Opinion
3:23-cv-00372-YY
05-02-2023
EUGENIA SONG, Plaintiff, v. JOHN Q. LANDERS, JR., DAVID DOWLING, and ROBERT HENKEL, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
On March 20, 2023, the court granted pro se plaintiff Eugenia Song's application to proceed in forma pauperis (“IFP”) and directed her to file an Amended Complaint that stated a claim for relief and met federal court jurisdictional requirements. See Order, ECF 5. Plaintiff filed an Amended Complaint (ECF 9); however, it failed to state a claim for relief and failed to establish the court's jurisdiction. On April 7, 2023, the court issued another order explaining the deficiencies in plaintiff's Amended Complaint in detail and directing plaintiff to file a Second Amended Complaint, which she did on April 18, 2023. Second Am. Compl., ECF 15. Plaintiff's Second Amended Complaint still fails to cure the deficiencies outlined in the court's orders. Because plaintiff has been given multiple attempts to cure the deficiencies in her complaints but has failed to do so, this case should be dismissed without prejudice.
I. Relevant Law Requiring Screening Cases and Determining Jurisdiction
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 . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). “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.” Ashcroft v. 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.
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). Pro se “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).
In addition to determining whether the complaint states a claim for relief, this court is “obligated to consider sua sponte whether [it has] subject matter jurisdiction. See Valdez v.Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(H)(3).
I. Failure to Allege Valid RICO Claims
Plaintiff's claims stem from her belief that a “military weapon-grade intelligence tool” has been accessing her computer and emails since she resigned from a graduate teaching program at Columbia University in 2013. Plaintiff Second Amended Complaint contains the following factual allegations:
In June 2013, while enrolled in Columbia University, plaintiff “noticed a computer issue” and shared it with the university's provost for student affairs. Second Am. Compl. 1, ECF 15. Plaintiff withdrew from the university in October 2013, after “eight (8) separate notices . . . about the computing issue was unsuccessfully resolved.” Id. at 2. Plaintiff alleges that, in 2019, she “was advised of possible existence of a military weapon-grade intelligence tool used for psychology research, which was implemented about eight (8) months post-separation from the College.” Id. She claims this program “is used to read subtext in communication . . ., such as email.” Id. Plaintiff “had no knowledge of this military technology's use during her tenure at the College,” and “never consented to its use in her private residence or her workplace.” Id.
Plaintiff alleges that defendant Robert Henkel is a former employee at Ascension Health, a non-profit organization where plaintiff was previously employed, and that he met with her in April 2010 to discuss the possibility of financially sponsoring a graduate degree at Columbia University, an offer that plaintiff declined. Id. at 1. Plaintiff claims that, on some unspecified date, Henkel wired approximately $800,000 to Peter Coleman, a professor at Columbia University to “facilitate the illicit use of this military technology on her electronic communication.” Id. at 2.
According to plaintiff, John Q. Landers is a banker, and plaintiff previously worked with Landers on “bond deals.” Id. at 3. 30. Plaintiff alleges “[t]here has never been any formal or contractual relationship between Landers and Henkel, but Landers has stayed in contact,” and “[i]n 2016, the Defendant tried to work with Orrick, Herrington and Sutcliffe, as bond counsel, in Sacramento, CA to see if this military communication tool could be financed as Catholic Charity Care (categorized as innovation, or Charity Care IV), for the client.” Id. Plaintiff claims that in July 2017, Landers hired a private detective, Bruce Newsome, to “take pictures of her home computer for a small fee of approximately $15,000.” Id. at 4. Plaintiff alleges that, since “mid-March, in conjunction with the initial complaint filing for this case, Defendant has been harassed and threatened by Mr. Newsome and his friends,” and that it has “escalated to physical assault and murderous threats,” for which she has sought restraining orders in Oregon and California. Id.
Finally, plaintiff claims that defendant David Dowling is “a senior organizational development consultant with his own company based in Dana Point, California” and “has served as a confidante to Henkel for many years.” Id. Plaintiff “has been led to believe Dowling colluded with Henkel on this tool.” Id.
Plaintiff alleges three claims under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, specifically, 18 U.S.C. § 1962(b), (c), and (d). Those statutes provide:
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.Plaintiff alleges that defendants engaged in a “pattern of racketeering activity . . . for the unlawful purpose of intentionally defrauding” her. Second Am. Compl. 4, ECF 15. Specifically, plaintiff alleges that defendants “[w]ired funds to commit bypass fraud,” made “[o]ver eighty-five (85) phone calls with personnel intelligence received by Defendant Henkel,” and “directly acquired and maintained unlawful interests in the Plaintiff's personal activities as well as business interests,” and Henkel received hundreds of e-mails. Id. at 4-5.
Plaintiff asserts only vague and confusing allegations as to how and when defendants “colluded” to use military technology to access her electronic communications. Second Am. Compl. 6, ECF 15. But even if the complaint could somehow be construed to allege that defendants had formed an enterprise, plaintiff has failed to allege that defendants engaged in “a pattern of racketeering activity” as defined in 18 U.S.C. § 1961(1). The kind of conduct that plaintiff claims defendants allegedly committed-i.e., repeatedly accessing plaintiff's emails on her home computer-does not constitute any of the enumerated acts that would constitute a “racketeering activity” (e.g., an act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, dealing in controlled substances, counterfeiting, embezzlement from pension and welfare funds, trafficking in firearms, trafficking in persons, mail and wire fraud, tampering or retaliating against witnesses or victims, money laundering, etc.).
Additionally, a civil RICO “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. “A ‘showing that the defendant violated § 1962, the plaintiff was injured, and the defendant's violation was a ‘but for' cause of plaintiff's injury' is insufficient to meet the requirement in § 1964(c) that the plaintiff's injury be ‘by reason of' the RICO violation.” Id. at 981. “Rather, a plaintiff must also show that the defendant's RICO violation proximately caused her injury.” Id. (citation omitted). “Proximate causation requires ‘some direct relation between the injury asserted and the injurious conduct alleged.'” Id. (citation omitted).
The Second Amended Complaint contains no details regarding how plaintiff's business or property were injured or that defendants' purported RICO violation proximately caused such an injury. Plaintiff generally alleges that defendants have “directly acquired and maintained unlawful interests in the Plaintiff's personal activities as well as business interests through the pattern of racketeering activity.” Second Am. Compl. 5, ECF 15. Such vague allegations are insufficient to satisfy Rule 8 and plausibly allege a valid RICO claim.
Plaintiff was previously advised by this court that her Complaint and Amended Complaint failed to state a RICO cause of action. Order (March 20, 2023), ECF 5; Order (April 7, 2023), ECF 13. Despite being given three opportunities to allege a valid claim for relief, plaintiff has failed to remedy these problems. Therefore, her RICO claims should be dismissed. II. State Law Claims and Diversity Jurisdiction
This is in addition to being advised by the court in another case, Song v. Burke, 3:23-cv-439-JR, that her RICO claim in that case was deficient.
In addition to RICO claims, plaintiff also alleges claims for fraud and unjust enrichment. These are state common law and equitable claims. Plaintiff asserts there is diversity jurisdiction in this case because she resides in Oregon and Texas and defendants reside in California and Missouri. The court previously advised plaintiff that a person's residence does not determine citizenship for purposes of diversity jurisdiction. Order (April 7, 2023) 6, ECF 13. Nevertheless, even assuming the parties are citizens of different states, plaintiff's vague allegations that her “personal activities and business interests” have been adversely affected does not sufficiently allege that the amount in controversy here exceeds $75,000.
Additionally, plaintiff has failed to allege a plausible claim for fraud. The “elements of actionable fraud consist of: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity of ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) and his consequent and proximate injury.” Musgrave v. Lucas, 193 Or. 401, 410 (1951). Rule 9 requires that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” FED. R. CIV. P. 9(B). PLAINTIFF'S COMPLAINT CONTAINS NO SUCH DETAILS, INCLUDING HOW PLAINTIFF WAS INJURED AS A RESULT OF RELYING ON DEFENDANTS' FALSE REPRESENTATIONS.
Plaintiff's claim for unjust enrichment also fails. “The elements of the quasi-contractual claim of unjust enrichment are (1) a benefit conferred, (2) awareness by the recipient that she has received the benefit, and (3) it would be unjust to allow the recipient to retain the benefit without requiring her to pay for it.” Cron v. Zimmer, 255 Or.App. 114, 130 (2013). There are no allegations of a quasi-contract here.
III. Personal Jurisdiction and Venue
Plaintiff has failed to establish this court has personal jurisdiction over defendants. “Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Daimler AG v.Bauman, 571 U.S. 117, 125 (2014)); see FED. R. CIV. P. 4(k)(1)(A). Oregon's long-arm statute is co-extensive with constitutional standards, and thus this court need only determine whether its exercise of personal jurisdiction is consistent with constitutional due process standards. Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing OR. R. CIV. P. 4L); Swank v. Terex Utilities, Inc., 274 Or.App. 47, 57 (2015).
Constitutional due process requires that the defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (citations omitted). “In giving content to that formulation, the Court has long focused on the nature and extent of ‘the defendant's relationship to the forum State.'” Ford Motor Co. v. Montana EighthJud. Dist. Ct., 141 S.Ct. 1017, 1024 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Ct. ofCalifornia, San Francisco Cty., 582 U.S. 255, 261 (2017)). That focus led to the recognition of two kinds of personal jurisdiction: general jurisdiction and specific jurisdiction. Id. (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
General jurisdiction extends to “any and all claims” brought against a defendant, but a court may exercise general jurisdiction only when a defendant is “essentially at home” in the forum state. Ford Motor, 141 S.Ct. at 1024 (citation omitted). Individuals are subject to general jurisdiction in their place of domicile. Id. (citing Daimler, 571 U.S. at 137). A corporation is subject to general jurisdiction in its place of incorporation and its principal place of business, but a corporation may be “at home” somewhere else in an exceptional case. Id. (citing Daimler, 571 U.S. at 139 n.19).
“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons.” Picot, 780 F.3d at 1211 (quoting Daimler, 571 U.S. at 125); seeFED. R. CIV. P. 4(k)(1)(A). Oregon's long-arm statute is co-extensive with constitutional standards, and thus this court need only determine whether its exercise of personal jurisdiction is consistent with constitutional due process standards. Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing OR. R. CIV. P. 4L); Swank v. Terex Utilities, Inc., 274 Or.App. 47, 57 (2015).
Constitutional due process requires that the defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (citations omitted). “In giving content to that formulation, the Court has long focused on the nature and extent of ‘the defendant's relationship to the forum State.' ” Ford Motor Co. v. Montana EighthJud. Dist. Ct., 141 S.Ct. 1017, 1024 (2021) (quoting Bristol-Myers Squibb Co. v. Superior Ct. ofCalifornia, San Francisco Cty., 137 S.Ct. 1773, 1779 (2017)). That focus led to the recognition of two kinds of personal jurisdiction: general jurisdiction and specific jurisdiction. Id. (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
General jurisdiction extends to “any and all claims” brought against a defendant, but a court may exercise general jurisdiction only when a defendant is “essentially at home” in the forum state. Ford Motor, 141 S.Ct. at 1024 (citation omitted). Individuals are subject to general jurisdiction in their place of domicile. Id. (citing Daimler, 571 U.S. at 137). A corporation is subject to general jurisdiction in its place of incorporation and its principal place of business, but a corporation may be “at home” somewhere else in an exceptional case. Id. (citing Daimler, 571 U.S. at 139 n.19).
Plaintiff alleges that defendants reside in California and Missouri, i.e., not in Oregon. Therefore, plaintiff has not established that defendants are “essentially at home” in this district, and there is no general jurisdiction over them.
Specific jurisdiction applies to a broader class of defendants than general jurisdiction, but for a “narrower class of claims.” Ford Motor, 141 S.Ct. at 1024. Specific jurisdiction over a nonresident defendant depends on the relationship between “the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283 (2014). The Ninth Circuit employs a three-prong test for analyzing specific jurisdiction. First, the defendant “must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.” Glob. Commodities Trading Grp.,Inc. v. Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1107 (9th Cir. 2020) (quoting Schwarzenegger, 374 F.3d at 802). Second, the claim must arise out of or relate to the defendant's forum-related activities, though a strict causal relationship is not required. Id.; FordMotor, 141 S.Ct. at 1026. Third, the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. Glob. Commodities, 972 F.3d at 1107.
Plaintiff's Second Amended Complaint contains insufficient allegations showing how there is specific jurisdiction over defendants. Plaintiff alleges she is a resident of both Oregon and Texas, and that “[d]efendants' ongoing unlawful activity is not isolated but rather is persistent and poses a continuing threat.” Second Am. Compl. 4, ECF 15. Previously, in her Amended Complaint, plaintiff alleged that a “substantial part of the events or omissions giving rise to this claim occurred in this district,” Am. Compl., ECF 9 at 8, but offered no specifics as to how defendants purposefully directed any activities or consummated any transaction in this state or otherwise performed some act by which they purposefully availed themselves of the privilege of conducting activities here. Plaintiff alleged that she “maintained a residence in Beaverton, Oregon for many years,” but did not indicate exactly when that was. Id., ECF 9 at 7. The court has given plaintiff an opportunity to amend her complaint to provide additional details, but she has failed to do so. Without additional details, the court can only speculate as to whether defendants' alleged access to plaintiff's computer occurred while plaintiff was in Oregon. Thus, plaintiff has not established specific jurisdiction either.
Plaintiff has similarly failed to establish that venue is proper in this district. 28 U.S.C. § 1391(b) provides that a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.In her Amended Complaint, plaintiff alleged vaguely that a “substantial part of the events or omissions giving rise to this claim occurred in this district.” Am. Compl., ECF 9 at 8. Plaintiff has been given an opportunity to explain further in her Second Amended Complaint, but still fails to offer details showing that venue is proper in this district, even assuming her claims are properly pled.
RECOMMENDATIONS
Because plaintiff has failed to allege a valid claim for relief and has failed to establish subject matter jurisdiction, personal jurisdiction, and venue, this case should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due May 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.
IT IS SO ORDERED.