1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 JaMarlin Fowler, No. CV-20-01516-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 T-Mobile USA Incorporated, et al.,
13 Defendants. 14 15 Before the Court are the Motions to Dismiss filed by Defendants Federal 16 Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) 17 (collectively, “the United States”) (Doc. 28); Defendant State of California (“California”) 18 (Doc. 12); and Defendant State of Arizona (“Arizona”) (Doc. 14). Defendant T-Mobile 19 USA Inc. (“T-Mobile”) has filed a Motion to Dismiss and also seeks to have Plaintiff 20 declared a vexatious litigant (Doc. 18).1 Pro se Plaintiff JaMarlin Fowler (“Plaintiff”) has 21 responded to each motion (Docs. 25; 30; 34) and the respective Defendants have filed their 22 reply briefs (Docs. 26; 27; 31; 35). The motions are therefore fully briefed and ready for 23 resolution. 24 I. Background 25 Plaintiff is a “full-time artist currently residing in the State of California.” (Doc. 1 26 at 24). In his 40-page Complaint, Plaintiff alleges that on or before August 4, 2015,
27 1 T-Mobile requests oral argument. (Doc. 18 at 1). The Court denies the request because the issues have been fully briefed and oral argument will not aid the Court’s decision. See 28 Fed.R.Civ.P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 1 Defendant “T-Mobile (formerly Sprint)” purchased a mobile device (the “2015 phone”) 2 belonging to Plaintiff from a third party2 that contained a copy of Plaintiff’s copyrighted 3 screenplay. (Id. at 13-14, 24-25). He alleges that Sprint sold the third party a memory 4 card, copied the contents of the phone onto the card, and then subsequently purchased the 5 phone and sent it to its warehouse. (Id. at 14). Plaintiff alleges that this “first conversion” 6 occurred “in Phoenix, Arizona in August of 2015,” and all of this was done without his 7 knowledge or consent. (Id. at 2, 14). Plaintiff says that he contacted Sprint’s customer 8 service regarding the issues of “the unauthorized acquisition of the Plaintiff’s phone and 9 content and the unjustly levied [early termination fee],” but the parties ultimately were 10 unable to reach a resolution. (Id. at 17). 11 Plaintiff subsequently contacted the FTC and lodged a complaint against Sprint. (Id. 12 at 19-20). The FTC directed Plaintiff to contact the FCC, but otherwise “did nothing to 13 assist the Plaintiff.” (Id. at 20). As he was instructed, Plaintiff lodged an online complaint 14 against Sprint with the FCC, which the FCC served on Sprint. Plaintiff says that Sprint 15 responded to his FCC complaint with “misleading and incorrect statements.” (Id. at 21). 16 After receiving additional information from Plaintiff, and then seeking additional 17 explanation from Sprint, the FCC ultimately closed Plaintiff’s complaint. (Id.) Plaintiff 18 alleges that “the agency, namely Chairman Ajit Pai, is purposely avoiding its statutory duty 19 to protect American Citizens.” (Id. at 21). He says he is still being harmed as a result of 20 the inaction of these agencies, and asks for an order compelling them “to investigate the 21 actions of T-Mobile (formerly Sprint) and to make the findings public, specifically for the 22 FCC as the Plaintiff believes this particular agency is agency captured by the wireless 23 industry and needs transparency.” (Id. at 21-22). 24 In August of 2017, another phone on Plaintiff’s Sprint account (the “2017 phone”) 25 was “stolen, but recovered.” (Id. at 26). Plaintiff says that “[p]rior to Plaintiff being 26 contacted about the phone or it being returned, someone affiliated with Sprint went into 27 2 Although not specified in his Complaint, past filings Plaintiff has made in other courts 28 that arise from the same set of facts indicate that the unauthorized third party referenced here is the mother of Plaintiff’s child, who resides in Arizona. (See e.g., Doc. 18-5 at 3). 1 Plaintiff’s account and unflagged the phone lost or stolen, and the phone began being used 2 again.” (Id.) The 2017 phone also contained a copy of Plaintiff’s copyrighted screenplay. 3 (Id. at 25). Plaintiff says he “has been harmed as a result of the missing, leaked or destroyed 4 data that Plaintiff cannot replace, nor has any idea who else has a copy of the data since it 5 was illegally accessed.” (Id. at 26). 6 On August 21, 2017, Plaintiff filed a complaint against Sprint Spectrum LP a/k/a 7 Sprint International Communications Corporation a/k/a Sprint PCS in the Central District 8 of California for claims arising out of alleged conversion of Plaintiff’s 2015 Phone. (Id. at 9 18; see also Doc. 18-4 at 1, docket of Fowler v. Sprint PCS, 8:17-cv-01436-JLS-DFM 10 (C.D. Cal. 2017)).3 On December 13, 2017, the court dismissed Plaintiff’s complaint 11 because Plaintiff had “not alleged sufficient facts to establish personal jurisdiction.” (Doc. 12 18-5 at 5). The court noted that the corporate defendant there—Sprint PCS—was 13 headquartered in Delaware, with its principal place of business in Kansas. (Id.) The court 14 further noted that Plaintiff had “not presented any documents to show that his contract was 15 with this defendant, nor that the bills he received were from this defendant.” (Id.) The 16 court gave Plaintiff twenty-one days to amend his complaint to allege “additional 17 jurisdictional facts or identify[] a different defendant.” (Id. at 7). Plaintiff did not amend 18 his complaint, and it was administratively closed. (Doc. 18-4 at 6). 19 Exactly four months after the court dismissed Plaintiff’s complaint without 20 prejudice, Plaintiff filed another complaint, again in the Central District of California, 21 against Defendants Sprint Spectrum L.P. (“Sprint Spectrum”), the FTC, and the FCC. 22 (Doc. 18-6, docket of Fowler v. Sprint Spectrum L.P, 8:18-cv-00615-JLS-DFM (C.D. Cal. 23 2018)). He later amended his complaint to dismiss the federal agencies. (Id. at 3, Dkt. 14).
24 3 For purposes of assessing personal jurisdiction, the Court only takes judicial notice of the exhibits to Plaintiff’s Complaint (Doc. 1), and the matters of public record that are attached 25 to T-Mobile’s Motion to Dismiss (Doc. 18) and Reply brief (Doc. 35). A matter may be judicially noticed if it is either “generally known within the territorial jurisdiction of the 26 trial court” or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). See also Shaw v. Hahn, 27 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) (a court may take judicial notice of exhibits that are referenced in the complaint or matters in the public record without converting the motions 28 into summary judgment motions). 1 On September 26, 2018, the court again found a lack of personal jurisdiction over Sprint 2 Spectrum for the claims alleged. (Doc. 18-7). Specifically, the court found that additional 3 allegations that Sprint Spectrum does business in California, owns and operates physical 4 locations for sales in California, and communicates with customers in California, were 5 insufficient to establish general jurisdiction over it. (Doc. 18-7 at 6). It also found that it 6 lacked specific jurisdiction over Sprint Spectrum, noting that the party to the cell phone 7 service contract with Plaintiff was Sprint Solutions, not Sprint Spectrum. (Id. at 6-7). The 8 court rejected Plaintiff’s argument that personal jurisdiction should be exercised over 9 Sprint Spectrum because Sprint Spectrum was Sprint Solution’s parent corporation, stating 10 that “Plaintiff has neither alleged facts nor made any argument to suggest that the corporate 11 form should be disregarded in this case.” (Id. at 7). Finding that “it appears that Plaintiff’s 12 claims are in fact directed at a different corporate defendant than Sprint Spectrum,” the 13 court found that justice favored dismissal of the case, rather than transfer to a court with 14 personal jurisdiction over the defendant. (Id.)4 15 Plaintiff further alleges that when the 2017 phone went missing, “instead of just 16 filing a police report and once again reporting the violations to the FTC and FCC, [he] took 17 the additional steps of contacting the Attorneys General of both Arizona and California. 18 (Doc. 1 at 22). In a complaint to the Arizona Attorney General, Plaintiff reported that this 19 was “the second time that a Sprint employee has gone into Plaintiff’s account and that it 20 was completely unacceptable that this is continuing to happen.” (Doc. 1 at 22).5 On 21 October 10, 2017, the Arizona Attorney General’s Office responded in a letter to Plaintiff, 22 4 In his Complaint, Plaintiff states, “The US District Court for the State of California ruled 23 in CV 8:18-CV-00615 that personal jurisdiction did not reside with the Court in California, but in Arizona where the first phone was allegedly converted.” (Doc. 1 at 2-3). The 24 California district court did not, however, make such a finding. Instead, as discussed more infra, the court simply pointed out that even if Plaintiff had named the correct defendant, 25 which it had not, the events alleged had occurred in Arizona, not California, and thus could not serve to exercise specific jurisdiction over Defendant Sprint Spectrum. (Doc. 18-5 at 26 n.3 (“these allegations and the related claims do not support the exercise of specific jurisdiction by a California court”)). 27 5 Plaintiff states that he brought the issue to the attention of the Arizona Attorney General 28 because when he filed a police report in Los Angeles, it was transferred to Scottsdale, Arizona. (Doc. 1 at 23). 1 stating “[a]fter careful review, it has been determined there is a lack of clear facts and 2 evidence to support criminal wrongdoing and the issues you’ve identified are civil in nature 3 versus criminal.” (Doc. 1-1 at 41). Plaintiff also filed a complaint with the Attorney 4 General of California during this time period. In that response, that office informed him 5 that it lacked jurisdiction over “matters already before the court or in matters where courts 6 have already rendered a decision,” but that his complaint would be retained to assess 7 potential abusive business practices. (Id. at 39). Plaintiff claims that the inaction of these 8 states’ attorney generals amounts to contributory copyright infringement. 9 Plaintiff’s Complaint, filed July 20, 2020, states seven causes of action. He brings 10 claims of copyright infringement, breach of contract, breach of fiduciary duty, conversion, 11 breach of privacy, and fraud against T-Mobile “as a result of [its] merger with Sprint 12 Spectrum, L.P. (‘Sprint’).” He also brings claims of contributory copyright infringement 13 against the FTC, the FCC, and the states of California and Arizona. 14 Each Defendant seeks dismissal of Plaintiff’s Complaint and the claims pled against 15 them. The Court will address each motion in turn. 16 II. The United States’ Motion to Dismiss (Doc. 28) 17 With regard to the United States, Plaintiff alleges that the FTC and the FCC 18 contributorily infringed on his copyright when these agencies “did nothing to help” in his 19 dispute with Sprint. The United States argues that the claim for contributory negligence 20 cannot stand because it has not waived its sovereign immunity, and because Plaintiff has 21 failed to properly state a claim upon which relief may be granted. The Court agrees that 22 the United States is immune, and that this Court lacks subject matter jurisdiction over the 23 claim. Accordingly, the Court need not reach Defendant’s 12(b)(6) argument. 24 A. Legal Standards 25 In order to assert a claim against a sovereign like the United States, there must first 26 be “statutory authority vesting a district court with subject matter jurisdiction.” Alvarado 27 v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). But even where 28 statutory authority vests the district court with subject-matter jurisdiction, the United States 1 or its agencies cannot be sued unless the United States has also expressly consented to be 2 sued. Dunn & Black P.S. v. United States, 492 F.3d 1084, 1087–88 (9th Cir. 2007). See 3 also Ins. Co. of the West v. United States, 243 F.3d 1367, 1372 (Fed. Cir. 2001) (“[A] suit 4 against the government cannot proceed absent a waiver of sovereign immunity”); Boyle v. 5 United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000) (“[a] claimant has a claim against the 6 United States only when the United States has consented to be sued by means of a waiver 7 of sovereign immunity.”). Failure to obtain a waiver of sovereign immunity is itself a 8 jurisdictional bar. United States v. Sherwood, 312 U.S. 584, 586 (1941). 9 Waivers of sovereign immunity must be unequivocally expressed, cannot be 10 implied, and are to be strictly construed in favor of the sovereign. Dunn, 492 F.3d at 1087– 11 88. The party asserting a claim against the United States or its agencies bears the burden 12 of demonstrating this “unequivocal waiver of immunity.” Cunningham v. United States, 13 786 F.2d 1445, 1446 (9th Cir. 1986). Sovereign immunity cannot be avoided by naming 14 officers and employees of the United States as defendants. Gilbert v. DaGrossa, 756 F.2d 15 1455, 1459 (9th Cir. 1985). 16 B. Discussion 17 28 U.S.C. § 1498(b) is the appropriate statute addressing waivers of sovereign 18 immunity for copyright infringement by the United States.6 This statute provides, in 19 relevant part, that: 20 W]henever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation 21 owned or controlled by the United States, or by a contractor, subcontractor, 22 or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may 23 be brought for such infringement shall be an action by the copyright owner 24 against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement. 25 28 U.S.C. § 1498(b). 26 The language of §1498(b) makes clear that there are two statutory hurdles Plaintiff 27 6 Plaintiff does not expressly bring his contributory infringement claim pursuant to 28 28 U.S.C. § 1498(b). However, because Plaintiff is pro se, the Court will liberally construe his pleadings as stating a cause of action under § 1498(b). 1 cannot overcome in his suit for contributory copyright infringement against the United 2 States. First, the statute unequivocally states that the exclusive forum for a copyright 3 infringement claim against the United States is in the Court of Federal Claims. 28 U.S.C. 4 § 1498(b). The District Court of Arizona is not the Court of Federal Claims. This Court 5 therefore cannot hear Plaintiff’s copyright claim against the United States. Jeter v. 6 President of the United States, 670 F. App’x 493 (9th Cir. 2016) (“The district court 7 properly dismissed [plaintiff’s] copyright infringement claims for lack of subject matter 8 jurisdiction because [plaintiff] alleged those claims against the United States and 9 individuals acting on behalf of the United States, and the Court of Federal Claims therefore 10 has exclusive jurisdiction over those claims. See 28 U.S.C. § 1498(b).”). 11 Second, the language of § 1498(b) shows that the United States has only waived 12 sovereign immunity for direct copyright infringements—and then only when the infringing 13 acts are committed by the Government, by a corporation controlled by the Government, or 14 by a third party acting for the Government and with the Government’s authorization or 15 consent. 28 U.S.C. § 1498(b); Boyle v. United States, 200 F.3d 1369, 1372–73 (Fed. Cir. 16 2000). See also Decca Ltd. v. United States, 640 F.2d 1156, 1167 n.15 (Ct. Cl. 1980) 17 (defining direct patent infringement as infringement that is “either through authorized 18 actions of governmental employees or through actions by contractors specifically 19 authorized by the Government”). Secondary liability, which encompasses both 20 contributory and vicarious infringement,7 is beyond the waiver of sovereign immunity in § 21 1498(b). Id. at 1167; Cohen v. United States, 98 Fed. Cl. 156, 170–71 (Ct. Cl. 2011). Here, 22 Plaintiff asserts a claim of contributory copyright infringement against the United States 23 based solely on its alleged failure to assist Plaintiff in his dispute with Sprint, the alleged 24 infringer. In other words, Plaintiff makes no allegation that the United States directly 25 infringed on his copyright, only that the United States failed to perform an adequate 26 investigation into the alleged infringer’s actions. Thus, even if this were the correct forum,
27 7 See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (“One infringes a copyright contributorily by intentionally inducing or encouraging direct 28 infringement. . . and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.”) (citations omitted). 1 which it is not, the acts of secondary liability alleged in Plaintiff’s Complaint are beyond 2 the scope of § 1498(b)’s waiver of sovereign immunity. Accordingly, the statute does not 3 vest this Court with subject matter jurisdiction over Plaintiff’s claim for contributory 4 copyright infringement against the FTC or FCC. 5 Because Plaintiff cannot establish statutory subject matter jurisdiction over 6 Plaintiff’s claim of contributory copyright infringement against the United States, the 7 United States’ Motion to Dismiss will be granted, with prejudice. 8 III. California’s Motion to Dismiss (Doc. 12) and Arizona’s Motion to Dismiss (Doc. 9 14) 10 Plaintiff brings claims of contributory copyright infringement against the states of 11 California and Arizona pursuant to 17 U.S.C. § 511(a), The Copyright Remedy 12 Clarification Act of 1990 (“CRCA”). California argues that Plaintiff has not established 13 personal jurisdiction over California and that it is immune from suit under the Eleventh 14 Amendment. (Doc. 12). Arizona argues that Plaintiff’s claim is barred by the statute of 15 limitations, does not allege a viable claim against the state, and is barred by the Eleventh 16 Amendment. (Doc. 14). The Court finds that the Supreme Court’s recent decision in Allen 17 v. Cooper, 140 S. Ct. 994 (2020), is dispositive on the issue of the States’ immunity and 18 accordingly, both motions will be granted on that ground. 19 A. Legal Standards 20 The Eleventh Amendment to the Constitution provides that “[t]he Judicial power of 21 the United States shall not be construed to extend to any suit in law or equity, commenced 22 or prosecuted against one of the United States by Citizens of another State, or by Citizens 23 or Subjects of any Foreign State.” Accordingly, private individuals generally may not bring 24 suit against nonconsenting States, their agencies, or their departments in federal court. 25 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000); Pennhurst State Sch. & Hosp. v. 26 Halderman, 465 U.S. 89, 100 (1984). Under limited circumstances, Congress may 27 abrogate states’ Eleventh Amendment immunity and permit suits by private individuals 28 against states in federal court. Kimel, 528 U.S. at 80. States may also waive their immunity 1 by unequivocally expressing their consent to do so. Pennhurst, 465 U.S. at 99. 2 B. Discussion 3 The relevant part of the CRCA states that a State “shall not be immune, under the 4 Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal 5 court” for copyright infringement, and that the State could be liable “in the same manner 6 and to the same extent as” a private party in such a suit. 17 U.S.C. §§ 511(a); 501(a). In 7 Allen, however, the Supreme Court held that the CRCA was a constitutionally deficient 8 abrogation of States’ immunity. Allen, 140 S. Ct. at 999. The Court specifically held that 9 in passing the CRCA, Congress had exceeded its authority under Section 5 of the 10 Fourteenth Amendment when it stripped the States of their sovereign immunity in all 11 copyright infringement cases because such a remedy was not a congruent or proportional 12 means to prevent copyright infringement by the States. Id. at 1005–06. 13 California and Arizona argue that Plaintiff’s claims for contributory copyright 14 infringement are barred following Allen because neither state has consented to waive 15 immunity to such suits. Plaintiff does not present an argument to the contrary, but contends 16 that California and Arizona should nonetheless be subject to suit because “just like the 17 Plaintiff in Allen v. Cooper, Congress does not want states to have sovereign immunity 18 when it comes to copyright infringement.” (Doc. 25 at 13). Plaintiff’s statement misses 19 the significance of Allen. Courts have not questioned the clarity of the language Congress 20 used in the CRCA to abrogate States’ immunity. See e.g., Allen, 140 S. Ct. at 1001 (“No 21 one here disputes that Congress used clear enough language to abrogate the States’ 22 immunity from copyright infringement suits…there is no doubt what Congress meant to 23 accomplish.”). Instead, the issue before the Supreme Court in Allen was whether Congress 24 had the constitutional authority to strip the states of their immunity from copyright 25 infringement lawsuits. The Court found that Congress’ otherwise unequivocal desire to 26 strip the States of immunity in cases of copyright infringement exceeded its constitutional 27 authority under the Fourteenth Amendment to enact such legislation. Thus, even though 28 Plaintiff, Mr. Allen, and Congress may unequivocally “not want states to have sovereign 1 immunity when it comes to copyright infringement,” Allen instructs this Court that this 2 congressional mandate is unconstitutional and cannot be used to exercise jurisdiction over 3 non-consenting states in copyright actions. Because Allen squarely answers the question 4 as to whether non-waiving states can be found liable for copyright infringement in the 5 negative, and Plaintiff has not established that California or Arizona have otherwise 6 consented to be sued for contributory copyright infringement, the Court will grant 7 California and Arizona’s Motions to Dismiss, with prejudice. 8 III. T-Mobile’s Motion to Dismiss (Doc. 18) 9 T-Mobile also moves to dismiss the claims in Plaintiff’s Complaint. T-Mobile 10 argues that the Court lacks personal jurisdiction over it for the claims alleged, and that the 11 Complaint fails to allege any plausible claims or claims that are not barred by the applicable 12 statute of limitations. Plaintiff also seeks to have Plaintiff declared a vexatious litigant. 13 The question of whether this court has jurisdiction must “be established as a 14 threshold matter.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). 15 Accordingly, though T-Mobile also contests the sufficiency of the claims brought against 16 it, the Court must first address the matter of personal jurisdiction. 17 A. Legal Standards 18 A federal district court has personal jurisdiction over a defendant “who is subject to 19 the jurisdiction of a court of general jurisdiction in the state where the district court is 20 located.” Fed. R. Civ. P. 4(k)(1)(A). Here, that state is Arizona. Arizona Rules of Civil 21 Procedure state that Arizona courts may exercise personal jurisdiction “to the maximum 22 extent permitted by the Arizona Constitution and the United States Constitution.” Ariz. R. 23 Civ. P. 4.2(a). Under these constitutions, due process requires that the defendant have 24 “certain minimum contacts” such that the lawsuit “does not offend traditional notions of 25 fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 26 Since International Shoe, courts have recognized two types of personal jurisdiction: 27 general and specific. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 28 919 (2011). A defendant is subject to a court’s general jurisdiction where its activities in 1 the forum state are “so continuous and systematic as to render [it] essentially at home in 2 the forum State.” Id. Specific jurisdiction, on the other hand, exists when the lawsuit 3 “aris[es] out of or [is] related to the defendant’s contacts with the forum.” Helicopteros 4 Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). If a court lacks general 5 and specific jurisdiction over a defendant, the court must dismiss the defendant under 6 Federal Rule of Civil Procedure 12(b)(2). 7 Rule 12(b)(2) allows a party to move to dismiss for lack of personal jurisdiction. 8 Fed. R. Civ. P. (12)(b)(2). Once a defendant has moved to dismiss, “the plaintiff is 9 obligated to come forward with facts, by affidavit or otherwise, supporting personal 10 jurisdiction” over the defendant. Cummings v. W. Trial Lawyers Assoc., 133 F.Supp.2d 11 1144, 1151 (D. Ariz. 2001) (internal quotations omitted); Dole Food Co. v. Watts, 303 F.3d 12 1104, 1108 (9th Cir. 2002) (noting that the plaintiff “bear[s] the burden of demonstrating 13 that [personal] jurisdiction is appropriate”). When no evidentiary hearing is held, Plaintiff 14 need only make “a prima facie showing of jurisdictional facts” establishing personal 15 jurisdiction. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). 16 A court may look to affidavits submitted by the parties in its determination of 17 personal jurisdiction. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). See also 18 Chem Lab Prods., Inc. v. Stepanek, 554 F.2d 371, 372 (9th Cir. 1977) (“mere allegations 19 of a complaint, when contradicted by affidavits, are not enough to confer personal 20 jurisdiction over a non-resident defendant”); Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d 21 1280, 1285 (9th Cir. 1977) (stating “we may not assume the truth of allegations in a 22 pleading which are contradicted by affidavit”). However, “conflicts between the facts 23 contained in the parties’ affidavits must be resolved in [plaintiffs’] favor for purposes of 24 deciding whether a prima facie case for personal jurisdiction exists.” AT&T v. Compagnie 25 Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996). 26 B. Discussion 27 Plaintiff concedes in his Response to T-Mobile’s Motion to Dismiss that this Court 28 does not have general jurisdiction over T-Mobile. (Doc. 30 at 6). The Court agrees that 1 on the record before it, general jurisdiction over T-Mobile is lacking. It will therefore 2 assess whether it has specific jurisdiction over the claims Plaintiff has asserted against T- 3 Mobile. 4 To establish specific personal jurisdiction, Plaintiff must make at least a preliminary 5 showing that (1) T-Mobile purposefully directed its activities or consummated some 6 transaction with Arizona or an Arizona resident or that T-Mobile performed some act by 7 which it purposefully availed itself of the privilege of conducting activities in Arizona; and 8 (2) Plaintiff’s claims arose out of or related to T-Mobile’s Arizona-related activities. 9 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). If Plaintiff 10 makes a preliminary showing of these two facts, the burden shifts to T-Mobile to show “the 11 exercise of jurisdiction would not be reasonable.” Id. 12 T-Mobile argues that the Court lacks specific jurisdiction over it because the 13 Complaint only addresses “conduct by a subsidiary of Sprint in the 2015 and 2017 14 timeframe and does not allege any wrongdoing by the T-Mobile corporate entity named as 15 a defendant.” (Doc. 18 at 6-7). Plaintiff contends that the Court has specific jurisdiction 16 over T-Mobile “due to the claims arising within the State of Arizona.” (Doc. 30 at 7). He 17 also argues that “[t]he entity issues cease to be a barrier due to the merger of T-Mobile with 18 Sprint and its entities.” (Id. at 3). 19 Even assuming that T-Mobile has purposefully availed itself of the privilege of 20 conducting activities in Arizona (which the Court need not decide), Plaintiff has not met 21 his burden of showing that his claims arise out of contacts with T-Mobile. T-Mobile 22 correctly notes that the conduct alleged in Plaintiff’s Complaint occurred in 2015 and 2017, 23 years before the 2020 merger of T-Mobile and Sprint. T-Mobile was therefore not the 24 corporate entity engaging with Plaintiff, and Plaintiff does not allege as much. Indeed, the 25 record, which includes two court orders dismissing Plaintiff’s related cases, clearly show 26 Sprint Solutions was the entity to the contract that governed Plaintiff’s cell phone service 27 during these times. For reasons he does not explain, Plaintiff has not named Sprint 28 Solutions as a defendant despite being on notice of this fact. 1 Plaintiff may be trying to argue that Sprint Solutions’ contacts with Plaintiff should 2 be imputed to T-Mobile as an alter ego of Sprint Solutions following the merger of T- 3 Mobile and Sprint. This is a generous reading of Plaintiff’s Complaint and Response, 4 however, and it is unsupported by facts or evidence. T-Mobile represents that there is no 5 cause to disregard the corporate form here because “the Sprint corporations still exist as 6 subsidiary corporate entities” following the merger. It has attached SEC documentation 7 supporting that fact to its Reply. (See Doc. 31 at 7 n.2; see also Doc. 31–2 at 16). Plaintiff 8 has not rebutted this evidence. The Ninth Circuit has stated that: 9 To satisfy the alter ego test, a plaintiff must make out a prima facie case (1) that there is such unity of interest and ownership that the separate 10 personalities of the two entities no longer exist and (2) that failure to 11 disregard their separate identities would result in fraud or injustice. The “unity of interest and ownership” prong of this test requires a showing that 12 the parent controls the subsidiary to such a degree as to render the latter the 13 mere instrumentality of the former. This test envisions pervasive control over the subsidiary, such as when a parent corporation dictates every facet of the 14 subsidiary's business—from broad policy decisions to routine matters of day- 15 to-day operation. Total ownership and shared management personnel are alone insufficient to establish the requisite level of control. 16 Ranza v. Nike, 793 F.3d 1059, 1073 (9th Cir. 2015). 17 Plaintiff has alleged no facts suggesting that the corporate form should be 18 disregarded under this standard, or provided any other reason why Sprint Solutions’ 19 contacts or actions with Plaintiff should be imputed to T-Mobile. Accordingly, specific 20 jurisdiction does not exist over T-Mobile, and T-Mobile’s Motion to Dismiss will be 21 granted. 22 IV. T-Mobile’s Request to Have Plaintiff Declared a Vexatious Litigant (Doc. 18) 23 The Court will now consider T-Mobile’s request to have Plaintiff declared a 24 vexatious litigant. 25 A. Legal Standards 26 The All Writs Act, 28 U.S.C. § 1651(a), gives the Court the “the inherent power to 27 enter pre-filing orders against vexatious litigants,” which prevents litigants from filing any 28 further actions or papers in the district court without first obtaining leave to do so. Molski 1 v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citation omitted). 2 “Flagrant abuse of the judicial process cannot be tolerated because it enables one person to 3 preempt the use of judicial time that properly could be used to consider the meritorious 4 claims of other litigants.” Id. (citations omitted). However, “[a] court should enter a pre- 5 filing order constraining a litigant’s scope of actions in future cases only after a cautious 6 review of the pertinent circumstances” due to the due process considerations that protect 7 civil litigants’ access to the courts. Id. “Out of regard for the constitutional underpinnings 8 of the right to court access, ‘pre-filing orders should rarely be filed,’ and only if courts 9 comply with certain procedural and substantive requirements. Ringgold-Lockhart v. Cty. 10 of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (quoting De Long v. Hennessey, 912 11 F.2d 1144, 1147 (9th Cir. 1990)); id. (“In light of the seriousness of restricting litigants’ 12 access to the courts, pre-filing orders should be a remedy of last resort.”). 13 To declare a party a vexatious litigant, a court must (1) provide the accused party 14 with notice and an opportunity to be heard, (2) create an adequate record on which to decide 15 the motion, (3) make substantive findings as to the frivolous or harassing nature of the 16 litigant’s actions, and (4) craft a narrowly-tailored order preventing the litigant’s abusive 17 behavior. Id. at 1057–58. The first two of these requirements are considered procedural, 18 while the “latter two factors…are substantive considerations…[that] help the district court 19 define who is, in fact, a ‘vexatious litigant’ and construct a remedy that will stop the 20 litigant’s abusive behavior while not unduly infringing the litigant’s right to access the 21 courts.” Molski, 500 F.3d at 1058. 22 B. Discussion 23 On the record before it, the Court declines to declare Plaintiff a vexatious litigant. 24 Prior to bringing this action, Plaintiff twice unsuccessfully asserted claims arising out of 25 the same alleged wrongdoing. But as T-Mobile acknowledges, these claims were 26 dismissed for lack of personal jurisdiction, not on the grounds that they were frivolous or 27 did not state a claim. (Doc. 18 at 15). In fact, in dismissing Plaintiff’s first complaint, the 28 district court allowed Plaintiff twenty-one days to amend his complaint to add jurisdictional 1 allegations and/or name the correct defendant so long as Plaintiff could “do so consistent 2 with Rule 11 of the Federal Rules of Civil Procedure.” (Doc. 18-5 at 7). The Court’s Order 3 today similarly dismisses T-Mobile for lack of personal jurisdiction and accordingly does 4 not rule on the merits of Plaintiff’s claims. It is premature then to declare these claims 5 “patently without merit.” Molski, 500 F.3d at 1059. Moreover, in assessing whether a pre- 6 filing order is justified, three cases are not typically considered an “inordinate” number of 7 cases. De Long, 912 F.2d at 1148 (“even if [a litigant’s] petition is frivolous, the court 8 [must] make a finding that the number of complaints was inordinate”); see also Ringgold- 9 Lockhart, 761 F.3d at 1065 (finding district court erred in finding plaintiffs vexatious 10 litigants in part because “two cases is far fewer than what other courts have found 11 ‘inordinate’”); id. (comparing Molski, 500 F.3d at 1060 (finding district court did not abuse 12 its discretion in finding plaintiff vexatious where a large number of the roughly 400 13 complaints contained false or exaggerated allegations of injury); Wood v. Santa Barbara 14 Chamber of Commerce, Inc., 705 F.2d 1515, 1523, 1526 (9th Cir. 1983) (affirming district 15 court’s injunction where plaintiff had initiated thirty-five actions in thirty jurisdictions and 16 more than 250 defendants). 17 T-Mobile’s request is also inappropriate because other remedies, including those 18 provided under Rule 11, are available to deter Plaintiff’s alleged litigiousness. Chambers 19 v. NASCO, Inc., 501 U.S. 32, 50 (1991) (“[W]hen there is…conduct in the course of 20 litigation that could be adequately sanctioned under the Rules, the court ordinarily should 21 rely on the Rules rather than the inherent power.”). See also Fed. R. Civ. P. 11 advisory 22 committee’s note to 1993 Amendments, subdivision (d). Rule 11(c)(4) provides a list of 23 discretionary sanctions that courts may impose “to deter repetition of the conduct” 24 including, “nonmonetary directives; an order to pay a penalty into court; or, if imposed on 25 motion and warranted for effective deterrence, an order directing payment to the movant 26 of part or all of the reasonable attorney’s fees and other expenses directly resulting from 27 the violation.” Id. To the extent T-Mobile believes Plaintiff has violated Rule 11(b), it 28 may make a separate motion for sanctions describing “the specific conduct that allegedly violates Rule 11(b).’’® A pre-filing order under these circumstances, however, would be an || undue infringement on Plaintiffs access to the courts. T-Mobile’s request is denied. V. Conclusion 4 For the foregoing reasons, 5 IT IS ORDERED the United States’ Motion to Dismiss (Doc. 28), California’s 6|| Motion to Dismiss (Doc. 12), and Arizona’s Motion to Dismiss (Doc. 14) are granted, 7\| with prejudice. Defendants FTC, FCC, California, and Arizona are dismissed from this 8 || action. 9 IT IS FURTHER ORDERED that T-Mobile’s Motion to Dismiss (Doc. 18) for || lack of personal jurisdiction is granted. Plaintiff's Complaint (Doc. 1) is therefore || dismissed. If Plaintiff can comply with Rule 11 of the Federal Rules of Civil Procedure, Plaintiff has leave to file a First Amended Complaint alleging additional jurisdictional facts 13} and identifying the correct defendant within thirty (30) days of the date this Order. If Plaintiff does not file a First Amended Complaint within thirty (30) days of the date this || Order, the Clerk of Court shall dismiss this action without further order of this Court. 16 IT IS FINALLY ORDERED that T-Mobile’s request to have Plaintiff declared a 17 || vexatious litigant (Doc. 18) is denied. 18 Dated this 16th day of June, 2021. 19 20 oC. . foe 21 norable' Diang4. Huretewa 02 United States District Judge 23 24 25 26 27 28|| 8 Rule 11(c)(3) also allows the Court on its own initiative to order a party to show cause why certain conduct has not violated Rule 11(b). -16-