616 F.2d 1089 (9th Cir. 1980), 77-3256, Aldabe v. Aldabe

Docket Nº:77-3256.
Citation:616 F.2d 1089
Party Name:Alvera M. ALDABE, Plaintiff-Appellant, v. Charles D. ALDABE et al., Defendants-Appellees.
Case Date:February 28, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1089

616 F.2d 1089 (9th Cir. 1980)

Alvera M. ALDABE, Plaintiff-Appellant,

v.

Charles D. ALDABE et al., Defendants-Appellees.

No. 77-3256.

United States Court of Appeals, Ninth Circuit

February 28, 1980

Rehearing Denied April 30, 1980.

Page 1090

Alvera M. Aldabe, pro se.

Evelle J. Younger, Atty. Gen., Sacramento, Cal., Memering, Stumbos, Demers & Ford, Sacramento, Cal., argued for defendants-appellees; John Quincy Brown, Alan G. Perkins, Sacramento, Cal., C. Nicholos Pereos, Reno, Nev., Michael P. Armenis, Sacramento, Cal., on brief.

Appeal from the United States District Court for the Eastern District of California.

Before KILKENNY, TANG and SCHROEDER, Circuit Judges.

PER CURIAM:

Appellant Alvera M. Aldabe filed a pro se civil rights complaint in federal district court. The complaint alleged that during her protracted divorce proceedings, the seventeen named appellees, including various judges and attorneys involved in the litigation, conspired to deprive her of several constitutional rights. The district court dismissed the action with prejudice on the ground that the complaint failed to state a claim upon which relief could be granted. We affirm.

I.

We discern from the broad outlines of this litigation the following facts: Appellant and her husband Charles D. Aldabe lived on a large ranch that straddled the

Page 1091

border between Nevada and California. Charles sued for divorce in Nevada Superior Court. Appellant contested the suit, arguing unsuccessfully that the martial domicile was in California and that the Nevada court lacked jurisdiction. There followed a series of appeals and collateral actions in various Nevada and California state courts. The results of the various aspects of the litigation are not entirely clear, but it appears that Charles was awarded the ranch as his separate property. Charles subsequently sold the ranch to appellees Lindquist and Kennedy.

On July 9, 1976, appellant filed a complaint in federal district court initiating the present action. The complaint alleged several causes of action against each of seventeen appellees; Charles Aldabe, Lindquist and Kennedy, and six attorneys and eight judges involved in various aspects of the prior litigation. The claims were based on 42 U.S.C. §§ 1983 and 1985(3), and on 18 U.S.C. §§ 241 and 242. The thrust of most of the claims was that the appellees had conspired to violate Mrs. Aldabe's constitutional rights by keeping her in a state of poverty for the purpose of hindering the effective prosecution of her case. She prayed for $12,000,000.00 in damages and an order invalidating all previous related judgments.

The district court granted the motions of fifteen of the appellees to dismiss the actions against them with prejudice on the ground that the complaint failed to state a claim upon which relief can be granted. The claims against the remaining two appellees were later dismissed, also with prejudice, on the court's own motion. This appeal followed.

On May 26, 1978, this court granted the motion of four of the attorney appellees to dismiss the appeals against them on the ground that appellant had raised no issue on appeal with respect to the four moving parties. Our decision today, therefore, addresses appellant's claims against the remaining thirteen appellees.

II.

We are met at the outset with the argument that this court lacks jurisdiction because the notice of appeal was untimely. Under F.R.A.P. 4(a), the notice of appeal must be filed with the district court within 30 days of the entry of the judgment or order from which appeal is to be taken. Final judgment, in this case, was entered on May 12, 1977. The notice of appeal was received by the district court clerk on June 13, 1977, but not formally filed until June 28, 1977. Because an appellant has no control over delays between receipt and filing, a notice of appeal is timely filed if received by the district court within the applicable period specified in Rule 4. Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); United States v. Solly, 545 F.2d 874, 876 (CA3 1976); Da'Ville v. Wise, 470 F.2d 1364, 1365 (CA5 1973), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50. We hold that appellant satisfied the 30-day requirement for filing the notice of appeal. 1 Consequently, we proceed to the merits.

III.

The district court dismissed appellant's action against the judge appellees on the basis of judicial immunity. Appellant maintains that the doctrine of judicial immunity, being of common law stature, has been superseded by the Civil Rights Act. That argument was specifically rejected by Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978), and Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967).

Appellant contends alternatively that a judge who violates a litigant's legal rights is not acting in his or her judicial capacity. Stump and Pierson similarly dispose of that argument. The district court correctly dismissed the claims against the judge appellees.

Page 1092

IV.

With respect to the remaining appellees, appellant raises several arguments that must be examined.

A. The § 1983 Claim.

Under 42 U.S.C. § 1983, the appellant must show that the appellee, acting under color of state law, deprived the appellant of rights secured by the Constitution or other federal laws. The district court ruled that the appellant had failed to allege action under color of law by the nonjudge appellees. 2

We need not and do not determine whether the appellees acted under color of state law, however, for we have concluded that the district court's dismissal of appellant's § 1983 claim should be affirmed on the clearer ground that appellant simply did not allege any facts showing the deprivation of any constitutional or other legal rights. Appellant's dissatisfaction with the property settlement reached in her prior divorce proceedings, and her conclusory allegations that the appellees had conspired to prevent her from effectively prosecuting her divorce case, are insufficient...

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1768 practice notes
  • 114 F.Supp.2d 877 (W.D.Mo. 2000), 95-1003-CV-W-6, Premier Bank v. Tierney
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • September 27, 2000
    ...the court to award a judgment for legally unsound claims. See Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980); 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, Civil 3d § 2688, at 63 (1......
  • 805 F.Supp.2d 858 (D.Ariz. 2011), CV09-2282-PHX-NVW, M & I Bank, FSB v. Coughlin
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Arizona
    • August 9, 2011
    ...therefore reviewed under the standard applicable to a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980). In ruling on a Rule 12(c) motion, the Court must " determine whether the facts alleged in the complaint, to be t......
  • 845 F.Supp.2d 1072 (C.D.Cal. 2012), SACV 10-1200-JST (MLGx), Wecosign, Inc. v. IFG Holdings, Inc.
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • January 23, 2012
    ...572 F.2d 1386, 1388 (9th Cir.1978). A district court has discretion to grant or deny a motion for default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980). The Ninth Circuit has set out seven factors to be considered by courts in reviewing a motion for default judgment: "......
  • Back Shop Tiefkuhl GmbH v. GN Trade, Inc., 061614 CAEDC, 2:12-cv-0540 WBS KJN
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of California
    • June 16, 2014
    ...the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe , 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following (1) the possibility of prejudice to the plaintiff, (2)......
  • Free signup to view additional results
1768 cases
  • 114 F.Supp.2d 877 (W.D.Mo. 2000), 95-1003-CV-W-6, Premier Bank v. Tierney
    • United States
    • Federal Cases United States District Courts 8th Circuit Western District of Missouri
    • September 27, 2000
    ...the court to award a judgment for legally unsound claims. See Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980); 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, Civil 3d § 2688, at 63 (1......
  • 805 F.Supp.2d 858 (D.Ariz. 2011), CV09-2282-PHX-NVW, M & I Bank, FSB v. Coughlin
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Arizona
    • August 9, 2011
    ...therefore reviewed under the standard applicable to a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980). In ruling on a Rule 12(c) motion, the Court must " determine whether the facts alleged in the complaint, to be t......
  • 845 F.Supp.2d 1072 (C.D.Cal. 2012), SACV 10-1200-JST (MLGx), Wecosign, Inc. v. IFG Holdings, Inc.
    • United States
    • Federal Cases United States District Courts 9th Circuit Central District of California
    • January 23, 2012
    ...572 F.2d 1386, 1388 (9th Cir.1978). A district court has discretion to grant or deny a motion for default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980). The Ninth Circuit has set out seven factors to be considered by courts in reviewing a motion for default judgment: "......
  • Back Shop Tiefkuhl GmbH v. GN Trade, Inc., 061614 CAEDC, 2:12-cv-0540 WBS KJN
    • United States
    • Federal Cases United States District Courts 9th Circuit Eastern District of California
    • June 16, 2014
    ...the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe , 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following (1) the possibility of prejudice to the plaintiff, (2)......
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