Mir v. Brown

JEHAN ZEB MIR, Plaintiff, v. JAY BROWN, et al., Defendants.

Case No. 15-9097-JAR-JPO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

May 16, 2019

MEMORANDUM AND ORDER

Plaintiff Jehan Zeb Mir, proceeding pro se, filed this case in May 2015 against Kansas Defendants Jay Brown and Westport Insurance Corporation ("Westport Defendants"), and against California Defendants Iungerich & Spackman, a Professional Law Corporation, Russell Iungerich, and Paul Spackman ("I & S Defendants"). Plaintiff seeks monetary damages for federal and California state-law claims. This matter is now before the Court on the Westport Defendants' Motion to Dismiss (Doc. 17) under Fed. R. Civ. P. 12(b)(6), which the individual I & S Defendants have joined.¹ For the reasons explained below, the Court grants the Westport Defendants' motion, grants individual Defendants Iungerich's and Spackman's motions to dismiss, and orders Defendant I & S to show cause why the Court should not direct the clerk to enter default pursuant to Fed. R. Civ. P. 55(a).

I. Standard

To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations that, when assumed to be true, "raise a right to relief above thespeculative level"² and must include "enough facts to state a claim for relief that is plausible on its face."³ Under this standard, "the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."⁴ The plausibility standard does not require a showing of probability that "a defendant has acted unlawfully," but requires more than "a sheer possibility."⁵ "[M]ere 'labels and conclusions,' and 'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim."⁶ Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.⁷

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but is] 'not bound to accept as true a legal conclusion couched as a factual allegation.'"⁸ Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.⁹ Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."¹⁰ "A claim has facial plausibility when the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."¹¹

A district court can take judicial notice of its own decisions and records in a prior case involving the same parties without converting a motion to dismiss the latter case into a motion for summary judgment.¹²

Finally, because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiff's pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.¹³ However, the Court may not provide additional factual allegations "to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."¹⁴ Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.¹⁵

II. Procedural History and Background

In 1985, Plaintiff, a physician, was terminated from a California hospital for alleged misconduct.¹⁶ In 1992, Plaintiff employed Defendant I & S, a California law firm, and individual lawyers, Defendants Iungerich and Spackman, to represent him in a lawsuit against the hospital for lost income because of that termination, which ended in a judgment adverse to Plaintiff.¹⁷

In 2001, Plaintiff filed a malpractice lawsuit in California state court against I & S and its lawyers relating to the 1992 lawsuit.¹⁸ I & S's malpractice carrier, Defendant Westport Insurance Corporation ("Westport"), retained Greines, Martin, Stein & Richland, LLP ("Greines Martin") to defend I & S in the malpractice action.¹⁹ I & S counterclaimed for $58,000 in unpaid legal fees, costs, and interest.²⁰ Plaintiff and I & S negotiated a settlement that contemplated a payment by I & S of $45,000 to settle the malpractice suit, without mentioning the unpaid attorney's fees.²¹ I & S successfully moved to enforce the "Settlement Terms," resolving the malpractice case, which Plaintiff contends was error by the state court.²² In March 2003, the state court awarded I & S $85,147.06 in attorney's fees plus interest and costs, which was increased to $100,897.06.²³

Plaintiff appealed the state-court judgment in May 2003. The judgment was affirmed, and Plaintiff was subsequently ordered to pay I & S an additional $76,909 in attorney's fees for the appeal.²⁴ On November 5, 2004, I & S filed suit for fraudulent conveyance of a property that Plaintiff sold in 2001, which was eventually settled when Plaintiff agreed to pay I & S $35,000.²⁵

I & S continued to attempt to collect on its judgment in state court for the next decade. During this period, I & S carried a professional-liability policy issued by Westport and I & S filed a claim with Westport for Greines Martins' attorney's fees in connection with the matter.²⁶In 2006, I & S attempted to execute on its judgment and Plaintiff argued that the amount of interest was improperly calculated and did not reflect credit for the funds received from Westport in connection with the prior settlement.²⁷

In 2013, I & S retained the law firm of Frandzel, Robin, Bloom, Csato, LC ("FRBC") to assist in its collection efforts. In March 2013, I & S filed in the Los Angeles County Superior Court an Amended Application for Renewal of Judgment in the amount of $438,594.16 ("Renewal of Judgment"). On March 18, 2013, I & S recorded a Notice of Involuntary Lien and Amended Application for renewal of judgment in that same amount. Plaintiff moved to set aside and vacate the Renewal of Judgment on the grounds that I & S and FRBC had, among other things, improperly included in the judgment attorney's fees in the amount of $76,160 and $30,160 that had already been paid by I & S's professional-liability insurer, Westport.²⁸ Jay Brown is a Kansas attorney who provided legal services to Westport in connection with a subpoena duces tecum served on Westport's offices in May 2013. Plaintiff alleged that I & S, Westport, and Brown engaged in "double dipping" and fraudulently concealed the fact of such payments from Plaintiff and the court.²⁹ The California state court found for Plaintiff only on the failure to credit the $45,000 settlement and revised the judgment down to $408,610.60, but made no findings that I & S acted fraudulently.³⁰ The state court directed I & S and FRBC to enter a new judgment nunc pro tunc.³¹

Plaintiff appealed the state-court judgment to the California Court of Appeals. OnJanuary 9, 2015, that court affirmed the judgment in the amount of $408,610.60 but found that the trial court's "use of the nunc pro tunc procedure to be improper," because it was used to correct a mistake of the parties, not to correct clerical errors.³²

While his appeal was pending, Plaintiff filed a lawsuit on May 29, 2014, in the United States District Court for the Central District of California ("the 2014 federal action") against FRBC, I & S, I & S's former counsel, Greines Martin, and I & S's malpractice carrier, the Westport Defendants.³³ Plaintiff asserted the following causes of action stemming from the defendants' conduct in attempting to obtain and enforce the California state judgment: (1) racial discrimination under 42 U.S.C. § 1981; (2) deprivation of rights by a person acting under color of state law under 42 U.S.C. § 1983; (3) conspiracy to violate civil rights under §§ 1985 and 1986; (4) civil RICO claims under 18 U.S.C. § 1964(c); and (5) various California state law claims.³⁴

Defendants Brown and Westport moved to dismiss.³⁵ Brown, a Kansas resident, argued that the California court lacked personal jurisdiction over him pursuant to Fed. R. Civ. P. 12(b)(2), because he had no contacts with the state and no other bases for jurisdiction existed.³⁶ On January 12, 2015, the court granted Brown's motion and dismissed all claims against him "without leave to amend," holding that "further amendment would be futile."³⁷ Westport successfully argued that dismissal was appropriate under Fed. R. Civ. P. 12(b)(6) becausePlaintiff failed to set forth facts sufficient to state a claim.³⁸ The court dismissed the Amended Complaint and all of Plaintiff's federal claims against Westport "without leave to amend," and declined to exercise supplemental jurisdiction over Plaintiff's state law claims.³⁹

On February 19, 2015, the California federal district court dismissed Plaintiff's federal claims against the defendant law firms and their members under RICO and 42 U.S.C. §§ 1981, 1983, 1985, and 1986, without leave to amend.⁴⁰ The claims were dismissed on two grounds: (1) the claims were based on litigation activities that constituted First Amendment-protected petitioning of the government and thus were barred by Noerr-Pennington immunity;⁴¹ and (2) even if that were not the case, Plaintiff failed to state any claim.⁴² The court declined to exercise supplemental jurisdiction over Plaintiff's state-law claims.⁴³

Plaintiff appealed the judgment of dismissal in the 2014 federal action to the Ninth Circuit Court of Appeals on March 17, 2015. While the appeal was pending, on May 29, 2015, Plaintiff filed this lawsuit against only the I & S Defendants and the Westport Defendants.⁴⁴ In the proceedings before this Court, Plaintiff asserts claims against Defendants for (1) intentional interference with...