1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 NORMAN CLANCY, Case No. 22-cv-02381-BLF
9 Plaintiff, ORDER GRANTING MOTIONS TO DISMISS WITHOUT LEAVE TO 10 v. AMEND; AND ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD 11 JERRY MANCUSO; GERALD BITTNER; NOT BE DECLARED A VEXATIOUS and KEITH COOPER, LITIGANT 12 Defendants. [Re: ECF 7, 21] 13
15 16 This is the latest in a series of lawsuits that pro se Plaintiff Norman Clancy (“Clancy”) has 17 filed regarding dental services provided to him by Defendants Jerry Mancuso (“Mancuso”), 18 Gerald Bittner (“Bittner”), and Keith Cooper (“Cooper”). In this suit, Clancy asserts a single 19 claim under the federal criminal mail fraud statute, 18 U.S.C. § 1341, based on Defendants’ 20 alleged scheme to defraud him in connection with the dental work. See Compl. at 3, ECF 1.1 21 Clancy has voluntarily dismissed Bittner from the suit. The remaining defendants, 22 Mancuso and Cooper, have filed motions to dismiss the complaint. Mancuso’s motion includes a 23 request that the Court declare Clancy a vexatious litigant. Clancy has not filed opposition to the 24 motions. The Court previously submitted the motions for decision without oral argument. See 25 Order Submitting Mots., ECF 25. 26
27 1 Because the complaint is not conventionally paginated, this order cites to the page numbers in 1 For the reasons discussed below, the motions to dismiss are GRANTED WITHOUT 2 LEAVE TO AMEND. Although the Court ordinarily would enter judgment against Clancy at this 3 time, the Court will defer entry of judgment so that it may consider Mancuso’s request that the 4 Court declare Clancy a vexatious litigant. Clancy is ORDERED TO SHOW CAUSE, in writing 5 and within 14 days, why he should not be declared a vexatious litigant and subject to a pre-filing 6 review requirement with respect to future complaints against Jerry Mancuso, Gerald Bittner, and 7 Keith Cooper. 8 I. BACKGROUND 9 Clancy alleges that he was referred to Dr. Keith Cooper for the removal of a broken screw 10 from an implant. See Compl. at 6. Cooper allegedly “destroyed a critical implant” and removed 11 “an existing bridge,” which left Mr. Clancy “without any teeth for months.” Id. Clancy indicates 12 that after that procedure, he was referred to Dr. Jerry Mancuso, an oral surgeon. See id. Mancuso 13 allegedly proposed a plan of treatment that involved pulling out all of Clancy’s existing teeth and 14 implants, followed by a bone graft and insertion of up to eight implants. See id. Clancy claims 15 that he also was referred to Dr. Gerald Bittner “to make the hybrid bridge.” Id. 16 According to Clancy, Defendants changed the prices of their procedures in bad faith and 17 lied about which procedures they performed. See Compl. at 6-7. For example, Clancy alleges as 18 follows: “On the day before the operation, Mancuso raised the price to $19,000 and used the 19 change in price, that he knew I couldn’t pay to cancel the surgery.” Id. at 7. Additionally, Clancy 20 alleges that an X-ray taken immediately after the first surgery by Dr. Cooper shows that the 21 procedure was never actually performed. See id at 9, 11. Clancy also says that he immediately 22 went to three other oral surgeons, who told him that he had never had any bone graft and that the 23 follow-up treatment plan proposed by Defendants was impossible. See id at 7. 24 Based on these factual allegations, Clancy alleges that Defendants violated the federal 25 criminal mail fraud statute, 18 U.S.C. § 1341. See Compl. at 3, 8-9. Specifically, Clancy alleges 26 that “Mancuso, Cooper, and Bittner all conspired to set [him] up to pay for 8 pulled teeth and three 27 dentures – all to cover up the crime of not putting the implants in and making me pay for them – 1 Both remaining defendants, Mancuso and Cooper, move to dismiss the complaint for 2 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).2 Mancuso also requests 3 that Clancy be declared a vexatious litigant. 4 II. MOTIONS TO DISMISS 5 A. Legal Standard 6 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 7 claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force 8 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted). 9 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 11 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 12 claim is facially plausible when it “allows the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Id. 14 Where a plaintiff proceeds pro se, the court “must construe the pleadings liberally” and 15 afford the plaintiff “the benefit of any doubt.” Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 16 2022) (internal quotation marks and citation omitted). “A liberal construction of a pro se 17 complaint, however, does not mean that the court will supply essential elements of a claim that are 18 absent from the complaint.” Id. 19 B. Discussion 20 Defendants move to dismiss the complaint on the ground that the statute under which 21 Clancy sues, 18 U.S.C. § 1341, does not give rise to a private right of action. Defendants correctly 22 point out that 18 U.S.C. § 1341 is a criminal statute, which provides that a person who uses the 23 mails in furtherance of a scheme to defraud “shall be fined under this title or imprisoned not more 24 than 20 years, or both.” 18 U.S.C. § 1341. “[T]he mail fraud statute does not provide a private 25
26 2 While Mancuso’s motion cites the legal standards for dismissal under both Rule 12(b)(1) and 12(b)(6), his notice of motion states that he seeks dismissal only under Rule 12(b)(6). See 27 Mancuso Mot. at 10, ECF 21. Because the Rule 12(b)(6) motion is dispositive, the Court does not 1 right of action.” Cirino v. GMAC Mortg. LLC, 667 F. App’x 248, 249 (9th Cir. 2016) (citing 18 2 U.S.C. § 1341); see also Ross v. Orange Cnty. Bar Ass’n, 369 F. App’x 868, 869 (9th Cir. 2010) 3 (recognizing that there is “no separate private right of action for mail fraud under 18 U.S.C. § 4 1341”); Cobb v. Brede, Case No. 10-03907, 2012 WL 33242, at *2 (N.D. Cal. Jan. 6, 2012) 5 (noting that 18 U.S.C. §§ 1341 and 1343 “are the federal criminal statutes for mail and wire fraud . 6 . . [that] do not provide litigants with a private right of action”), aff’d, 517 Fed. App’x 556 (9th 7 Cir. 2013).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 NORMAN CLANCY, Case No. 22-cv-02381-BLF
9 Plaintiff, ORDER GRANTING MOTIONS TO DISMISS WITHOUT LEAVE TO 10 v. AMEND; AND ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD 11 JERRY MANCUSO; GERALD BITTNER; NOT BE DECLARED A VEXATIOUS and KEITH COOPER, LITIGANT 12 Defendants. [Re: ECF 7, 21] 13
15 16 This is the latest in a series of lawsuits that pro se Plaintiff Norman Clancy (“Clancy”) has 17 filed regarding dental services provided to him by Defendants Jerry Mancuso (“Mancuso”), 18 Gerald Bittner (“Bittner”), and Keith Cooper (“Cooper”). In this suit, Clancy asserts a single 19 claim under the federal criminal mail fraud statute, 18 U.S.C. § 1341, based on Defendants’ 20 alleged scheme to defraud him in connection with the dental work. See Compl. at 3, ECF 1.1 21 Clancy has voluntarily dismissed Bittner from the suit. The remaining defendants, 22 Mancuso and Cooper, have filed motions to dismiss the complaint. Mancuso’s motion includes a 23 request that the Court declare Clancy a vexatious litigant. Clancy has not filed opposition to the 24 motions. The Court previously submitted the motions for decision without oral argument. See 25 Order Submitting Mots., ECF 25. 26
27 1 Because the complaint is not conventionally paginated, this order cites to the page numbers in 1 For the reasons discussed below, the motions to dismiss are GRANTED WITHOUT 2 LEAVE TO AMEND. Although the Court ordinarily would enter judgment against Clancy at this 3 time, the Court will defer entry of judgment so that it may consider Mancuso’s request that the 4 Court declare Clancy a vexatious litigant. Clancy is ORDERED TO SHOW CAUSE, in writing 5 and within 14 days, why he should not be declared a vexatious litigant and subject to a pre-filing 6 review requirement with respect to future complaints against Jerry Mancuso, Gerald Bittner, and 7 Keith Cooper. 8 I. BACKGROUND 9 Clancy alleges that he was referred to Dr. Keith Cooper for the removal of a broken screw 10 from an implant. See Compl. at 6. Cooper allegedly “destroyed a critical implant” and removed 11 “an existing bridge,” which left Mr. Clancy “without any teeth for months.” Id. Clancy indicates 12 that after that procedure, he was referred to Dr. Jerry Mancuso, an oral surgeon. See id. Mancuso 13 allegedly proposed a plan of treatment that involved pulling out all of Clancy’s existing teeth and 14 implants, followed by a bone graft and insertion of up to eight implants. See id. Clancy claims 15 that he also was referred to Dr. Gerald Bittner “to make the hybrid bridge.” Id. 16 According to Clancy, Defendants changed the prices of their procedures in bad faith and 17 lied about which procedures they performed. See Compl. at 6-7. For example, Clancy alleges as 18 follows: “On the day before the operation, Mancuso raised the price to $19,000 and used the 19 change in price, that he knew I couldn’t pay to cancel the surgery.” Id. at 7. Additionally, Clancy 20 alleges that an X-ray taken immediately after the first surgery by Dr. Cooper shows that the 21 procedure was never actually performed. See id at 9, 11. Clancy also says that he immediately 22 went to three other oral surgeons, who told him that he had never had any bone graft and that the 23 follow-up treatment plan proposed by Defendants was impossible. See id at 7. 24 Based on these factual allegations, Clancy alleges that Defendants violated the federal 25 criminal mail fraud statute, 18 U.S.C. § 1341. See Compl. at 3, 8-9. Specifically, Clancy alleges 26 that “Mancuso, Cooper, and Bittner all conspired to set [him] up to pay for 8 pulled teeth and three 27 dentures – all to cover up the crime of not putting the implants in and making me pay for them – 1 Both remaining defendants, Mancuso and Cooper, move to dismiss the complaint for 2 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).2 Mancuso also requests 3 that Clancy be declared a vexatious litigant. 4 II. MOTIONS TO DISMISS 5 A. Legal Standard 6 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 7 claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force 8 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted). 9 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 10 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 11 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 12 claim is facially plausible when it “allows the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Id. 14 Where a plaintiff proceeds pro se, the court “must construe the pleadings liberally” and 15 afford the plaintiff “the benefit of any doubt.” Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 16 2022) (internal quotation marks and citation omitted). “A liberal construction of a pro se 17 complaint, however, does not mean that the court will supply essential elements of a claim that are 18 absent from the complaint.” Id. 19 B. Discussion 20 Defendants move to dismiss the complaint on the ground that the statute under which 21 Clancy sues, 18 U.S.C. § 1341, does not give rise to a private right of action. Defendants correctly 22 point out that 18 U.S.C. § 1341 is a criminal statute, which provides that a person who uses the 23 mails in furtherance of a scheme to defraud “shall be fined under this title or imprisoned not more 24 than 20 years, or both.” 18 U.S.C. § 1341. “[T]he mail fraud statute does not provide a private 25
26 2 While Mancuso’s motion cites the legal standards for dismissal under both Rule 12(b)(1) and 12(b)(6), his notice of motion states that he seeks dismissal only under Rule 12(b)(6). See 27 Mancuso Mot. at 10, ECF 21. Because the Rule 12(b)(6) motion is dispositive, the Court does not 1 right of action.” Cirino v. GMAC Mortg. LLC, 667 F. App’x 248, 249 (9th Cir. 2016) (citing 18 2 U.S.C. § 1341); see also Ross v. Orange Cnty. Bar Ass’n, 369 F. App’x 868, 869 (9th Cir. 2010) 3 (recognizing that there is “no separate private right of action for mail fraud under 18 U.S.C. § 4 1341”); Cobb v. Brede, Case No. 10-03907, 2012 WL 33242, at *2 (N.D. Cal. Jan. 6, 2012) 5 (noting that 18 U.S.C. §§ 1341 and 1343 “are the federal criminal statutes for mail and wire fraud . 6 . . [that] do not provide litigants with a private right of action”), aff’d, 517 Fed. App’x 556 (9th 7 Cir. 2013). Under these authorities, the Court concludes that the complaint is subject to dismissal 8 even under the liberal standards applicable to pro se pleadings. 9 Having determined that the complaint is subject to dismissal, the Court must decide 10 whether leave to amend is warranted. Leave ordinarily must be granted unless one or more of the 11 following factors is present: (1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure 12 to cure deficiencies by amendment, (4) undue prejudice to the opposing party, and (5) futility of 13 amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Eminence Capital, LLC v. 14 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (discussing Foman factors). “[I]t is the 15 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 16 Capital, 316 F.3d at 1052. However a strong showing with respect to one of the other factors may 17 warrant denial of leave to amend. Id. 18 The Court finds no undue delay (factor 1). Mancuso suggests that Clancy is acting in bad 19 faith (factor 2) by acting as a vexatious litigant, but any finding of bad faith would be premature 20 while the vexatious litigant request is pending. There has been no repeated failure to cure 21 deficiencies (factor 3), as the current motions are directed to the original complaint. However, 22 granting Clancy an opportunity to continue with this meritless suit would impose undue prejudice 23 on Defendants (factor 4), because it is clear that amendment would be futile (factor 5). See Cirino, 24 667 F. App’x at 249 (affirming district court’s dismissal of § 1341 claim under Rule 12(b)(6)). 25 The motions to dismiss brought by Defendants Mancuso and Cooper are GRANTED 26 WITHOUT LEAVE TO AMEND. The Court will defer entry of judgment against Clancy, 27 however, so that it may address Mancuso’s request that Clancy be declared a vexatious litigant. 1 I. ORDER TO SHOW CAUSE 2 Mancuso requests that Clancy be declared a vexatious litigant and subjected to pre-filing 3 review with respect to future complaints against Mancuso, Cooper, or Bittner. Before a pre-filing 4 || review order may be imposed, the litigant must be given notice that the court is considering such 5 an order, as well as an opportunity to oppose the order before it issues. See Ringgold-Lockhart v. 6 Cnty. of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014). A hearing is not required. See Ou- 7 Young v. Roberts, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20, 2013) (collecting cases). 8 || Accordingly, Clancy is ORDERED TO SHOW CAUSE, in writing and within 14 days, why he 9 should not be declared a vexatious litigant and subject to a pre-filing review requirement with 10 || respect to future complaints against Jerry Mancuso, Gerald Bittner, and Keith Cooper. 11 IV. ORDER 12 (1) Defendant Mancuso’s motion to dismiss pursuant to Rule 12(b)(6) is GRANTED 5 13 WITHOUT LEAVE TO AMEND; 14 (2) Defendant Cooper’s motion to dismiss pursuant to Rule 12(b)(6) is GRANTED 3 15 WITHOUT LEAVE TO AMEND; and a 16 (3) Plaintiff Clancy is ORDERED TO SHOW CAUSE, in writing and within 14 days, 3 17 why he should not be declared a vexatious litigant and subject to a pre-filing review 18 requirement with respect to future complaints against Jerry Mancuso, Gerald 19 Bittner, and Keith Cooper. 20 21 Dated: November 30, 2022 ALU) lyf Lies B LABSON FREEMAN 22 United States District Judge 23 24 25 26 27 28