Johnson v. Athenix Physicians Group, Inc.'s

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MARY-ELIZABETH JOHNSON, Case No.: 19-CV-01888-AJB-MDD Plaintiff, [12] ORDER GRANTING DEFENDANTS’ v. 13 MOTIONS TO DISMISS AND ATHENIX PHYSICIANS DISMISSING PLAINTIFF’S SECOND [14] GROUP, INC., corporation owner AMENDED COMPLAINT WITHOUT 15 JAMES L. HAEFNER; DAVID LEAVE TO AMEND FELLOWS, M.D., individual; [16] MARK POLIQUIN, ESQ, (Doc. Nos. 26, 31, 34–35, 39.) 17 individual; ELIZABETH FLATLEY, ESQ., individual; [18] TREVOR LOO, ESQ., individual; 19 AHSAN RASHID, M.D., dba INTERNAL MEDICINE OF [20] SAND CANYON, individual; 21 HOAG MEMORIAL PRESBYTERIAN HOSPITAL, [22] corporation rep LISA BYNUM, 23 Defendants. [28] 1 Before the Court are Defendants Ahsan Rashid, M.D., Elizabeth Flatley, James M. 2 Haefner, Mark Poliquin, Hoag Memorial Presbyterian Hospital, Trevor Loo, and Lisa 3 Bynum’s motions to dismiss pro se Plaintiff Mary-Elizabeth Johnson’s (“Plaintiff”) 4 Second Amended Complaint (“SAC”). (Doc. Nos. 26, 31, 34–35, 39.) Plaintiff has not filed 5 an opposition brief. For the reasons set forth below, the Court GRANTS the motions, and 6 Plaintiff’s SAC is DISMISSED WITHOUT LEAVE TO AMEND. 7 I. BACKGROUND 8 Plaintiff alleges that on January 15, 2016, Plaintiff suffered irreversible injury from 9 a “Tummy Tuck” procedure that allegedly resulted in lymphedema and disfigurement. On 10 April 7, 2017, Plaintiff filed a medical malpractice lawsuit in the Superior Court of 11 California, County of Orange. Plaintiff’s case proceeded to trial on July 23, 2018 and 12 resulted in a judgment of nonsuit against Plaintiff for failing to offer sufficient evidence to 13 prove the elements of breach and causation. On October 1, 2019, Plaintiff filed the instant 14 action for fraud on the court and filed a motion to proceed in forma pauperis (“IFP”). (Doc. 15 Nos. 1, 2.) 16 On January 10, 2020, the Court screened the Complaint pursuant to 28 U.S.C. 17 § 1915(e)(2) and dismissed Plaintiff's Complaint with leave to amend. (Doc. No. 6.) The 18 Court found that the Complaint did not provide an adequate statement demonstrating the 19 Court’s subject matter jurisdiction and noted that district courts lack subject matter 20 jurisdiction to review appeals from state court judgments. (Id.) The Court also stated that 21 because Plaintiff was not prevented from offering evidence in her state court trial, the 22 Complaint did not allege extrinsic fraud against the medical malpractice defendants. (Id. at 23 6.) 24 On February 20, 2020, Plaintiff filed her First Amended Complaint (“FAC”) for 25 Fraud on the Court under Federal Rule of Civil Procedure 60(d)(3), and a second motion 26 for leave to proceed IFP. (Doc. Nos. 8, 10.) The FAC alleged that “a trial was used to 27 perpetrate a fraud,” that the parties “intentionally prevented Plaintiff’s Medical Facts, 28 records and testimony, that support her cause of actions.” (Doc. No. 8 at 2.) The FAC also 1 alleged that “[s]ettlement should have occurred, instead the acts of Trial occurring is the 2 Fraud relieving the Defendant of all financial responsibility deceiving the court that a Trial 3 actually occurred despite preventing Plaintiffs medical evidence, jury dismissed an judge 4 rule.” (Id. at 4.) 5 On February 21, 2020, Plaintiff filed an ex parte motion for leave to file a SAC, 6 which was granted on March 16, 2020. (Doc. No. 13, 14.) The SAC was filed this same 7 day. (Doc. No. 15.) On May 12, 2020, Plaintiff abandoned her IFP application, and paid 8 her filing fee. Subsequently, each Defendant filed a motion to dismiss Plaintiff’s SAC 9 based on failure to state a claim, and for lack of jurisdiction. Plaintiff did not oppose these 10 motions. This order follows. 11 II. DISCUSSION 12 A. Federal Rule of Civil Procedure 12(b)(1) Motion to Dismiss 13 1. Legal Standard 14 A suit may be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure 15 where there is a “lack of jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). 16 “The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 17 U.S.C. §§ 1331 and 1332. Section 1331 provides for ‘federal-question’ jurisdiction, § 1332 18 for ‘diversity of citizenship’ jurisdiction.” Arbaugh v. Y & H Corp., 546 U.S. 500 , 513 19 (2006); 28 U.S.C. §§ 1331–1332. “A plaintiff properly invokes § 1331 jurisdiction when 20 she pleads a colorable claim ‘arising under’ the Constitution or laws of the United States. 21 She invokes § 1332 jurisdiction when she presents a claim between parties of diverse 22 citizenship that exceeds the required jurisdictional amount, currently $ 75,000.” Arbaugh, [23] 546 U.S. at 513 (citing 28 U.S.C. §§ 1331–1332). The party which invokes jurisdiction 24 bears the burden of demonstrating its existence. See Kokkonen v. Guardian Life Ins. Co. 25 Of Am., 511 U.S. 375, 377 (1994). 26 Pro se pleadings are held to “less stringent standards than formal pleadings drafted 27 by lawyers” because pro se litigants are more prone to making errors in pleading than 28 litigants represented by counsel. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal 1 quotations omitted). Thus, the Supreme Court has stated that federal courts should liberally 2 construe the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132 , 3 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)); see, e.g., 4 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (reasoning that pro 5 se pleadings are liberally construed). 6 2. Discussion 7 All Defendants move to dismiss on the ground that this Court lacks subject matter 8 jurisdiction to hear this matter. In the Court’s previous order, the Court noted that “missing 9 from Plaintiff’s Complaint is an adequate statement demonstrating that this Court has 10 subject matter jurisdiction over Plaintiff’s suit.” (Doc. No. 6 at 6.) The Court first held that 11 although Plaintiff asserts federal question jurisdiction as a basis for subject matter 12 jurisdiction, the Court does not find that “a federal question is presented on the face of the 13 plaintiff’s properly pleaded complaint.” (Id. (quoting Valles v. Ivy Hill Corp., 410 F.3d 14 1071, 1075 (9th Cir. 2005).) Second, the Court also noted that it had not been provided 15 with enough information regarding the parties’ citizenship to determine whether it may 16 exercise diversity jurisdiction over Plaintiff’s case. (Doc. No. 6 at 7.) 17 Review of the SAC demonstrates the Court lacks subject matter jurisdiction over 18 this suit. Plaintiff’s SAC confirms that there is no diversity jurisdiction, as all parties are 19 alleged to be residents of California. (Doc. No. 15 at 9–11.) Furthermore, there is no federal 20 question presented because Plaintiff’s fraud claim is a state law cause of action, even 21 though it is being asserted through a Federal Rule of Civil Procedure. See Shalaby v. 22 Bernzomatic, 281 F.R.D. 565, 573 (S.D. Cal. 2012), aff’d 584 Fed. App’x. 419 (9th Cir. 23 2014) (“[A] federal court will examine state law to determine whether the elements of fraud 24 have been pled sufficiently to state a cause of action” even though the pleading 25 requirements of Federal Rule of Civil Procedure 9 apply). Federal question jurisdiction is 26 not conferred upon this Court simply because Plaintiff drew reference and cited to Federal 27 Rule of Civil Procedure 60(b)(3). Even more, Federal Rule of Civil Procedure 60(b)(3) 28 provides no private right upon which Plaintiff may sue. Despite liberally construing Plaintiffs pleading and providing Plaintiff multiple 2 || opportunities to establish subject matter jurisdiction, it is clear Plaintiff cannot meet her 3 burden. Defendants’ motions to dismiss the SAC on this basis is GRANTED. ! 4 CONCLUSION 5 Based on the foregoing reasons, the Court GRANTS Defendants Ahsan Rashid, 6 ||M.D., Elizabeth Flatley, James M. Haefner, Mark Poliquin, Hoag Memorial Presbyterian 7 || Hospital, Trevor Loo, and Lisa Bynum’s motions to dismiss the SAC. (Doc. Nos. 26, 31, 8 ||34-35, 39.) Plaintiff has been provided with ample attempts to allege subject matter 9 || jurisdiction. She has not done so. Another attempt would be futile, and therefore, the Court 10 |/dismisses the entire action WITHOUT LEAVE TO AMEND. See Cervantes vy. 11 || Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (dismissal without 12 || leave to amend is proper if amendment would be futile). The Clerk of Court is DIRECTED 13 ||to CLOSE THIS CASE. [14] 15 IT IS SO ORDERED. 16 Dated: February 12, 2021 © g 17 Hon. Anthony J.Battaglia 18 United States District Judge [23] ' Even if the Court somehow had jurisdiction over Plaintiff's action, the SAC contains several other 24 || defects fatal to Plaintiff’s claim, including: (1) Plaintiff has still not offered any allegations that the actions of Defendants Dr. Rashid, Athenix Physicians Group, Inc., Elizabeth Flatley, James M. Haefner, or Mark Poliquin prohibited Plaintiff %6 from offering evidence during the July 2018 trial; (2) Defendants Hoag Hospital and Defendant Bynum were never parties to the underlying state 27 lawsuit, and thus, was never in a position to influence the state court in any way or to offer falsified material into evidence; and 28 (3) Defendant Loo has never represented Plaintiff in the underlying state court trial.