United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
the Court are Motions to Dismiss filed by various Defendants,
a Motion for Default Judgment filed by Plaintiff, and several
Motions involving Plaintiff's request for Jury Trial.
operative Amended Complaint, Plaintiff lists the
following Defendants: State of Nevada; County of Clark; City of
Las Vegas; Kenneth Mead (“Mead”); Michael
Madland; Douglas Gillespie (“Gillespie”); D. King
(“King”); Fox 5 News; Las Vegas Metropolitan
Police Department (“LVMPD”); United States
Federal Bureau of Investigations (“FBI”); B.
Vanoosbree (“Vanoosbree”); Clark County Sheriff
Department (“CCSD”); S. Jung
(“Jung”); United States Department of the
Treasury (“Treasury”); FBI Agents Doe 1 through
40 (“FBI Agents”); LVMPD Does 1 through 30;
Department of the Treasury Doe 1; Department of the Treasury
Doe 2; United States, Inc.; Ewing Brothers Towing Company;
Las Vegas Review Journal (“LVRJ”); Eli Segall
(“Segall”); and Jason Gunnell
(“Gunnell”). His allegations are somewhat
difficult to understand, but the Court construes his
Complaint to allege the following: On May 11, 2016, Plaintiff
was traveling in his private automobile to 5464 Sierra Brook
Court. Plaintiff stopped his car and was told by Defendant
Madland that there was a “police investigation”
in progress and that Plaintiff was to leave. Plaintiff
immediately got in his car and started to travel away. After
30 feet of travel, Plaintiff stopped his car and used a phone
to video record nonparties Miguel and Miguelito Barraza in
hand cuffs in front of a neighbor's house. An
unidentified police officer then yelled at Plaintiff to stop
his car. An unidentified police officer opened the door to
Plaintiff's private property, the car, and then told
Plaintiff to exit the car. Plaintiff was then placed in
handcuffs and was told he was being detained.
was then searched without his consent. While the officer was
reaching into Plaintiff's pockets, Plaintiff told the
officer “I do not give permission to search me, ”
but the officer removed Plaintiff's private property
including claimant's wallet and pen knife, without
Plaintiff's permission. While Plaintiff was being
detained, one of the officers spoke to a dispatcher who was
audible, and Plaintiff overheard the office say, “He is
on the do-not-detain list.” Defendant Madland responded
with “I don't care, ” in defiance to orders
from his superiors. Plaintiff then observed Madland searching
Plaintiff's car. Plaintiff told Madland that Plaintiff
did not give permission for his car to be searched. Defendant
Mead, acting under color of law, detained Plaintiff and cited
him for violating codes of Nevada law, in a citation numbered
under the statutory system as 1-05262980 and 1-05262981
(event #160511-3437) as though Plaintiff was subject to
Mead's jurisdiction even though Plaintiff did not consent
to such jurisdiction and the dispatcher informed Defendant
that Plaintiff was on the do not detain list.
held Plaintiff in actual imprisonment with his arms bound
behind his back for hours on the side of the road. He was
imprisoned in full view of the public. Plaintiff signed the
citation under duress, due to the fact that Mead was armed
with a weapon. Defendant Mead then ordered claimant to appear
in an inferior “Justice Court” rather than a
Court of Justice as required, as though Defendant Mead has
jurisdiction over a people of Nevada such as Plaintiff.
Defendant Mead falsely swore in an affidavit that he had
probable cause to detain Plaintiff and referred to Plaintiff
as a “person” who committed “offenses
contrary to law.” Defendants Mead's citation also
falsely referred to Plaintiff's private conveyance as a
“vehicle, ” falsely claimed that texting while
driving is “unlawful, ” and falsely accused
claimant of “driving” when in fact, Plaintiff was
not engaged in operating a motor vehicle for commercial
purposes on the highways in the transportation of passengers,
passengers and property, or property or cargo.
filed the original Complaint on February 10, 2017. (ECF No.
1). Ewing Bros., Inc.., incorrectly named as Ewing Brothers
Towing Company, filed a Motion to Dismiss (ECF No. 11) and
Motion for More Definite Statement (ECF No. 12) on March 2,
2017. Defendants CCSD, Gillespie, LVMPD, Madland, and Mead
(collectively, “Law Enforcement Defendants”)
filed a Motion to Dismiss on March 2, 2017. (ECF No. 13). The
same day, Plaintiff filed an Amended Complaint. (ECF No. 15).
Plaintiff alleges the following causes of action in the
Amended Complaint: (1) trespass on case, against Madland,
Mead, and Ewing Brothers; (2) trespass on case, against LVRJ
and Segall; (3) trespass, against “international
terrorist Defendants;” (4) trespass, against
international terrorist Defendants, LVRJ, and Segall; and (5)
trespass, against Mead, investigator Doe 1, Gunnell, and
State of Nevada.
filed a Motion to Dismiss on March 6, 2017. (ECF No. 21).
City of Las Vegas filed a Motion to Dismiss on March 7, 2017.
(ECF No. 24). Ewing Bros., Inc.. filed a Motion to Dismiss
the Amended Complaint on March 14, 2017. (ECF No. 28). County
of Clark and KVVU Broadcasting Corporation, incorrectly named
as Fox 5 News, also filed Motions to Dismiss the Amended
Complaint on March 14, 2017. (ECF Nos. 29, 31). On March 16,
2017, Law Enforcement Defendants, now including D. King,
filed a Motion to Dismiss the Amended Complaint. (ECF No.
34). On March 22, 2017, Plaintiff filed a document that
appears to be a Response to the Motions to Dismiss filed by
Ewing Brothers, City of Las Vegas, Segall, and additionally
addresses “all Motions submitted by the
[Defendants].” (ECF No. 40). On March 29, 2017, Law
Enforcement Defendants filed Replies. (ECF Nos. 44, 45). On
March 31, 2017 and April 3, 2017, Ewing Bros., Inc.., County
of Clark, City of Las Vegas, and Segall filed Replies. (ECF
Nos. 47, 48, 49, 50, 51, 52). Gunnell filed a Motion to
Dismiss the Amended Complaint on April 4, 2017. (ECF No. 53).
KVVU Broadcasting Corporation filed a Second Motion to
Dismiss on April 5, 2017. (ECF No. 55). LVRJ filed a Motion
to Dismiss the Amended Complaint on April 6, 2017. (ECF No.
57). The same day, Plaintiff filed a Motion for Default
Judgment against all Defendants, on the basis that their
arguments were frivolous. (ECF No. 62). On April 14, 2017,
LVRJ and Segall filed a Special Motion to Dismiss pursuant to
Nevada Revised Statute (“NRS”) § 41.660.
(ECF No. 63). KVVU Broadcasting Corporation, LVRJ, and Segall
filed Responses to Plaintiff's Motion for Default
Judgment on April 21, 2017. (ECF Nos. 67, 68). Law
Enforcement Defendants filed a Response to Plaintiff's
Motion for Default Judgment on April 24, 2017. (ECF No. 70).
On April 26, 2017, Ewing Brothers filed a Response to
Plaintiff's Motion for Default Judgment. (ECF No. 72).
City of Las Vegas filed its Response to Plaintiff's
Motion for Default Judgment on April 27, 2017. (ECF No. 76).
The following day, LVRJ and Segall filed a Reply to their
Special Motion to Dismiss. (ECF No. 77).
20, 2017, Law Enforcement Defendants filed an Emergency
Motion to Declare Plaintiff a Vexatious Litigant. (ECF No.
82). Within the following week, KVVU Broadcasting
Corporation, LVRJ, Segall, Ewing Bros., Inc.., Inc., Gunnell,
and County of Clark filed Joinders to the Motion. (ECF Nos.
84, 86, 89, 91, 95). After numerous other filings by the
parties, particularly Plaintiff, Magistrate Judge Koppe
entered a Report and Recommendation recommending that
Plaintiff be declared a vexatious litigant. (ECF No. 134).
The Court adopted the Report and Recommendation and granted
Defendants'  Motion on November 13, 2017. (ECF No.
September 25, 2017, Plaintiff filed a motion for jury trial
(ECF No. 112) and the same day filed a document styled as a
“writ” granting the request for jury trial (ECF
No. 113). Plaintiff later filed an amended “writ”
granting the request for jury trial, on September 28, 2017.
(ECF No. 118). LVRJ and Segall filed Motion to Strike the
writ and amended writ on September 27, 2017 and September 29,
2017 (ECF Nos. 116, 119). Between October 2, 2017 and October
6, 2017, Law Enforcement Defendants, KVVU Broadcasting
Corporation, County of Clark, Ewing Bros., Inc.., and Gunnell
filed Joinders to the Motions to Strike. (ECF Nos. 120, 122,
123, 124, 125, 126).
LEGAL STANDARD - MOTION TO DISMISS
initial pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a
complaint for failing to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to
dismiss, “[a]ll well-pleaded allegations of material
fact in the complaint are accepted as true and are construed
in the light most favorable to the non-moving party.”
Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017,
1019 (9th Cir. 2013) (citations omitted). In addition,
documents filed by a plaintiff who is proceeding without
counsel (as is the case here) must be liberally construed,
and a pro se complaint must be “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)) (citations and quotation marks omitted); see also
Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014).
survive a motion to dismiss, a complaint need not contain
“detailed factual allegations, ” but merely
asserting “‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” is not sufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
other words, a claim will not be dismissed if it contains
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face, ”
meaning that the court can reasonably infer “that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citation and internal
quotation marks omitted). In elaborating on the pleading
standard described in Twombly and Iqbal,
the Ninth Circuit has held that for a complaint to survive
dismissal, the plaintiff must allege non-conclusory facts
that, together with reasonable inferences from those facts,
are “plausibly suggestive of a claim entitling the
plaintiff to relief.” Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
Ewing Bros., Inc. Motions to Dismiss (ECF Nos. 11,
Court may only hear disputes over which it has subject matter
jurisdiction. A defendant may move to dismiss a complaint for
lack of such jurisdiction. Fed.R.Civ.P. 12(b)(1). If subject
matter jurisdiction is challenged, the burden is on the party
asserting jurisdiction to establish it. In re Dynamic
Random Access Memory Antitrust Litig., 546 F.3d 981, 984
(9th Cir. 2008) (citations omitted). Dismissal under Rule
12(b)(1) is appropriate if the complaint, considered in its
entirety, fails to allege facts on its face that are
sufficient to establish subject matter jurisdiction.
Id. at 984-85.
Bros., Inc. (“Ewing Bros.”) argues that the
Amended Complaint did not substantively change the failings
of the original Complaint, and refers to its original Motion
to Dismiss. In that Motion, Ewing Bros. first argued that
Plaintiff failed to effectuate service upon a real entity in
the correct manner. Defendant additionally argued that the
Court lacks subject matter jurisdiction, as Plaintiff only
pleads state law causes of action, and all parties are
citizens of Nevada. Ewing Bros. further contends that
Plaintiff already filed a federal case involving the same
operative facts, and Plaintiff improperly seeks to split his
cause of action. In the Motion to Dismiss the Amended
Complaint, Ewing Bros. argue that dismissal is warranted
since the Complaint is brought by an individual who claims
not to belong to any recognized republic or nation and fails
to recognize that Nevada law applies to him. In the
alternative, Ewing Bros. requests a more definite statement.
(ECF No. 12). Defendant argues that the only allegations made
against it are vague and conclusory; even if true, all Ewing
Bros. did was tow a vehicle at the request of police.
Pursuant to NRS § 706.4485, a tow company contacted by
law enforcement must comply with the orders and standards
given by the agency. NRS § 108.270 allows a towing
company to detail a vehicle until the lien against the
vehicle is paid. Plaintiff did not exhaust administrative
remedied before bringing this action against Ewing Bros.
Response to the Motion (ECF No. 42), was stricken. However,
he does include some response in ECF No. 40. He argues that
he is not subject to Ewing Bros. jurisdiction, and that
counsel for Ewing Bros. is unqualified and lacks
comprehension of the law.
Court finds that, although Plaintiff's claims against
Ewing Bros. are based upon state law, the Court may exercise
supplemental jurisdiction. Below, the Court discusses claims
based upon federal law. However, the Court agrees with Ewing
Bros. that Plaintiff fails to state a claim for relief
against them, and offers no legal argument in response to the
Motion. Therefore, the Motion to Dismiss (ECF No. 28) is
granted. Amendment would be futile, as Plaintiff does not
allege any unlawful conduct that would implicate this
Defendant. The prior Motions (ECF Nos. 11, 12) are denied as
Law Enforcement Defendants' Motions to Dismiss (ECF Nos.
Court will not hear claims that have been already tried and a
final judgment entered. “Res judicata, or claim
preclusion, prevents the relitigation of a claim previously
tried and decided.” Clark v. Bear Stearns &
Co., 966 F.2d 1318, 1320 (9th Cir. 1992). Res judicata
applies only when there is “(1) an identity of claims,
(2) a final judgment on the merits, and (3) privity between
parties.” Turtle Island Restoration Network v. U.S.
Dep't of State, 673 F.3d 914, 917 (9th Cir. 2012)
(quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir.
2003)). Further, the doctrine of “[r]es judicata bars