Simanov v. Guam PDN

FEDOR SIMANOV, Plaintiff, v. PRESS AGENCIES: GUAM PDN, KUAM, PNC GUAM, Defendants.

CIVIL CASE NO. 19-00147

DISTRICT COURT OF GUAM

September 30, 2020

ORDER

1. Denying Plaintiff's Motion to Disqualify Counsel (ECF No. 24);

2. Granting Request for Judicial Notice (ECF No. 17);

3. Granting Motions to Dismiss (ECF Nos. 9, 13 and 32); and

4. Denying Plaintiff's Motions (ECF Nos. 25-26)

There are several motions pending in this action¹ brought by the Plaintiff against various media outlets for alleged slander and other claims brought under various federal statutes and treaties. Having reviewed the record, the court finds that oral argument on the motions is unnecessary, and accordingly, this Order is issued with regard to said motions.

BACKGROUND

On November 8, 2019, the Plaintiff, who is proceeding pro se, filed his Complaint initiating the instant action. See Compl., ECF No. 1. The 34-page Complaint consists of the following:

• the a "Pro Se 1 Complaint for a Civil Case" form (the "Pro Se 1 Form), id. at 1-5,²

• 16 pages written in a language other than English, id. at 6-21,

• 10 pages of what appear to be photographs or screen shots of various news reports, id. at 22-29 and 33-34,

• a Statement addressed to the Hagatna Precinct Command consisting of one page, id. at 30,³

• a one-page "Petition About judicial translation application," id. at 31,⁴ and

• a "Petition About Securing a claim" consisting of one page, id. at 32.⁵

With regard to the basis for jurisdiction on the Pro Se 1 Form, the Plaintiff marked the boxes labeled "Federal question." Id. at 3. Plaintiff then listed the following when asked to specify the federal statutes, treaties or constitutional provisions at issue in this case: "International Covenant on Civil and Political Rights, American Convention on Human Rights, The Personal Data Privacy and Security Act of 2009, HIPAA, ADA [and the] Privacy Act." Id. In Section III of the Pro Se 1 Form, which instructs the Plaintiff to "[w]rite a short and plan statement of the claim," the Plaintiff wrote:

On October 21-22, these agencies published lies taken out of context and slander, addressed to my words while disclosing personal data - copied from my statement of claim. In the period from October 21-25, a number of articles were published demonstrating the unlawful malevolent attitude of defendants towards repelling me. 1) Slander. Misrepresentation of the facts of the applicant as a participant in the trial. Distortion of the essence of the statement and concealment of the subject of the claim, in an effort to influence the trial. 2) inciting ethnic hatred, racial hatred and calls for the segregation of a national minority. 3) publication of information about the refugee, facts of refugee and circumstances of the petition. 4) call for discriminan of refugees. 5) call for discrimination[.]

Id. at 4.

Finally, in setting out the relief sought in section IV of the Pro Se 1 Form, the Plaintiff wrote:

500,00 five thousand dollars USA

1. Non-pecuniary damage

2. Physical damage caused by moral suffering in the presence of a life-threatening genetic disease that the defendants knew about

3. Medical bills related to poor health due to excitement

4. Security costs as an asylum seeker [and]

5. The cost of family safety[.]

Id.

The Plaintiff's claims as written in English are not clearly alleged, but from what the court can discern, it appears that the Plaintiff has brought this action against various news outlets after they published articles about another lawsuit brought by the Plaintiff in this court against Kamalen Karidat, a local organization operated by the Archdiocese of Agana as a "Ministry to the Homeless." See Fedor Simanov v. Kamalen Karidat, Civil Case No. 19-00143 (the "Kamalen Karidat Action").

On February 19, 2020, Defendants PNC, PDN and KUAM (collectively, the "Defendants") thereafter filed their respective motions to dismiss. See ECF Nos. 9, 13 and 32.⁶ KUAM also filed a Request for Judicial Notice. See ECF No. 17. These motions primarily seek dismissal of the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Plaintiff subsequently filed responses to these motions. See ECF Nos. 27-29 and 34.

Additionally, on March 11, 2020, the Plaintiff filed (1) a Motion to Disqualify Counsel, (2) aMotion to Remedy Procedural Violations and (3) a Motion on Bringing the Defendant to Responsibility for False Testimony. See ECF Nos. 24-26.

ANALYSIS

1. Plaintiff's Motion to Disqualify Counsel

Before the court address the merits of the motions to dismiss, the court first addresses the Plaintiff's request to "dismiss" Randall Todd Thompson as counsel for PNC. See Mot. Disqualify Counsel, ECF No. 24. The Plaintiff alleges that disqualification is warranted "because of his interest in the process 19/00143⁷ related to this process, which is insulting and inappropriately unprofessional rhetoric." Id. at 1.

Legal Standard

Rule 7 of the Federal Rules of Civil Procedure require that a motion "state with particularity the grounds for seeking the order." Fed. R. Civ. P. 7(b)(1)(B). Additionally CVLR 7 of the court's Local Rules of Practice for the District Court of Guam states that "[e]ach motion . . . shall be accompanied by a memorandum of points and authorities[.]" CVLR 7(b).

Furthermore, the court is mindful that because motions to disqualify are often tactically motivated and can be disruptive to the litigation process, disqualification motions are generally disfavored and imposed only when absolutely necessary. See Optyl Eyewear Fashion Int'l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985) (internal citations omitted) (explaining that court should subject such motions to "particularly strict judicial scrutiny"). "The moving party, therefore, carries a heavy burden and must satisfy a high standard of proof." Kelly v. Roker, No. 11-05822 JSW, 2012 WL 851558, at *2 (N.D. Cal. Mar. 13, 2012) (citing Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983)).

Discussion

Here, the Plaintiff's Motion to Disqualify Counsel fails to provide any legal grounds or authority for his request as required by federal Rule 7 and CVLR 7(b). Aside from the sparsestatement quoted above, the Plaintiff attached a print out of a dictionary definition of the word "prejudice" and an "Advisory opinion on the rules of confidentiality regarding asylum information" which appears to be published by the United Nations High Commission for Refugees, consisting of eight pages. The motion contains no other discussion or declaration as to the relevance of these documents. The Plaintiff's fails to meet his heavy burden of proving that disqualification of opposing counsel is warranted. Accordingly, the court denies the Plaintiff's motion to disqualify counsel for PNC.

2. KUAM's Request for Judicial Notice

KUAM requests that the court take judicial notice of the complaint filed in the Kamalen Karidat Action. Req. Judicial Notice, ECF No. 17. KUAM asserts that the court may properly take judicial notice of said complaint since it is a matter of public record and is not subject to reasonable dispute. Id. at 2.

Legal Standard

In ruling upon a motion to dismiss, the court may consider matters which may be judicially noticed pursuant to Rule 201 of the Federal Rules of Evidence. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir.1988). Rule 201 permits a court to take judicial notice of "a fact that is not subject to reasonable dispute" because the fact is either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The court may take judicial notice of matters of public record, such as pleadings in another action and records and reports of administrative bodies. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988).

Discussion

KUAM asks the court to take judicial notice of the complaint filed in the Kamalen Karidat Action, a case separate but related to the instant case. That complaint is a public record not subject to reasonable dispute. Accordingly, the court grants KUAM's request for judicial notice and will consider the complaint for purposes of the Motion to Dismiss filed by KUAM.

3. Defendants' Motions to Dismiss

Defendants PNC, PDN and KUAM have filed separate motions to dismiss, and each raisessimilar issues. See Mots. Dismiss, ECF Nos. 9, 13 and 32. These motions primarily rely on Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, and thus the court begins its analysis by setting forth the legal standard required by each rule.

Legal Standard

"Federal courts are courts of limited jurisdiction," and it is "presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). "A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996).

"A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack "asserts that the lack of subject matter jurisdiction is apparent from the face of the complaint." Id. In a facial attack, the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). A factual attack, on the other hand, is often referred to as a "speaking motion" and challenges the truth of the allegations in the complaint that give rise to federal jurisdiction and the court does not presume those factual allegations to be true. Thornhill Pub. Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). When ruling on such a motion, the court is not "restricted to the face of the pleadings, but may review any evidence,...