1 BRYAN CAVE LLP

John W. Amberg (CA State Bar No. 108166)

2 Jenna Moldaws~y (CA State Bar No. 246109) Digitally signed
by Joseph Zernik
120 Broadway, Suite 300 DN: cn=Joseph
Zernik, o, ou,
3 Santa Monica, California 90401-2386 email=jz12345@e
arthlink.net, c=US

Telephone: (310) 576-2100 Date: 2010.05.12

15:50:37 +03'00'

4 FacsImile: (310) 576-2200

5
Attorneys for Defendants COUNTRYWIDE
6 HOME LOANS, INC., ANGELO MOZILO
and SANDOR SAMUELS
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION
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JOSEPH ZERNIK, Case No. CY08-0 1550 YAP
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JACQUELINE CONNOR, et aI. PURSUANT TO RULE 12(b)(1),
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Filed concurrently with
19 Declaration of Jenna Moldawsky
and [Proposed] Order
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21 Date: August 18, 2008
Time: 10:00 a.m.
22 Courtroom: 2
23
24 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
25 PLEASE TAKE NOTICE that on August 18, 2008, at 10:00 a.m., or as soon
26 thereafter as this matter can be heard, in Courtroom 640 of the above-entitled Court,
27 located at 255 East Temple Street, Los Angeles, California, 90012, defendants
28 Countrywide Home Loans, Inc. ("Countrywide"), Angelo Mozilo ("Mozilo") and

SMOI DOCS\673595.1
 1 Sandor Samuels ("Samuels") (Countrywide, Mozilo and Samuels are collectively
2 referred to as "Defendants") will, and hereby, do move the Court for an order
3 dismissing the Original Complaint of plaintiff Joseph Zemik ("Plaintiff') against
4 Defendants pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and
5 12(b)(6).
6 This Motion is made on the following grounds:
7 1. Plaintiff served Defendants with the Original Complaint in this matter
8 on June 10,2008. However, pursuant to the Court's June 6, 2008 minute order, the
9 Original Complaint was superseded in all respects by the First Amended Complaint,
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17 authority, and thus no claim for relief can be stated against Defendants for violations
18 of Plaintiffs civil rights under Title 42 U.S.C. § 1983.
19 This Motion is based on this Notice of Motion, the attached Memorandum of
20 Points and Authorities, the Declaration of Jenna Moldawsky, all pleadings and
21 records on file in this action, and such briefing, papers and argument as may be
22 permitted in this matter.
23 III
24 III
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26 III
27 III
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NOTICE OF MOTION AND MOTION TO DISMISS
 1 This Motion is made following numerous attempts by Defendants to meet and
2 confer with Plaintiff pursuant Local Rule 7-3. Because Plaintiff failed to respond to
3 Defendants requests to meet and confer, it is not possible to resolve this Motion
4 informally.
5
6 DATED: June 30, 2008 BRYAN CAVE LLP
John W. Amberg
7 Jenna Moldawsky
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SMOIDOCS\673595.1 3
SMOIDOCS\67359~.1

NOTICE OF MOTION AND MOTION TO DISMISS

 1 I. INTRODUCTION
2 Plaintiff Joseph Zernik's ("Plaintiff') Original Complaint purports to allege
3 that Defendants Countrywide, Mozilo and Samuels (collectively, "Defendants")
4 violated Plaintiffs civil rights in connection with their "participation" in the state
5 court proceeding of Samaan v. Zernik, Los Angeles Superior Court Case No.
6 SC087400. Though never parties to the underlying state action, Defendants were
7 unwillingly subjected to Plaintiffs harassing and oppressive discovery tactics in
8 connection with the lawsuit, and were forced to make court appearances and
9 ultimately seek a protective order and contempt sanctions against Plaintiff as a result
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10 of his willful disobedience of court orders. Plaintiff is now attempting to yet again
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17 Plaintiffs First Amended Complaint "replaced" the Original Complaint. As such,
18 Plaintiffs service of the Original Complaint on Defendants was ineffective and
19 Improper.
20 This Court should also dismiss Plaintiff s Complaint pursuant to the federal
21 abstention doctrine, which provides that absent extraordinary circumstances, federal
22 courts may not enjoin or otherwise interfere with pending state court proceedings.
23 As the underlying state court action is, in Plaintiffs own words, "still underway,"
24 this Court should decline any involvement in the state court proceeding.
25 Finally, any claim for civil rights violations under Title 42 U.S.c. § 1983
26 requires that a defendant be acting under the color of state authority. Plaintiff makes
27 no such allegations with respect to Defendant, nor can he. Accordingly, Plaintiff
28 fails to state a claim upon which relief may be granted.
SMOIDOCS\673595.! 4
SMO 1DOCS1673595.1
NOTICE OF MOTION AND MOTION TO DISMISS
 1 II. STATEMENT OF FACTS
2 Plaintiff filed his Original Complaint on March 5, 2008, and later filed a First
3 Amended Complaint on May 27,2008. (Declaration of Jenna Moldawsky
4 ("Moldawsky Decl."), ~ 2.) On June 6, 2008, this Court issued a minute order
5 which declared that the Original Complaint had been "replaced" by the First
6 Amended Complaint. (Id., ~ 2, Ex. A.) On June 10,2008, Plaintiff personally
7 served Defendants with a copy of the summons and the Original Complaint. (Id., ~

8 3., Ex. B-D) Upon receipt, counsel for Defendants sent an email to Plaintiff,
9 informing him that "pursuant to the Court's order dated June 6, 2008, the original
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14 Rules of Civil Procedure. (Id.) Defendants received no response from Plaintiff.
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17 Complaint. (Id., ~ 5, Ex. F.) No response was provided. (Id.)
18 Plaintiffs Original Complaint seeks injunctive and declaratory relief against
19 Defendants for alleged civil rights violations pursuant to Title 42 U.S.C. § 1983.
20 Plaintiffs Complaint, however, fails to state a claim for relief because Plaintiff does
21 not allege that Defendants were state actors or were acting under the color of state
22 authority, as required by the statute. Plaintiff alleges only that Countrywide is "a
23 financial services corporation" which produced documents in the underlying state
24 court action. (CompI., p. 10, In. 17-18.) Plaintiff further alleges only that Samuels is
25 "Chief Legal Counsel of Countrywide" and is "responsible for all litigation
26 matters," (CompI., p. 10, In. 1-2.) and that Mozilo is "president and chair of the
27 internal audit committee" of Countrywide. (CompI., p. 10, In. 14-15.) Plaintiff does
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NOTICE OF MOTION AND MOTION TO DISMISS
 1 not allege that any of the three defendants are state actors, nor can he. As such,
2 Plaintiff's Original Complaint against Defendants should be dismissed.
3 III. STANDARD OF REVIEW
4 A motion to dismiss is appropriate when Plaintiff's service of the operative
5 pleadings is defective. Fed. R. Civ. Proc. 12(b)(5). Where the validity of service is
6 contested by Rule 12 motion, the burden is on the plaintiff to establish the validity
7 of service. Hope v. Otis Elevator Co., 389 F. Supp. 2d 1235, 1242 (E.D. Cal. 2005);
8 Cranford v. U.S., 359 F. Supp. 2d 981,984 (E.D. Cal. 2005). A party may also
9 bring a motion to dismiss where there is a "lack ofjurisdiction over the subject
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17 2007). In order to survive such a motion, a complaint must contain factual
18 allegations that do more than invite mere speculation. Id. While it is true that the
19 Court must accept as true all material allegations as well as reasonable inferences to
20 be drawn therefrom, the Court is not required to accept "unreasonable inferences or
21 conclusory legal allegations cast in the form of factual allegations." Estate of
22 Migliaccio v. Midland Nat'l Life Ins. Co., 436 F. Supp. 2d 1095, 1098 (C.D. Cal.
23 2006). Dismissal pursuant to Rule 12(b)(6) is therefore appropriate where there is
24 either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged
25 under a cognizable legal theory." Balisteri v. Pacifica Police Dep't, 901 F.2d 696,
26 699 (9th Cir. 1990).
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NOTICE OF MOTION AND MOTION TO DISMISS
 1 IV. ARGUMENT
2 A. Defendants Were Served With an Inoperative Complaint
3 Plaintiff filed his Original Complaint on March 5,2008, and filed a First
4 Amended Complaint on May 27, 2008. (Moldawsky Decl., ~ 2.) Pursuant to the
5 Court's minute order dated June 6, 2008, the First Amended Complaint "replaced"
6 the Original Complaint filed in this action. (Id., ~ 2, Ex. A.) On June 10,2008,
7 Plaintiff served Defendants each with a summons and a copy of the Original
8 Complaint. (Id., ~ 3, Ex. B-D.) A copy of the First Amended Complaint was not
9 served at that time. (Id.) That same day, counsel for Defendants emailed Plaintiff
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17 not been served with the operative pleading. (Id., ~ 5, Ex. F.) No response was
18 provided. (Id.) Accordingly, Defendants were never served with the First
19 Amended Complaint, despite repeatedly alerting Plaintiff to the deficient service.
20 Plaintiffs service of Defendants is improper and ineffective and the Original
21 Complaint against Defendants should be dismissed.
22 B. The Complaint Is Barred By The Abstention Doctrine
23 The abstention doctrine holds that absent extraordinary circumstances, federal
24 courts may not enjoin or otherwise interfere with pending state court proceedings on
25 constitutional grounds. Younger v. Harris, 401 U.S. 37, 49-53 (1971). Federal
26 courts must abstain an allow the state court to adjudicate all claims, state and
27 federal. Id. The Supreme Court held in Moore v. Sims that federal intervention in
28 state court matters could "readily be interpreted as reflecting negatively upon the
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 1 state court's ability to enforce constitutional principles." Moore v. Sims, 442 U.S.
2 415,426 (1979). "Whether it is labeled 'comity,' 'federalism,' or some other term,
3 the policy objective behind Younger abstention is to avoid unnecessary conflict
4 between state and federal governments." United States v. Morros, 268 F. 3d 695,
5 707 (9th Cir. 2001).
6 The abstention doctrine requires federal courts to abstain when three
7 requirements are met: (1) state court proceedings are pending when the federal
8 action is filed; (2) the state court proceedings implicate important state interests; and
9 (3) the state court proceedings provide adequate opportunity to raise the federal
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17 11, In. 19.) Further, the state court proceedings at issue here implicate the state
18 court's interests in controlling the proceedings before it and its ability to make and
19 enforce orders and judgments. Courts have routinely held that a state court has a
20 significant interest in "ensuring that its orders and judgments are not rendered
21 nugatory." Penzoil Co. v. Texaco, Inc., 481 U.S. 1, 13-14 (1987).
22 Finally, the state action (and any subsequent appeals process Plaintiff is
23 inclined to pursue) provides Plaintiff with an opportunity to raise any federal claims
24 he believes he may have regarding the state court's orders and judgments. The
25 injunctive and declaratory relief Plaintiff seeks can be pursued through the state
26 court action. Because each requirement of the abstention doctrine is met here, the
27 Court should dismiss Plaintiffs Original Complaint.
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 1 C. Plaintiff Cannot State a Claim For Relief Und'er Title 42 U.S. C.
2 §1983 Because Defendants Are Not State Actors
3 Plaintiff s Complaint purports to state a cause of action against Defendants
4 for "severe abuse of Plaintiff Zernik's rights" under Title 42 U.S.C. § 1983, which
5 provides, in pertinent part, as follows:
6 Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
7
the District of Columbia, subjects, or causes to be
8 subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
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16 corporation" which produced documents in the underlying state court action of
17 Samaan v. Zernik. (CompI., p. 10, In. 17-18.) Plaintiff never alleges that
18 Countrywide was acting under state or governmental authority of any kind.
19 Similarly, Plaintiff alleges only that Samuels is "Chief Legal Counsel of
20 Countrywide" and is "responsible for all litigation matters." (CompI., p. 10, In. 1-2.)
21 Plaintiff alleges that Mozilo is "president and chair of the internal audit committee"
22 of Countrywide. (CompI., p. 10, In. 14-15.) Plaintiff never alleges that Samuels or
23 Mozilo are state actors or that they were acting under any authority other than the
24 authority their respective positions at Countrywide bestowed upon them. Plaintiff
25 fails to set forth any facts to suggest that Defendants can be held liable under Title
26 42 U.S.C. § 1983, nor can he. Accordingly, Plaintiff has failed to state a claim
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--- -- ---- - - -- - -. - - -~ - - - - --
 1 against Defendants upon which relief can be granted. Plaintiffs claims against
2 Defendants should be dismissed.
3 V. CONCLUSION
4 Based on the foregoing, Defendants respectfully request that Plaintiffs
5 Original Complaint against Defendants be dismissed.
6
7
DATED: June 30, 2008 BRYAN CAVE LLP
8 John W. Amberg
9 Jenna Moldawsky
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