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Shao v. Roberts

United States District Court, District of Columbia

January 17, 2019

YI TAI SHAO, Plaintiff,
v.
JOHN G. ROBERTS, et al., Defendants.

          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., ...


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