Yenovkian v. Moor

• Court: District Court, S.D. California
• Decided: August 18, 2021
• Docket: 3:21-cv-01071
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VEM VIM YENOVKIAN Case No.: 21-CV-1071 JLS (MSB) (aka VEM MILLER YENOVKIAN), 12 ORDER (1) GRANTING Plaintiff, 13 PLAINTIFF’S APPLICATION TO v. PROCEED IN DISTRICT COURT 14 WITHOUT PREPAYING FEES OR PHILIP DRURY MOOR and 15 COSTS AND (2) DISMISSING THE CROWN OF ENGLAND, PLAINTIFF’S COMPLAINT 16 Defendants. WITHOUT LEAVE TO AMEND 17 (ECF Nos. 1, 2) 18

19 Presently before the Court are Plaintiff Vem Vim Yenovkian (aka Vem Miller 20 Yenovkian)’s Complaint (“Compl.,” ECF No. 1) and Application to Proceed in District 21 Court Without Prepaying Fees or Costs (“IFP Mot.,” ECF No. 2). Having carefully 22 considered Plaintiff’s Complaint, his IFP Motion, and the applicable law, the Court 23 GRANTS Plaintiff’s IFP Motion and DISMISSES Plaintiff’s Complaint WITHOUT 24 LEAVE TO AMEND. 25 IN FORMA PAUPERIS MOTION 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 / / / 1 $402. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 3 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 4 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does 5 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 6 poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). 7 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit 8 demonstrates that paying court costs will result in a plaintiff’s inability to afford the 9 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is 10 destitute. Id. 11 Here, Plaintiff’s affidavit shows that he has no income. See IFP Mot. at 1–2. 12 Plaintiff reports holding a checking account with a balance of approximately $4,000.00. 13 See id. at 2. Plaintiff’s monthly expenses of $7,080.00 exceed his monthly income and his 14 checking account balance. See id. at 4–5. The Court therefore concludes that Plaintiff 15 adequately has demonstrated that paying the $402 filing fee would result in his inability to 16 afford the necessities of life. Accordingly, the Court GRANTS Plaintiff’s IFP Motion. 17 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 18 I. Standard of Review 19 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 20 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th 21 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners 22 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 23 (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss 24 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. 27 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 28 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 1 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The 2 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 3 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 4 2014) (citations omitted). 5 “When a court does not have jurisdiction to hear an action, the claim is considered 6 frivolous.” Johnson v. E. Band Cherokee Nation, 718 F. Supp. 6, 6 (N.D.N.Y. 1989). 7 Moreover, “[t]he Court has an independent obligation to determine whether it has subject- 8 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF, 2020 WL 1904625, at *2 9 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 10 (1999)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) 11 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 12 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 13 that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to 14 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 15 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 16 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 17 Y&H Corp., 546 U.S. 500, 514 (2006) (noting that “‘subject-matter jurisdiction, because it 18 involves a court’s power to hear a case, can never be forfeited or waived’”; therefore, 19 “when a federal court concludes that it lacks subject-matter jurisdiction, the court must 20 dismiss the complaint in its entirety”) (citation omitted). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 25 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 27 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 28 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 1 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 2 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 3 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 4 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 5 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 6 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” 7 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 8 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth 9 in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, 10 556 U.S. at 679). 11 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 12 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should 13 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 14 unless the court determines that “the pleading could not possibly be cured by the allegation 15 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing 16 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 17 901 F.2d 696, 701 (9th Cir. 1990)). 18 II. Plaintiff’s Factual Allegations 19 Plaintiff alleges that, on October 15, 2016, his children’s mother, Sonia Helen 20 Gulian, kidnapped his children, Child S and Child V, who were born and raised in Los 21 Angeles, California, while he was working on a two-year contract in Toronto, Canada. 22 Compl. at 2. The children were taken from Toronto to the United Kingdom. Id. Plaintiff 23 immediately filed a Hague Application and ultimately succeeded in having his children 24 returned to Canada after twenty-two months of litigation in the courts of the United 25 Kingdom. Id. at 2–3. “[I]n contempt of the Hague Application return order,” a Canadian 26 judge, Jasmine Akabarali, returned the children back to the United Kingdom within three 27 months of their return to Canada. Id. at 3. 28 / / / 1 Plaintiff claims he had “no representation, nor presence within the courtroom,” in 2 the Canadian court process concerning custody of his children that took place in June 2019, 3 despite his requests to continue the proceedings to give him time to recover financially 4 from the Hague process. Id. In light of his finances and the Covid-19 pandemic, Plaintiff 5 was unable to take further action until September 2020, when he applied through the United 6 Kingdom courts for contact with his children. Id. On January 13, 2021, Defendant Philip 7 Drury Moor, a judge (“Judge Moor”), issued an order concerning Plaintiff’s contact with 8 his children. Id. Plaintiff alleges “[his] ex-wife immediately breached this order,” and, at 9 any rate, that the order was “illegal,” as one condition of Plaintiff’s contact with his 10 children was that he not make or publish any videos about them. Id. Plaintiff claims that 11 the only videos he has published about his children have been “unlisted” and “aimed at a 12 select small audience of Lawyers, children’s health and welfare experts, and US 13 Government officials” to show the abuse his children allegedly have suffered due to their 14 kidnapping by their mother. Id. at 3–4. 15 On May 1, 2021, Plaintiff traveled to England to have contact with his children. Id. 16 at 4. On May 4, 2021, Judge Moor revoked the contact order because he discovered that 17 Plaintiff had published an unlisted video about “the International kidnapping and abuse of 18 [Plaintiff’s] children.” Id. Plaintiff argued that he was within his legal rights to make and 19 use such a video, and that, as a “commercial film processor,” he is a “mandated reporter.” 20 Id. Judge Moor dismissed Plaintiff’s arguments and set a trial for July 23, 2021, 21 “pertaining to [Plaintiff’s] contact with [his] children.” Id. 22 Plaintiff states that “[he] ha[s] spent 10s of 1000s of dollars to be in the UK,” id., 23 and that he and his mother “are in the UK indefinitely as a result of Judge Philip Moor’s 24 actions,” id. at 5. Plaintiff brings this action against Judge Moor, whom Plaintiff claims 25 “acted not as a judge, but as a ‘minister,’” as well as “Judge Moor’s employer, the Crown 26 of England, for allowing such a travesty to happen within their courts.” Id. at 5. Among 27 other relief, Plaintiff seeks injunctions restoring his parental rights, mandating the removal 28 of “defamatory false information and false accusations that have been placed online due to 1 the judges in Canada,” and removing Judge Moor from his position; as well as 2 compensatory and emotional distress damages from Judge Moor totaling more than $1.2 3 million. Id. at 60–62. 4 III. Analysis 5 A. Lack of Subject-Matter Jurisdiction 6 “Federal district courts are courts of limited jurisdiction that ‘may not grant relief 7 absent a constitutional or valid statutory grant of jurisdiction’ and are ‘presumed to lack 8 jurisdiction in a particular case unless the contrary affirmatively appears.’” Cooper v. 9 Tokyo Elec. Power Co., 990 F. Supp. 2d 1035, 1038 (S.D. Cal. 2013) (quoting A-Z Int’l v. 10 Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003)). A plaintiff bears the burden of establishing 11 that subject matter jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 12 375, 377 (1994) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182– 13 83 (1936)). “This burden, at the pleading stage, must be met by pleading sufficient 14 allegations to show a proper basis for the court to assert subject matter jurisdiction over an 15 action.” Wilkerson v. Butler, 229 F.R.D. 166, 169 (E.D. Cal. 2005) (citing McNutt, 298 16 U.S. at 189; Fed. R. Civ. P. 8(a)(1) (requiring “a short and plain statement of the grounds 17 for the court’s jurisdiction”)). 18 1. The Crown of England 19 Plaintiff purports to bring claims against “the Crown of England,” which this Court 20 construes to mean the United Kingdom. See Compl. at 5 (noting that Plaintiff is suing the 21 Crown as “Judge Moor’s employer, . . . for allowing such a travesty to happen within their 22 courts”); id. at 61 (“I’d like the Crown of England, who is unlawfully holding my children, 23 to return the children to me immediately . . . .”); id. (claiming that “the Crown has acted 24 completely illegally in claiming jurisdiction over my children”) (emphasis in original). 25 The Foreign Sovereign Immunities Act of 1976 (“FSIA”) “provides the exclusive 26 source of subject matter jurisdiction over suits involving foreign states and their 27 instrumentalities” and “codifies, as a matter of federal law, the restrictive theory of 28 sovereign immunity.” Moore v. United Kingdom, 384 F.3d 1079, 1082 (9th Cir. 2004) 1 (citations and internal quotation marks omitted). “Subject-matter jurisdiction for claims 2 brought against foreign states under the FSIA is conferred by 28 U.S.C. § 1330(a).” Id. 3 (footnote omitted). Section 1330(a) provides: 4 The district courts shall have original jurisdiction . . . of any nonjury civil action against a foreign state as defined in section 5 1603(a) of this title as to any claim for relief in personam with 6 respect to which the foreign state is not entitled to immunity either under sections 1605–1607 of this title or under any 7 applicable international agreement. 8

9 28 U.S.C. § 1330(a). “Thus, federal courts have been held to have jurisdiction over foreign 10 states as defendants under the FSIA only when that state is not entitled to immunity—that 11 is, when one of the statutory exceptions applies.” Moore, 384 F.3d at 1083 (citations 12 omitted). 13 It is clear that the United Kingdom is a “foreign state” under 28 U.S.C. § 1603(a), 14 and it does not appear from the allegations in the Complaint that any of the statutory 15 exceptions to immunity enumerated at 28 U.S.C. §§ 1605–07 apply to Plaintiff’s claims. 16 Accordingly, the Court finds that Defendant The Crown of England has sovereign 17 immunity, and accordingly this Court lacks subject-matter jurisdiction over Plaintiff’s 18 claims against it. 19 2. Judge Moor 20 Plaintiff also asserts claims against Judge Moor of the United Kingdom. See 21 generally Compl. Plaintiff claims that Judge Moor “acted not as a judge, but as a 22 ‘minister,’ with no judicial immunity,” Compl. at 5, and “acted in a wholly unlawful 23 manner,” id. at 4. Accordingly, Plaintiff claims that “Judge Philip Moor pierced his own 24 judicial immunity.” Id. at 5. 25 “Although a foreign official is not protected by the [FSIA] . . . , ‘foreign government 26 officials acting [in] their official capacity . . . are [nonetheless] entitled to immunity[.]’” 27 Kapach v. Intel Corp., No. CV206277FMOMAAX, 2020 WL 7889064, at *2 (C.D. Cal. 28 Dec. 14, 2020) (citing Samantar v. Yousuf, 560 U.S. 305, 325 (2010); Eliahu v. Jewish 1 Agency for Israel, 919 F.3d 709, 712 (2d Cir. 2019); Matar v. Dichter, 563 F.3d 9, 14 (2d 2 Cir. 2009); Marazhapov v. Republic of Kazakhstan, 2019 WL 3035472, at *2 (E.D.N.Y. 3 2019)). The Ninth Circuit has held that “[c]ommon-law foreign sovereign immunity 4 extends to individual foreign officials for ‘acts performed in [their] official capacity if the 5 effect of exercising jurisdiction would be to enforce a rule of law against the state[.]’” 6 Dogan v. Barak, 932 F.3d 888, 893–94 (9th Cir. 2019) (quoting Restatement (Second) of 7 Foreign Relations Law § 66(f) (1965)). As relevant here, “‘[c]onduct-based immunity is 8 afforded to “any [ ] [p]ublic minister, official, or agent of the state with respect to acts 9 performed in his official capacity if the effect of exercising jurisdiction would be to enforce 10 a rule of law against the state.”’” WhatsApp Inc. v. NSO Grp. Techs. Ltd., 472 F. Supp. 3d 11 649, 664 (N.D. Cal. 2020) (citing Lewis v. Mutond, 918 F.3d 142, 145 (D.C. Cir. 2019); 12 Dogan, 932 F.3d at 894). A district court lacks subject-matter jurisdiction over such 13 claims, which are therefore properly dismissed. See Kapach, 2020 WL 7889064, at *2 14 (citing Eliahu, 919 F.3d at 712). 15 Whether Judge Moor was acting as a “judge” or a “minister,” Plaintiff does not 16 appear to allege that he was not acting in his official capacity as an officer of the United 17 Kingdom. See Compl. at 5; see also generally id. To the contrary, Plaintiff challenges 18 Judge Moor’s rulings issued in his capacity as a United Kingdom judge. See id. at 60 19 (“Judge Moor decided to keep this gross violation of my rights going within the UK 20 Courts.”). Accordingly, the Court finds that it lacks subject-matter jurisdiction over the 21 claims against Judge Moor on the basis of conduct-based foreign official immunity, as the 22 effect of exercising jurisdiction over him would be to enforce a rule of law against the 23 United Kingdom, as Plaintiff seeks to have Judge Moor removed from his position as a 24 judge and to have rights restored to him in contravention of Judge Moor’s judicial orders. 25 See Dogan, 932 F.3d at 894; see Compl. at 60–61. 26 Accordingly, the Court finds that both named Defendants in this action are immune 27 from suit and that this Court therefore lacks subject-matter jurisdiction over Plaintiff’s 28 action. 1 B. The Act of State Doctrine 2 Plaintiff’s Complaint further merits dismissal pursuant to the act of state doctrine. 3 “As a doctrinal matter, the ‘classic statement’ of the act of state doctrine is that ‘[e]very 4 sovereign State is bound to respect the independence of every other sovereign State, and 5 the courts of one country will not sit in judgment on the acts of the government of another 6 done within its own territory.’” Sea Breeze Salt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 7 1069 (9th Cir. 2018) (quoting Credit Suisse v. U.S. Dist. Court, 130 F.3d 1342, 1346 (9th 8 Cir. 1997)). “In its modern formulation, the doctrine bars suit where ‘(1) there is an official 9 act of a foreign sovereign performed within its own territory; and (2) the relief sought or 10 the defense interposed [in the action would require] a court in the United States to declare 11 invalid the [foreign sovereign’s] official act.’” Id. (quoting Credit Suisse, 130 F.3d at 12 1346). 13 “Here, [P]laintiff seeks to challenge ‘(a) a[ United Kingdom] government order, (b) 14 issued pursuant to [United Kingdom] domestic law, (c) by [the United Kingdom]’s courts, 15 [and] (d) . . . within [the United Kingdom]’s territory.’” Kapach, 2020 WL 7889064, at *4 16 (citation omitted). Thus, “[r]esolution of [P]laintiff’s claims would require the court to sit 17 in judgment of the official acts conducted in [the United Kingdom] by [United Kingdom] 18 public officials.” Id. (citation omitted). Plaintiff essentially asks the Court to declare Judge 19 Moor’s rulings unlawful and to order his children returned to Plaintiff’s custody, and he 20 therefore seeks to have this Court “declare invalid the [United Kingdom’s] official act”— 21 i.e., Judge Moor’s appointment and his judicial orders pertaining to Plaintiff. Sea Breeze 22 Salt, 130 F.3d at 1346 (internal quotation marks and citation omitted). 23 “The Supreme Court has indicated that even when the two mandatory elements are 24 satisfied, courts may appropriately look to additional factors to determine whether 25 application of the act of state doctrine is justified.” Id. at 1072–73 (citing W.S. Kirkpatrick 26 & Co. v. Env’t Tectonics Corp., Int’l, 493 U.S. 400, 409 (1990)). Those factors, 27 referred to as the “Sabbatino” factors, include: (1) the degree of codification and consensus concerning a particular area of 28 1 international law and activity; (2) the impact on foreign relations 7 between the United States and the other Sovereign state; (3) whether the government allegedly responsible for the disputed 3 activity is still in existence; and (4) whether the official act of A state was in the public interest. 5 || Kapach, 2020 WL 7889064, at *4 (footnote omitted) (citing Roval Wulff Ventures LLC v. 6 || Primero Mining Corp., 938 F.3d 1085, 1096—98 (9th Cir. 2019); Sea Breeze Salt, 899 F.3d 7 1073-74). Given that the Court has found that application of the act of state doctrine is 8 justified here, the Court need not apply the Sabbatino factors. See Royal Wulff, 938 F.3d 9 1096 (“Because this is a case in which the policies underlying the act of state doctrine 10 justify its application, the district court did not err in declining to specifically address each 11 || Sabbatino factor.”). Accordingly, the Court declines to apply the Sabbatino factors and 12 || finds that Plaintiff's Complaint further merits dismissal due to the act of state doctrine. 13 CONCLUSION 14 In light of the foregoing, the Court GRANTS Plaintiff's [FP Motion (ECF No. 2) 15 |}and DISMISSES Plaintiff’s Complaint (ECF No. 1) in its entirety as frivolous pursuant to 16 U.S.C. § 1915(e)(2), because both named Defendants in this action are immune from 17 and because this action is barred by the act of state doctrine. Because leave to amend 18 || would be futile, dismissal is WITHOUT LEAVE TO AMEND. See Kapach, 2020 WL 19 || 7889064, at *4 (dismissing case barred by both immunity and act of state doctrine without 20 || leave to amend, as amendment would be futile). Further, the Court CERTIFIES that an 21 ||IFP appeal from this Order would be frivolous and therefore would not be taken in good 22 || faith pursuant to 28 U.S.C. § 1915(a)(3). See Miller v. Penish, No. 3:16-CV-3078-AJB- 23 || MDD, 2017 WL 1094083, at *5 (S.D. Cal. Mar. 23, 2017) (citations omitted). Because 24 || this concludes the litigation in this matter, the Clerk of the Court SHALL CLOSE the file. 25 IT IS SO ORDERED. 26 ||Dated: August 18, 2021 (ee 27 on. Janis L. Sammartino 38 United States District Judge