MEMORANDUM OPINION DENYING PLAINTIFF'S MOTION TO
DISQUALIFY AND FOR CHANGE OF VENUE, GRANTING
MOTIONS TO DISMISS, SUA SPONTE DISMISSING ALL CLAIMS
AGAINST ALL REMAINING DEFENDANTS, AND
DENYING ALL OTHER PENDING MOTIONS AS MOOT
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
Plaintiff
Yi Tai Shao, a California resident, has brought this suit
against a wide variety of defendants in connection with a
California child custody case that has been ongoing since
2005. In her amended complaint, Shao includes fourteen claims
against sixty-seven named and forty-six unnamed defendants,
including parties, attorneys, court clerks, judges, and third
parties, all linked in some way to the child custody case or
to the multiple legal proceedings Shao has instituted in
connection with it over the past eight years. After the Court
denied a motion to disqualify, Shao has now filed a renewed
motion to disqualify and for change of venue. Many of the
defendants have also moved to dismiss for lack of personal or
subject matter jurisdiction and for failure to state a claim.
For the same reasons it denied the initial motion to
disqualify, the Court denies Shao's renewed motion to
disqualify and for change of venue. And because it finds that
it lacks personal jurisdiction or subject matter jurisdiction
over all of Shao's claims, the Court dismisses this case.
II.
FACTUAL BACKGROUND
1.
The Underlying Custody Case and Initial Custody
Determination
In
2005, Shao filed for divorce from her now ex-husband,
Tsan-Kuen Wang, in the Superior Court of California, Santa
Clara County. See Am. Compl. ¶¶ 5, 8, ECF
No. 16; In re the Marriage of: Linda Shao and Tsan-Kuen
Wang, No. 1-05-FL126882 (Cal. Sup. Ct.).[1] Shao and Wang
initially agreed to split custody of their daughter 50/50.
Id. ¶ 87. However, Shao's daughter began
complaining about sexual abuse while in Wang's care in
early 2010, id., and the County of Santa Clara
investigated the claims, see Id. ¶¶ 57-58.
B.J. Fadem, a California attorney, was appointed as guardian
ad litem for Shao's daughter in May 2010.
See Id. ¶ 58. After county workers allegedly
conspired to keep Shao's child away from her with
Superior Court employees; Wang's attorney, David Sussman;
and the judge assigned to her case, Judge Edward Davila,
[2]
see Id. ¶¶ 43, 54-57, 71, Judge Davila
issued an expedited custody order depriving Shao of custody
of her daughter on August 5, 2010, see Id.
¶¶ 88-92.
On
August 20, 2010, Shao hired attorneys James McManis, Michael
Reedy, and McManis Faulkner, LLP (“the McManis
Defendants”) to challenge the expedited custody order.
See Id. ¶¶ 98. However, Shao fired the
McManis Defendants within a year after allegedly realizing
that they were engaged in a conspiracy with Sussman and Judge
Davila to deprive her of custody. See Id. ¶
99-104. According to Shao, the conspiracy was facilitated by
Judge Davila and the McManis Defendants' common
membership in a chapter of the American Inns of Court,
id. ¶ 98, an organization that she alleges
provides a nationwide platform to facilitate private ex
parte communications and judicial corruption, see
Id. ¶¶ 23, 335-36. Over the next three years,
several other Superior Court judges issued a variety of
decisions in Shao's custody case. See, e.g.,
id. ¶¶ 103-105. Shao alleges that these
judges, too, were involved in conspiracies to deprive her of
custody with Sussman or with some or all of the McManis
Defendants. See, e.g., Id. ¶¶ 102-103,
105. Shao alleges that a final custody order depriving her of
the custody of her daughter was eventually entered in
November 2013. See Id. ¶¶ 122.
At
various points during the litigation, Shao appealed orders of
the Superior Court. E.g. Id. ¶¶ 109-13,
128-29, 138. Shao's appeals went first to the California
Sixth District Court of Appeal, then to the California
Supreme Court, and for some to the United States Supreme
Court. E.g. Id. ¶¶ 128-29. Shao attributes
the denial of her appeals at all appellate levels to a
conspiracy between the McManis Defendants and the judges and
justices involved, again facilitated by the platform for
corruption offered by the American Inns of Court. E.g.
Id. ¶ 109-13.
2.
Malpractice Suit Against the McManis Defendants and Prefiling
Injunction
After
Shao fired the McManis Defendants, she brought suit against
them for malpractice in 2012. Id. ¶ 141. The
case was dismissed, and Shao refiled a malpractice suit
against the McManis Defendants in federal court in 2014.
Id. ¶ 142. Judge Lucy Koh dismissed the federal
suit and the dismissal was affirmed on appeal. Id.
¶ 145. As with previous judicial decisions going against
her, Shao alleges that the judges involved all conspired with
the McManis Defendants to ensure she would not succeed,
“through the influence [the McManis Defendants] wield
through their powerful giant social club The American Inns of
Court.” Id. Following the dismissal of her
federal case, Shao moved to set aside the dismissal of her
state malpractice suit. Id. ¶ 146. The McManis
Defendants responded by moving to declare Shao a vexatious
litigant under California law, and by asking for a prefiling
injunction to issue against her. See Id. ¶ 147.
The Superior Court granted the motion and issued a pre-filing
injunction against Shao. See id.
3.
Continued Litigation in the Custody Case and Alleged
Hacking
In the
past five years, Shao has extensively litigated her custody
case. See generally Id. ¶¶ 156-256. Shao
alleges that the McManis Defendants have continued to
conspire to deprive her of the custody of her daughter, in a
scheme involving the judges issuing decisions in her cases,
third parties connected to the litigation, and Wang and his
attorney. See Id. Shao places the McManis Defendants
at the center of the conspiracy, allegedly using their
various relationships and the connections they made through
the American Inns of Court to “ensure that SHAO not
regain custody of her child . . . [and] maintain[] their no
causation defense to malpractice.” Id.
¶¶ 159-160. She alleges that various California
judicial defendants “knowingly misused the vexatious
litigant order” fraudulently obtained by the McManis
Defendants to block motions in her custody case. E.g.
Id. ¶ 219. She believes that the many judges
involved in her case have engaged in a wide range of
improprieties, including issuing secret ex parte
communications and court orders, illegally altering case
dockets, and failing to docket or maliciously dismissing her
motions without review. See, e.g., id.
¶¶ 159-208. And she alleges that the McManis
Defendants organized “the same scheme of illegal
notice, alteration of docket and deterrence” in the
United States Supreme Court, again through secret, corrupt
connections they made there through the American Inns of
Court. See Id. ¶¶ 257-58.
At some
point in 2018, Shao “started posting on Youtube several
radio show videos . . . about the judicial corruption going
on in her cases.” Id. ¶ 305. In response,
Shao alleges that Google and Youtube conspired with the
McManis Defendants and Chief Justice Roberts to harass her,
see Id. ¶¶ 305-14, including by deleting
comments on her Youtube videos, id. ¶ 306,
suspending her Google e-mail accounts, id. ¶
307, having vehicles follow her, id. ¶ 308,
putting her under electronic surveillance, id.
¶ 313, and hacking her computer, cell phone, and office
phone, id. ¶¶ 310-12. Shao attributes
Google's decision to conspire with Chief Justice Roberts
to a favorable decision he purportedly issued in a pending
case Google had before the Supreme Court. See Id.
¶ 314. Aside from their conspiracy with Google, Youtube,
and Chief Justice Roberts, Shao also alleges that the McManis
Defendants arranged for hackers to infiltrate her computer
and alter or destroy files relating to her pending cases.
See Id. ¶¶ 315-19.
4.
Procedural History of This Case
Shao
brought the instant case on May 21, 2018. See Compl.
at ¶ 1, ECF No. 1. In her amended complaint, filed on
June 29, 2018, Shao brings claims against sixty-seven named
defendants: the McManis Defendants; the American Inns of
Court, the Honorable William A. Ingram American Inn of Court,
and the San Francisco Bay Area American Inn of Court (the
“American Inn Defendants”); the McManis
Defendants' attorney in the malpractice action, Janet
Everson; United States Supreme Court Justices and clerks (the
“Supreme Court Defendants”);[3]judges and
employees of the United States Judiciary (the “Federal
Judicial Defendants”);[4]members of Congress and several
Congressional entities (the “Congressional
Defendants”);[5] former California Superior Court Judge
Edward Davila and a large number of other judges and
employees of the California judicial system (together, the
“California Judicial Defendants”);[6]retired Justice of
the California Sixth District Court of Appeal Conrad Rushing;
the County of Santa Clara and several of its employees (the
“Santa Clara Defendants”);[7] Google and
Youtube (the “Google Defendants”); and Wang,
Sussman, Fadem, and several third parties who were at some
point or another involved in the custody
action.[8]
Most of
the defendants have now moved to dismiss, including the
McManis Defendants; Everson; the American Inn Defendants; the
California Judicial Defendants; the Santa Clara Defendants;
the Google Defendants; custody evaluator John Orlando;
psychologist Carol Tait-Starnes; alleged hacker Esther Chung;
Fadem; and Fadem's replacement as guardian ad
litem for Shao's daughter, Elise Mitchell.
See Docket, Shao v. Roberts, No.
18-cv-1233-RC (D.D.C.). Shao has separately moved to strike a
large number of motions and for judicial notice of a wide
variety of facts. See id.
Shao
also moved to disqualify this Court and for a change of venue
on July 6, 2018, followed by a motion to stay these
proceedings on August 5, 2018. See Pl.'s First
Mot. Disqualify at 1, ECF No. 19; Pl.'s Mot. Stay at 1,
ECF No. 42. The Court denied both motions on August 8, 2018.
See Shao v. Roberts, No. 18-cv-1233-RC, ECF No. 48,
slip op. at 1 (D.D.C. Aug. 8, 2018). On December 4, 2018,
Shao filed a renewed motion to disqualify this Court and for
change of venue. See Pl.'s Second Mot.
Disqualify at 1, ECF No. 142.
All
motions to dismiss and the renewed motion for
disqualification are now ripe for review.
III.
ANALYSIS
The
Court first reviews Shao's renewed motion to disqualify
and to change venue, before addressing the pending motions to
dismiss and the remaining claims against the non-moving
defendants. Because it restates much of the same arguments as
her first motion, the Court denies the renewed motion to
disqualify and to change venue. And because the Court finds
that all of Shao's claims should be dismissed on the
basis of either personal jurisdiction or subject matter
jurisdiction, the Court grants the motions to dismiss,
sua sponte dismisses all remaining claims, and
denies all other pending motions as moot.
A.
Motion to Disqualify and for Change of Venue
Before
reviewing the pending motions to dismiss, the Court briefly
addresses Shao's renewed motion to disqualify and for
change of venue. Shao brings her renewed motion pursuant to
28 U.S.C. § 144 and 28 U.S.C. § 455. See
Pl.'s Mem. Supp. Second Mot. Disqualify at 20, ECF No.
142-1. Because Shao's motion reasserts much of the same
arguments brought in her first motion, the Court denies the
renewed motion.
First,
Shao's motion to disqualify this court pursuant to 28
U.S.C. § 144 fails to comply with the requirements of
§ 144, and thus must be denied. Section 144 provides
that “[w]henever a party to any proceeding in a
district court makes and files a timely and sufficient
affidavit that the judge before whom the matter is pending
has a personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed no
further therein, but another judge shall be assigned to hear
such proceeding.” 28 U.S.C. § 144. As the Court
explained in its opinion denying Shao's motion to stay,
“submitting an affidavit to the Court under this
provision does not yield automatic recusal of the judge on
the matter, ” Williams v. New York City Housing
Auth., 287 F.Supp.2d 247, 248 (S.D.N.Y 2003). Rather,
the Court may deny the motion if the affidavit or the motion
itself are procedurally deficient. See Shao, No.
18-cv-1233-RC, slip op. at 11.
Shao's
§ 144 motion is deficient in a number of ways. As an
initial matter, this is Shao's second such motion, when
28 U.S.C. § 144 clearly indicates that “[a] party
may file only one such affidavit in any case.”
Id. Shao's § 144 motion should be denied on
this basis alone. In addition, as with her motion to stay,
Shao's affidavit is not “accompanied by a
certificate of counsel of record stating that it is made in
good faith.” 28 U.S.C. § 144. The Court explained
in its August 5, 2018 opinion that pro se parties
are not excused from filing an attorney certification in
support of a § 144 motion and affidavit. See
Shao, No. 18-cv-1233-RC, slip op. at 12. In this renewed
motion, Shao argues that several courts have considered
§ 144 motions made by pro se plaintiffs despite
the lack of a certification of good faith by counsel of
record, see Pl.'s Mem. Supp. Second Mot.
Disqualify (“Pl.'s Second Mem. Supp.”), ECF
No. 142-1, at 21 (citing Williams, 287 F.Supp.2d at
249; Melvin v. Social Sec. Admin., No.
5:09-cv-235-FL, 2010 WL 3743543, at *2 (E.D. N.C. Sept. 14,
2010)), or with certification only by “any member of
the bar, ” when she is a member of the California Bar,
see Id. (citing United States v. Rankin, 1
F.Supp.2d 445, 450 (E.D. Pa. 1998)). Shao's arguments are
unavailing. First, these decisions are from outside this
circuit and not binding on this Court, and most courts to
have addressed the issue have required the certification by
counsel of record for pro se § 144 motions.
See Shao, No. 18-cv-1233-RC, slip op. at 12. Second,
Rankin is inapplicable to Shao's situation
because the court there accepted the certification of
“any member of the bar of the court.”
Rankin, 1 F.Supp.2d at 450 (emphasis added). Shao is
not a member of the bar of this Court. And finally, the
Williams court emphasized that the plaintiff's
affidavit, “submitted pro se and without a certificate
of counsel of record, fail[ed] on this threshold
matter.” Williams, 287 F.Supp.2d at
249.[9]
Shao's
renewed motion for disqualification under 28 U.S.C. §
455 fares no better. To the extent Shao's § 144
affidavit sets forth the factual allegations forming the
basis for that motion, it alleges much of the same type of
behavior the Court already determined not to warrant recusal
in its August 5, 2018 opinion. As discussed in that opinion,
a judge is required to “disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). In reviewing a
§ 455(a) challenge, the Court must objectively analyze
whether a “reasonable and informed observer would
question the judge's impartiality.” United
States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir.
2001). “[T]he mere appearance of bias is sufficient to
mandate recusal-whether there is actual bias is
irrelevant.” Philip Morris USA, Inc. v. United
States FDA, 156 F.Supp.3d 36, 49 (D.D.C. 2016). In
addition, pursuant to § 455(b)(1), a judge must also
recuse himself “[w]here he has a personal bias or
prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding.”
28 U.S.C.S. § 455(b)(1). Unlike § 455(a), recusal
under § 455(b)(1) requires the movant to
“demonstrate actual bias or prejudice based upon an
extrajudicial source.” Cobell v. Norton, 237
F.Supp.2d 71, 98 (D.D.C. 2003). And finally under §
455(b)(5)(i), a judge can be disqualified for being a party
to the proceeding. 28 U.S.C. § 455(b)(5)(i).
Neither
§ 455(a) nor § 455(b)(1) warrant recusal based on
the allegations Shao brings in this renewed motion because,
as this Court noted in its August 8, 2018 opinion, Shao only
offers “bald allegations of a conspiracy, ” Shao,
No. 18-cv-1233-RC, slip op. at 8, that neither create the
appearance of partiality nor provide evidence of actual bias.
Shao reasserts many of the allegations in her initial motion,
including that the Court purposefully interfered with filing,
docketing, and the issuance of summonses and default
judgment, see Pl.'s Second Mem. Supp. at 27-29,
engaged in improper ex parte communications with
some of the parties, id. at 25, and improperly named
the case Shao v. Kennedy instead of Shao v.
Roberts, purportedly to shield Justice Roberts from
public exposure, see Id. at 28. Shao also makes
additional allegations of interference with filing,
docketing, and the general administration of her case since
the Court's August 8, 2018 opinion. See generally
Id. at 25-29. As the Court explained in that opinion,
Shao provides “no factual matter to form a basis for
those allegations, ” and instead “bases her
allegations on purely speculative conspiracy.”
Shao, No. 18-cv-1233-RC, slip op. at 8. Shao reads
the clerical discrepancies between court documents and her
communications with the Court, and supposedly irregular
timing of the issuance of summonses and clerk's defaults,
to imply a broader conspiracy this Court is a part of to deny
her justice. These allegations do not create an appearance of
impropriety under § 455(a) because they offer “no
facts that would fairly convince a sane and reasonable mind
to question this Court's impartiality.” Walsh
v. Comey, 110 F.Supp.3d 73, 77 (D.D.C. 2015). Because
they offer no evidence of bias, the allegations also do not
require recusal under § 455(b)(1).
Similarly,
§ 455(b)(5)(i) does not warrant this Court's
recusal. As the Court noted in its August 5, 2018 opinion,
multiple courts have “made clear that disqualification
is patently unwarranted” in the circumstances where a
plaintiff amends a complaint to add the assigned judge as a
defendant in an attempt at judge-shopping. See Shao,
No. 18-cv-1233-RC, slip op. at 9-10 (citing cases). And the
Court also noted that Shao's amendment adding claims
against this judge were “very clearly an attempt at
judge-shopping.” Id. at 9. In this renewed
motion, Shao again argues that her claims against this judge,
and the threat of default they pose, warrant recusal.
See Pl.'s Second Mem. at 22-25. For reasons
already elaborated on in the August 5, 2018 opinion, the
Court rejects that argument.
Finally,
Shao renews her request to disqualify the D.C. Circuit, the
Third Circuit, and the U.S. District Courts in Delaware,
Pennsylvania, Virginia, and New Jersey because this judge has
professional and personal ties to those jurisdictions, and to
transfer her case to New York. See Id. at 25;
Shao, No. 18-cv-1233-RC, slip op. at 10. The Court
denies that request for the same reasons it denied the
request in Shao's first motion to change venue.
“Shao's conspiratorial allegations are . . . an
attempt to judge-shop and a vehicle to express her
dissatisfaction with the timeliness of this action, ”
and are “insufficient . . . to transfer her case to New
York.” Shao, No. 18-cv-1233-RC, slip op. at
10.
B.
Personal Jurisdiction
Next,
several defendants have moved to dismiss Shao's claims
against them for lack of personal jurisdiction. After briefly
going over the legal standards on a motion to dismiss for
lack of personal jurisdiction, the Court analyzes in turn
motions to dismiss by the California Judicial Defendants, the
McManis Defendants, the Santa Clara Defendants, Janet
Everson, Esther Chung, and Carole Tait-Starnes.
1.
Legal Standard
Rule
12(b)(2) of the Federal Rules of Civil Procedure directs a
court to dismiss an action when the court lacks personal
jurisdiction over the defendant. Fed.R.Civ.P. 12(b)(2). The
plaintiff bears the burden of establishing that a court has
personal jurisdiction. See FC Inv. Grp. LC v. IFX Mkts.,
Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008). Factual
discrepancies must be resolved in favor of the plaintiff, but
the court is not required to accept a plaintiff's
“conclusory statements” or “bare
allegations” regarding the defendant's actions in a
selected forum. GTE New Media Servs., Inc. v. BellSouth
Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000).
There
are two types of personal jurisdiction: general (sometimes
called “all-purpose”) jurisdiction and specific
(sometimes called “action-linked”) jurisdiction.
Both types are independently sufficient for a court to
exercise personal jurisdiction over a party. See
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137
S.Ct. 1773, 1780 (2017). “For an individual, the
paradigm forum for the exercise of general jurisdiction is
the individual's domicile; for a corporation, it is an
equivalent place, one in which the corporation is fairly
regarded as at home.” Id. (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 924 (2011)). A court with general jurisdiction over
a defendant “may hear any claim against that
defendant, even if all the incidents occurred in a different
State.” Id. (quoting Goodyear, 564
U.S. at 919).
By
contrast, specific jurisdiction requires that the suit
“arise out of or relate to the defendant's contacts
with the forum.” Bristol-Myers, 137
S.Ct. at 1780 (internal citations omitted). To exercise
specific personal jurisdiction over a non-resident, the court
must engage in a two-step analysis to determine (1) whether
jurisdiction is appropriate under the state's long-arm
statute and (2) whether notions of due process are satisfied
by exercising jurisdiction over the non-resident. GTE New
Media Servs., 199 F.3d at 1347. The D.C. long-arm
statute, in pertinent part, provides that the District of
Columbia may exercise personal jurisdiction over a person for
claims for relief for “causing tortious injury in the
District of Columbia, ” including “causing
tortious injury . . . by an act or omission outside the
District Columbia if [the person] regularly does or solicits
business, [or] engages in any other persistent course of
conduct” in the District of Columbia. D.C. Code §
13-423(a).
Due
process requires a plaintiff to demonstrate “minimum
contacts with [the forum state] such that the maintenance of
the suit does not offend ‘traditional notions of fair
play and substantial justice.'” Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). These
contacts must be grounded in “some act by which the
defendant purposefully avail[ed] itself of the privileges of
conducting activities within the forum state, thus invoking
the benefits and protection of its laws.” Asahi
Metal Indus. v. Super. Ct. of Cal., 480 U.S. 102, 109
(1987) (quoting Burger King v. Rudzewicz, 471 U.S.
462, 475 (1985)). That is, “the defendant's conduct
and connection with the forum State [must be] such that he
should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980). It is
“essential in each case that there be some act by which
the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking
the benefits and protections of its laws.”
Creighton Ltd. v. Gov. of the State of
Qatar, 181 F.3d 118, 127 (D.C. Cir. 1999) (quoting
Hanson v. Denckla, 357 U.S. 235, 253 (1958)).
2.
Application to Shao's Complaint
In
response to motions to dismiss by the moving defendants, Shao
argues that the Court has specific jurisdiction over each
because all of the California-based defendants engaged in a
common conspiracy with D.C.-based defendants. As detailed
below for each moving defendant, the Court disagrees.
Conspiracy jurisdiction is “a form of long-arm
jurisdiction in which the defendant's ‘contact'
with the forum consists of the acts of the defendant's
co-conspirators within the forum.” Youming Jin v.
Ministry of State Sec., 335 F.Supp.2d 72, 78 (D.D.C.
2004). However, the minimum requirements of due process
cannot be “sidestepped under the guise of conspiracy
jurisdiction.” Id. at 80 n.5. Accordingly,
‘“[b]ald speculation' or a ‘conclusory
statement' that individuals are co-conspirators is
insufficient to establish jurisdiction under a conspiracy
theory.” Jungquist v. Shelkh Sultan Bin Khalifa Al
Nahyan, 115 F.3d 1020, 1031 (D.C. Cir. 1997) (quoting
Naatex Consulting Corp. v. Watt, 722 F.2d 799, 787
(D.C. Cir. 1983)). Even when personal jurisdiction is based
on a conspiracy theory, purposeful availment is still
required. Youming Jin, 335 F.Supp.2d at 80. To meet
this requirement, the plaintiff must assert with
particularity “the conspiracy as well as the overt acts
within the forum taken in furtherance of the
conspiracy.” Jungquiist, 115 F.3d at 1031
(quoting Dooley v. United Techs. Corp., ...