Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARIAN ANTHONY, Case No.: 25-cv-01550-DMS-BLM Plaintiff, 11 v. ORDER GRANTING DEFENDANT’S 12 MOTION TO DISMISS FIRST SHAWN STEPHEN, AMENDED COMPLAINT 13 Defendant. 14 [ECF No. 28] 15 16 17 Before the Court is Defendant Shawn Stephen’s motion to dismiss Plaintiff Marian 18 Anthony’s First Amended Complaint (“FAC”). (Mot., ECF No. 28-1.) Plaintiff, 19 proceeding pro se, responded in opposition, (Opp’n, ECF No. 44-2), to which Defendant 20 replied. (Reply, ECF No. 46.) For the following reasons, the Court grants Defendant’s 21 motion with leave to amend. 22 I. BACKGROUND 23 Plaintiff resides in Escondido, California. (First Am. Compl. (“FAC”), ECF No. 18, 24 ¶ 5.) Defendant, a citizen of Arizona, is a licensed financial officer at Northwestern Mutual 25 and an MMA fighter. (Id. ¶¶ 6–7.) On August 5, 2022, Defendant allegedly trespassed on 26 Plaintiff’s property and refused to leave despite requests from Plaintiff and Corina Galvez, 27 a third party. (Id. ¶ 7.) Defendant then threatened Plaintiff, while Plaintiff retreated 28 peacefully. (Id.) Galvez physically restrained Defendant during the altercation. (See id.) 1 Defendant also falsely reported to the police that Plaintiff was armed with a gun, leading 2 to Plaintiff’s “wrongful arrest without probable cause.” (Id.) In addition, Defendant falsely 3 testified at a September 2, 2022 court hearing by denying he had been restrained by Galvez 4 during the altercation and testifying that Plaintiff pushed him and threatened to kill him. 5 (See id. ¶ 8.) Plaintiff alleges Galvez “colluded” with Defendant at the hearing by also 6 falsely testifying. (Id.) The false testimony led to Plaintiff’s bail being set at $210,000, a 7 “loss of gun rights,” “parental interference,” and “$1.3 million in damages, including 8 severe emotional harm to minors from ongoing fear.” (Id.) On January 19, 2023, 9 Defendant texted Plaintiff: “You may be texting [Galvez’s] phone, but you’ll be talking to 10 me. . . . I will be planted firmly in your way and you will go around.” (Id. ¶ 9.) On 11 September 18, 2023, Defendant mailed Plaintiff a threatening message that “target[ed] 12 minors for $10,000”: “Your well-being is now at risk, and your children’s as well. . . . Do 13 the right thing before someone gets seriously hurt.” (Id. ¶ 10.) 14 Plaintiff filed an earlier case, Anthony v. Stephens, Case No. 24-cv-00617, on April 15 1, 2024. (Id. ¶ 11; Case No. 24-cv-00617, ECF No. 1.) In response, Defendant allegedly 16 sent a harassing text message and vandalized Plaintiff’s mailbox. (FAC ¶ 11.) The 17 vandalism obstructed Plaintiff’s receipt of mail, which prevented him from responding to 18 Defendant’s motion to dismiss the earlier case. (Id.; Case No. 24-cv-00617, ECF Nos. 5, 19 7.) This Court dismissed the earlier action without prejudice because of Plaintiff’s failure 20 to respond. (Case No. 24-cv-00617, ECF No. 7.) Plaintiff filed a new complaint on June 21 17, 2025, resulting in the present case. (ECF No. 1.) Defendant thereafter moved to 22 dismiss, (ECF No. 5), which the Court granted with leave to amend. (ECF No. 16.) 23 Plaintiff filed his FAC on November 5, 2025, alleging a civil Racketeer Influenced and 24 Corrupt Organization (“RICO”) claim, violation of 42 U.S.C. § 1985(3), and intentional 25 26 27 28 1 infliction of emotional distress (“IIED”). (FAC 7.) Defendant moves to dismiss the entire 2 action. 3 II. LEGAL STANDARD 4 A. Federal Rule of Civil Procedure 12(b)(1) 5 “Federal courts are courts of limited jurisdiction, possessing only that power 6 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 7 (internal quotation marks and citation omitted). A lawsuit may be before a federal court 8 based on (1) federal question or (2) diversity of citizenship of the parties and an amount in 9 controversy that exceeds $75,000. See 28 U.S.C. §§ 1331, 1332(a). If there is no federal 10 question, diversity, or other independent basis for jurisdiction, a party may ask a federal 11 court to invoke supplemental jurisdiction. Stein v. Farmers Ins. Co. of Ariz., 734 F. Supp. 12 3d 1021, 1026 (S.D. Cal. 2024). Supplemental jurisdiction “recognizes federal courts’ 13 jurisdiction over some matters (otherwise beyond their competence) that are incidental to 14 other matters properly before them.” Id. (citation modified) (citing K.C. ex rel. Erica C. v. 15 Torlakson, 762 F.3d 963, 968 (9th Cir. 2014)). The plaintiff bears the burden of proving 16 subject-matter jurisdiction by a preponderance of the evidence. Leite v. Crane Co., 749 17 F.3d 1117, 1121 (9th Cir. 2014). A party may move to dismiss for lack of subject-matter 18 jurisdiction under Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1). “The defense of lack of 19 subject matter jurisdiction cannot be waived, and the court is under a continuing duty to 20 dismiss an action whenever it appears that the court lacks jurisdiction.” Augustine v. 21 United States, 704 F.2d 1074, 1077 (9th Cir. 1983); Fed. R. Civ. P. 12(h)(3). 22 23 24 25 1 Plaintiff references several federal crimes, such as 18 U.S.C. §§ 875, 876, 1341, 1503, and 1701, as 26 “predicate acts” for the civil RICO claim, but not as independent causes of action. (See FAC 2, 6.) Generally, “[t]itle 18 of the United States Code does not establish any private right of action and cannot 27 support a civil lawsuit.” Kent v. Century Manor Trust Ltd., No. 2:19-cv-01277 MCE AC (PS), 2019 WL 5596481, at *4 (E.D. Cal. Oct. 30, 2019). Thus, the Court finds that Plaintiff did not, and could not, assert 28 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 Under Rule 12(b)(6), a party may file a motion to dismiss on the grounds that a 3 complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 4 12(b)(6). A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.” 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a motion to dismiss, “a 6 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 7 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 8 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when 9 the plaintiff pleads factual content that allows the court to draw the reasonable inference 10 that the defendant is liable for the misconduct alleged.” Id. “Determining whether a 11 complaint states a plausible claim for relief will . . . be a context-specific task that requires 12 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. 13 “Factual allegations must be enough to raise a right to relief above the speculative level.” 14 Twombly, 550 U.S. at 555. If a plaintiff has “not nudged [his] claims across the line from 15 conceivable to plausible,” the complaint “must be dismissed.” Id. at 570. 16 In reviewing the plausibility of a complaint on a motion to dismiss, a court must 17 “accept factual allegations in the complaint as true and construe the pleadings in the light 18 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 19 519 F.3d 1025, 1031 (9th Cir. 2008). However, courts are not “required to accept as true 20 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 21 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation 22 omitted). While the Court has an obligation to construe pro se pleadings liberally, Hebbe v. 23 Pliler, 627 F.3d 338, 342 (9th Cir. 2010), it may not “supply essential elements of [claims] 24 that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 25 268 (9th Cir. 1982). 26 27 28 1 III. DISCUSSION 2 A. Civil RICO 3 To succeed on a civil RICO claim, a plaintiff must show “(1) conduct (2) of an 4 enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) 5 causing injury to the plaintiff’s ‘business or property.’” Grimmett v. Brown, 75 F.3d 506, 6 510 (9th Cir. 1996); 18 U.S.C. §§ 1964(c), 1962(c). Here, Plaintiff alleges Defendant 7 “engaged in a pattern of racketeering (at least two acts: interstate mail extortion/threats to 8 minors for $10,000 . . . ) and perjury/obstruction . . . causing injury.” (FAC 7.) The Court 9 finds Plaintiff failed to sufficiently allege a civil RICO claim. 10 First, the allegations do not show Defendant made use of an “enterprise.” An 11 “enterprise” is “any individual, partnership, corporation, association, or other legal entity, 12 and any union or group of individuals associated in fact although not a legal entity.” 18 13 U.S.C. § 1961(4); Odom v. Microsoft Corp., 486 F.3d 541, 548 (9th Cir. 2007). “However, 14 a RICO ‘enterprise’ must constitute an entity distinct from the RICO ‘person.’” McClintic 15 v. United States Postal Serv., No. 113CV00439LJOGSA, 2014 WL 12576249, at *1 (E.D. 16 Cal. Jan. 14, 2014) (citations omitted). “To establish the existence of such an enterprise, a 17 plaintiff must prove the group associated for ‘a common purpose of engaging in a course 18 of conduct,’ and provide both ‘evidence of an ongoing organization, formal or informal,’ 19 as well as ‘evidence that the various associates function as a continuing unit.’” Id. at *2 20 (citations omitted). At most, Plaintiff alleges that “Galvez colluded” with Defendant by 21 falsely testifying at a court hearing. (FAC ¶ 8.) This singular allegation is insufficient to 22 plausibly allege an enterprise. 23 Next, 18 U.S.C. § 1961(1) lists the predicate acts that qualify as “racketeering 24 activity.” Banks v. ACS Educ. Corp., No. 10CV1886 AJB CAB, 2012 WL 1033316, at *6 25 (S.D. Cal. Mar. 26, 2012), amended on reconsideration, No. 10CV1886 AJB (CAB), 2012 26 WL 13175885 (S.D. Cal. July 2, 2012); 18 U.S.C. § 1961(1). Plaintiff alleges violations 27 of 18 U.S.C. §§ 875, 876, 1341, 1503, and 1701 as predicate acts. (See FAC 2, 6.) 28 However, only §§ 1341 (mail fraud) and 1503 (obstruction of justice) constitute cognizable 1 predicate acts. See 18 U.S.C. § 1961(1). Further, “[m]ail fraud under 18 U.S.C. § 1341 2 requires a scheme to defraud; Plaintiff pleads only that a [threatening] letter was mailed” 3 and his mailbox was vandalized. (Reply 4.) Even when accepted as true, these alleged 4 actions do not constitute mail fraud under § 1341. However, Defendant also allegedly lied 5 to police officers when he stated Plaintiff was armed and falsely testified that Plaintiff 6 pushed and threatened him during a court proceeding. (FAC ¶¶ 7–8.) Accepting these 7 allegations as true, it is plausible that Defendant obstructed justice in violation of § 1503. 8 See 18 U.S.C. § 1503. Thus, a civil RICO claim may survive under this theory (assuming 9 other elements are sufficiently pled). 10 Lastly, Plaintiff does not allege a cognizable RICO injury. (Mot. 8.) “[T]o prevail 11 on a RICO claim, Plaintiff must allege a harm to a specific business or property interest.” 12 Betts v. Mendivil, No. 3:23-CV-00907-LL-BGS, 2024 WL 1521574, at *4 (S.D. Cal. Apr. 13 8, 2024). The FAC alleges no such harm occurred as a result of a RICO violation. 14 “Without a harm to a specific business or property interest—a categorical inquiry typically 15 determined by reference to state law—there is no injury to business or property within the 16 meaning of RICO.” Diaz v. Gates, 420 F.3d 897, 900 (9th Cir. 2005). For the above 17 reasons, the Court DISMISSES the civil RICO claim with leave to amend. 18 B. Section 1985(3) 19 Section 1985(3) “provides a cause of action to anyone who is injured by a conspiracy 20 to deprive them of their constitutional rights but at least one of the wrongdoers in the 21 alleged conspiracy must be a state actor.” Kaminsky v. Cisa, Inc., No. 24-CV-0286-JO- 22 VET, 2024 WL 3330601, at *2 (S.D. Cal. July 8, 2024) (citation modified) (citation 23 omitted); 42 U.S.C. § 1985(3). While Defendant moves to dismiss the entire FAC, he fails 24 to specify why Plaintiff’s § 1985(3) claim is deficient. Nonetheless, a “court, acting on its 25 own, may note the inadequacy of the complaint and dismiss it for failure to state a claim.” 26 Gugger v. USAA Fed. Sav. Bank, No. 17-CV-1518-AJB-AGS, 2017 WL 5552254, at *4 27 (S.D. Cal. Nov. 17, 2017) (citing Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 638 28 (9th Cir. 1988)). The Court finds Plaintiff’s § 1985(3) claim is not sufficiently pled. 1 Plaintiff alleges Defendant conspired with Galvez to deprive him of his equal 2 protection rights. (FAC ¶ 13.) Defendant is a licensed financial officer and an MMA 3 fighter, (id. ¶¶ 6–7)—neither of these occupations are state government positions. Plaintiff 4 does not allege Galvez’s occupation. Accordingly, Plaintiff fails to identify “any state 5 actors who violated [his] rights” or allege that “the private entity defendants conspired with 6 state actors.” Kaminsky, 2024 WL 3330601, at *3. Plaintiff’s § 1985(3) claim is legally 7 deficient and therefore DISMISSED with leave to amend. 8 C. IIED 9 The Court also dismisses the IIED claim for lack of jurisdiction. There is no federal 10 question jurisdiction for this claim because it arises under California law. See Yokeno v. 11 Mafnas, 973 F.2d 803, 808 (9th Cir. 1992). There is also insufficient proof that diversity 12 jurisdiction exists. Diversity jurisdiction exists only where there is complete diversity 13 between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). 14 Here, Plaintiff alleges he is a resident of California and Defendant is a citizen of Arizona. 15 However, the “diversity jurisdiction statute . . . speaks of citizenship, not of residency.” 16 Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (emphases added). 17 Plaintiff has not sufficiently alleged that he is a citizen of California. Plaintiff also fails to 18 establish the requisite amount in controversy (more than $75,000). Plaintiff alleges the 19 damages at issue amount to $1.3 million. (FAC ¶ 8.) However, he fails to allege any facts 20 supporting that conclusion. Further, the $1.3 million in damages includes “severe 21 emotional harm to minors.” (Id.) Plaintiff must show that he personally incurred damages 22 in excess of $75,000 without adding damages allegedly suffered by others. See Travelers 23 Indem. Co. of Connecticut v. Pulte Grp., Inc., No. LACV1808994JAKJPRX, 2019 WL 24 1915760, at *8 (C.D. Cal. Apr. 26, 2019). Lastly, “district courts may decline to exercise 25 supplemental jurisdiction over a claim” if it has “dismissed all claims over which it has 26 original jurisdiction.” 28 U.S.C. § 1367. Because Plaintiff’s federal law claims (i.e., civil 27 RICO and § 1985(3)) are dismissed, the Court declines to exercise supplemental 28 | |/jurisdiction over the ITED claim. Thus, Defendant’s motion to dismiss the ITED claim is 2 || GRANTED with leave to amend.’ 3 IV. CONCLUSION 4 Based on the foregoing, the Defendant’s motion to dismiss is GRANTED with 5 ||leave to amend. Plaintiff may file a Second Amended Complaint to cure the defects 6 || described above no later than twenty one (21) days from the date this Order is filed. 7 IT IS SO ORDERED. 8 || Dated: April 16, 2026 9 for, Yn « L4\ Hon. Dana M. Sabraw 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In light of this determination, the Court declines to address Defendant’s arguments to dismiss the ITED under Rules 8(a) and 12(b)(6). (See Mot. 9-10.) °