Partanen v. W. United States Pipe Band Ass'n

JOHN ERIC PARTANEN, Plaintiff, v. WESTERN UNITED STATES PIPE BAND ASSOCIATION, et al., Defendants.

No. 1:21-cv-00588-BAM

United States District Court, E.D. California

November 4, 2021

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

(Doc. 37)

ORDER DENYING PLAINTIFF'S MOTIONS TO AMEND AS MOOT

(Docs. 61, 63)

BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff John Eric Partanen (“Plaintiff”), proceeding pro se, initiated this civil action on April 8, 2021. This action proceeds on Plaintiff's First Amended Complaint against Defendants Western United States Pipe Band Association (“WUSPBA”) and Jeff Mann (collectively “Defendants”) arising from termination of his WUSPBA membership. (Doc. 13.)

On July 26, 2021, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6) on the grounds that “each of them either fails to state a claim upon which relief can be granted, is barred by the statute of limitations, or fails to provide anything more than conclusory allegations that would support a finding on essential elements of the claims.” (Doc. 37 at 4.) Plaintiff opposed the motion on July 26, 2021.^[1] (Doc. 42.)

Defendants replied on August 9, 2021. (Doc. 45.) Although not permitted leave of court, Plaintiff filed a rebuttal on August 12, 2021. (Doc. 47.)

The Court directed that the pending motions, including the instant motion to dismiss, would be heard and decided on the papers. (Doc. 48.) Based on the parties' consent, the action was subsequently reassigned to a United States Magistrate Judge for all purposes pursuant to 28 U.S.C § 636(c)(1). (Doc. 57.)

Having considered the parties' briefs, arguments, and record in this action, Defendants' motion to dismiss will be granted as discussed in further detail.

II. Allegations in First Amended Complaint

Plaintiff is a professional Scottish bagpiper and former member of the WUSPBA, a Nevada entity that regulates Scottish bagpiping, drumming, Scottish drum majoring, and bagpipe band contests in eight western states, including California. (Doc. 13 at ¶¶ 8, 10, 12)

In February 2018, WUSPBA terminated Plaintiff's membership. (Id. at ¶ 12.) Plaintiff appealed the termination to the WUSPBA Board. As a result of the dispute, and to reinstate Plaintiff's membership, the parties entered into the Western United States Pipe Band Association Music Board Informal Resolution Among the Parties John Partanen and the WUSPBA Executive Committee (“Informal Resolution”). (Doc. 13 at ¶¶ 13-14; Ex. 2 at pp. 61-62.)

In 2019, there was an alleged incident at the United Scottish Society of Southern California Highland Games. Plaintiff was approached by a WUSPBA member, who reportedly accused Plaintiff of cheating and threatened the band with disqualification. After the contests, Plaintiff approached the WUSPBA member, telling her that she had violated contest rules. The WUSBA member claimed Plaintiff was abusive, and Defendant Mann, WUSPBA's president, called Plaintiff about the incident. The matter was later dropped. (Doc. 13 at ¶ 15.)

In 2020, Plaintiff sent emails to Defendant Mann asking for help recovering entry fees for the 2020 Las Vegas Highland Games, which were about to be cancelled due to COVID-19. Defendant Mann and WUSPBA reportedly viewed these emails as a breach of the Informal Resolution. Plaintiff alleges that Defendant Mann responded with threats and accusations of bullying. Plaintiff claims that these constituted false allegations of a crime and an effort to coerce Plaintiff into silence. (Doc. 13 at ¶ 16.)

Plaintiff subsequently decided to run for vice-president of WUSPBA. Plaintiff claims that Defendants viewed this as a hostile act. Plaintiff ran his campaign by posting blogs on a Facebook page prepared by WUSPBA member Gary Speed and entitled “wuspba elections.” (Doc. 13 at ¶ 17.) Defendant Mann reportedly sent an email to Mr. Speed on May 12, 2020, accusing Plaintiff and Mr. Speed of copyright infringement relating to the Facebook posts. Plaintiff claims that there is no copyright or registered trademark for the term “WUSPBA” or any derivations of it. (Id. at ¶ 18.) Plaintiff therefore alleges that Defendant Mann falsely accused him of copyright infringement, resulting in defamation.

On September 2, 2020, Plaintiff sent an email to WUSPBA's president reminding him that WUSPBA was bound by Chapter 82 of the Nevada Revised Statutes regarding the October 2020 annual general meeting. This reminder allegedly was viewed as a hostile act by the WUSPBA executive committee and Defendant Mann in breach of the Informal Resolution. Plaintiff alleges that he was concerned that WUSPBA would not notify solo members of their right to vote by proxy as required by the Nevada statutes. Plaintiff asserts that WUSPBA did not notify its members of this right. WUSPBA also failed to gain advance consent before holding the 2020 general meeting online due to COVID-19.

At the October 2020 general meeting, Plaintiff was given two minutes to attempt to convince the membership in attendance to vote for him as the next vice president. Plaintiff reportedly was prepared to deliver a 30-minute speech and claims that the two minutes was woefully inadequate. He was not elected vice president.

After the 2020 general meeting, the newly elected WUSPBA Executive Committee retained counsel in Reno, Nevada to justify termination of Plaintiff's WUSPBA membership. WUSPBA accused Plaintiff of breaching the Informal Resolution when he contacted the WUSPBA to ask for help recovering his entry fees from the Las Vegas Highland Games. WUSPBA also claimed that Plaintiff made unreasonable demands and insisted that WUSPBA return the fees, not the sponsor, and if the fees were not returned, then he would take legal action. Plaintiff claims that none of his emails contained unreasonable demands or a threat to bring legal action against WUSPBA. WUSPBA also used Plaintiff's reminders that they must follow Nevada statutes as a violation of the Informal Resolution.

After multiple conflicts with Plaintiff, WUSPBA elected to conduct a review of Plaintiff's membership on December 5, 2020. (Id. at ¶¶ 23-24.) WUSPBA concluded its membership review on December 11, 2020, and terminated Plaintiff's membership. (Id. at ¶ 26.)

On December 14, 2020, Plaintiff sent a letter objecting to termination of his membership. He also sent a letter to Ken Sutherland, chairman of the WUSPBA Music Board, notifying him of an appeal. On December 17, 2020, Plaintiff received an email from WUSPBA's counsel indicating that Plaintiff's appeals were denied.

Plaintiff then attempted to determine his new status and eventually hired counsel to gain answers. Plaintiff's counsel reportedly was informed that Plaintiff would not be allowed to complete as a solo bagpiper in contests sanctioned by WUSPBA. Plaintiff also could not lead or perform with the bagpipe band he co-founded in contests sanctioned by WUSPBA or the band would be disqualified.

On February 17, 2021, Plaintiff sent a personal appeal to WUSPBA's president, along with a follow-up message requesting that he be allowed to lead and perform with the Kern County Pipe Band. WUSPBA's counsel responded, denying the personal appeals.

Gary Speed and the Kern County Pipe Band both requested that the dispute with WUSPBA regarding Plaintiff's membership be submitted to binding arbitration. These requests were denied. Plaintiff claims that he also attempted to send this dispute to mediation or an informal settlement conference.

Plaintiff now brings this action against Defendants to reinstate his membership in the WUSPBA. He alleges (1) unenforceability of the Informal Resolution; (2) breaches of the Informal Resolution; (3) defamation of character by Defendant Mann; (4) bullying by the WUSPBA; (5) coercion by WUSPBA and Defendant Mann; (6) intentional infliction of emotional distress; and (7) statutory violations of Nevada law. Plaintiff seeks declaratory and equitable relief, along with damages. (See generally Doc. 13.)

III. Defendants' Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999). However, the Court need not credit “naked assertions, ” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” See Twombly, 550 U.S. at 555-57.

Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at...