitted) (quoting Lapin v. Shulton, 333 F.2d 169 2 (9th Cir. 1964)). 3 Plaintiff is seeking relief from judgments entered against him in San Diego Superior 4 Court’s Central Probate Division, as well as the California Court of Appeal. See generally 5 FAC. Plaintiff alleges that Defendant made “misrepresentation[s] of material fact,” filed 6 fraudulent pleadings, and made false and untrue statements to the state court. FAC ¶¶ 21– 7 22, 24–25, 34, 41, 48–49, 51–56, 62, 65. Plaintiff raised these claims of fraud in the state 8 court action. See, e.g., id. ¶ 18. Plaintiff repeatedly asserts that, in addition to Defendant’s 9 alleged fraud, the Superior Court judge “committed fraud upon the court” by “allowing 10 strangers off the streets . . . to submit fake documentation as beneficiaries.” Id. ¶¶ 18–19. 11 To the extent Plaintiff disagreed with the state court judge’s rulings, he utilized the state 12 court appeal process. See, e.g., id. ¶ 51. Plaintiff had the opportunity to raise these claims 13 of fraud against Defendant at the Probate Court and the Court of Appeal. See, e.g., id. 14 The Court finds Plaintiff has not provided any reason in his First Amended 15 Complaint or in his Opposition why he could not have brought this claim in the rendering 16 court. Accordingly, the Court declines to “interfere[] with and usurp[] the power of the 17 rendering court.” Treadaway, 783 F.2d at 1422 (“Although justice may occasionally 18 demand that sort of interference, the identification of those rare situations is committed to 19 the sound discretion of the district court.”). In the interest of comity, the Court declines to 20 exercise jurisdiction over Plaintiff’s fraud on the court claim and GRANTS Defendant’s 21 Motion to Dismiss as to that claim. In re Reyes, No. BAP EC-18-1229-BSL, 2019 WL 22 1759749, at *5 (B.A.P. 9th Cir. Apr. 19, 2019), aff’d, No. 19-60027, 2020 WL 3832557 23 (9th Cir. July 8, 2020) (“The law is quite clear that Civil Rule 60(b) applies to relief from 24 judgment of a federal court; it does not provide a basis for subject matter jurisdiction over 25 a claim for relief from a state court judgment.” (emphasis omitted)); Holder v. Simon, 384 26 F. App’x 669 (9th Cir. 2010) (“Rule 60(b) does not provide a basis for subject matter 27 jurisdiction over a claim for relief from a state court judgment.”); Garcia v. Honeywell 28 Int’l, Inc., No. 13CV2399 DMS (WVG), 2014 WL 12199981, at *4 (S.D. Cal. Jan. 28, 5 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.803 Page 6 of 10 1 2014) (dismissing with prejudice fraud on the court claim that could have been pursued in 2 the rendering court). Plaintiff’s fraud on the court claim is DISMISSED WITHOUT 3 PREJUDICE. 4 II. 42 U.S.C. § 1983 5 Defendant argues that Plaintiff’s allegations under 42 U.S.C. § 1983 are conclusory 6 and fail to state a plausible claim for relief. Mot. at 6–7. Plaintiff argues that Defendant 7 “violated the Plaintiff[’]s rights in due process of the law” because Defendant “aid[ed] and 8 abett[ed]” the state court judge to appoint Ms. del Pozo as trustee of the Moore Family 9 Trust. Opp’n at 3. Additionally, Plaintiff alleges he “never had a hearing pursuant to 10 [California Probate Code §§] 1310(b) and 1310(d).” Id. 11 Section 1983 provides a cause of action against any person who, under color of state 12 law, deprives another of any rights, privileges, or immunities secured by the Constitution 13 and laws of the United States. Section 1983 is not a source of substantive rights but merely 14 a method for vindicating federal rights established elsewhere. Graham v. Connor, 490 15 U.S. 386, 393–94 (1989). To succeed on a § 1983 claim, a plaintiff must show “(1) that a 16 right secured by the Constitution or the laws of the United States was violated, and (2) that 17 the alleged violation was committed by a person acting under color of State law.” Long v. 18 Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006). 19 To plead a claim under § 1983, Plaintiff must allege sufficient facts to show that a 20 constitutional or federal right was violated, and that the violation was committed by 21 Defendant while he was acting under color of law. Plaintiff alleges in conclusory terms 22 that the state court judge violated Plaintiff’s Fifth and Fourteenth Amendment rights. FAC 23 ¶¶ 16, 19, 21, 23, 24, 26, 27, 31, 33, 34. The Fifth Amendment applies to federal actors 24 and the Fourteenth Amendment applies to state actors. Betts v. Brady, 316 U.S. 455, 462 25 (1942) (“Due process of law is secured against invasion by the federal Government by the 26 Fifth Amendment and is safeguarded against state action in identical words by the 27 Fourteenth.”) (overruled on other grounds by Gideon v. Wainwright, 372 U.S. 335 (1963)). 28 Plaintiff alleges that Defendant assisted the state court judge in depriving Plaintiff of 6 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.804 Page 7 of 10 1 meaningful hearings and an opportunity to be heard pursuant to California Probate Code 2 §§ 1310(b) and 1310(d). See Cal. Prob. Code § 1310(b) (“Notwithstanding that an appeal 3 is taken from the judgment or order, . . . the trial court may direct the exercise of the powers 4 of the fiduciary, or may appoint a temporary guardian or conservator of the person or estate 5 . . . to exercise the powers, from time to time, as if no appeal were pending.”). The 6 California Probate Code is not a source of substantive federal rights. In addition, the state 7 court judge is not a party to the present action. See Patterson v. Moench, 138 F. App’x 8 904, 906 (9th Cir. 2005) (holding a state court judge is immune from § 1983 liability as 9 long as his “ultimate acts” were “judicial actions taken within the court’s subject matter 10 jurisdiction” (quoting Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc)). 11 Plaintiff may not rely on unsubstantiated allegations against the state court judge to 12 maintain an action against Defendant, who was merely Plaintiff’s opposing counsel in the 13 state court action. Plaintiff’s FAC fails to plausibly allege a violation of a federal right 14 committed by Defendant. 15 Further, Plaintiff’s allegations as to Defendant are unavailing because Plaintiff does 16 not allege Defendant is a federal or state actor. Guillen v. Black, 914 F.2d 262 (9th Cir. 17 1990) (holding the plaintiff could not state a § 1983 claim against his attorney, a private 18 person who does not act under color of law); Keane v. Artz, 162 F. App’x 748, 749 (9th 19 Cir. 2006) (holding a private attorney was not acting under color of state law when he 20 represented the plaintiff’s spouse in a custody dispute). Therefore, Plaintiff cannot invoke 21 this Court’s jurisdiction based on allegations that Defendant violated Plaintiff’s 22 constitutional rights because Plaintiff has not adequately alleged a federal right that 23 Defendant violated or that Defendant was acting under color of law. Accordingly, the Court GRANTS Defendant’s Motion to Dismiss as to this claim. 24 25 This claim is DISMISSED WITHOUT PREJUDICE. 26 III. 26 U.S.C. § 7201 and 18 U.S.C. § 371 27 Plaintiff alleges causes of action under two federal criminal statutes, 26 U.S.C. 28 § 7201 and 18 U.S.C. § 371. Defendant argues that “Plaintiff[] fails to plead sufficient 7 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.805 Page 8 of 10 1 facts to state a claim upon which relief may be granted because [the causes of action are] 2 brought pursuant to . . . statute[s] that contains no private right of action.” Mot. at 12. 3 Plaintiff contends he states plausible claims for relief because “in instances where no 4 express private right of action exists in a statute, a private plaintiff seeking to enforce such 5 a statute has an alternative source of relief: a judicially implied private right of action.” 6 Opp’n at 8. 7 “The fact that a federal statute has been violated and some person harmed does not 8 automatically give rise to a private right of action.” Touche Ross & Co. v. Redington, 442 9 U.S. 560, 568 (1979). “Instead, the statute must either explicitly create a right of action or 10 implicitly contain one.” In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1230 (9th 11 Cir. 2008). Legislative intent to create a private right of action is necessary for an implied 12 private right of action under a criminal statute: “An evaluation of the other elements is not 13 necessary if the court finds that Congress did not intend to create a private right of action.” 14 Stupy v. USPS, 951 F.2d 1079, 1081 (9th Cir. 1981). 15 Plaintiff’s third cause of action alleges violation of 26 U.S.C. § 7201. This is a 16 criminal provision of the Internal Revenue Code that prescribes penalties for attempting to 17 evade or defeat taxes. Pursuant to 26 U.S.C. § 7401, “[n]o civil action for the recovery of 18 taxes, or of any fine, penalty, or forfeiture shall be commenced unless the Secretary 19 authorizes or sanctions the proceedings and the Attorney General or his delegate directs 20 that the action be commenced.” Accordingly, courts that have considered whether § 7201 21 provides for a private right of action have concluded that it does not. See, e.g., Troy McRae 22 v. Joseph Norton, No. 12-CV-1537 (KAM), 2012 WL 1268295, at *4 (E.D.N.Y. Apr. 13, 23 2012) (relying upon § 7401 to conclude that no private right of action exists under § 7201); 24 see also U.S. ex rel. Lissack v. Sakura Glob. Capital Markets, Inc., 377 F.3d 145, 153 (2d 25 Cir. 2004) (“[T]he IRS has exclusive jurisdiction over tax matters[.]”). Therefore, the 26 Court finds there is no private right of action in 26 U.S.C. § 7201 and GRANTS 27 Defendant’s Motion to Dismiss as to this claim. 28 /// 8 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.806 Page 9 of 10 1 Plaintiff’s fourth cause of action alleges conspiracy under 18 U.S.C. § 371. This is 2 a criminal statute and similarly does not provide a private cause of action. See Rockefeller 3 v. U.S. Court of Appeals Office for Tenth Circuit Judges, 248 F. Supp. 2d 17, 23 (D.D.C. 4 2003) (dismissing claims brought pursuant to 18 U.S.C. § 371 “because, as [a] criminal 5 statute[], [it] do[es] not convey a private right of action”); Lamont v. Haig, 539 F. Supp. 6 552, 558 (D.S.D. 1982) (same); Sauls v. Bristol-Myers Co., 462 F. Supp. 887, 889 7 (S.D.N.Y. 1978) (same). 8 Dismiss as to this claim. Accordingly, the Court GRANTS Defendant’s Motion to 9 Because the Court finds that no amendment could state a claim under these statutes, 10 Plaintiff’s claims under 26 U.S.C. § 7201 and 18 U.S.C. § 371 are DISMISSED WITH 11 PREJUDICE. 12 CONCLUSION 13 The Court therefore GRANTS Defendant’s Motion to Dismiss (ECF No. 9). 14 Plaintiff’s First and Second Causes of Action is dismissed WITHOUT PREJUDICE. 15 Plaintiff’s Third and Fourth Causes of Action are dismissed WITH PREJUDICE. 16 Plaintiff may file an amended complaint, if any, within thirty (30) days from the date this 17 Order is electronically docketed. Any amended filing must be complete in itself without 18 reference to Plaintiff’s First Amended Complaint. Any claim not re-alleged in Plaintiff’s 19 amended complaint will be considered waived. See S.D. Cal. Civ. R 15.1; Hal Roach 20 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 21 amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 22 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 23 re-alleged in an amended pleading may be “considered waived if not repled.”). Failure to 24 file within the time allotted may result in the dismissal of this action in its entirety. See 25 Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 26 /// 27 /// 28 /// 9 20-CV-362 JLS (KSC) Case 3:20-cv-00362-JLS-KSC Document 17 Filed 03/01/21 PageID.807 Page 10 of 10 1 of the opportunity to fix his complaint, a district court may convert the dismissal of the 2 complaint into dismissal of the entire action.”). 3 4 IT IS SO ORDERED. Dated: March 1, 2021 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 20-CV-362 JLS (KSC)
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