Opinion
3:23-cv-00995-YY
07-26-2023
ALLY FOUNDATION 501c3, ANDREA M. CASANOVA, and STEVEN F. STILES,Plaintiffs, v. JAN L. KAHN, AARON KAHN, CAROLINE ZAPP KAHN, and KAHN, SOARS, CONWAY LLP, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Pro se plaintiff Steven F. Stiles has filed three actions in this court, all relating in some way to his wife, Andrea M. Casanova. The first case alleged claims pertaining to state court orders appointing Casanova's daughter, defendant Caroline Zapp Kahn, as guardian ad litem for Casanova and restraining plaintiff from having contact with Casanova. Stiles v. Kahn, et al, 3:23-cv-577-YY. That case was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) based on the Rooker Feldman doctrine and other grounds. Id. (Order, July 12, 2023). In this case, plaintiff has brought suit on behalf of his wife and the Ally Foundation. On the same day he filed this case, plaintiff's also filed a third suit, Stiles v. Kahn, et al., 3:23-cv-00996-YY, which is the subject of separate Findings and Recommendations recommending dismissal. For the reasons explained below, this case, like the others, should be dismissed.
The court has granted plaintiff's application to proceed in forma pauperis (IFP). The IFP statute provides that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). “A pleading that states a claim for relief must contain . . . a short and plain statement of the grounds for the court's jurisdiction; . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and . . . a demand for the relief sought, which may include in the alternative or different types of relief.” FED. R. CIV. P. 8(A). “Rule 8 does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroftv. Iqbal, 556 U.S. 662, 678 (2006) (citations omitted). “A complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id.“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In addition to determining whether the complaint states a claim for relief, this court has a continuing obligation to determine whether it has subject-matter jurisdiction over a case. Valdezv. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); see also FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Federal courts hold a Pro se litigant's pleadings to “less stringent standards than formal pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (holding a document filed Pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of the claim and the grounds on which it rests) (citation omitted). “Although . . . Pro se litigant[s] . . . may be entitled to great leeway when the court construes [their] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
First, to the extent plaintiff alleges claims on behalf of his wife and the Ally Foundation, those claims must be dismissed. “Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him.” C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987). “He has no authority to appear as an attorney for others than himself.” Id.
Plaintiff otherwise fails to establish this court has subject matter jurisdiction. Plaintiff asserts this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, and represents that he is a citizen of California. However, one of the defendants, Jan Kahn, is also a citizen of California. Thus, complete diversity does not exist between the parties. Catepillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (recognizing the “general-diversity statute . . . applies only to cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant”).
Plaintiff also fails to establish that this court has federal question jurisdiction. See 28 U.S.C. § 1331. As he did in his first case, plaintiff again claims that Caroline Kahn has obtained an illegal guardianship over his wife. Plaintiff alleges that Caroline Kahn is controlling the Ally Foundation with the help of her father-in-law, Jan Kahn, and Aaron Kahn. Plaintiff seeks “total control of the Ally Foundation at its resources and events” and an accounting of the fund. Plaintiff's theory is not new; in his prior case, plaintiff alleged that Caroline Kahn and others have used the law to “take Andi and my assets and our lives.” See Stiles v. Kahn, 3:23-cv-00577-YY (Am. Compl., ECF 7 at 67). As the court ruled in plaintiff's first case, to the extent plaintiff seeks to challenge or undermine the state court's guardianship order, those claims are barred by the Rooker-Feldman doctrine. See Stiles v. Kahn, et al, 3:23-cv-577-YY (Order, July 12, 2023).
Plaintiff otherwise fails to assert a valid legal basis for the relief he seeks. As the basis for his claims, plaintiff cites a long list of criminal statutes under Chapter 18 of the United States Code. But, as this court explained to plaintiff in his prior case, courts have “rarely implied a private right of action under a criminal statute,” and where they have done so, “there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone.” Stiles v. Kahn, 3:23-cv-00577-YY (Findings and Recommendations, May 16, 2023) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979)); see also Garcia v. Jones, No. 6:22-CV-00118-AA, 2022 WL 2754853, at *7 (D. Or. July 14, 2022) (“To the extent that Plaintiff's allegations of fraud, stalking, money laundering, and tampering with evidence assert violations of federal criminal statutes, such statutes do not generally create a private right of action or provide a basis for civil liability.”) (citing Abcarian v. Levine, 972 F.3d 1019, 1026 (9th Cir. 2020)). Plaintiff cites criminal statutes pertaining to money belonging to the United States, theft and embezzlement in health care, fraud related to computers and electronic mail, concealment of assets from the Federal Deposit Insurance Corporation, and aggravated identity theft. There is no statutory basis for inferring that a civil cause of action exists for these crimes.
Plaintiff also cites 18 U.S.C. § 1952, which pertains to interstate and foreign travel or transportation in aid of racketeering enterprises, and 18 U.S.C. § 1959, which pertains to violent crimes in aid of racketeering activity. But neither of those statutes suggest that there is a private cause of action for those crimes. Moreover, in a civil RICO cause of action, a “plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Canyon Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969, 975 (9th Cir. 2008). The plaintiff also must show that the alleged RICO violation proximately caused the plaintiff's injuries. Id. at 980. Plaintiff's claims pertain to his interest, if any, in a non-profit foundation that was created following the murder of Alexandra (“Ally”) Zapp, see Compl. 4, ECF1, and there is nothing in the complaint to indicate that plaintiff's business or property were injured or that defendants' purported RICO violation proximately caused such an injury.
Generally, a Pro se plaintiff should be given the opportunity to amend the complaint to state a valid claim for relief. However, here, there is no indication that amendment would be anything but futile. This is the third case that plaintiff has filed against Caroline Kahn, and it appears that plaintiff is attempting another end-run around the state court's order appointing her as guardian ad litem for his wife. See Foman v. Davis, 371 U.S. 178 (1962) (holding that futility and bad faith are reasons to deny motion to amend). Therefore, dismissal is appropriate.
RECOMMENDATIONS
Plaintiff's case should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, August 16, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.