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Myser v. Tangen

United States District Court, W.D. Washington, Seattle

February 5, 2015

DOUGLAS LUTHER MYSER, Plaintiff,
v.
STEVEN TANGEN, et al., Defendants.

ORDER GRANTING MOTION TO DISMISS

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court are Defendant Spokane County's ("Spokane") motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (Mot. (Dkt. #19)), Plaintiff Douglas Luther Myser's opposition thereto (Resp. (Dkt. #25)), and Spokane's reply memorandum (Reply (Dkt. #27)). No party has requested oral argument. The court has considered the parties' submissions, the record, and the relevant law. Being fully advised, the court GRANTS Spokane's motion, DISMISSES Mr. Myser's claims against Spokane WITH PREJUDICE, and gives NOTICE to Mr. Myser of the court's intent to dismiss his claims against Defendant Steven Tangen with prejudice.

II. BACKGROUND[1]

On January 26, 2003, Mr. Myser went to a sports bar in Spokane Valley, Washington. (Am. Compl. (Dkt. #18) ¶ 26.) After he requested his bill, someone at the sports bar called the police, who came to the bar. ( Id. ¶¶ 27-29.) At some point, police deputies brought Mr. Myser to the floor, struck him, handcuffed him, and placed him in a police car. ( Id. ¶¶ 33-38, 42.) En route to the jail, Mr. Myser told a police deputy he planned to bring a lawsuit for violation of his civil rights. ( Id. ¶¶ 43-46.) According to Mr. Myser, the police deputy took Mr. Myser to a dark area and struck him until he lost consciousness; Mr. Myser regained consciousness in jail. ( Id. ¶¶ 47-53.) Later medical evaluations found that Mr. Myser had been seriously injured. ( Id. ¶¶ 56-58.)

Mr. Myser brought a lawsuit against Spokane arguing that the use of force by the police violated his constitutional rights. ( See id. ¶¶ 60-61, 79-83, Exs. A, B, D.) Mr. Myser's lawsuit came before Senior United States District Judge Fred Van Sickle in the United States District Court for the Eastern District of Washington and was not successful. ( See id., Ex. A.) Mr. Myser appealed to the Ninth Circuit, but the decision was affirmed in a divided opinion. See Myser v. Spokane Cnty., 389 Fed.App'x 628 (9th Cir. 2010).[2]

Almost four years later, Mr. Myser filed this action, in which he claims that numerous actors committed fraud on the court in his previous lawsuit. ( See Compl. (Dkt. #1); Am. Compl.); Myser, 389 Fed.App'x at 629. Mr. Myser's original complaint before this court alleged a variety of misconduct, such as discovery abuses, perjured testimony, bribery of witnesses, and judicial partiality, that Mr. Myser claimed constituted fraud on the court. ( See generally Compl.; see also 9/9/14 Ord. (Dkt. #17) at 2-4, 6-9.) Mr. Myser further alleged a scheme to commit fraud on the court that implicated Spokane, its attorneys and police deputies, and several of Mr. Myser's former employees with whom Mr. Myser was engaged in separate litigation at the time of the previous lawsuit against Spokane.[3] ( See generally Compl.; see also 9/9/14 Ord. at 2-4, 6-9.) Spokane moved for judgment on the pleadings (7/7/14 Mot. (Dkt. #9)), and the court dismissed the original complaint without prejudice (9/9/14 Ord. at 11).

In its order of dismissal, the court noted multiple deficiencies in Mr. Myser's original complaint. First, the court found that many of Mr. Myser's claims did not rise to the level of fraud on the court. ( See id. at 6, 8-10.) For example, the court found that Mr. Myser's claims regarding a frivolous lawsuit by his former employees, discovery abuses, and assault by the police would not amount to fraud on the court even if plausibly pleaded. ( See id. at 8-10.) Second, the court found that Mr. Myser's remaining claims- of a quid pro quo scheme to commit fraud on the court, bribery of a witness, and judicial partiality-might rise to the level of fraud on the court ( id. at 6); however, those claims were not plausibly pleaded ( see id. at 7-8). Rather those claims consisted mainly of conclusory statements and labels, which the court did not credit, and factual allegations from which the court could not reasonably draw an inference of fraud on the court. ( See id. ) Thus, the court instructed Mr. Myser to provide additional factual support for his potentially viable claims in an amended complaint. ( See id. at 6-8, 11.)

With his amended complaint, Mr. Myser realleges a broad-based scheme to commit fraud on the court. ( See, e.g., Am. Compl. ¶¶ 59-70.) He claims that his former employees, Spokane, and the police deputies were all involved in this scheme. ( See, e.g., id. ) He alleges that, pursuant to the scheme, his former employees filed a frivolous suit against him to divert his resources away from the lawsuit against Spokane ( see id. ¶¶ 59-62); that Spokane and his former employees shared discovery in violation of a protective order ( see id. ¶ 62); that Mr. Tangen helped Spokane's accounting witness mischaracterize information about Mr. Myser's business in the lawsuit against Spokane ( see id. ¶ 63); that the police deputies involved in Mr. Myser's lawsuit lied in their reports and trial testimony ( see id. ¶¶ 66-70, 76); that Spokane's attorneys misrepresented the applicable legal standard ( see id. ¶¶ 77-78); and that Judge Van Sickle used that erroneous standard and also misconstrued the medical evidence ( see id. ¶¶ 79-81). Furthermore, Mr. Myser claims that Judge Van Sickle was biased in favor of Spokane. ( See id. ¶¶ 60, 85.) As with the original complaint, the only cause of action in the amended complaint is fraud on the court. ( Id. at 33.)

III. ANALYSIS

The instant motion attacks Mr. Myser's amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. (Mot. at 1.) As noted above, the amended complaint's only cause of action is fraud on the court. (Am. Compl. at 33.) Thus, in analyzing whether Mr. Myser has stated a plausible claim for fraud on the court, the court first discusses the standard applicable to motions to dismiss for failure to state a claim and the law of fraud on the court. The court then considers Mr. Myser's amended complaint in light of those legal principles. Having done so, the court finds that Mr. Myser has failed to state a plausible claim of fraud on the court. Finally, the court addresses whether Mr. Myser's claims against Spokane should be dismissed with prejudice and whether the claims against Mr. Tangen should also be dismissed. The court concludes that dismissal with prejudice is appropriate as to the claims against Spokane and likely appropriate as to the claims against Mr. Tangen.

A. Dismissal for Failure to State a Claim

Dismissal for failure to state a claim "is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (citation omitted). "To survive a motion to dismiss, a complaint must contain 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "Mere conclusory statements, " however, "are not entitled to the presumption of truth." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citing Ashcroft, 556 U.S. at 678).

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court may consider the pleadings, documents attached to the pleadings, and documents incorporated by reference in the pleadings. United States v. ...


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