A Closet

[fung_derf]

here's the SEC motion reply for dismissal (can you imagine the depression that would set in if granted, this would really make Hodges look great and you want to talk about a mutiny)

SEC's Reply to MTD just filed...

copied from pacer


ANDRÉ BIROTTE JR.
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division

KEITH M. STAUB (State Bar No. 137909)
Assistant United States Attorney
Room 7516 Federal Building
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: [phone]
Facsimile: [phone]
Email: Keith. [e-mail]
Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION

DAVID ANDERSON et al.,
Plaintiffs,
v.
CHRISTOPHER COX et al.,
Defendants.
)))))))))))
No. SACV 10-31 JVS (MLGx)
Date: August 2, 2010
Time: 1:30 p.m.
Hon. James V. Selna


DEFENDANTS’ REPLY TO OPPOSITION TO MOTION TO DISMISS;
MEMORANDUM OF POINTS AND AUTHORITIES
Case 8:10-cv-00031-JVS-MLG Document 14 Filed 07/19/10 Page 1 of 4 Page ID #:102

MEMORANDUM OF POINTS AND AUTHORITIES

Defendants’ Motion to Dismiss addresses multiple fundamental deficiencies in Plaintiffs’ Complaint. However, Plaintiffs’ Opposition fails to address those deficiencies in any meaningful way. While Plaintiffs’ Opposition provides long discussions of basic legal principles, they consistently fail to show that their Complaint contains the type of allegations required by those legal principles.
Accordingly, the Complaint should be dismissed.

A. Plaintiffs’ Claim for Declaratory Relief Should Be Dismissed Because It Is Either Barred by Sovereign Immunity or Brought Against the Wrong Defendants. As explained in the Motion to Dismiss, a claim for declaratory relief against Defendants in their official capacities is barred by sovereign immunity. (Motion,
pp. 5-6) Also, to the extent Plaintiffs’ claims against Defendants in their individual capacities seek a declaratory judgment, the Complaint has failed to state a claim because it names the wrong defendants. Plaintiffs’ Opposition does not substantively address the issues presented in Defendants’ motion. Instead, Plaintiffs incorrectly argue that sovereign immunity does not bar the declaratory judgment claim because underlying jurisdiction exists
under Bivens. (Opp., pp. 11-12) 1 To the contrary, there is no underlying source of jurisdiction here. Plaintiffs have not demonstrated a waiver of the government’s sovereign immunity such that they can seek declaratory relief from defendants in their
official capacities. The Declaratory Judgment Act, 28 U.S.C. ¶ 2201, is not an independent source of federal jurisdiction. The purpose of the Act is merely to provide an additional remedy once jurisdiction is found to exist on another ground. Benson v.State Bd. of Parole and Probation, 384 F.2d 238, 239 (9th Cir. 1967), cert. denied, 391 U.S. 954 (1968). Here, plaintiffs assert jurisdiction for 1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,403 U.S. 388 (1971) Case 8:10-cv-00031-JVS-MLG Document 14 Filed 07/19/10 Page 2 of declaratory relief under Bivens, which cannot be pled against defendants in their official capacities. Absent some other underlying basis for jurisdiction, plaintiffs may not seek relief under the Declaratory Judgment Act.

B. Plaintiffs’ Complaint Should Be Dismissed in Its Entirety Because
Plaintiffs Have Failed to State a Plausible Claim. Plaintiffs’ Complaint should be dismissed because it does not contain factual allegations “sufficient to plausibly suggest” a viable claim that these particular Defendants took steps to prevent Plaintiffs from receiving funds in which Plaintiffs had a property interest. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 1952 (2009). Despite Plaintiffs claim that they “have met and exceeded this
standard,” they fail to point to a single factual allegation supporting that claim. (Opp., p. 15) Instead of citing any allegations that would provide a basis to believe the Defendants improperly withheld the purported funds, Plaintiffs’ Opposition provides (p. 15) only the conclusory statement that “they were victims
of an unprivileged, substantive deprivation of the rights to their property” and “their injuries were brought about by the Defendants’ acts under color of law.” Those conclusions are wholly insufficient under Iqbal.


C. Plaintiffs’ Bivens Claim Should Be Dismissed Because Plaintiffs Have Not Alleged That Defendants Were Either Personally Involved In, or Caused Plaintiffs to Be Subjected to, a Constitutional Deprivation.
Plaintiffs’ Bivens claim must be dismissed because the Complaint does not contain any factual allegations detailing Defendants’ direct involvement in the general matters asserted against the SEC. In responding to that argument, Plaintiffs simply state that Defendants, as chairman and commissioners of the SEC, had “ultimate exclusive authority for approval or disapproval of all actions
taken by the SEC.” (Opp., p. 18) Plaintiffs, however, have not alleged facts demonstrating that any of the Defendants directly took any action or made any decision regarding the alleged funds.
Plaintiffs ignore the well established rule that respondeat superior, or supervisory liability, does not apply in an individual capacity suit under Bivens. As the Supreme Court reiterated in Iqbal, a supervisor’s mere knowledge and acquiescence in their subordinate’s conduct fails to demonstrate a Constitutional violation. Iqbal, 129 S.Ct. at 1949. Instead, the supervisor’s liability must stem
from his or her own misconduct. Id. Thus, Plaintiffs have not satisfied the pleading requirements mandated by the Iqbal decision.


D. The Complaint Fails to Set Forth Facts Sufficient to Overcome
Defendants’ Qualified Immunity. Finally, Plaintiffs’ Complaint fails to set forth facts sufficient to overcome Defendants’ qualified immunity. In this case, it is not even necessary to address
whether a constitutional right was “clearly established” because the facts alleged do not show that Defendants violated a constitutional right at all. Plaintiffs’ Fifth Amendment due process and takings claims cannot succeed because Plaintiffs’ have not alleged facts sufficient to establish that they have a property interest in
the funds they allege Defendants withheld. Plaintiffs’ Opposition ignores this argument, which alone warrants dismissal.


CONCLUSION
For these reasons and those set forth in Defendants’ Motion to Dismiss, Plaintiffs’ action must be dismissed in its entirety.

Dated: July 19, 2010
ANDRÉ BIROTTE JR.
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division
/s/
KEITH M. STAUB
Assistant United States Attorney
Attorneys for Defendants
3
Case 8:10-cv-00031-JVS-MLG Document 14 Filed 07/19/10 Page 4 of 4 Page ID #:105