Cook v. Peter Kiewit Sons Co.
| Decision Date | 31 October 1985 |
| Docket Number | 84-2165,Nos. 85-1649,P,I-XX,s. 85-1649 |
| Citation | 775 F.2d 1030 |
| Parties | Charles C. COOK, and others similarly situated, Doeslaintiff- Appellant, v. PETER KIEWIT SONS CO., Southern Electrical Contractors, Inc., Kiewit-Southern (a Joint Venture), Rodney D. Beck, Bruce Morse, Mike Rooney, Rich Nabor, David Cohee, Don Kelsey, Clint Gwynn, III, Justin M. Roach, Larry Meuwissen, Dwight C. Ely, Michael McInnis, Defendants-Appellees. Charles C. COOK and others similarly situated, Doeslaintiff-Appellant. v. PETER KIEWIT SONS CO., Southern Electrical Contractors, Kiewit-Southern (a Joint Venture), Rodney C. Beck, Bruce Morse, Mike Rooney, Rick Nabor, David Cohee, Don Kelsey, Clint Gwynn, III, Justin M. Roach, Larry Meuwissen, Dwight C. Ely, Michael McInnis, Thomas H. Gordinier, Kathleen T. Gunn, Donald B. Ayer, Yoshinori H.T. Himel, Greg Ciappoini, Neil Crawford, Carol Tambarelli, Milton L. Schwartz, and Does 26 through 50, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles C. Cook, pro se.
Thomas H. Gordiner, Chief Deputy County Counsel, Fairfield, Cal., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of California.
Before NORRIS and REINHARDT, Circuit Judges, and JAMESON, * District Judge.
This is a consolidated appeal of judgments of dismissal in two actions instituted by Charles C. Cook, arising from Cook's attempt to avoid the withholding of federal income taxes from his wages. 1 In each case the district court dismissed the action with prejudice, awarded attorney fees to the defendants, released liens and lis pendens documents filed by Cook, and enjoined Cook from further litigating any issues raised by him in these actions and from filing further liens or other encumbrances against property belonging to the defendants. 2
Cook raises a number of interrelated issues on appeal. His primary contention in each case is that once the district court declared that it lacked subject matter jurisdiction, it lacked jurisdiction to award costs and attorney fees and to enjoin him from relitigating the issues raised on these actions. We affirm in part and reverse in part.
Cook was one of 750 to 1,000 employees of Kiewit-Southern, a joint venture of Peter Kiewit Sons Co. and Southern Electrical Contractors, Inc., who claimed exemption from income tax withholding on FORM W-4. The IRS reviewed Cook's claim of exemption and, concluding that it lacked merit, ordered his employer to begin withholding at a specified rate. The employer complied with the order.
Cook first sued his employer and some of its employees for breach of the employment contract in Superior Court, Solano County, California (Cook I). Within a few days after filing the complaint, Cook recorded a number of documents which placed liens and other impediments upon personal and real property of the Kiewit defendants and other persons named in the suit. The Kiewit defendants demurred, seeking dismissal. The United States, represented by attorney Larry Meuwissen, submitted an amicus curiae brief supporting dismissal. Cook did not oppose dismissal, and the Solano County Superior Court (Judge Dwight C. Ely) dismissed the action on June 16, 1983.
Judge Ely's dismissal was vacated, and on rehearing Superior Court Judge Michael McInnis again dismissed the action on July 15, 1983. He found the complaint did not state a cause of action and that subject matter jurisdiction was lacking. He declared the lien type documents devoid of legal effect, enjoined Cook from filing any more such documents in Solano County, and awarded attorney fees. Cook did not appeal this judgment.
On June 23, 1983, Cook filed a complaint in Cook II, realleging the claims of Cook I and adding claims sounding in defamation and trespass. Cook also added as defendants counsel for the Kiewit defendants in Cook I, Judge Ely, Judge McInnis, Larry Meuwissen, the Solano County Clerk, a deputy clerk, and an IRS official. Since an officer of the United States was named as a defendant, the case was removed to the United States District Court for the Eastern District of California. The case was assigned to Judge Milton Schwartz.
The defendants moved for dismissal or summary judgment in Cook II, on the grounds, inter alia, of res judicata, collateral estoppel, official immunity, and lack of proper service of process. In addition, they contended that the suit was frivolous and brought in bad faith. Following a hearing and oral argument on November 18, 1983, Judge Schwartz orally indicated that he would grant the defendants' motions. On December 22, 1983, however, before Judge Schwartz had entered a written order, he was named as a defendant in Cook III. Consequently Judge Schwartz was unable to file a written order until July 16, 1984, after Cook III had been dismissed by Judge Ramirez.
In his written order, Judge Schwartz found that the state court disposition of Cook I was res judicata as to the Kiewit defendants and therefore barred relitigation as to them. He found further that the remaining claims were "frivolous on their face" and dismissed the claims against "the defense counsel category because no wrongful act [was] alleged, and the judge category ... because of absolute immunity for judicial acts under Bradley v. Fisher, 13 Wall. 335, 354, 80 U.S. 335, 354, 20 L.Ed. 640 (1872)." Additionally, Judge Schwartz assessed attorney fees against Cook, released all "liens" known or that should become known, and, in a separate order, enjoined Cook from relitigating any claim based on the factual and legal issues adjudicated and dismissed in Cook II.
Cook moved to vacate these orders. He argued in the main that the federal court lacked subject matter jurisdiction. Cook agreed to release all clouds on the title of Meuwissen's property and also agreed to refrain from filing such documents in the future on the property of Meuwissen, any federal judge, agent of the IRS or United States Attorney. Although the original order did not mention as a basis of dismissal lack of subject matter jurisdiction, Judge Schwartz addressed this issue in his order denying Cook's motion. He concluded, as did Judge Ramirez in Cook III, that "[t]here [was] ample authority for the court to dismiss this action for lack of subject matter jurisdiction on the grounds of insubstantiality." Cook's motion was denied.
Cook's third case was filed in federal district court. The allegations of the complaint were essentially the same as in Cook II, except for augmenting the list of defendants to include the United States Attorney who removed Cook II to federal court, the Deputy County Counsel who defended the Superior Court officers, the new counsel for the original defendants, and Judge Schwartz. Since Judge Schwartz was named as a defendant in Cook III, this case was assigned to Judge Ramirez.
Judge Ramirez's written order was filed March 20, 1984. Judge Ramirez did not reach the defendants' asserted grounds for dismissal. Instead, he found that "this lawsuit [was] wholly frivolous, insubstantial and groundless," and concluded that the lawsuit "[was] outside this court's subject matter jurisdiction." He relied on Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), and Hagans v. Lavine, 415 U.S. 528, 537-38, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974). Judge Ramirez ordered the action dismissed for lack of subject matter jurisdiction and for failure to state a claim. 3
Additionally, Judge Ramirez found that Cook had brought Cook III in bad faith and for vexatious purposes. Judge Ramirez therefore enjoined Cook from again adjudicating any claim based on the same facts as those contended in Cook III, Cook II, or in Cook I. He found authority for this injunction in the All Writs Statute, 28 U.S.C. Sec. 1651 and in Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515 (9th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984). Finally, Judge Ramirez held that all the documents filed by Cook which clouded the title to the defendants' property were null and void and he therefore ordered them dissolved and expunged. Cook was also enjoined from filing any other such documents based on the facts contended by Cook in Cook III, Cook II or in Cook I. Defendants' motion for attorneys' fees and costs were dealt with in a separate order.
Cook moved the court in Cook III to vacate or to modify its judgment. Cook agreed to release all liens he had placed on the title of Meuwissen's property and stipulated that he would forever refrain from filing such liens on titles to property of Meuwissen, any federal judge, agent of the IRS or United States Attorney. He argued that once the court determined that it lacked jurisdiction, it was without power to act on defendants' requests for attorney fees and injunctive relief. Judge Ramirez concluded, relying on Wood, 705 F.2d 1515, that the court had power to act as it had and that it had correctly exercised its discretion. The judgment was reaffirmed on June 6, 1984.
It is Cook's primary contention in each case that the court, having found that it lacked subject matter jurisdiction, had no power to (1) enjoin the plaintiff from further litigation or (2) award costs and attorney fees to the defendants. In addition, Cook contends in Cook II that this action was improperly removed and should be remanded to state court; and that the court lacked authority to expunge the liens he had filed against the defendants' property. 4
We find no merit in Cook's contention that Cook II was improperly removed from state court and should be remanded. 28 U.S.C. Sec. 1442(a)(1) provides for the removal to the appropriate federal court of any civil action commenced in a state court against any "officer of the United...
To continue reading
Request your trial
-
Mason v. Witt
...not a dismissal on the merits and, therefore, the plaintiff may seek relief in state court, if appropriate. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir.1985). In a case, such as this, where the plaintiff is pro se, the court has an obligation to construe the pleadings li......
-
Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne
...on the merits); see also MacAffer v. Boston & M.R.R., 268 N.Y. 400, 197 N.E. 328, 328–29 (1935) (same).FN18 See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir.1985) (dismissal for lack of subject-matter jurisdiction is not on the merits as the court “retain[s] no power to make ......
- Briggs v. Dalton
- Chauffeur's Training School, Inc. v. Riley