Steinmeyer v. American Association of Blood Banks

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RANDALL HENRI STEINMEYER, Case No.: 23-CV-1160 JLS (BGS) an individual, [12] ORDER GRANTING DEFENDANT’S Plaintiff, 13 MOTION TO DISMISS THE v. VERIFIED COMPLAINT [14] AMERICAN ASSOCIATION OF 15 (ECF No. 14) BLOOD BANKS, [16] Defendant. [19] 20 Presently before the Court are Defendant American Association of Blood Banks’ 21 (“Defendant” or “AABB”) Motion to Dismiss the Verified Complaint (“Mot.,” ECF 22 No. 14), Memorandum of Points in Authorities (“Mem.,” ECF No. 14-1) in support thereof, 23 and Request for Judicial Notice (“RJN,” ECF No. 14-2). Plaintiff Randall Henri 24 Steinmeyer, appearing in propria persona, filed an Opposition to the Motion (“Opp’n,” 25 ECF No. 16), and Defendant filed a Reply (“Reply,” ECF No. 12). Having considered the 26 Parties’ arguments and the law, the Court GRANTS Defendant’s Motion. 27 / / / 28 / / / 1 BACKGROUND 2 The Court provided a thorough recitation of this action’s factual and procedural 3 background in the September 11, 2023 Order Denying Plaintiff’s Motion for Preliminary 4 Injunction (the “Order,” ECF No. 15). The Court repeats the relevant facts below, for ease 5 of reference, with the addition of more recent developments. 6 Plaintiff claims Defendant, an organization that “develops and enforces standards 7 for DNA paternity and other relationship testing,” Verified Complaint (“Compl.”) ¶ 15, 8 ECF No. 1, has amended its standards to permit “non-traditional” or “lookalike” paternity 9 tests that “(1) violate[] the DOJ Directive to Judges deciding DNA paternity cases[,] (2) 10 violate[] state statutes[,] (3) [are] not peer-reviewed, [and] (4) [were] never validated,” id. 11 ¶¶ 12–13, 20. Plaintiff alleges that in a “non-traditional” or “lookalike” paternity test, 12 “maternal DNA is removed.” Id. ¶ 27. Such tests, Plaintiff contends, allow laboratories to 13 issue “faux DNA results concerning biology but call it forensic science,” while Defendant 14 “can rubber stamp its seal thereon . . . so the lookalike ‘results’ can be turned into money 15 in both public and private markets.” Id. ¶ 23. Plaintiff explains: 16 [W]hen these result[s] are used to create fictitious relationships out of activities that never occurred, and then paraded as [17] “positive” evidence of paternity at 99.999% and which the target 18 either (1) knows the result is impossible or (2) discovers the result is fraudulent through a subsequent “forensic” tests, the [19] targeted (adult) may suffer a shaken faith like syndrome with 20 respect to his future lab/medical testing. 21 Id. ¶ 25. 22 Plaintiff initiated this action on June 22, 2023, asserting causes of action against 23 Defendant for intentional misrepresentation, fraudulent concealment, negligence per se, 24 violation of California’s False Advertising Law (“FAL”), and violation of California’s 25 Unfair Competition Law (“UCL”). See id. ¶¶ 62–89. Plaintiff also seeks “to enjoin the 26 Defendant’s fraudulent attempt to switch the standards for commercial DNA testing in the 27 United States.” Id. ¶ 1. 28 / / / 1 Plaintiff previously filed an Ex Parte Application for Temporary Restraining Order 2 (“TRO”) and Order to Show Cause Why a Preliminary Injunction Should Not Issue (“Ex 3 Parte Appl.,” ECF No. 2). In the Ex Parte Application, Plaintiff requested that the Court 4 “enjoin Defendant from switching the standards for commercial DNA testing in the United 5 States, to a lookalike or []‘non-traditional’[] standard.” Mem. Supp. Ex Parte Appl. (“Ex 6 Parte Mem.”) at 4, ECF No. 2-1.1 The Court denied the Ex Parte Application, concluding 7 Plaintiff failed to abide by Federal Rule of Civil Procedure 65(b)(1) and Civil Local 8 Rule 83.3(g)(2)’s requirements for the issuance of a TRO. See generally ECF No. 4. The 9 Court also noted that Plaintiff had twice requested and been denied emergency injunctive 10 relief in a prior case with similar claims in the Southern District. Id. at 7. 11 On July 25, 2023, Plaintiff filed a Motion for Preliminary Injunction (“Inj. Mot.,” 12 ECF No 6), which asked the Court to enjoin Defendant’s alleged “[Parent Obligate Allele 13 (“POA”)]-based evidentiary standard switch to ‘nontraditional.’” Inj. Mot. at 27. The 14 Court denied Plaintiff’s Injunction Motion, finding Plaintiff had not shown a likelihood of 15 success on the merits. See generally Order. 16 Defendant’s instant Motion and Request for Judicial Notice followed. 17 REQUEST FOR JUDICIAL NOTICE 18 Defendant asks the Court to take judicial notice of five documents, each of which 19 are associated with state and federal court actions to which Plaintiff was a party. RJN at 1. 20 Plaintiff raises no objection. The documents at issue include: 21 (1) An order for genetic testing issued against Plaintiff in the California Superior 22 Court case In re K.S., No. CJ1363 (Cal. Super. Ct. San Diego Cnty. Mar. 27, 2017). See 23 RJN Ex. A, ECF No. 14-3. 24 (2) A custody order issued in the California Superior Court case In re K.L.S., 25 Nos. CJ1363, 17FL012118C (Cal. Super. Ct. San Diego Cnty. Jan. 31, 2018), indicating [28] 1 Citations to Plaintiff’s Ex Parte Memorandum refer to the CM/ECF page numbers electronically stamped 1 that Plaintiff was adjudged the presumed parent of the at-issue child (the “Child”). See 2 RJN Ex. D at 84, ECF No. 14-6. 3 (3) A docket record from the California Court of Appeal case In re K.S., 4 No. D073380 (Cal. Ct. App. Apr. 3, 2018), reflecting that Plaintiff’s appeal from said 5 California superior court case was dismissed for failure to file an opening brief. See RJN 6 Ex. B, ECF No. 14-4. 7 (4) A series of income-withholding orders issued against Plaintiff by the 8 California Superior Court between 2018 and 2019. See RJN Ex. E, ECF No. 14-7. 9 (5) A verified first amended complaint filed by Plaintiff in the federal district 10 court case Steinmeyer v. Lab’y Corp. of Am. Holdings (Steinmeyer I), No. 22-CV-0121311 DMS-DDL, 2023 WL 3940547 (S.D. Cal. June 8, 2023). See RJN Ex. C, ECF No. 14-5. 12 Under Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that 13 is not subject to reasonable dispute because it: (1) is generally known within the trial court’s 14 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 15 accuracy cannot reasonably be questioned.” “Accordingly, ‘[a] court may take judicial 16 notice of matters of public record . . . .’” Khoja v. Orexigen Therapeutics, Inc., [17] 899 F.3d 988, 999 (9th Cir. 2018) (first alteration in original) (quoting Lee v. City of Los 18 Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). “But a court cannot take judicial notice of 19 disputed facts contained in such public records.” Id. 20 The Court GRANTS Defendant’s RJN as to all Exhibits, as “court filings and orders 21 from other proceedings are proper subjects of judicial notice.” Sierra v. Costco Wholesale 22 Corp., 630 F. Supp. 3d 1199 , 1208 (N.D. Cal. 2022). In so doing, the Court takes “notice 23 only of the authenticity and existence of” each “order or pleading.” Eidson v. Medtronic, 24 Inc., 981 F. Supp. 2d 868, 878 (N.D. Cal. 2013). Conversely, the Court does not take 25 “notice of any of these documents to establish the truth of the underlying factual contention 26 or the accuracy of the legal conclusions set forth therein.” Pac. Marine Ctr., Inc. v. 27 Philadelphia Indem. Ins. Co., No. 113CV00992DADSKO, 2016 WL 8730668 , at *4 28 (E.D. Cal. Mar. 18, 2016). 1 MOTION TO DISMISS 2 I. Legal Standards 3 A. Federal Rule of Civil Procedure 12(b)(1) 4 Federal courts are courts of limited jurisdiction and thus have an obligation to 5 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States, [6] 718 F.2d 964 , 965–66 (9th Cir. 1983). The burden of establishing subject-matter 7 jurisdiction is on the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of 8 Am., 511 U.S. 375, 377 (1994). 9 Under Federal Rule of Civil Procedure 12(b)(1), a party may raise by motion the 10 defense that the complaint lacks subject-matter jurisdiction, and may do so via a facial or 11 factual attack. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, 12 the challenger asserts that the allegations contained in a complaint are insufficient on their 13 face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035 , 1039 14 (9th Cir. 2004). A court resolves a facial attack as it would under Rule 12(b)(6) motion: 15 “Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the 16 plaintiff’s favor, the court determines whether the allegations are sufficient . . . to invoke 17 the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 18 In a factual attack, on the other hand, “the challenger disputes the truth of the 19 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, [20] 373 F.3d at 1039 . In such challenges, courts (1) “may review evidence beyond the 21 complaint without converting the motion to dismiss into a motion for summary judgment,” 22 and (2) “need not presume the truthfulness of the plaintiff's allegations.” Id. After the 23 moving party evidences the lack of subject-matter jurisdiction, the party opposing the 24 motion must “present affidavits or any other evidence necessary to satisfy its burden of 25 establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City 26 of Chico, 880 F.2d 199, 201 (9th Cir. 1989). 27 Dismissal under Rule 12(b)(1) is warranted “where the alleged claim under the 28 Constitution or federal statutes clearly appears to be immaterial and made solely for the 1 purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and 2 frivolous.” Safe Air, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678 , 682–83 3 (1946)). But dismissal under 12(b)(1) is not appropriate when “the jurisdictional issue and 4 substantive issues are so intertwined that the question of jurisdiction is dependent on the 5 resolution of factual issues going to the merits of the action.” Sun Valley Gasoline, Inc. v. 6 Ernst Enter., Inc., 711 F.2d 138, 139 (9th Cir. 1983) (internal quotation marks omitted) 7 (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). 8 B. Federal Rule of Civil Procedure 12(b)(6) 9 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 10 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To 11 survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as 12 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 13 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 14 facially plausible when the facts pled “allow[] the court to draw the reasonable inference 15 that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim 16 must be probable, but there must be “more than a sheer possibility that a defendant has 17 acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of 18 a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557 ). 19 Though this plausibility standard “does not require ‘detailed factual 20 allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully21 harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555 ). A complaint will not 22 suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. 23 (alteration in original) (quoting Twombly, 550 U.S. at 557 ). Put differently, “a formulaic 24 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 . 25 Review under Rule 12(b)(6) requires a context-specific analysis involving the 26 Court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679 . In performing 27 that analysis, “a district court must accept as true all facts alleged in the complaint” and 28 “draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., [1] 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). If a complaint does not survive Rule 2 12(b)(6), a court grants leave to amend unless it determines that no modified contention 3 “consistent with the challenged pleading could . . . possibly cure the deficiency.” 4 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 , 1401 (9th Cir. 1986). 5 C. Applicability of a Deferential Pleading Standard 6 Ordinarily, courts have a duty to construe a pro se2 litigant’s pleadings liberally. See 7 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). That liberal pleading standard, 8 however, does not apply to pro se “practicing attorneys.” Huffman v. Lindgren, [9] 81 F.4th 1016, 1021 (9th Cir. 2023). To the extent solicitude extends to plaintiffs who 10 have attended law school or have past litigation experience, said solicitude is generally 11 reduced. See id. at 1020–21; see also Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) 12 (“[T]he degree of solicitude may be lessened where the [litigant proceeding pro se] is 13 experienced in litigation and familiar with the procedural setting presented.”). 14 As Defendant points out, and Plaintiff does not dispute, Plaintiff was until recently 15 a practicing attorney in the State of Minnesota. See Lawyer Details, Minn. Judicial Branch, 16 https://mars.courts.state.mn.us/AttorneyDetail.aspx?attyID=0270933 (last visited 17 Jan. 23, 2024). In fact, Plaintiff was admitted to the Minnesota State Bar in 1996 and did 18 not leave until he failed to pay his fees in 2021. See id. 19 To the Court’s knowledge, the Ninth Circuit has never determined whether a former 20 attorney deserves the grace granted to other pro se individuals. District courts, meanwhile, 21 have expressed different views.3 Without binding precedent, the Court turns to Huffman [23] 2 Plaintiff is appearing in propria persona. In the context of self-representation, “[t]he phrases in propria 24 persona and pro se are synonymous.” Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116 , 1120 n.1 (9th Cir. 2007). [25] 3 Compare Torres v. City of Laguna Niguel, No. SACV 07-736 GW JWJ, 2009 WL 5184467 , at *5 26 (C.D. Cal. Dec. 21, 2009) (finding “Plaintiff’s Complaint need not be interpreted liberally before dismissal” because “Plaintiff is a former attorney”), with Paulson v. Fairway Am. Corp., No. 1:14-CV27 1544-CL, 2015 WL 588851 , at *9 (D. Or. Feb. 11, 2015) (“While Plaintiff is a former attorney, he is no 28 longer a member of the Oregon State Bar, and therefore the Court will afford him the benefit of the doubt 1 for guidance. In that case, the Ninth Circuit explained pro se parties are “afford[ed] 2 leeway” because they are “[p]resumably unskilled in the law” and “more prone to making 3 errors in pleading than the person who benefits from the representation of counsel.” 4 Huffman, 81 F.4th at 1021 (quoting Lopez, 203 F.3d 1122 ). The same reasoning, the court 5 held, “does not apply to practicing attorneys.” Id. 6 Huffman’s logic counsels against solicitude in this case. As Plaintiff is a former 7 attorney with decades of experience, the Court sees no reason to suspect Plaintiff is 8 unskilled in the law or as prone to error as litigants lacking his legal training. Nor does 9 Plaintiff attempt to convince the Court otherwise, even though Defendant raised the issue 10 in the instant Motion. See Mem. at 3–4; see generally Opp’n. The Court thus declines to 11 extend the benefit of a liberal pleading standard to Plaintiff. 12 II. Analysis 13 Defendant argues the Complaint must be dismissed because it fails to satisfy several 14 initial requirements. The Court must thus decide the order in which to tackle Defendant’s 15 arguments. Two threshold issues raised by Defendant—the Rooker-Feldman doctrine and 16 Article III standing—go to the Court’s subject matter jurisdiction. See Brown v. Duringer 17 L. Grp. PLC, 86 F.4th 1251 , 1255 n.1 (9th Cir. 2023). A third, issue preclusion, does not. 18 See Snoqualmie Indian Tribe v. Washington, 8 F.4th 853 , 861 (9th Cir. 2021). 19 Courts may address non-merits threshold issues before jurisdictional questions when 20 doing so is “less burdensome.” Id. at 863. Here, Rooker-Feldman does not pose a 21 particularly arduous question, so the Court will start there. That leaves standing and issue 22 preclusion. Defendant’s issue-preclusion argument targets all of Plaintiff’s claims, while 23 Defendant’s standing theory applies differently to the various injuries alleged in the 24 Complaint. Further, Defendant’s standing claim relies on its issue preclusion argument, 25 see Mem. at 4–5, complicating the Court’s ability to assess standing before preclusion. 26 Finally, Plaintiff did not respond to the Motion’s specific standing arguments; instead, he 27 incorporated a section of an earlier brief relating to a different motion. See Opp’n at 13. 28 Plaintiff’s Opposition does, however, take on issue preclusion. See id. at 14. 1 With the above in mind, the Court will begin by addressing Defendant’s Rooker2 Feldman argument. The Court will then turn to issue preclusion—as it applies broadly to 3 Plaintiff’s claims, is central to Defendant’s theory of standing, and has been fully briefed 4 by the Parties—before concluding with an inquiry into Plaintiff’s constitutional standing. 5 A. Rooker-Feldman 6 Under the Rooker-Feldman doctrine, “a federal district court does not have subject 7 matter jurisdiction to hear a direct appeal from the final judgment of a state court.” See 8 Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003); see also Rooker v. Fidelity Tr. Co., [9] 263 U.S. 413 (1923); Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462 (1983). 10 Rooker-Feldman also bars federal courts from “exercising subject matter jurisdiction over 11 a suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc., [12] 359 F.3d 1136, 1139 (9th Cir. 2004). The doctrine is narrow, as an action qualifies as a 13 de-facto appeal only when the “plaintiff both asserts as her injury legal error or errors by 14 the state court and seeks as her remedy relief from the state court judgment.” Id. at 1140 . 15 Plaintiffs bringing a “forbidden de facto appeal” are, however, also prohibited from 16 litigating “issue[s] that [are] ‘inextricably intertwined’ with the state court judicial decision 17 from which” said appeal is brought. Noel, 341 F.3d at 1158 . 18 Defendant contends that Plaintiff’s tort claims (for intentional misrepresentation, 19 fraudulent concealment, and negligence per se) are barred by Rooker-Feldman, as 20 adjudicating those claims would require the Court to review the state court’s paternity 21 proceeding and the orders issued therein. See Mem. at 9–10. Defendant’s argument relies 22 on the idea that Plaintiff’s claims are “inextricably intertwined” with the state court’s 23 judgment. Id. at 10. 24 Though not without some logical appeal, Defendant’s argument is based on a faulty 25 premise. “Only when there is already a forbidden de facto appeal in federal court does the 26 ‘inextricably intertwined’ test come into play . . . .” Noel, 341 F.3d at 1158 . Such a 27 de-facto appeal arises when a plaintiff “allege[s] a legal error by the state court as the basis 28 for [the] relief” they seek. Kougasian, 359 F.3d at 1140 . But Plaintiff’s tort causes of 1 action allege wrongdoing by Defendant, not legal error by the state court. See Compl. 2 at 23–28. Plaintiff’s suit thus does not constitute a de-facto appeal under Rooker-Feldman. 3 See Kougasian, 359 F.3d at 1143 (“In this case, Kougasian has asserted no legal error by 4 the state court. She is therefore not bringing a de facto appeal . . . .”). 5 Accordingly, though the issues raised in Plaintiff’s Complaint are closely connected 6 to those addressed in state court, Rooker-Feldman does not bar his claims. See id. (“[E]ven 7 though [plaintiff’s] remaining four causes of action are essentially identical to the causes 8 of action already adjudicated in [state court], Rooker-Feldman does not bar [her] federal 9 suit . . . . (emphasis added)); see also Sarale v. Pac. Gas & Elec. Co., No. 2:14-CV-0257310 TLN-CKD, 2015 WL 13236884 , at *5 (E.D. Cal. Dec. 11, 2015) (“Because there is not an 11 underlying forbidden de facto appeal, the issues intertwined with the state court decision 12 in the instant case may not be dismissed under Rooker-Feldman.”), aff’d sub nom. Sarale 13 v. Cal. Indep. Sys. Operator Corp., 705 F. App’x 614 (9th Cir. 2017). 14 B. Issue Preclusion 15 1. Legal Framework 16 Issue preclusion, also known as collateral estoppel, “bars the relitigation of issues 17 actually adjudicated in previous litigation.” Clark v. Bear Stearns & Co., 966 F.2d 1318 , 18 1320 (9th Cir. 1992). Federal courts “considering whether to apply issue preclusion based 19 on a prior state court judgment must look to state preclusion law.” Hardwick v. Cnty. of 20 Orange, 980 F.3d 733, 740 (9th Cir. 2020) (quoting McInnes v. California, 943 F.2d 1088 , 21 1092–93 (9th Cir. 1991)). 22 Relevant here is California law, under which issue preclusion applies “(1) after final 23 adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the 24 first suit and (4) asserted against one who was a party in the first suit or one in privity with 25 that party.” Samara v. Matar, 419 P.3d 924, 926 (Cal. 2018) (quoting DKN Holdings LLC 26 v. Faerber, 352 P.3d 378, 387 (Cal. 2015)). Even when those elements are met, however, 27 preclusion will not apply under certain circumstances. “[P]reclusion exceptions include 28 public policy, unforeseeability, and the inability or lack of incentive to litigate the prior 1 adjudication.” In Re CWS Enterprises, Inc., 870 F.3d 1106 , 1119 n.37 (9th Cir. 2017) 2 (citing Olson v. Cory, 184 Cal. Rptr. 325 , 336 n.9 (Ct. App. 1982)). 3 Courts often “look[] to the record of the prior proceeding to determine whether an 4 issue was in fact raised, contested, and submitted for determination.” Janjua v. Neufeld, [5] 933 F.3d 1061, 1065 (9th Cir. 2019). The party seeking to rely upon issue preclusion 6 carries the burden of proving that each element has been met. Kendall v. Visa U.S.A., Inc., [7] 518 F.3d 1042 , 1050–51 (9th Cir. 2008). However, “[t]he party seeking the benefit of the 8 doctrine . . . need not have been a party to the earlier lawsuit.” Arias v. Superior Ct., [9] 209 P.3d 923, 932 (Cal. 2009). 10 2. Defendant’s Theory 11 Defendant contends that each of Plaintiff’s claims are based on the argument that 12 Plaintiff is not the Child’s father. See Mem. at 6–8. The truth of Defendant’s assertion is 13 not obvious when first glancing at the Complaint, which contains impressively vague 14 descriptions of Plaintiff’s alleged injuries and damages. But on closer inspection, 15 Defendant’s argument finds firm footing. For example, the Complaint suggests Plaintiff’s 16 was injured financially because he “would have requested an actual scientific paternity 17 test,” which “would have excluded him as the alleged father,” had he known of Defendant’s 18 supposed misconduct. Compl. ¶ 67. Additionally, Plaintiff argues he has standing because 19 a favorable verdict would stop the ongoing “taking” of Plaintiff’s property—presumably a 20 reference to the state-court-ordered child support payments discussed below. Pl.’s Reply 21 Supp. Inj. Mot. (“Inj. Reply”) at 6, ECF No. 12.4 And perhaps most tellingly, Plaintiff does 22 not dispute that his claims rely on challenging the state court’s paternity determination. 23 See Opp’n at 14. 24 The Court thus accepts, with one caveat, the undisputed contention that the 25 Complaint seeks to hold Defendant accountable for the allegedly erroneous paternity [28] 4 Plaintiff’s Opposition incorporates by reference this standing argument from his Injunction Reply. See 1 ruling. The Court agrees with Defendant—based on the Complaint’s language—that the 2 financial losses Plaintiff alleges flow directly from the state court’s determination that he 3 is the father of the Child. The Court sees less of a connection, however, between Plaintiff’s 4 claims for prospective relief (to stop Defendant from continuing its alleged misconduct) 5 and the paternity ruling. The Court will therefore proceed to ask whether, as Defendant 6 argues, Plaintiff is precluded from premising his damages claims on the contention that he 7 is not the father of the Child. 8 3. Discussion 9 To support its preclusion claim, Defendant points to the state paternity proceeding’s 10 records. On March 24, 2017, a California superior court judge ordered Plaintiff to submit 11 to genetic testing to determine the paternity of the Child. See RJN Ex. A. Then, on 12 January 18, 2018, the same court issued a “Custody Order” and “Final Judgment” labeling 13 Plaintiff the “presumed father” of the Child. See RJN Ex. D at 83–84. And while the 14 confluence of those events alone strongly suggests—if not outright shows—that the state 15 court decided the paternity question, additional evidence removes any doubt. First, the 16 California court issued an “Income Withholding Order” requiring Plaintiff to pay child 17 support, see RJN Ex. E, and a duty to support a child arises once paternity is established, 18 see Cnty. of Los Angeles v. Christopher W., 254 Cal. Rptr. 3d 565 , 571 (Ct. App. 2019); 19 see also Galvan ex rel. Galvan v. Heckler, No. C 84-6726 TEH, 1985 WL 71748 , at *4 20 (N.D. Cal. Aug. 15, 1985) (“[P]aternity is a prerequisite to the duty of support.”). Further, 21 Plaintiff confirmed in a verified complaint—filed based on the same facts against different 22 defendants in a separate suit—that “[J]udge Bubis5 announced that the biological results 23 show Plaintiff as the biological father” on April 18, 2017. RJN Ex. C ¶ 71. 24 Defendant has satisfied its burden to establish the elements of issue preclusion. As 25 to the first element, records indicate that the superior court issued a final judgment— [28] 1 i.e., that the matter was subject to a final adjudication. As to the second and third elements, 2 the above evidence shows that the issue here—paternity of the Child—is identical to one 3 actually litigated and necessarily decided in the state proceedings. The California Superior 4 Court’s records also indicate that said issue was decided against Plaintiff, the same party 5 against whom preclusion is currently levied. And notably, there is no issue preclusion 6 exception in California relating to paternity determinations. See In re Donovan L., [7] 198 Cal. Rptr. 3d 550 , 557–558 (Ct. App. 2016). 8 Neither of Plaintiff’s counterarguments change the Court’s conclusion. Plaintiff first 9 contends that as the “actual” test results were never disclosed in the state proceedings, the 10 issue presented in this case could not have been raised or contested previously. See Opp’n 11 at 14. This argument suggests Plaintiff misunderstands the “issue” under discussion. 12 Underlying Plaintiff’s claims for damages is the contention that, due to Defendant’s 13 conduct, Plaintiff (1) was erroneously found to be the father of the Child, and (2) suffered 14 financial losses as a result. See, e.g., ¶¶ 67–68. But Plaintiff is precluded from disputing 15 the former, so he cannot seek damages as measured by the latter. That the genetic test’s 16 results were supposedly not disclosed during the state court proceedings does not change 17 the fact that the state superior court ruled against Plaintiff on the paternity issue. 18 Plaintiff next invokes preclusion’s extrinsic fraud exception and argues that 19 “because AABB destroyed the paternity evidence, Plaintiff was unable to present his 20 defense” in state court. Opp’n at 14. He fails, however, to offer a single case or fact to 21 support this claim, and the Court is not inclined to flesh out arguments when Plaintiff 22 neglected to. Nevertheless, the Court notes the Complaint does not allege that Defendant 23 destroyed any evidence, nor does Plaintiff explain why the alleged destruction of evidence [26] 6 This finding is further confirmed by records showing Plaintiff appealed the state court decision on [27] January 23, 2018. See RJN Ex. B. The First Division of California’s Fourth Appellate District dismissed 28 said appeal on April 3, 2018—after Plaintiff failed to timely file his briefing—and the case was formally 1 prevented him from challenging the state court’s decision. In any event, California courts 2 categorize the suppression of evidence as intrinsic, not extrinsic, fraud. Kearney v. Foley 3 & Lardner, LLP, 747 F. App’x 478 , 480 (9th Cir. 2018) (citing Eichman v. Fotomat Corp., [4] 197 Cal. Rptr. 612 , 614–15 (Ct. App. 1983)). So, in California, “a judgment may not be 5 collaterally attacked on the ground that evidence was falsified or destroyed.” Cedars-Sinai 6 Med. Ctr. v. Sup. Ct., 954 P.2d 511, 516 (Cal. 1998). 7 Accordingly, the Court holds that Plaintiff is precluded from basing his claims for 8 monetary damages on the contention that he is not the father of the Child. As Plaintiff’s 9 claims for intentional misrepresentation, fraudulent concealment, and negligence per se 10 appear to rely solely on relitigating that fact to prove injury and damages, said claims are 11 DISMISSED.8 To the extent Plaintiff’s false advertising and UCL claims seek monetary 12 compensation for the same alleged injury, they also fail. 13 C. Article III Standing 14 After addressing Rooker-Feldman and issue preclusion, aspects of the Complaint’s 15 fifth, sixth, and seventh counts remain. The Court thus proceeds to the question of 16 Article III standing. 17 1. Legal Framework 18 Article III standing is another “jurisdictional prerequisite to the consideration of any 19 federal claim.” Gerlinger v. Amazon.com Inc., 526 F.3d 1253, 1255 (9th Cir. 2008) 20 (citation omitted). The elements of constitutional standing are “injury-in-fact, causation, 21 and redressability.” Id. More specifically, a plaintiff must “show (1) she has suffered an [22] 23 7 Beyond the appeal Plaintiff initiated but did not complete, see RJN Ex. B, it appears Plaintiff had the 24 opportunity to “challenge the genetic testing results” by submitting results achieved by use of “other genetic test[s]” satisfying California’s statutory requirements, Cal. Fam. Code § 7555 . [25] 8 See Kearney, 747 F. App’x at 481 (concluding claim failed because (1) injury to property was an element 26 of said claim, and (2) plaintiff was precluded from relitigating the existence of such an injury by an earlier finding that she received fair compensation for her property); cf. NTCH-WA, Inc. v. ZTE Corp., No. 2:1227 CV-3110-TOR, 2017 WL 3994792 , at *10 n.11 (E.D. Wash. Sept. 11, 2017), aff’d, 921 F.3d 1175 28 (9th Cir. 2019) (explaining that as a claim required proof of damages, but a prior proceeding found no 1 ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not 2 conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the 3 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 4 redressed by a favorable decision.” Fleming v. Charles Schwab Corp., 878 F.3d 1146 , 5 1150 (9th Cir. 2017) (quoting Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862 , 868–69 6 (9th Cir. 2002)). 7 For purposes of the injury-in-fact inquiry, an injury is sufficiently particularized if it 8 “affect[s] the plaintiff in a personal and individual way,” and is “concrete” if it bears a 9 “close relationship to a harm that has traditionally been regarded as providing a basis for a 10 lawsuit in English or American courts.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 , 341 11 (2016). For instance, “[i]f a defendant has caused physical or monetary injury to the 12 plaintiff, the plaintiff has suffered a concrete injury” under Article III. TransUnion LLC v. 13 Ramirez, 594 U.S. 413, 425 (2021). Intangible harms—e.g., “reputational harms” or 14 “intrusion upon seclusion”—may also qualify as concrete so long as they satisfy Spokeo’s 15 requirements. Id. 16 Regarding prospective relief, a plaintiff seeking an injunction to protect against 17 future injury “has standing to sue ‘if the threatened injury is “certainly impending,” or there 18 is a “substantial risk” that the harm will occur.’” In re Zappos.com, Inc., 888 F.3d 1020 , 19 1024 (9th Cir. 2018) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149 , 158 20 (2014)). Put differently, a plaintiff must allege that they face an “imminent or actual threat 21 of future harm” due to the defendant’s conduct. See Davidson v. Kimberly-Clark Corp., [22] 889 F.3d 956, 970 (9th Cir. 2018). 23 A plaintiff bears the burden of establishing he has standing to bring the claims 24 asserted, Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir.1996), and must demonstrate 25 standing “for each claim he seeks to press” and for each form of relief he requests, 26 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). The plaintiff’s burden varies 27 with the “manner and degree of evidence required at the successive stages of the litigation.” 28 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). So, at the pleading stage, “the plaintiff 1 must ‘clearly . . . allege facts demonstrating’ each element” of standing. Spokeo, 578 U.S. 2 at 338 (alteration in original) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). 3 2. Discussion 4 Beyond the damages addressed in Section II.B, supra, Plaintiff’s remaining claims 5 seek injunctive and declaratory relief preventing Defendant from changing its testing 6 standards and otherwise continuing its alleged misconduct. Compl. ¶¶ 84, 88, 93. To that 7 end, Plaintiff argues he has sufficiently alleged injury-in-fact in four ways. See Inj. Reply 8 at 6.9 The Court does not consider his first argument, that his “cash and home” have been 9 taken, as it is relevant only to his dismissed claims for retrospective and individual 10 damages. Plaintiff otherwise argues that he has standing due to (1) shaken faith syndrome, 11 (2) the potential injury posed by Defendant’s attempt to “change its standard” going 12 forward, and (3) the fact that Defendant’s staff member “is obstructing [Plaintiff’s] 13 July 2023 paternity test.” Id. The Court addresses each claim in turn. 14 a. Shaken Faith Syndrome. 15 Plaintiff first argues that he has suffered and continues to suffer from shaken faith 16 syndrome. Specifically, Plaintiff contends that after receiving the results of the allegedly 17 fraudulent test, Plaintiff’s “faith” in “his future lab/medical testing” was so “shaken” that 18 Plaintiff “left the State of California and eventually the United States to have testing related 19 to cancer,” which resulted in “delayed surgeries and testing which could have been fatal.” 20 Compl. ¶¶ 25–26. But Plaintiff’s argument is ill-taken, as shaken faith syndrome does not 21 constitute an injury in fact; Plaintiff makes no effort to argue that shaken faith in the 22 medical establishment “bears a close relationship to harms traditionally recognized as a 23 basis for lawsuits,” see TransUnion, 594 U.S. at 425 , nor does the Court see such a close 24 relationship.10 Plaintiff’s alleged ongoing shaken faith thus does not constitute the kind of [25] 26 9 The Court again notes that Plaintiff’s Opposition refers the Court to his “Reply in Support of Preliminary Injunction” for his thoughts on standing. Opp’n at 13. [28] 10 For the same reason, Plaintiff’s individual damages claims would fail for lack of standing to the extent 1 imminent threat required by Article III to create standing to pursue injunctive relief. 2 b. Threat of Future Harm from Defendant’s Conduct 3 Plaintiff next tries to establish a qualifying injury by citing Defendant’s alleged 4 desire to change its testing standard. See Inj. Reply at 6. Though not the model of clarity, 5 Plaintiff appears to be contending that he has standing because Defendant’s practices are 6 likely to cause future injury to Plaintiff personally and to the public at large. Neither 7 argument, however, holds water. 8 As to Plaintiff himself, the Complaint alleges he will “likely be subjected to more 9 injury, fraud, theft, and other harms.” Compl. ¶ 94. But even at the pleading stage, those 10 conclusory and speculative allegations are insufficient. See Maya v. Centex Corp., [11] 658 F.3d 1060, 1069 (9th Cir. 2011) (noting plaintiffs cannot “rely on a bare legal 12 conclusion to assert injury-in-fact”). The Complaint lacks allegations to even suggest 13 Plaintiff faces the risk of future harm, such as that he wants to purchase—or might submit 14 to—another test stamped by Defendant. See Davidson, 889 F.3d at 969 (explaining that a 15 “previously deceived consumer may have standing to seek an injunction against false 16 advertising” if she “plausibl[y] alleg[es]” (1) she “will not purchase the product[,] although 17 she would like to,” due to unreliable advertising; or (2) “she might purchase the product in 18 the future” and be fooled once more). Mere awareness of allegedly misleading marketing 19 does not confer standing on its own. See Hadley v. Kellogg Sales Co., [20] 243 F. Supp. 3d 1074 , 1107–08 (N.D. Cal. 2017). 21 To the extent Plaintiff seeks a public injunction,11 as Defendant suspects, see Mem. 22 at 17, Plaintiff’s claims of imminent future harm to the public are similarly speculative and 23 unsupported by factual allegations. That problem aside, Plaintiff faces another hurdle. [25] 11 “The public injunction is a creature of California law that ‘has the primary purpose and effect of 26 prohibiting unlawful acts that threaten future injury to the general public.’” Rogers v. Lyft, Inc., 452 F. Supp. 3d 904 , 919 (N.D. Cal. 2020) (quoting McGill v. Citibank, N.A., 393 P.3d 85, 90 (Cal. [27] 2017)), aff’d, No. 20-15689, 2022 WL 474166 (9th Cir. Feb. 16, 2022). “[A] public injunction benefits 28 the general population in equal shares (for example, by enjoining false advertising or deceptive labeling 1 “Plaintiffs may sometimes request public injunctive relief in the course of combating an 2 actual and imminent threat of future harm to themselves.” Rogers v. Lyft, Inc., [3] 452 F. Supp. 3d 904 , 919 (N.D. Cal. 2020) (citing Davidson, 889 F.3d at 969–70), aff’d, 4 No. 20-15689, 2022 WL 474166 (9th Cir. Feb. 16, 2022). But here, Plaintiff has not 5 established a cognizable threat of future personal harm. And Plaintiff may not “use the 6 federal courts merely to pursue a generalized public grievance,” even if a state law purports 7 to allow otherwise. Id. at 919–920. 8 c. Obstruction of July 2023 Test 9 Lastly, Plaintiff argues he has standing because “a core AABB member is 10 obstructing his July 2023 paternity test.” Inj. Reply at 6. The Complaint is, however, 11 devoid of any reference to a July 2023 paternity test or efforts to obstruct such a test. Nor 12 does Plaintiff provide any factual allegations to explain why these hypothetical obstruction 13 efforts might threaten him with imminent harm. As Plaintiff cannot establish constitutional 14 standing based on conclusory statements—let alone those absent from his Complaint—the 15 Court rejects Plaintiff’s final argument. 16 CONCLUSION 17 In light of the foregoing, the Court GRANTS Defendant’s Motion to Dismiss (ECF 18 No. 14). The Complaint’s intentional misrepresentation, fraudulent concealment, 19 negligence per se, false advertising, and unfair competition claims are DISMISSED 20 WITH PREJUDICE to the extent they seek damages flowing from the California superior 21 court’s allegedly erroneous determination that Plaintiff is the Child’s father—an issue 22 Plaintiff is precluded from relitigating.12 The Complaint’s remaining claims are 23 DISMISSED WITHOUT PREJUDICE for lack of standing to pursue injunctive and 24 declaratory relief. See Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) [26] 12 If Plaintiff wishes to raise the tort claims in an amended complaint seeking compensation for a different [27] injury—i.e., one involving damages that are not measured by the money Plaintiff has lost as a result of 28 the state court’s paternity ruling—this Court’s issue preclusion determination does not prevent him from 1 || “Ordinarily, a case dismissed for lack of subject matter jurisdiction should be dismissed 2 || without prejudice ....”). 3 As the Court cannot definitively conclude doing so would be futile, the Court will 4 || provide Plaintiff the opportunity to amend. See Lopez, 203 F.3d at 1130 . Within twenty5 (21) days of the date of this Order, Plaintiff either (1) SHALL FILE an amended 6 ||complaint, or (2) SHALL INDICATE to the Court that he will not do so. Failure to 7 ||timely select either of the above options may result in the dismissal of this action 8 || pursuant to Federal Rule of Civil Procedure 41(b). See Applied Underwriters, Inc. vy. 9 || Lichtenegger, 913 F.3d 884, 890-91 (9th Cir. 2019) (explaining courts may dismiss an 10 || action under Rule 41(b) when a plaintiff fails to comply with a court order requiring the 11 filing of an amended complaint). Any amended complaint must be complete in and of 12 ||itself without reference to Plaintiff's original Complaint; claims not realleged in the 13 |}amended complaint will be considered waived. See S.D. Cal. CivLR 15.1; Lacey v. 14 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting claims dismissed with leave to 15 |}amend that are not realleged in an amended pleading may be “considered waived”’). 16 IT IS SO ORDERED. 17 || Dated: February 8, 2024 (een 18 on. Janis L. Sammartino 19 United States District Judge