Free Order on Motion to Dismiss - District Court of California - California

Case 3:07-cv-02226-DMS-AJB

Document 23

Filed 01/22/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant also moved to strike most of the contents of the declaration of Chad Austin and accompanying exhibits. (Doc. 14-3). That motion is denied as moot, since consideration of those exhibits was not necessary for ruling on this motion. -107CV2226
1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

JAMES M. KINDER, Plaintiff,

CASE NO. 07CV2226 ORDER DENYING DEFENDANT'S MOTION TO DISMISS [Doc. 5, 14-3]

HARRAH'S ENTERTAINMENT, INC., Defendant.

Pending before the Court is Defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), which is currently set for hearing on January 25, 2008. The Court finds this matter suitable for submission without oral argument pursuant to Local Civil Rule 71.(d)(1). Accordingly, no appearances are required at this time. The motion is denied.1 Plaintiff alleges Defendant violated the Telephone Consumer Protection Act of 1991 (TCPA, found at 47 U.S.C. § 227 and 47 C.F.R. § 64.1200) by repeatedly calling Plaintiff's pager service with an automatic dialer or recorded voice. This is one of several similar lawsuits currently pending in federal court. In 2003, after filing several similar lawsuits in California state courts, Plaintiff was declared a "vexatious litigant" by the state of California, which subjected him to a pre-filing order requiring him to obtain leave of the court before filing a complaint based on facts substantially similar

Case 3:07-cv-02226-DMS-AJB

Document 23

Filed 01/22/2008

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to the facts asserted and claims made in the original lawsuits. See In re Shieh, 17 Cal. App. 4th 1154 (1993). Defendant argues the instant case should be dismissed because Plaintiff failed to obtain leave of court to file the Complaint in compliance with the pre-filing order. However, Defendant offers no evidence, and Plaintiff has not admitted, that Plaintiff was subject to the pre-filing order on October 7, 2007 when he filed this lawsuit in state court. Defendant's uncontroverted evidence demonstrates only that Plaintiff was labeled a vexatious litigant as of September 28, 2007. Moreover, Defendant points to no authority for dismissing a lawsuit currently in federal court because a Plaintiff failed to follow state court vexatious litigation procedures. Accordingly, Defendant's motion to dismiss on grounds of failure to obtain leave of the court before filing is denied without prejudice, to be reconsidered if appropriate.2 Defendant next argues the Court lacks personal jurisdiction over Defendant because Defendant does not have sufficient minimum contacts with California. However, if Plaintiff's allegations that Defendant repeatedly and illegally called Plaintiff's pager service are true, the claims arise out of Defendant's contacts with California and personal jurisdiction exists. Burger King v. Rudzewicz, 471 U.S. at 472-73 (1985). The facts giving rise to jurisdiction are therefore the same facts that, if proven, lend merit to Plaintiff's case. When "jurisdictional facts are intertwined with the merits," it is "preferable that [the jurisdiction] determination be made at trial, where a plaintiff may present his case in a coherent, orderly fashion and without the risk of prejudicing his case on the merits." Data Discovery, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 n.2 (9th Cir.1977). Since the Court is therefore not holding an evidentiary hearing before ruling on the motion, it is enough that Plaintiff alleged facts which, if true, are sufficient to support the exercise of personal jurisdiction over Defendant. See Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clemens Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). Plaintiff also argues that any pre-filing order does not apply because Plaintiff commenced this action while represented by counsel. Plaintiff is incorrect. California Code of Civil Procedure § 391, which sets forth the scheme for dealing with vexatious litigants, restricts the initial classification of vexatious litigants to persons acting in propia persona. However, once a person is declared a vexatious litigant, filing subsequent lawsuits through counsel does not exempt him from the requirements of the pre-filing order. In re Shieh, 17 Cal. App. 4th at1166. (The plaintiff "clearly fit[] the definition of a vexatious litigant" even though he "presently [was] represented by counsel.") -207CV2226
2

Case 3:07-cv-02226-DMS-AJB

Document 23

Filed 01/22/2008

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant further argues Plaintiff fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) because he named the wrong party to the action. In support of this statement, Defendant produced a declaration by Defendant's Chief Litigation Officer, who declares under penalty of perjury that Harrah's Entertainment, Inc. "does not make telemarketing or other telephone calls to individuals in California using an automatic telephone dialing system, artificial or prerecorded voice, or otherwise." (Kostrinsky Decl., ¶ 3). In ruling on a motion to dismiss, the Court may not weigh evidence, and instead must take all allegations as true. Plaintiff properly alleged Defendant made the phone calls at issue. Accordingly, Defendant's motion to dismiss on grounds that Plaintiff named the wrong Defendant is denied. Defendant shall respond to the Complaint in accordance with applicable law. IT IS SO ORDERED.

DATED: January 22, 2008

HON. DANA M. SABRAW United States District Judge

-3-

07CV2226