Philips v. BermanPhilips v. Berman
- Reporters:
- ,
- Before:
- Frances M. Tydingco-Gatewood
Before the court is Plaintiff Sherif A. Philips’ Objection to the U.S. Magistrate Judge‘s Report & Recommendation (the “Objection“) (ECF No. 42), Rule 59 Motion (ECF No. 43), and Motion to Strike Defendants’ Opposition (ECF No. 47). The court has reviewed the record and relevant law and deems this matter suitable for submission without oral argument.
The court hereby DENIES the Plaintiff‘s Objection, ADOPTS the U.S. Magistrate Judge‘s Report & Recommendation (the “R&R“) in its entirety, and DENIES the Plaintiff‘s Rule 59 Motion and Motion to Strike.
I. FACTUAL AND PROCEDURAL BACKGROUND1
The factual background is thoroughly recounted in the R&R. R. & R. at 1-4, ECF No. 40. The court will adopt the factual background in the R&R as there have been no objections to it. For the purposes of this order, the court will recount facts relevant to the Objection.
The Plaintiff subsequently filed numerous lawsuits in this court, the United States District Court for the Eastern District of North Carolina, and North Carolina state courts, most of which were dismissed. Philips v. Pitt Cnty. Mem‘l Hosp., Inc., 503 F. Supp. 2d 776 (E.D.N.C. 2007), aff‘d, 572 F.3d 176 (4th Cir. 2009) (”Philips I“); Philips v. Pitt Cnty. Mem‘l Hosp., Inc., 503 F. Supp. 2d 785 (E.D.N.C. 2007), aff‘d, 572 F.3d 176 (4th Cir. 2009) (”Philips II“); Philips v. Pitt Cnty. Mem‘l Hosp. Inc., 731 S.E.2d 462, 466 (N.C. Ct. App. 2012), writ denied, review denied, appeal dismissed, 734 S.E.2d 862 (N.C. 2012) (”Philips III“); Philips v. N. Carolina State, No. 5:15-CV-95-F, 2015 WL 9462095, at *7 (E.D.N.C. Dec. 28, 2015), aff‘d, 667 F. App‘x 419 (4th Cir. 2016) (dismissing the case with prejudice) (”Philips IV“); Philips v. Pitt Cnty. Mem‘l Hosp., Inc., No. CV 18-00046, 2019 WL 5963927, at *1 (D. Guam Nov. 13, 2019), aff‘d, 855 F. App‘x 324 (9th Cir. 2021), cert. denied, 142 S. Ct. 2710 (2022) (”Philips V“); and Philips VII, 2022 WL 17551558.2
In an action by the Plaintiff against PCMH and four physicians for revoking the Plaintiff‘s admitting and staff privileges, the North Carolina state court granted summary judgment in favor of PCMH. See Philips III, 775 S.E.2d at 883. PCMH was subsequently awarded attorney‘s fees in the amount of $444,554.45. Philips v. Pitt Cnty. Mem‘l. Hosp., Inc., 775 S.E.2d 882, 883 (N.C.
In May 2018, PCMH filed a complaint in the Superior Court of Guam to enforce the North Carolina state court judgment that awarded PCMH attorney‘s fees and costs. See Pitt Cnty. Mem‘l Hosp. v. Philips, Superior Court of Guam Civil Case No. 0478-18 (the “Enforcement Action“). The Superior Court of Guam entered a judgment against the Plaintiff. See RSA-Tumon, LLC v. Pitt Cnty. Mem‘l Hosp. Inc., No. CV 20-00025, 2021 WL 1215777, at *1 (D. Guam Mar. 30, 2021) (”Philips VI“). On June 16, 2022, the Plaintiff again filed a complaint in this court against the Judiciary of Guam. See Philips VII, 2022 WL 17551558, at *2.
On June 20, 2023, the Plaintiff initiated the instant action and filed a complaint against Attorneys Michael Berman and Daniel Berman, the Defendants,3 for “Due Process, Tort, Slander, Harassment, Fraud, Defamation [sic] Fraud in the Court and Injunction [sic] Relief[.]” Compl., ECF No. 1 (”Philips VIII“). On July 17, 2023, the Defendants filed a Motion to Dismiss along with a supporting memorandum and declaration. Mot., ECF No. 6; Memo., ECF No. 7; and Decl., ECF No. 8. On July 24, 2023, the Plaintiff filed a reply to the Defendants’ Motion to Dismiss and requested a “Consolidated [sic] and Mandate to Transfer To [sic] 9th [sic] Circuit Court of Appeal.” Reply, ECF No. 11.
On August 7, 2023, the Defendants filed a response to the Plaintiff‘s reply to the Motion to Dismiss. Reply, ECF No. 12. On August 9, 2023, the Defendants filed a Motion for Sanctions
On April 4, 2024, the U.S. Magistrate Judge filed an R&R addressing three pending motions: (1) the Defendants’ Motion to Dismiss, (2) Motion for Sanctions, and (3) Motions for Judicial Notice. Mots., ECF Nos. 6, 14, 21, 25, and 27; and R. & R., ECF No. 40. The U.S. Magistrate Judge recommends that the court grant the Defendants’ Motion to Dismiss Pursuant to
On April 8, 2024, the Plaintiff filed an Opposition to the R&R. Opp‘n, ECF No. 42. On April 24, 2024, the Defendants filed a Reply to Plaintiff‘s Opposition to the R&R. Reply, ECF No. 46.
On April 8, 2024, the Plaintiff filed a Rule 59 Motion. Mot., ECF No. 43. On April 23, 2024, the Defendants filed an Opposition to the Rule 59 Motion. Mot., ECF No. 45.
On June 10, 2024, the Plaintiff filed a Fourth Memorandum of Law in support of his pending motions. Memo., ECF No. 50. On July 1, 2024, the Defendants filed an Opposition to the Plaintiff‘s Fourth Memorandum of Law. Opp‘n., ECF No. 51. On July 2, 2024, the Plaintiff filed a Reply to the Defendant‘s Opposition to the Plaintiff‘s Fourth Memorandum of Law. Reply, ECF No. 52.
II. LEGAL STANDARD
When a party objects to a magistrate judge‘s report and recommendation, the court must “make a de novo determination of those portions of the report . . . to which objection is made,” and the court “may accept, reject, or modify, in whole or in part, the findings or recommendations by the magistrate judge.”
III. ANALYSIS
A. Plaintiff‘s Objections to the R&R
The Plaintiff‘s arguments are disjointed, difficult to understand, and include arguments outside the scope of the R&R. As noted above, the court is only required to address objections to the R&R and, therefore, any argument that is outside the scope of the R&R will not be addressed by this court. See
1. Plaintiff Does Not Have Subject Matter Jurisdiction
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The court presumes that “a cause lies outside this limited jurisdiction” until proven otherwise by the plaintiff. Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). “A party invoking the federal court‘s jurisdiction has the burden of proving the actual existence of subject matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). Federal courts are required to determine “sua sponte whether jurisdiction exists, regardless how the parties have framed their claims.” Naruto v. Slater, 888 F.3d 418, 423 n.5 (9th Cir. 2018). While doing so, the court will construe the Plaintiff‘s pro se pleadings liberally and give the Plaintiff the benefit of any doubt. Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014).
Under
In order to prove that federal question jurisdiction exists, the Plaintiff‘s complaint must demonstrate that federal law created his cause of action “or that the plaintiff‘s right to relief necessarily depends on resolution of a substantial question of federal law.” Cook Inlet Region, Inc. v. Rude, 690 F.3d 1127, 1130 (9th Cir. 2012) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006)).
Courts use the “well-pleaded complaint rule” to determine whether a complaint has been brought under federal law. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009) (quoting Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 1998)). A complaint is well-pled “when a federal question is presented on the face of the plaintiff‘s properly pleaded complaint.” Id. (quoting Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005)).
The Plaintiff‘s complaint asserts that this court has jurisdiction “over local matters as well as Federal Claims, over
The Fifth Amendment applies to federal actors and the Fourteenth amendment applies to state actors. Betts v. Brady, 316 U.S. 455, 462 (1942) (“Due process of law is secured against invasion by the federal Government by the Fifth Amendment and is safeguarded against state
b. Diversity Jurisdiction
For a Plaintiff to successfully assert diversity jurisdiction, two requirements must be met, (1) the amount in controversy, exclusive of interest and costs, is more than $75,000 and (2) the matter is between citizens of different states or subjects of a foreign state. Seismic Reservoir 2020, Inc. v. Paulsson, 785 F.3d 330, 334 (9th Cir. 2015) and see
Under the first prong, the Plaintiff‘s complaint fails to allege that the amount in controversy exceeds $75,000.00 or any amount at all. Therefore, under prong one alone, Plaintiff cannot establish diversity jurisdiction.
Assuming arguendo, that the Plaintiff established the first prong, the Plaintiff fails to establish diversity of citizenship required under the second prong. Under diversity jurisdiction, “[a] person‘s state of citizenship is established by domicile, not simply residence, and a residential address [in a certain state or territory] does not guarantee that the person‘s legal domicile” is in that certain state or territory. King v. Great American Chicken Corp., Inc., 903 F.3d 875, 879 (9th Cir. 2018). A person is domiciled in their “permanent home, where [they] reside[] with the intention to remain or to which [they] intend[] to return.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
The documents filed by the Plaintiff in his objection demonstrate that he was in Florida in 2021, the year his driver‘s license was issued, and that he has an address that can receive mail. Obj. at 19-28, ECF No. 42. However, he does not demonstrate that he was domiciled in Florida on June 20, 2023, the date the complaint was filed. See Compl., ECF No. 1. To the contrary, the Defendants assert and provide overwhelming support to show that Plaintiff is domiciled in Guam. See Decl., ECF No. 8. The Declaration of Counsel for the Defendants’ Motion to Dismiss and for Sanctions attaches twenty-two (22) exhibits demonstrating overwhelming support for the assertion that Plaintiff is, in fact, a resident of Guam. See Decl. at 1-116, ECF No. 8. The exhibits the Defendants submitted range between 2007-2023 and the majority of them point to Plaintiff‘s residence as being “1406 North Marine Corps Drive, Upper Tumon, GU 96913” (“Plaintiff‘s
2. The Plaintiff‘s Complaint Fails to State a Claim Upon Which Relief Can Be Granted
Pursuant to
On a
In his Objection, the Plaintiff argues that “[t]he court erred in its recommendation to dismiss for failure to state a claim under
Plaintiff‘s complaint is disjointed and filled with conclusory allegations unsupported by facts and law. The court is not required to accept as true “allegations that are merely conclusory,
B. The Defendants’ Motion for Sanctions
When a motion for sanctions is brought under Rule 11, the court asks whether
[b]y presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person‘s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; [and]
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law[.]
The court has the power to “impose an appropriate sanction on any attorney, law firm, or party that violated [Rule 11] or is responsible for the violation” and, only after notice and a reasonable opportunity to respond.
The court is not required to find that the moving party had “subjective bad faith.” Gottschalk v. City and Cnty. of San Francisco, 964 F. Supp. 2d 1147, 1168 (N.D. Cal. 2013) (quoting Yagman v. Republic Ins., 987 F.2d 622, 628 (9th Cir. 1993)). Instead, the court uses an objective standard to determine whether a reasonable basis for the party‘s position “exists in both law and in fact at the time the position is adopted,” and, if the court finds that a reasonable basis exists, sanctions should not be imposed. Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1537-38 (9th Cir. 1986), superseded by statute on other grounds. Parties that are represented by counsel “should be held to an objective standard of ‘reasonable inquiry’ into the facts.” Bus. Guides, Inc. v. Chromatic Commc‘ns Enters., Inc., 892 F.2d 802, 811 (9th Cir. 1989), aff‘d, 498 U.S. 533 (1991) and see In re Keegan Mgmt Co., Secs. Litig., 78 F.3d 431, 434 (9th Cir. 1996) (holding that “[a]n attorney may not be sanctioned for a complaint that is not well-founded, so long as she conducted a reasonable inquiry.“).
While the court applies the objective standard of reasonableness to pro se litigants, the court has “sufficient discretion” to consider the “special circumstances” that may arise in a pro se litigant‘s case. Bus. Guides, Inc., 892 F.2d at 811 (quoting
In his Objection, the Plaintiff argues that the U.S. Magistrate Judge erred by finding that the Plaintiff‘s “new claims” against the Defendants are another attempt by the Plaintiff to re-litigate claims that were already lost in state and federal courts. Obj. at 2, ECF No. 42. The Plaintiff argues that the complaint states entirely new claims against the Defendant for “breaching the Fair Debt Collection Practice Act, Tort, Slander Defamation, Harassment, Fraud Upon the court, Fraud In
The court finds that imposing monetary sanctions under
The court also finds that imposing monetary sanctions against the Plaintiff under
The Defendants’ Motion for Sanctions is hereby GRANTED.
C. Rule 59 Motion (Motion for Reconsideration)
The court has “discretion in granting or denying a motion for reconsideration.” Beaver v. Tarsadia Hotels, 29 F. Supp. 3d 1294, 1301 (S.D. Cal. 2014), aff‘d, 816 F.3d 1170 (9th Cir. 2016). However, a motion for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citing
The Plaintiff alleges that the U.S. Magistrate Judge erred in denying the Plaintiff‘s Motion to Strike and Rule 11. Mot. at 2, ECF No. 43. The Plaintiff fails to allege facts to support his allegations and attempts to address matters already resolved in other proceedings. The court finds that the Rule 59 Motion is without merit and that the Plaintiff fails to demonstrate any of the three circumstances that would allow this court to reconsider the U.S. Magistrate Judge‘s order. The Plaintiff‘s Rule 59 Motion is hereby DENIED.
D. Motion to Strike
The Plaintiff‘s Motion to Strike addresses two filings (1) the Defendants’ Reply to the Plaintiff‘s Opposition to the R&R (ECF No. 46); and (2) the Defendants’ Opposition to the Plaintiff‘s Rule 59 Motion (ECF No. 45). Mot. at 2, ECF No. 47. The Plaintiff argues that the two filings are “Meritless, malicious, and frivolous not supported by any statutes or a case of the law.” Id. at 2. The rest of the Plaintiff‘s arguments are disjointed, hard to decipher, and refer to proceedings in other courts. Id. at 2-4. The Plaintiff seems to address the Defendant‘s Motion to Dismiss and the findings in the R&R. Mot., ECF No. 6 and R&R, ECF No. 40. Plaintiff also asks the court for legal fees and sanctions for “Fraudulent Allegations and [sic] reject all of the defendant‘s Frivolous and malicious Motions.” Mot., ECF No. 47.
The court finds the Plaintiff‘s Motion to Strike meritless. The Plaintiff points to two filings made by the Defendants as the subject of his Motion to Strike. However, the Plaintiff does not specify why each particular motion should be stricken beyond arguing that both filings are “Meritless, malicious, and frivolous” and are not supported by the law. Mot., ECF No. 47. A close review of the Defendant‘s Reply to the Plaintiff‘s Opposition to the R&R demonstrates that the filing is not “redundant, immaterial, impertinent, or scandalous matter.”
E. LEAVE TO AMEND
The court finds that granting leave to amend in this case would be futile. See Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018). “An amendment is futile when no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (internal quotations marks omitted).
The Plaintiff has failed to meet the jurisdictional requirement to bring a case in this court and has failed to state a claim upon which relief can be granted. See
The court has considered the merits of the case and finds that the complaint is based on allegations resolved in prior proceedings (i.e., Philips V, VI, and VII), and is unsupported by facts. Additionally, the court finds that the Plaintiff will not be able to sufficiently allege that he meets the citizenship requirement that would allow him to bring his complaint under diversity jurisdiction because the record clearly shows that he is a resident of Guam. Therefore, the court finds that granting leave to amend the Complaint would be futile.
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the U.S. Magistrate Judge‘s recommendation in its entirety and hereby finds the following:
The Defendants’ Motion to Dismiss is GRANTED with prejudice. - The Defendants’ Motions for Judicial Notice are GRANTED;
- The Defendants’ Motion for Sanctions is GRANTED. Defendants shall file a brief detailing billings with respect to the attorney‘s fees and related nontaxable expenses incurred as a result of defending this action along with any supporting documents. The Defendants shall file their brief by August 26, 2024, and the Plaintiff‘s response is due no later than September 3, 2024;
- The Plaintiff‘s Rule 59 Motion is DENIED; and
- The Plaintiff‘s Motion to Strike is DENIED.
SO ORDERED.
/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Aug 19, 2024