Commercial Litigation and Arbitration

RICO and Malpractice: Lawyer/Law Firm Defendants Immune from Liability under Noerr-Pennington Unless Plaintiff Can Allege Facts Showing Their Litigation Filings Were Objectively Baseless

Mir v. Greines, martin, Stein & Richland, 2017 U.S. App. LEXIS 1439 (9th Cir. Jan. 18, 2017):

Jehan Zeb Mir, M.D., appeals pro se from the district court's judgment dismissing his action alleging Racketeer Influenced and Corrupt Organizations Act ("RICO"), 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and state law claims in connection with defendants' prior representation of Mir and attorney malpractice proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)); Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (personal jurisdiction); Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009) (dismissal based on Noerr--Pennington). We affirm.

The district court properly determined that the defendant law firms of Greines, Martin, Stein & Richland LLP, Frandzel Robins Bloom & Csato, L.C., and Iungerich & Spackman, as well as the individual defendants associated with those firms, are immune from liability under the Noerr-Pennington doctrine because Mir failed to allege facts sufficient to show that defendants' state court litigation was objectively baseless. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006) (under Noerr-Pennington, "those who petition any department of the government for redress are generally immune from statutory liability [*3]  for their petitioning conduct" (citation omitted)); see also Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1060-61 (9th Cir. 1998) (explaining the circumstances where the "sham" exception to the Noerr--Pennington doctrine is applicable).

The district court properly dismissed Mir's federal claims against defendant Westport Insurance Corporation because Mir failed to allege facts sufficient to state a plausible claim. See Hebbe, 627 F.3d at 341-42 (9th Cir. 2010) (although pro se pleadings are to be liberally construed, a plaintiff must still present factual allegations sufficient to state a plausible claim for relief); see also United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29 (1983) (elements of 42 U.S.C. § 1985(3) claim); Living Designs, Inc. v. E. I. DuPont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (elements of civil RICO claim); Delta Sav. Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001) (§ 1986 claim liability is predicated upon a § 1985 violation); Pavon v. Swift Transp. Co., 192 F.3d 902, 908 (9th Cir. 1999) (to state a § 1981 claim, a plaintiff must allege that he or she was subjected to intentional discrimination based upon his or her race); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (requiring a race-based nexus for § 1985 claim).

The district court properly dismissed all claims against defendant Brown for lack of personal jurisdiction. See Walden v. Fiore, 134 S. Ct. 1115, 1121-23 (2014) (for specific personal jurisdiction, "the plaintiff cannot be the only link between the defendant and the forum"); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (requirements for general jurisdiction); Butcher's Union Local No. 498, United Food & Commercial Workers v. SDC Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986) (requirement for right to nationwide service in a RICO action).

The district court did not abuse its discretion [*4]  in dismissing Mir's complaint without leave to amend. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that a district court may dismiss without leave where amendment would be futile).

We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Mir's requests for judicial notice, filed on April 25, 2016 and October 3, 2016, and appellee Frandzel Robins Bloom & Csato, L.C.'s request for judicial notice, filed May 31, 2016, are denied.

The request of appellees Iungerich & Spackman, Paul Spackman, and Russell Iungerich for attorney's fees and costs, set forth in their answering brief, is denied without prejudice. Their request for an order declaring Mir a vexatious litigant, also set forth in their answering brief, is denied without prejudice.


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