Evans v. Crowe & Mulvey, LLP, Civ. No. 20-00082 JMS-KJM

CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)
Writing for the CourtJ. Michael Seabright Chief United States District Judge
PartiesBRIAN EVANS, Plaintiff, v. CROWE & MULVEY, LLP, ET AL., Defendants.
Docket NumberCiv. No. 20-00082 JMS-KJM
Decision Date27 May 2020

BRIAN EVANS, Plaintiff,
CROWE & MULVEY, LLP, ET AL., Defendants.

Civ. No. 20-00082 JMS-KJM


May 27, 2020



On April 22, 2020,1 this court issued an Order dismissing pro se Plaintiff Brian Evans' ("Plaintiff") Complaint with leave to amend (the "April 22 Order"). ECF No. 9.2 On May 1, 2020, Plaintiff filed a First Amended Complaint ("FAC") against Defendants Crowe & Mulvey, LLP ("C&M"); C&M attorney Florence Carey ("Carey"); Cosgrover, Eisenberg & Kiley, PC ("CE&K"); and CE&K attorney Lewis C. Eisenberg ("Eisenberg") (collectively, "Defendants"). ECF No. 10. For the reasons discussed below, the FAC is DISMISSED pursuant

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to 28 U.S.C. § 1915(e)(2) for failure to state a claim. Plaintiff may file a second amended complaint on or before June 29, 2020. This action will be dismissed without prejudice if Plaintiff fails to timely file an amended complaint that attempts to cure the deficiencies noted in this Order.


A. The Complaint

Plaintiff's original Complaint alleged that Defendants C&M and Carey represented him in "his mother[']s wrongful death trial." ECF No. 1 at PageID #4. As alleged, Plaintiff recorded a video testimonial of C&M's services, but then later notified "Defendants" that he intended to sue C&M for legal malpractice. Id. Thereafter, Eisenberg and CE&K conspired to post the video on YouTube. Id.; ECF No. 1-1 at PageID #8. Plaintiff alleged that the video was posted without his authorization and that the posting has caused him "extreme emotional distress." ECF No. 1 at PageID #4. The Complaint alleged state-law claims for breach of contract, intentional infliction of emotional distress ("IIED"),

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and coercion, for which Plaintiff sought $1 million in compensatory, punitive, and exemplary damages. Id.

The court dismissed this Complaint for failure to state a claim. More specifically, the court explained that the Complaint:

fails to comply with [Federal Rule of Civil Procedure] 8. The Complaint lists three causes of action but fails to connect each legal claim to specific conduct of a particular defendant. That is, the Complaint fails to set forth each claim along with factual allegations to support each claim as to each Defendant.

Even construed liberally, the court and Defendants must guess as to which claims are asserted against which Defendants and what factual allegations support each claim.

ECF No. 9 at PageID #48-49. The court also identified specific deficiencies as to each claim. See id. at PageID #49-54. The court instructed Plaintiff that if he chose to amend, he must allege "what each Defendant did (or failed to do) and how those specific facts create a plausible claim for relief in reference to a specific cause of action." Id. at PageID #55. In addition, the amended complaint "may not incorporate any part of the original Complaint . . . rather, any specific allegations must be retyped or rewritten in their entirety." Id. at PageID #56.



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B. The FAC

The FAC alleges that "Defendants . . . posted a video . . . to give the false impression that Plaintiff was happy with their work." ECF No. 10 at PageID #58. Defendants posted the video after their representation of Plaintiff had ended and after being notified that Plaintiff intended to sue them for legal malpractice. Id. "The video was removed, without consent, from Plaintiff's personal website." Id. at PageID #59. The FAC further alleges that Plaintiff was not "compensated for such an advertisement on [Defendants'] personal YouTube Page," and that this is the "only video the firm had ever posted on their own YouTube page." Id.

In addition, the posting of videos on YouTube allegedly "results in royalty payments to the account of the Defendants," but Plaintiff never gave Defendants consent to "earn royalties" from his video. Id. And "Plaintiff contends that there can be no more an outrageous act than taking advantage of the Plaintiff after his mother's wrongful death trial by posting a video of him praising them after" receiving notice of Plaintiff's intent to sue them for legal malpractice and "without consideration of what the Plaintiff would feel when seeing such a video, now knowing that these same Defendants had botched the Plaintiff's case . . . [involving] his mother's death following knee surgery." Id. at PageID #63. The

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FAC alleges that Defendants' posting of the video has caused him to suffer emotional distress. Id.

The FAC alleges claims against all Defendants for negligent misrepresentation, misappropriation of likeness, false light, unjust enrichment, and IIED. Id. at PageID #64-65. And Plaintiff seeks compensatory damages in excess of $75,000, plus an unspecified amount of punitive and exemplary damages. Id. at PageID #65.


The court must screen the pleading for each civil action commenced pursuant to 28 U.S.C. § 1915(a), governing IFP proceedings, and sua sponte dismiss a complaint or claim that is "frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); see Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).

Screening under § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Under Rule 12(b)(6), a complaint must "contain

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sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (recognizing that a complaint that fails to allege a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a plausible claim) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

In addition, Federal Rule of Civil Procedure 8 requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." That is, to state a plausible claim, a plaintiff must allege a factual and legal basis for each claim, such that each defendant is provided fair notice of what each claim is and the grounds upon which each claim rests. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Twombly, 550 U.S. at 556-57, 562-563. Detailed factual allegations are not required, but conclusory statements, "unadorned, the-defendant-unlawfully-harmed-me accusation[s]," and factual allegations that only permit the court to infer "the mere possibility of misconduct" fall short of meeting the plausibility standard. Iqbal, 556 U.S. at 678-79; see also Starr v. Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). In short, the court may dismiss a

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complaint for violation of Rule 8 if a defendant would have difficulty responding to the claims, see Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011), even if the complaint is not "wholly without merit," McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).

Plaintiff appears pro se; consequently, the court liberally construes the Complaint. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted); see also Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court must grant leave to amend if it appears that the plaintiff can correct the defects in the complaint, Lopez, 203 F.3d at1130, but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate, Sylvia v. Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).


Plaintiff's FAC fails to correct the deficiencies identified in the April 22 Order and fails to allege facts sufficient to state cognizable claims.

A. Failure to Comply with Rule 8

Despite the court's previous guidance, Plaintiff's pleading again fails to comply with Rule 8. For example, the FAC does not allege what each Defendant did or did not do. Nor does it allege which claims are asserted against each Defendant. Rather, the FAC attributes each factual allegation to all

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Defendants and asserts all claims against all Defendants. In this manner, the FAC contains even fewer specifics as to each Defendant than the Complaint, which itself was deficient in this respect. Although Plaintiff attempted to identify which factual allegations support each claim, he failed to connect each of those allegations and claims to any specific Defendant.

Thus, once again, even construed liberally, the court and Defendants must guess as to which claims are asserted against which Defendants and what factual allegations regarding each Defendant support each claim against each Defendant. Accordingly, the Complaint is DISMISSED for failure to comply with Rule 8. See Cafasso, 637 F.3d at 1059; see also McHenry, 84 F.3d at 1180 ("Something labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint.").

Failure to comply with Rule 8 is reason enough to dismiss the FAC, but to assist Plaintiff, the court also addresses the deficiencies of each claim.

B. Negligent Misrepresentation

Under Hawaii law, "[n]egligent misrepresentation has the following elements: '(1) false information be supplied as a result of the failure to exercise

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reasonable care or competence in communicating the information; (2) the...

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