Bruzzone v. United States Attorney of Northern California District

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 MICHAEL A BRUZZONE, Case No. 22-cv-06412-HSG 8 Plaintiff, ORDER GRANTING MOTION TO DISMISS AND MOTION TO EXPAND 9 v. PRE-FILING REVIEW ORDERS 10 UNITED STATES ATTORNEY OF Re: Dkt. Nos. 14, 19, 32 NORTHERN CALIFORNIA DISTRICT, [11] Defendant. [12] 13 Pending before the Court are the United States Attorney for the Northern District of 14 California’s (“Defendant” or “Government”) motion to dismiss (Dkt. No. 14, “MTD”) and motion 15 to expand pre-filing review orders (Dkt. No. 19, “Review Order Mot.”) as well as pro se Plaintiff’s 16 “motion to submit known (suspect concealed) evidence in hearing” (Dkt. No. 32 “Evidence 17 Motion”). The motions have been fully briefed.1 The Court finds this matter appropriate for 18 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For 19 the reasons discussed below the Court GRANTS Defendant’s motion to dismiss WITHOUT 20 LEAVE TO AMEND, GRANTS Defendant’s motion to expand pre-filing review orders, and 21 DENIES Plaintiff’s Evidence Motion. 22 I. REQUEST FOR JUDICIAL NOTICE 23 In Khoja v. Orexigen Therapeutics, the Ninth Circuit clarified the judicial notice rule and 24 incorporation by reference doctrine. See 899 F.3d 988 (9th Cir. 2018). Under Federal Rule of [26] 1 Plaintiff submitted an untimely opposition to the motion to dismiss (Dkt. No. 21 “MTD Opp.”) and Defendant filed a reply (Dkt. No. 28). Plaintiff submitted an opposition to the motion to [27] expand pre-filing review orders (Dkt. No. 27, “Review Order Opp.”) and Defendant filed a reply 1 Evidence 201, a court may take judicial notice of a fact “not subject to reasonable dispute because 2 it … can be accurately and readily determined from sources whose accuracy cannot reasonably be 3 questioned.” Fed. R. Evid. 201(b)(2). Accordingly, a court may take “judicial notice of matters of 4 public record,” but “cannot take judicial notice of disputed facts contained in such public records.” 5 Khoja, 899 F.3d at 999 (citation and quotations omitted). The Ninth Circuit has clarified that if a 6 court takes judicial notice of a document, it must specify what facts it judicially noticed from the 7 document. Id. at 999 . Further, “[j]ust because the document itself is susceptible to judicial notice 8 does not mean that every assertion of fact within that document is judicially noticeable for its 9 truth.” Id. As an example, the Ninth Circuit held that for a transcript of a conference call, the 10 court may take judicial notice of the fact that there was a conference call on the specified date, but 11 may not take judicial notice of a fact mentioned in the transcript, because the substance “is subject 12 to varying interpretations, and there is a reasonable dispute as to what the [document] establishes.” [13] Id. at 999–1000. 14 Citing Federal Rule of Evidence 201, Defendant requests that the Court take judicial notice 15 of records in twenty-three other cases filed by Plaintiff and attaches Exhibits A-L, orders and 16 opinions issued in several cases and appeals filed by Plaintiff. See Dkt. No. 15 (“RJN”) at 1-2. 17 The Court GRANTS Defendant’s request and takes judicial notice of 1) the fact that these cases 18 and documents were filed, and 2) of any judicial findings contained in them. See United States ex 19 rel. Robinson Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248 (9th Cir.1992) (explaining 20 that courts “may take notice of proceedings in other courts, both within and without the federal 21 judicial system, if those proceedings have a direct relation to matters at issue”). 22 II. FACTUAL BACKGROUND 23 Plaintiff’s complaint is difficult to follow. To the best of the Court’s understanding, 24 Plaintiff is suing the Government for its decision not to intervene in some of Plaintiff’s previous 25 litigation against Intel. See Compl. at 12. Plaintiff has been declared a vexatious litigant as to 26 “litigation against Intel and/or its current or former employees.” See Bruzzone v. Intel 27 Corporation, 14-cv-01279-WHA, Dkt. No. 88 (“2014 Order”) at 13 (N.D. Cal. Aug. 19, 2014). 1 McManis, William Faulkner, McManis Faulkner, its current employees, and its former 2 employees.” Bruzzone v. McManis, 18-cv-01235-PJHRJN, Dkt. No. 58 (“2018 Order”) at 14 3 (N.D. Cal. Oct. 31, 2018). 4 Defendant moves to dismiss Plaintiff’s complaint due to lack of subject matter jurisdiction, 5 failure to comply with Rules 8 and 10, and failure to state a claim. See generally MTD. 6 Defendant also moves to expand the existing pre-filing review orders “to include the United States 7 and its employees, including defendants Plaintiff has named in the instant and prior actions.” See 8 Review Order Mot. at 2. 9 III. MOTION TO DISMISS 10 A. Legal Standard 11 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 12 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 13 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 14 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 15 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 16 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 17 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 18 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 19 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 20 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 21 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 22 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 23 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 24 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 25 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 26 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 27 The Court also need not accept as true allegations that contradict matter properly subject to 1 F.3d at 988. And even where facts are accepted as true, “a plaintiff may plead [him]self out of 2 court” if he “plead[s] facts which establish that he cannot prevail on his ... claim.” Weisbuch v. 3 Cty. of Los Angeles, 119 F.3d 778 , 783 n.1 (9th Cir. 1997) (quotation omitted). 4 Additionally, “[p]leadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e). 5 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 6 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation 7 omitted). In addition, “[i]n civil rights cases where the plaintiff appears pro se, the court must 8 construe the pleadings liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi 9 v. L.A. Police Dep’t, 839 F.2d 621 , 623 (9th Cir. 1988). However, even a “liberal interpretation of 10 a . . . complaint may not supply essential elements of the claim that were not initially pled.” See 11 Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “[P]ro se litigants are 12 bound by the rules of procedure,” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995), which require 13 “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. 14 Civ. P. 8(a). 15 Even if the court concludes that a 12(b)(6) motion should be granted, the “court should 16 grant leave to amend even if no request to amend the pleading was made, unless it determines that 17 the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 18 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted). 19 B. Discussion 20 i. Subject Matter Jurisdiction 21 The Government argues that this Court lacks jurisdiction because the United States has not 22 waived sovereign immunity. See MTD 8-12. The Court agrees. 23 “An action can be brought by a party against the United States only to the extent that the 24 Federal Government waives its sovereign immunity . . . . If sovereign immunity has not been 25 waived, the court must dismiss the case for lack of subject matter jurisdiction.” Esquivel v. United 26 States, 21 F.4th 565 , 572–73 (9th Cir. 2021) (quotations omitted). The Government interprets 27 Plaintiff’s complaint as alleging the following claims: “(1) violations of the False Claims Act; (2) 1 violate Plaintiff’s civil rights under 42 U.S.C. § 1985 ; and (6) violations of the Due Process Clause 2 of the Fourteenth Amendment.” MTD at 9 (citing Compl. at 4-7, 10). The Court adopts the 3 Government’s liberal construction of Plaintiff’s complaint for purposes of this order. 4 In its motion, the Government walks through each type of claim and argues that the United 5 States has not waived sovereign immunity for any of them, providing supporting case law. See id. 6 at 10-12 (collecting cases). Mr. Bruzzone does not provide any comprehensible or coherent 7 response. See generally MTD Opp. The Court agrees with the Government’s arguments and finds 8 that it lacks subject matter jurisdiction over the claims in the complaint because the United States 9 has not waived sovereign immunity as to any of the claims potentially alleged in the complaint. 10 ii. Failure to State a Claim 11 In the alternative, the Government argues that the case should be dismissed because 12 “Plaintiff fails to plead any cognizable legal theories or sufficient facts to plausibly state any 13 claims.” MTD at 15. The Government points out that “[t]o the extent Plaintiff purports to base 14 his claim on the False Claims Act’s authorization of qui tam actions in 31 U.S.C. § 3730 (b), it is 15 black-letter law that Plaintiff cannot prosecute such an action pro se without the United States’ 16 permission—which Plaintiff has not obtained here.” Id. at 17 . The Government further points out 17 that “[o]ther than the qui tam provision (which Plaintiff cannot use), the False Claims Act does not 18 authorize any other private cause of action that could possibly support Plaintiff’s claims” and that 19 “[t]here is no express or implied cause of action for Plaintiff to bring suit against the United States 20 Attorney here.” Id. 21 The Court agrees. Plaintiff’s complaint alleges no legally cognizable claim against the 22 United States Attorney: to the best of the Court’s understanding, Plaintiff is suing the Government 23 because it declined to intervene in his qui tam action against Intel. But the False Claims Act does 24 not require the Government to intervene in a qui tam action: it specifically states that the 25 Government may elect not to proceed with an action. See 31 U.S.C. § 3730 (c)(3) (“If the 26 Government elects not to proceed with the action, the person who initiated the action shall have [27] 1 the right to conduct the action”).2 2 To the extent Plaintiff claims that he had some sort of contractual or quasi-contractual 3 arrangement with the Government (see e.g., Compl. at 10), this claim is also frivolous. As the 4 Federal Circuit explained in an appeal filed by Mr. Bruzzone in one of his previous actions, “qui 5 tam actions themselves do not give rise to any contractual obligations because, at most, they arise 6 only from an imputed promise to perform a legal duty.” Bruzzone v. United States, No. 20227 1470, 2022 WL 3147196 , at *1 (Fed. Cir. Aug. 8, 2022). The Court agrees with the Government 8 that the Complaint, to the extent the Court can even understand it, simply does not allege any 9 “facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570 , under any 10 theory, with respect to Defendants’ purported obligation to pay Plaintiff over $68 million. 11 The Court therefore dismisses the complaint due to 1) lack of subject matter jurisdiction, 12 and 2) failure to state a claim.3 Based on the nature of the deficiencies in Plaintiff's complaint and 13 his subsequent filings, the Court finds that granting leave to amend would be futile. The Court 14 therefore DISMISSES the complaint WITHOUT LEAVE TO AMEND. See Ramirez v. Galaza, [15] 334 F.3d 850, 860 (9th Cir. 2003) (explaining that “[l]eave to amend should be granted unless the 16 pleading could not possibly be cured by the allegation of other facts, and should be granted more 17 liberally to pro se plaintiffs”) (quotations omitted). 18 IV. MOTION TO EXPAND PRE-FILING REVIEW ORDERS 19 A. Legal Standard 20 “The All Writs Act, 28 U.S.C. § 1651 (a), provides district courts with the inherent power 21 to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 22 F.3d 1047, 1057 (9th Cir. 2007). But the Ninth Circuit has cautioned that “such pre-filing orders 23 are an extreme remedy that should rarely be used. Courts should not enter pre-filing orders with 24 undue haste because such sanctions can tread on a litigant’s due process right of access to the [25] 2 While it is true that “a pro se relator cannot prosecute a qui tam action on behalf of [26] the United States,” Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1126 (9th Cir. 2007), no authority supports imposing any duty on the United States to intervene in a qui tam case [27] brought by a pro se plaintiff. 1 courts.” Id. At the same time, “[f]lagrant abuse of the judicial process cannot be tolerated because 2 it enables one person to preempt the use of judicial time that properly could be used to consider 3 the meritorious claims of other litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 4 1990). 5 The Ninth Circuit has adopted a four-factor test to determine whether a pre-filing order is 6 warranted: 7 When district courts seek to impose pre-filing restrictions, they must: (1) give litigants notice and an opportunity to oppose the order before 8 it is entered; (2) compile an adequate record for appellate review, including a listing of all the cases and motions that led the district 9 court to conclude that a vexatious litigant order was needed; (3) make substantive findings of frivolousness or harassment; and (4) tailor the 10 order narrowly so as to closely fit the specific vice encountered. 11 Ringgold-Lockhart v. Cnty. of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (quotations 12 omitted and cleaned up). 13 A. Discussion 14 Even though the use of pre-filing review orders “against a pro se plaintiff should be 15 approached with particular caution,” the Court finds that all four factors are met and that such an 16 order is warranted. See De Long, 912 F.2d at 1148 (quoting Pavilonis v. King, 626 F.2d 1075 , 17 1079 (1st Cir.)). 18 i. Notice 19 The Government filed a motion to expand the pre-filing review orders, which Plaintiff 20 opposed. See Review Order Mot. and Review Order Opp. Plaintiff therefore has had “notice and 21 an opportunity to oppose the order before it is entered.” Ringgold-Lockhart, 761 F.3d at 1062 ; see 22 also Balik v. City of Torrance, 841 F. App’x 21 , 22 (9th Cir. 2021) (rejecting as unpersuasive 23 plaintiff’s argument that he was “entitled to a hearing before the district court declared him a 24 vexatious litigant”).4 25 ii. Record for Appellate Review 26 The record for appellate review “needs to show, in some manner, that the litigant’s [27] 1 activities were numerous or abusive.” See De Long, 912 F.2d at 1147 . Plaintiff has filed over 2 twenty cases in both state and federal courts, most of which either directly list Intel as a party or 3 are related, as this case is, to his Intel litigation. See RJN at 1; 2014 Order at 9; 2018 Order at 3. 4 Much ink has already been spilled summarizing Plaintiff’s extensive litigation history and the 5 Court will not repeat it in detail here. See 2014 Order at 9; 2018 Order at 3. Below is a summary 6 of the cases filed by Mr. Bruzzone to date: 7 1. Bruzzone v. Intel Corp., et al., No. 99-cv-779409 (Santa Clara Super. Ct. Jan. 20, 8 1999); 9 2. Sealed Matter, No. 08-cv-04169-WHA (N.D. Cal. Sept. 3, 2008) 10 3. Sealed Matter, No. 09-cv-00679-WHA (N.D. Cal. Feb. 17, 2009); 11 4. Bruzzone v. Intel Corp., No. 11-cv-213829 (Santa Clara Super. Ct. Nov. 29, 2011); 12 5. Bruzzone, et al. v. Intel Corp., et al., No. 13-cv-03729-WHA (N.D. Cal. Aug. 12, 13 2013); 14 6. Bruzzone v. Intel Corp., et al., No. 14-cv-01279-WHA (N.D. Cal. Mar. 19, 2014); 15 7. Bruzzone v. ARM Inc., et al., No. 14-cv-273902 (Santa Clara Super. Ct. Dec. 2, 16 2014); 17 8. Bruzzone v. Greenwood, et al., No. 14-cv-273903 (Santa Clara Super. Ct. Dec. 2, 18 2014); 19 9. Bruzzone v. Intel Corp., No. 15-mc-80002-WHA (N.D. Cal. Jan. 5, 2015); 20 10. Bruzzone v. Intel Corp., et al., No. 16-mc-80042-VC (N.D. Cal. Feb. 22, 2016); 21 11. Bruzzone v. Intel Corp., et al., No. 16-mc-80063-HSG (N.D. Cal. Mar. 16, 2016); 22 12. Bruzzone v. Alsup, No. 16-mc-80103-RS (N.D. Cal. May 10, 2016); 23 13. Bruzzone v. Intel Corp. Legal Dep't, et al., No. 16-mc-80111-EMC (N.D. Cal. May 24 19, 2016); 25 14. Bruzzone v. Intel Corp. Legal Dep't, et al., No. 16-mc-80126-JST (N.D. Cal. June 26 13, 2016); 27 15. Bruzzone v. Intel Corp., et al., No. 16-mc-80233-WHA (N.D. Cal. Oct. 31, 2016); 1 17. Bruzzone v. Alsup, No. 17-cv-04558-JD (N.D. Cal. July 27, 2017); 2 18. Bruzzone v. McManis, et al., No. 18-cv-01235-PJH (N.D. Cal. Feb. 26, 2018); 3 19. Bruzzone v. Intel Corp., et al., No. 18-cv-00865-KJM-DB (E.D. Cal. Apr. 10, 4 2018); 5 20. Bruzzone v. United States, No. 21-cv-01261 (Fed. Cl. Apr. 15, 2021); 6 21. Bruzzone v. Intel Corp., No. 21-cv-01539-TLN-CKD (E.D. Cal. Aug. 27, 2021); 7 22. Bruzzone v. Intel Corp., No. 22-mc-00045 (E.D. Cal. Feb. 2, 2022); 8 23. Bruzzone v. Intel Corp., No. 22-cv-00430 (S.D. Iowa Dec. 19, 2022). 9 See RJN at 1. 10 Plaintiff has already been declared a vexatious litigant in this district as to litigation against 11 Intel, James McManis, William Faulkner, and McManis Faulkner, and affiliated parties. See 2014 12 Order at 13; 2018 Order at 14. This order incorporates the factual record and reasoning contained 13 in Judge Alsup’s and Judge Hamilton’s earlier vexatious-litigant order, which this order extends. 14 See 2014 Order; 2018 Order. 15 iii. Substantive Findings of Frivolousness or Harassment 16 “An injunction cannot issue merely upon a showing of litigiousness.” Moy v. United 17 States, 906 F.2d 467, 470 (9th Cir. 1990). Instead, “[t]o decide whether the litigant’s actions are 18 frivolous or harassing, the district court must look at both the number and content of the filings as 19 indicia of the frivolousness of the litigant's claims.” Molski, 500 F.3d at 1059 (quotations omitted). 20 The Court finds Plaintiff’s conduct frivolous and harassing. See, e.g., Huggins v. Hynes, [21] 117 F. App’x 517, 518 (9th Cir. 2004) (affirming district court’s pre-filing review order in part 22 because plaintiff “abused the courts by repeatedly relitigating the same controversy and repeatedly 23 filing frivolous motions and pleadings”).” Plaintiff is apparently fixated on litigating against Intel 24 and its employees and agents. He now attempts to skirt the pre-filing review orders that were 25 issued to stop his harassment of Intel by suing the federal government for failing to intervene in 26 his qui tam case against Intel, a patently unviable claim as a matter of law. See generally Compl. 27 Like many of the cases and filings summarized in the earlier vexatious-litigant orders, the present 1 generally id. The number of cases Plaintiff has filed, the legal unviability of the present case, and 2 his fixation with seeking to recover from someone for his repeatedly rejected claims against Intel 3 lead the Court to find that his conduct is both frivolous and harassing. 4 iv. Order is Narrowly Tailored 5 “The fourth and final factor in the De Long standard is that the pre-filing order must be 6 narrowly tailored to the vexatious litigant’s wrongful behavior.” Molski, 500 F.3d at 1061. 7 In Molski, the court approved the scope of an order because it prevented the plaintiff from filing 8 “only the type of claims Molski had been filing vexatiously,” and “because it [would] not deny 9 Molski access to courts on any ... claim that is not frivolous.” Id. 10 Defendants propose that Plaintiff be prevented from filing any complaints against the 11 United States of America or any past, current, or future employees without first obtaining leave of 12 Court. See Dkt. No. 19-1 (“Proposed Order”). The vexatious litigant order against Plaintiff has 13 already had to be expanded once and the Court agrees that it should be expanded again. However, 14 it finds the Government’s suggestion too broad. The Court will limit the pre-filing order 15 expansion to cover only cases filed against the Government and its employees which relate in any 16 way to Plaintiff’s litigation or claims against Intel or any of its employees, agents, or attorneys.5 17 V. EVIDENCE MOTION 18 The Court was unable to follow pro se Plaintiff’s motion or understand what relief he 19 seeks. To the extent Plaintiff seeks some sort of evidentiary hearing or proceeding, the motion is 20 DENIED because the Court has found no subject matter jurisdiction over his claims.6 21 VI. CONCLUSION 22 The Court GRANTS Defendant’s motion to dismiss (Dkt. No. 14) WITHOUT LEAVE 23 TO AMEND. [25] 5 In Balik, the Ninth Circuit affirmed an order which both dismissed a case because the “claims are too frivolous and unsubstantial to invoke subject matter jurisdiction,” and entered a pre-filing [26] review order against the plaintiff. See 841 F. App’x at 21-22. The Court reads Balik to confirm that it can issue a pre-filing review order in a case over which it lacks subject matter jurisdiction. [27] 6 Plaintiff was asked to re-notice his Evidence Motion (see Dkt. No. 33) and he appears to have 1 The Court GRANTS Defendant’s motion to expand pre-filing review orders (Dkt. No. 19). 2 || Plaintiff may not file, without obtaining prior leave from the Court, any further pro se complaints: 3 a) against Intel Corporation, its current employees, its former employees, Evangelina 4 Almirantearena, Steve Lund, Harley Stock, and/or Andrew Grove; or 5 b) against James McManis, William Faulkner, McManis Faulkner, its current employees, 6 and/or its former employees; or 7 c) against the United States of America or the past, current, or future employees of the 8 federal government—including employees of the United States Attorney’s Office and 9 the federal judiciary—that relate in any way to his litigation or claims against Intel and 10 its past, current, or future employees, agents, or attorneys. 11 If Plaintiff wishes to file a complaint that meets the above description, he shall provide a 12 || copy of any such complaint, a letter requesting that the complaint be filed, and a copy of this 5 13 Order to the Clerk of this Court. The Clerk shall then forward the complaint, letter, and copy of 14 || this Order to the Duty Judge for a determination whether the complaint should be accepted for 3 15 filing. Plaintiff is warned that any violation of this order will expose him to contempt proceedings 16 and appropriate sanctions, and any action filed in violation of this Order will be subject to 3 17 dismissal. 18 The Court DENIES Plaintiff?s Evidence Motion (Dkt. No. 32). 19 The Clerk is DIRECTED to enter judgment in favor of Defendant and to close the case. 20 IT IS SO ORDERED. 21 Dated: 8/15/2023 22 Apupurred 8 Mb |). 73 HAYWOOD S. GILLIAM, JR. United States District Judge