1 2 3 UNITED STATES DISTRICT COURT 4 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7
8 AUDREY L. KIMNER, Case No. 5:20-cv-07563-EJD 9 Plaintiff, ORDER GRANTING MOTION TO 10 v. DISMISS
11 BERKELEY COUNTY SOUTH Re: Dkt. No. 19 CAROLINA, 12 Defendant. 13 Before the Court is Defendant Berkeley County, South Carolina’s (“Berkeley County”) 14 motion to dismiss a complaint brought by pro se Plaintiff Audrey Kimner (“Kimner”) for failure to 15 state a claim under Rule 12(b)(6), lack of personal jurisdiction under Rule 12(b)(2), and improper 16 venue under Rule 12(b)(3). Def.’s Mot. to Dismiss, Dkt. No. 19 (“Motion”). The Court took the 17 matter under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). 18 For the reasons below, the Court GRANTS Berkeley County’s Motion. 19 I. Background 20 Defendant Berkeley County is located in South Carolina and is a political subdivision of 21 the state of South Carolina. Compl. at 2, Dkt. No. 1; Motion at 3. Ms. Kimner is a citizen of 22 California residing in Carmel, California. Compl. at 1. Ms. Kimner has filed suit in this Court 23 demanding $5,000,000 in damages from Berkeley County due to allegations that Berkeley County 24 was responsible for improperly possessing Ms. Kimner’s real property and funds in South 25 Carolina and for improperly jailing Ms. Kimner. Id. at 4–5. Ms. Kimner’s allegations against 26 Berkeley County stem from various orders issued by Berkeley County Family Court in a divorce 27 Case No.: 5:20-cv-07563-EJD 1 proceeding. Compl. at 4–5, 15, 17–20, 27–31, 56, 59–61; Motion at 5; see also Kimner v. Kimner, 2 2008-DR-08-02160. 3 II. Discussion 4 A. Failure to State a Claim under Rule 12(b)(6) 5 In deciding a motion to dismiss under Rule 12(b)(6), courts must accept as true all “well- 6 pleaded factual allegations” in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Further, 7 courts must draw all reasonable inferences in the light most favorable to the non-moving 8 party. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). However, “courts 9 ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Bell Atl. 10 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 11 (1986)). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim 12 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 13 “A claim has facial plausibility when the pleaded factual content allows the court to draw the 14 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 15 550 U.S. at 556). Although a complaint “does not need detailed factual allegations,” the “[f]actual 16 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 17 U.S. at 555. As such, a complaint must (1) “contain sufficient allegations of underlying facts to 18 give fair notice and to enable the opposing party to defend itself effectively[,]” and (2) “plausibly 19 suggest an entitlement to relief, such that it is not unfair to require the opposing party to be 20 subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 21 1216 (9th Cir. 2011). 22 In her pleadings, Ms. Kimner describes a series of alleged harms she has suffered, 23 including the “illegal possession of [her] home” and “jailing [her] illegally.” Compl. at 4. Attached 24 to her complaint, Ms. Kimner provided voluminous documentation and previous court records 25 from South Carolina state court proceedings. Insofar as Ms. Kimner is seeking to appeal a South 26 Carolina state court decision that caused her to lose her home and other assets, such claims cannot 27 Case No.: 5:20-cv-07563-EJD 1 be heard by this Court as federal courts cannot hear appeals from state court judgments. See 2 Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). While recognizing that “[p]ro se pleadings 3 must be liberally construed, ” Williams v. California Dep’t of Mental Health, 2008 WL 590503, at 4 *1 (N.D. Cal. Feb. 29, 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 5 Cir.1990)), other than her apparent dissatisfaction with the South Carolina proceedings, Ms. 6 Kimner does not provide any further factual background from which the Court can deduce a 7 specific claim or cause of action. Thus, even liberally construing Ms. Kimner’s pleadings, the 8 Court does not find a plausible claim or cause of action in the set of facts alleged by Ms. Kimner. 9 This alone warrants dismissal. 10 B. Lack of Personal Jurisdiction under Rule 12(b)(2) 11 Rule 12(b)(2) permits a party to raise lack of personal jurisdiction as a defense by 12 motion. See Fed. R. Civ. P. (12)(b)(2). “Although the defendant is the moving party on 13 a motion to dismiss [for lack of personal jurisdiction], the plaintiff bears the burden of establishing 14 that jurisdiction exists.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 15 2002). “[I]n the absence of an evidentiary hearing, the plaintiff need only make ‘a prima facie 16 showing of jurisdictional facts to withstand the motion to dismiss.’” Brayton Purcell LLP v. 17 Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (quoting Pebble Beach Co. v. Caddy, 18 453 F.3d 1151, 1154 (9th Cir. 2006)). Generally, a court may consider the pleadings in addition to 19 any declarations submitted by the parties when deciding a motion to dismiss for lack of personal 20 jurisdiction. See Data Disc. Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 21 1977). The “uncontroverted allegations in [the plaintiff’s] complaint must be taken as true, and 22 conflicts between the facts contained in the parties’ affidavits must be resolved in [the plaintiff’s] 23 favor.” Rio Props., 284 F.3d at 1019. In other words, “for the purpose of this [prima facie] 24 demonstration, the court resolves all disputed facts in favor of the plaintiff.” Pebble Beach, 453 25 F.3d at 1154. 26 When determining the presence “of personal jurisdiction over a nonresident defendant, 27 Case No.: 5:20-cv-07563-EJD 1 [courts] ordinarily examine whether such jurisdiction satisfies the ‘requirements of the applicable 2 state long-arm statute’ and ‘comport[s] with federal due process.’” Bauman v. DaimlerChrysler 3 Corp., 644 F.3d 909, 919 (9th Cir. 2011) (quoting Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 4 1404-05 (9th Cir. 1994)). “Because California permits the exercise of personal jurisdiction to the 5 full extent permitted by due process, [courts] need only determine whether jurisdiction over [a 6 defendant] comports with due process.” Id. (internal quotations omitted); see Cal. Civ. Proc.
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1 2 3 UNITED STATES DISTRICT COURT 4 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7
8 AUDREY L. KIMNER, Case No. 5:20-cv-07563-EJD 9 Plaintiff, ORDER GRANTING MOTION TO 10 v. DISMISS
11 BERKELEY COUNTY SOUTH Re: Dkt. No. 19 CAROLINA, 12 Defendant. 13 Before the Court is Defendant Berkeley County, South Carolina’s (“Berkeley County”) 14 motion to dismiss a complaint brought by pro se Plaintiff Audrey Kimner (“Kimner”) for failure to 15 state a claim under Rule 12(b)(6), lack of personal jurisdiction under Rule 12(b)(2), and improper 16 venue under Rule 12(b)(3). Def.’s Mot. to Dismiss, Dkt. No. 19 (“Motion”). The Court took the 17 matter under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). 18 For the reasons below, the Court GRANTS Berkeley County’s Motion. 19 I. Background 20 Defendant Berkeley County is located in South Carolina and is a political subdivision of 21 the state of South Carolina. Compl. at 2, Dkt. No. 1; Motion at 3. Ms. Kimner is a citizen of 22 California residing in Carmel, California. Compl. at 1. Ms. Kimner has filed suit in this Court 23 demanding $5,000,000 in damages from Berkeley County due to allegations that Berkeley County 24 was responsible for improperly possessing Ms. Kimner’s real property and funds in South 25 Carolina and for improperly jailing Ms. Kimner. Id. at 4–5. Ms. Kimner’s allegations against 26 Berkeley County stem from various orders issued by Berkeley County Family Court in a divorce 27 Case No.: 5:20-cv-07563-EJD 1 proceeding. Compl. at 4–5, 15, 17–20, 27–31, 56, 59–61; Motion at 5; see also Kimner v. Kimner, 2 2008-DR-08-02160. 3 II. Discussion 4 A. Failure to State a Claim under Rule 12(b)(6) 5 In deciding a motion to dismiss under Rule 12(b)(6), courts must accept as true all “well- 6 pleaded factual allegations” in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Further, 7 courts must draw all reasonable inferences in the light most favorable to the non-moving 8 party. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). However, “courts 9 ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Bell Atl. 10 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 11 (1986)). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim 12 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 13 “A claim has facial plausibility when the pleaded factual content allows the court to draw the 14 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 15 550 U.S. at 556). Although a complaint “does not need detailed factual allegations,” the “[f]actual 16 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 17 U.S. at 555. As such, a complaint must (1) “contain sufficient allegations of underlying facts to 18 give fair notice and to enable the opposing party to defend itself effectively[,]” and (2) “plausibly 19 suggest an entitlement to relief, such that it is not unfair to require the opposing party to be 20 subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 21 1216 (9th Cir. 2011). 22 In her pleadings, Ms. Kimner describes a series of alleged harms she has suffered, 23 including the “illegal possession of [her] home” and “jailing [her] illegally.” Compl. at 4. Attached 24 to her complaint, Ms. Kimner provided voluminous documentation and previous court records 25 from South Carolina state court proceedings. Insofar as Ms. Kimner is seeking to appeal a South 26 Carolina state court decision that caused her to lose her home and other assets, such claims cannot 27 Case No.: 5:20-cv-07563-EJD 1 be heard by this Court as federal courts cannot hear appeals from state court judgments. See 2 Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). While recognizing that “[p]ro se pleadings 3 must be liberally construed, ” Williams v. California Dep’t of Mental Health, 2008 WL 590503, at 4 *1 (N.D. Cal. Feb. 29, 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 5 Cir.1990)), other than her apparent dissatisfaction with the South Carolina proceedings, Ms. 6 Kimner does not provide any further factual background from which the Court can deduce a 7 specific claim or cause of action. Thus, even liberally construing Ms. Kimner’s pleadings, the 8 Court does not find a plausible claim or cause of action in the set of facts alleged by Ms. Kimner. 9 This alone warrants dismissal. 10 B. Lack of Personal Jurisdiction under Rule 12(b)(2) 11 Rule 12(b)(2) permits a party to raise lack of personal jurisdiction as a defense by 12 motion. See Fed. R. Civ. P. (12)(b)(2). “Although the defendant is the moving party on 13 a motion to dismiss [for lack of personal jurisdiction], the plaintiff bears the burden of establishing 14 that jurisdiction exists.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 15 2002). “[I]n the absence of an evidentiary hearing, the plaintiff need only make ‘a prima facie 16 showing of jurisdictional facts to withstand the motion to dismiss.’” Brayton Purcell LLP v. 17 Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010) (quoting Pebble Beach Co. v. Caddy, 18 453 F.3d 1151, 1154 (9th Cir. 2006)). Generally, a court may consider the pleadings in addition to 19 any declarations submitted by the parties when deciding a motion to dismiss for lack of personal 20 jurisdiction. See Data Disc. Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 21 1977). The “uncontroverted allegations in [the plaintiff’s] complaint must be taken as true, and 22 conflicts between the facts contained in the parties’ affidavits must be resolved in [the plaintiff’s] 23 favor.” Rio Props., 284 F.3d at 1019. In other words, “for the purpose of this [prima facie] 24 demonstration, the court resolves all disputed facts in favor of the plaintiff.” Pebble Beach, 453 25 F.3d at 1154. 26 When determining the presence “of personal jurisdiction over a nonresident defendant, 27 Case No.: 5:20-cv-07563-EJD 1 [courts] ordinarily examine whether such jurisdiction satisfies the ‘requirements of the applicable 2 state long-arm statute’ and ‘comport[s] with federal due process.’” Bauman v. DaimlerChrysler 3 Corp., 644 F.3d 909, 919 (9th Cir. 2011) (quoting Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 4 1404-05 (9th Cir. 1994)). “Because California permits the exercise of personal jurisdiction to the 5 full extent permitted by due process, [courts] need only determine whether jurisdiction over [a 6 defendant] comports with due process.” Id. (internal quotations omitted); see Cal. Civ. Proc. Code 7 § 410.10 (“A court of this state may exercise jurisdiction on any basis not inconsistent with the 8 Constitution of this state or of the United States.”). Thus, “[f]or due process to be satisfied, a 9 defendant, if not present in the forum, must have ‘minimum contacts’ with the forum state such 10 that the assertion of jurisdiction ‘does not offend traditional notions of fair play and substantial 11 justice.’” Pebble Beach, 453 F.3d at 1155 (quoting Int’l Shoe Co. v. State of Wash., Office of 12 Unemp’t Comp. & Placement, 326 U.S. 310, 316 (1945)). 13 The Ninth Circuit has established three requirements for a district court to exercise specific 14 personal jurisdiction over a nonresident defendant: “(1) the defendant must either ‘purposefully 15 direct his activities’ toward the forum or ‘purposefully avail[ ] himself of the privileges of 16 conducting activities in the forum;’ (2) the claim must be one which arises out of or relates to the 17 defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair 18 play and substantial justice, i.e. it must be reasonable.” Axiom Foods, Inc. v. Acerchem Int’l, Inc., 19 874 F.3d 1064, 1068 (9th Cir. 2017) (quoting Dole Food Co., Inc. v. Watts, 303 F.3d 1104, 1111 20 (9th Cir. 2002)). “The plaintiff bears the burden of satisfying the first two prongs of the 21 test.” Id. “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts 22 to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be 23 reasonable.” Id. (quoting Burger King, 471 U.S. at 477). 24 Here, because both parties agree that Berkeley County is not domiciled in the Northern 25 District of California, Ms. Kimner must establish specific personal jurisdiction. Motion at 3; 26 Opposition at 2; Dkt. No. 24. Berkeley County asserts that it “has no contacts with the Northern 27 Case No.: 5:20-cv-07563-EJD 1 District of California.” Motion, p. 3. Ms. Kimner does not dispute Berkeley County’s assertion, 2 nor does she plead any facts demonstrating any such contacts by Berkeley County. As such, in the 3 absence of any minimum contacts by Berkeley County with California, personal jurisdiction over 4 Berkeley County by this Court cannot be exercised. This also warrants dismissal. 5 C. Improper Venue under Rule 12(b)(3) 6 Under Rule 12(b)(3), a defendant may move to dismiss a suit for improper venue. Fed. R. 7 Civ. P. 12(b)(3). Under the federal statute governing venue in civil actions, “[a] civil action may 8 be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents 9 of the State in which the district is located; (2) a judicial district in which a substantial part of the 10 events or omissions giving rise to the claim occurred, or a substantial part of property that is the 11 subject of the action is situated; or (3) if there is no district in which an action may otherwise be 12 brought as provided in this section, any judicial district in which any defendant is subject to the 13 court's personal jurisdiction with respect to such action.” 28 U.S.C. § 1391. 14 Here, Plaintiff has not alleged any facts establishing that this Court is the proper venue for 15 this action. First, as previously mentioned, Berkeley County resides in South Carolina, not in the 16 Northern District of California. See Compl. at 2. Second, from the facts in the record, it appears 17 that most, if not all, of the “events or omissions giving rise to” Ms. Kimner’s claim occurred 18 exclusively in South Carolina. 28 U.S.C. § 1391. Finally, as discussed above, Berkeley County is 19 not subject to personal jurisdiction in this judicial district. As such, venue with this Court is 20 improper. 21 III. Conclusion 22 For the reasons stated above, the Court GRANTS Berkeley County’s motion to dismiss. 23 Ms. Kimner has previously amended her complaint, received notice from this Court to cure many 24 of the same deficiencies that remain present here, and therefore the Court finds that further 25 amendment would be futile. The Court DISMISSES Ms. Kimner’s case against Berkeley County 26 WITH PREJUDICE. 27 Case No.: 5:20-cv-07563-EJD 1 Also pending before the Court are Ms. Kimner’s Motion for Default Judgment (Dkt. No. 2 || 24) and Motion for Clarification (Dkt. No. 27). Because the Court has found it appropriate to 3 || dismiss Ms. Kimner’s claims with prejudice, these pending motions are hereby TERMINATED 4 || AS MOOT, and all other dates and deadlines are hereby VACATED. 5 IT IS SO ORDERED. 6 Dated: March 4, 2021 7 EDWARD J. DAVILA 8 United States District Judge 9 10 11 12
Z 18 19 20 21 22 23 24 25 26 27 Case No.: 5:20-cv-07563-EJD 28 || ORDER GRANTING MOTION TO DISMISS