Winters v. Jordan, 2:09-cv-00522 JAM KJN PS

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Parties: BRENT ALLEN WINTERS, et al. Plaintiffs, v. DELORES JORDAN, et al., Defendants.
• Docket Number: No. 2:09-cv-00522 JAM KJN PS,2:09-cv-00522 JAM KJN PS
• Decision Date: 14 March 2011

BRENT ALLEN WINTERS, et al. Plaintiffs,
v.
DELORES JORDAN, et al., Defendants.

No. 2:09-cv-00522 JAM KJN PS

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: March 14, 2011

FINDINGS AND RECOMMENDATIONS

Presently before the court is a motion to dismiss plaintiffs' Third Amended Complaint and/or for a more definite statement filed by the following defendants pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(e): Adult Protective Services ("APS"), Jeffrey S. Brown, Tamaran Cook, Kelly Carpenter, Keith Royal, Richard Kimball, Guy Selleck, Joe McCormack, Zsa Zsa Wied, Robert Bringolf, Dominic La Fountain, Theresa Kingsbury, Jeff Martin, Daniel Saunders, Nathan Hutson, Jesse King, Micah Arbaugh, Chris Sharp, Matt Steen, Elaine LaCroix, Alicia Milhous, Clifford Newell, Charles O'Rourke, Jason Jones, and Susan McGuire.¹ (See Mot. to Dismiss and/or for More Definite Statement ("Mot. to Dismiss"), Dkt. No. 116.) These proposed findings and recommendations only address the

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motion to the extent it is brought by defendants APS, Jeffrey S. Brown, Kelly Carpenter, and Tamaran Cook (collectively, the "APS defendants"). As to the remaining moving defendants, the motion will be addressed by a separate order or findings and recommendations.

Because oral argument would not materially aid the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has fully considered the parties' briefs and appropriate portions of the record in this case and, for the reasons that follow, recommends that the APS defendants' motion to dismiss be granted in part and denied in part. Specifically, the undersigned recommends that: (1) all of plaintiffs' claims alleged against defendant Jeffrey S. Brown be dismissed with prejudice; and (2) all of plaintiffs' claims alleged against APS, Kelly Carpenter, and Tamaran Cook, except plaintiff Susan Winters's equal protection claim, be dismissed with prejudice.

I. BACKGROUND

Plaintiffs' Third Amended Complaint² is a wide-ranging, 25-page complaint that alleges, in eight-point font, over two-dozen claims for relief against over 60 defendants.³ (Dkt. No. 66.) Several of plaintiffs' claims are alleged against "All Defendants, " with no differentiation in regards to the alleged conduct of each defendant that supports each such claim.

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In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Order and Findings & Recommendations, Aug. 24, 2009, at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)⁴

Generally, the claims against the APS defendants arise out of an underlying family dispute between the Winters family and defendant Virginia Armstrong, who is, among other things, the mother of plaintiff Susan Winters and grandmother to other plaintiffs. The Third Amended Complaint alleges that in or around the year 2002, plaintiff Susan Winters's elderly parents, Joe and Virginia Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and move to Nevada City, California, to live with the Armstrongs. (Third Am. Compl. at 4.) Plaintiffs allege that before plaintiffs permanently returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred properties, including the residence at 11318 Via Vista in Nevada City, California, from the Armstrong Living Trust dated July 29, 1994, to the Virginia Armstrong Living Trust. (Id.) Plaintiffs allege that Virginia Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon, who was Virginia Armstrong's attorney, and Michael Armstrong, Virginia Armstrong's son. (Id.)

The relationship between Virginia Armstrong and plaintiffs, which apparently gave rise to allegations of possible elder abuse committed by plaintiffs against Virginia Armstrong, resulted in several proceedings in the Nevada County Superior Court. Relevant here,

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plaintiffs allege that on October 15, 2007, APS filed a petition for a temporary restraining order in Virginia Armstrong's name and "against her daughter Susan Winters and her son-in-law Brent Winters." (Third Am. Compl. ¶ 22.) Plaintiffs allege that APS was assisted by defendant Delores Jordan, who was "unduly influencing" Virginia Armstrong. (Id.) Susan Winters then filed a petition for a restraining order against Delores Jordan. (Id. ¶ 23.) These dueling petitions led to ongoing proceedings in the Nevada County Superior Court. (See id. ¶¶ 23-26.)

Additionally, on April 21, 2008, a judge of the Nevada County Superior Court, Judge Thomas Anderson, "instituted proceedings for restraining orders" against plaintiffs Susan Winters, Brent Winters, and all of their children, and such restraining order was allegedly for the protection of Virginia Armstrong. (Third Am. Compl. ¶ 46.) That same day, Judge Anderson, on his own motion, appointed an attorney, defendant Dewey Harpainter, to represent Virginia Armstrong "to prosecute the restraining orders." (Id. ¶ 47.) In connection with these various court proceedings, Cook and Carpenter, who are allegedly social workers with APS, allegedly made representations in court and also filed reports with the court. (See id. ¶¶ 6, 43, 70, 73.)

Also in April of 2008, plaintiff Susan Winters allegedly contacted APS to seek assistance in protecting Virginia Armstrong from defendant Delores Jordan. (Third Am. Compl. at 14.) Someone with APS allegedly told Susan Winters that APS could not assist Susan Winters unless she was a conservator for Virginia Armstrong. (Id. at 14.)

Plaintiffs' Third Amended Complaint alleges only one claim against APS that is specific to APS's alleged conduct: the violation of plaintiffs' rights of equal protection (claim 7). The remaining claims against APS are alleged generically and conclusorily against "All Defendants" and consist of the following claims: trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress, or "IIED" (claim 38).

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In regards to defendant Jeffrey S. Brown, who is alleged to be the "Nevada County Adult Protective Services Agency Director" (Third Am. Compl. at 25), plaintiffs only allege one claim that provides any facts specific to Brown: a claim for "respondeat superior" liability (claim 34). Plaintiffs clarify in their written opposition that the claim against Brown is only for common law tort liability and is not addressed to any alleged civil rights violations committed by APS, Carpenter, or Cook. (Pls.' Opp'n to Mot. to Dismiss at 9 ("The Winters' Respondeat Superior claims are civil torts not § 1983 civil-rights claims."), Dkt. No. 118.) The remaining claims alleged against Brown are the generic claims alleged against "All Defendants": trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); conspiracy to violate the RICO statute (claim 31); loss of consortium (claim 36); and IIED (claim 38).

As to defendants Carpenter and Cook, plaintiffs' Third Amended Complaint alleges that Carpenter and Cook: abused the court's process (claim 6); violated plaintiffs' rights of equal protection (claim 7); and committed "Slander, Libel, and Slander & Libel Per Se" (claim 21). Plaintiffs further allege that Cook violated plaintiffs' First Amendment rights to petition for the redress of grievances (claim 26). The remaining claims alleged against Carpenter and Cook are the generic claims alleged against "All Defendants": trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); conspiracy to violate the RICO statute (claim 31); loss of consortium (claim 36); and IIED (claim 38).

II. LEGAL STANDARDS

A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction, " and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003)

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(citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and ...