Four Districts Almanac

44 Pages·2017·0.79 MB·English

Four Districts Almanac
Volume XXVII No. 6 June 12, 2017
BRIEFS
Class Moves Ahead in Suit Over Claimed ‘Health’ Benefit of Post’s Sugary Cereal................................3
Disney and SKG Animators Win 168 Million in Suit Over Wage Collusion........................................5
NAACP Can Proceed in Suit Against San Diego Police Over Bust-Up of Vigil...................................7
Self-Said Writer of Prince Songs Bounced From Federal Court............................................................9
RULE & JUDGMENT
ATTORNEY FEES
Fees Denied in Class Action Over Recorded Calls.................................................................................12
Defendant Earns $922K in Fees After Defeating Trademark Claims.....................................................12
BANKRUPTCY
Bankruptcy Order Affirmed Over Brothers’ Objections........................................................................12
CIVIL RIGHTS
Kern County Latinos’ Redistricting Fight Heads to Trial.......................................................................13
Some Evidence Excluded in Black Student’s Discrimination Case.......................................................13
CLASS ACTION
Certification Denied for Nationwide Class in ‘Trans Fat’ Case.............................................................13
Makers of ‘Defective’ Humidifiers Can’t Duck Suit................................................................................14
Judge Certifies Class against Hartford over Property Insurance............................................................14
Judge Approves $2.7M Settlement in Sientra Securities Action.............................................................14
CLASS ACTION SETTLEMENT
County Fair Reduces Ticket Prices to Settle Zip Code Case..................................................................15
CONSUMER LAW
Silk Almond Milk Misbranding Claims Land in FDA’s Jurisdiction.....................................................15
CONTRACT
Trader Joes Ducks Underfilled Tuna Can Claims....................................................................................15
DISCOVERY
Travel Co. Accused of Autodialing Must Produce Call Logs.................................................................16
EMPLOYMENT
VA Doctor’s Race Discrimination Suit Thrown Out...............................................................................16
Fired Employee Fails to Show Comcast Knew of Disability...................................................................16
Motion to Remand Denied in Lost Wages Case......................................................................................17
Non-Compete Clause Ruled Invalid.........................................................................................................17
Rule & Judgment Continued......................................................................................................................11
From the Editor: Giants of Old
........................................................................................2
Milt Policzer: Ignore at Your Peril
.................................................................................3
FROM THE EDITOR
Along with a big group of fellow students, I even as the unpredictable unfurled, and all with re-
watched the Watergate hearings on a black and white markable endurance.
television in the lower commons, which was the recre- There is no such figure in the current hear-
ation room below the cafeteria at Reed, normally de- ings.
voted to poker, pin ball and pool. While the stage of Watergate supported a great
We were addicted by the legal drama, the ques- number of colorful characters, like a sprawling histor-
tioning, the testimony, and the twists and turns the ical play, there was a second figure who stood out: the
hearings took from day to day. ranking minority member of the investigating com-
There were no leaks, no press releases ahead of mittee, Howard Baker.
time. The revelation of the taping system in the oval The first Republican ever to be elected to the
office came out in the course of a testimony, during the Senate from Tennessee – something that boggles the
questioning of Nixon aide Alexander Butterfield. mind a little, to think of those red states as once deep
The details of it are so seared into my mind that blue – Baker was a moderate Republican in the Sen-
I remember the chair handing off the questioning of ate who held stature and authority and worked well
Butterfield to the staff lawyer who discovered the exis- with, and had great respect from, his Democratic col-
tence of the tapes. leagues.
Equally as clear in my memory was the precise, Baker, also trained as a lawyer, was just as inter-
detailed memory and testimony of Nixon’s White ested as the majority chairman in getting to the bottom
House Counsel John Dean who had been fired by Nix- of the Watergate scandal.
on, and who described the cover-up as a “cancer on the There is no such figure in these hearings.
presidency.” Certainly not Committee Chair Sen. Richard
Come around to last week’s televised testimony Burr, who spent the night after the Comey hearing
by Jim Comey before the Senate Intelligence Com- on TV explaining why the president’s expression of
mittee. The folks here at work wondered why I wasn’t “hope” that Comey that he would sink the Russia in-
watching the hearing live. vestigation was really just that, a hope, the kind that
It forced me to consider what, other than my springs eternal.
then lack of jadedness, made the Watergate hearings Despite the contrast in stature between the politi-
so compelling and the current spectacle so washed out cal giants of old and the dwarfish lot today, the relative
by comparison. positions of the underlying events are reversed.
Partly it is because the major revelations in the The ham-handed burglary of a political oppo-
current investigations have been coming out through nent’s office is somewhere far down the political Richter
leaks and press releases, rather than through the hear- scale from a broad and systematic attempt to interfere
ings. And it is because the lines of questioning during in an American presidential election by our nation’s
the hearings themselves seem predictable, with the powerful and longstanding geopolitical foe.
majority members largely attempting to downplay The muddle of the investigation means that those
or undermine any testimony damaging to the Presi- emerging as leaders and men of principal are not pol-
dent. iticians but members of the intelligence services. Like
But it also has a lot to do, I realized, with the fact former NSA boss James Clapper, looking every bit the
that a central character is missing. spy chief, who said, “You compare the two, Water-
At the heart of the Watergate hearings was its gate pales really compared to what we are confronting
master of ceremonies, Sen. Sam Ervin, with a strong now.”
North Carolina accent and a folksiness that veiled the He added that the assault on our nation is two-
deep intelligence of a master of the language and a pronged, coming from without and from within. The
surefooted, probing interrogator. threat from within, he said, is from the oval office.
He described himself as an “old country lawyer.” Kind of like a cancer.
And all the abilities he acquired in that role were oper-
ating at full capacity during Watergate.
He ran the hearings with diplomacy, full control,
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BRIEFS
Obiter Dictum: Milt Policzer
Sometimes lawyers are hilarious. Some RACING IS A POTENTIALLY HAZARD-
of them mean to be. Others don’t. And some- OUS ACTIVITY....”
times I don’t know whether they realize what What!?!?
they’re saying. It is?
I immediately thought all of the above Are we perhaps blissfully unaware of the
(because I’m a fast thinker) last week after disgusting contents of our wieners?
looking at the announcement of the upcoming You can see the problem here: No one is
wiener dog race at Santa Anita racetrack. aware that dachshund racing is a potentially
To enter your animal in the race, you hazardous activity. To participate in this event,
have to sign a waiver. I assume someone at the you have to make a false statement.
racetrack or in the wiener dog racing hierar- Tell the truth and you’re out.
chy hired a lawyer to draft this waiver. Obviously, this makes the waivers inval-
It contains a paragraph in capital letters id – they’re based on a lie. The track can’t pro-
that begins with this phrase: tect itself with an assumption of risk defense
“I AM AWARE THAT DACHSHUND Continued on back page
FIDUCIARY DUTY
Class Goes Ahead on Post’s Sugary Cereal
Krommenhock v. Post 3:16 cv 4958 WHO beling statements that either expressly or impliedly
suggest that Post cereals are healthy, contending that
Consumers can continue with most of their
these statements are deceptive and misleading in
putative class action claims accusing Post Foods of
light of the products’ high added sugar content.
misleading the public into believing that their cere-
“Post asserts that all of the claims are preempt-
als are healthy when they actually contain high add-
ed in light of the FDA’s recent rulemaking setting a
ed sugar content.
recommended level of added sugar consumption at
The consumers challenge labeling claims made
10 percent of calories and imposing requirements
on 44 different Post cereal products that Post mar-
for disclosure of added sugars in the Nutrient Fact
kets under its four main cereal lines: Post Selects,
Panel effective in 2018. The analysis of whether pre-
Post Honey Bunches of Oats Cereals, Post Shredded
emption bars plaintiffs’ claims ‘turns on whether the
Wheat, and Single-Variety Post Cereals.
challenged statements are authorized by the FDA’s
They claim that the products’ labels contain
regulations or other pronouncements of similar le-
health and wellness claim that are false and mis-
gal effect.’
leading due to the cereals’ high added sugar content.
“Post’s argument hinges in large part on the
Post’s labels allegedly violate various California con-
plaintiffs’ reliance on the American Heart Associa-
sumer protection statutes by suggesting that the ce-
tion’s Scientific Statement that added sugars should
reals are healthy even though high amounts of added
be limited to 5 percent of the DRV [Daily Recom-
sugar can cause adverse health conditions.
mended Value]. Post notes that the FDA specifically
Judge William Orrick in the Northern District
considered and rejected setting the recommended
finds that most of the claims are not preempted by
DRV at 5 percent in light of the scientific evidence
federal law.
before the FDA, and instead settled on the recom-
“Plaintiffs’ FAC challenges numerous la-
mended 10 percent of calories ‘considering cur-
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BRIEFS
rent consumption of added sugars in the United the label warnings suggested by a few commentators,
States.’ however, does not mean that a ‘failure to warn’ type
“That plaintiffs rely in part (and not exclusively) of claim is expressly preempted, absent evidence that
on the AHA 5 percent recommendation to provide consideration of this type of affirmative warning was
a plausible scientific basis for their allegations that the focus of the FDA’s rulemaking.
consuming excess amounts of added sugars creates “It appears the FDA’s focus was updating the
significant health risks does not mean those claims Nutrition Facts Panel to disclose added sugars and
are preempted because the FDA chose not to set its include a DRV. Moreover, plaintiffs clarify in their
DRV at 5 percent considering consumption patterns opposition that they ‘do not allege Post was obligat-
and based on the scientific evidence before it. ed to warn merely because its cereals have excessive
“Plaintiffs’ claims, when properly construed, sugar levels, but because Post affirmatively misrepre-
are not that the cereal manufacturers should be re- sented that the cereals are healthy through labeling
quired to list any particular facts about sugar in ei- statements outside the Nutrition Facts Panel.’
ther the Nutrition Facts Panel or on the other parts “As above, this type of consumer protection
of the labels, but that the use of various identified claim is not expressly preempted based on the record
health and wellness claims misleadingly convey to before me regarding the FDA’s rulemaking.”
consumers that the products are healthy, when they The court also rejects Post’s challenge to the
are not given the high levels of added sugar. consumers’ ability to state claims under the three
“There is no evidence that the FDA in its fi- protection statutes at issue, the False Advertising
nal rule set out to proscribe or prohibit statements Law, Consumer Legal Remedies Act, and Unfair
regarding health or wellness in connection with an Competition Law.
analysis of added sugars. Nor is there evidence that Post argues “that some of plaintiffs’ studies
the FDA concluded that consumption of added sug- and the FDA’s new rule support Post, because those
ar in the amounts in the challenged products was studies recognize that many features of Post’s cereal
healthy. – whole grains, added vitamins – provide significant
“Instead, the evidence is that the FDA adopted nutritional benefits and even added sugar ‘can be’
the 10 percent added-sugar DRV to be used in the part of ‘healthful dietary patterns.’”
FDA mandated Nutrition Facts Panel based on the However, the court finds that “this is not the
evidence before it and as ‘realistic’ based on current appropriate time to weigh the competing harms and
consumption pattern. benefits from Post’s products or address whether
“Plaintiffs’ claims that defendant’s use of Post knows (as alleged by plaintiffs) that its prod-
health and wellness claims on its labels make those ucts are typically overconsumed. It is sufficient that
labels false and misleading because consumption of plaintiffs have a plausible scientific basis for their
levels of added sugar in defendant’s products is un- consumer protection claims.
healthy are not preempted claims.” “Finally, defendants argue that because the
Post also challenges the consumers’ claim risks from overconsuming sugar are widely known,
that Post had a “duty to warn” consumers about the Post cannot plausibly have misled consumers. But
dangers of consuming excess amounts of added sug- Post posits the wrong disclosure; the crux of plain-
ar like those in its cereals. tiffs’ claims is that Post’s use of prominent marketing
“Post points out that the FDA in its rulemak- terms expressly or implicitly advertising the products
ing proceedings rejected calls to revise its proposed as healthy were misleading because the amount of
rule to mandate specific suggested warning labels re- sugar in the product made those claims false.”
garding added sugars because the specific proposed Post’s motion to dismiss is denied as to the
‘statements are not consistent with our review of the consumers’ FAL, CLRA and UCL claim based on
evidence . . ., and we do not require warning labels or fraudulent or misleading health and wellness claims.
disclaimers for other nutrients on the label. Further- However, the consumers must amend their warranty
more, some added sugars can be included as part of and injunctive relief claims.
a healthy dietary pattern.’ Plaintiff is represented by Jack Fitzgerald; de-
“The FDA’s failure to ‘revise its rule’ to adopt fendant by Angel Garganta with Venable.
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BRIEFS
CLASS ACTIONS
Animators Win $168M for Wage Collusion
Robert Nitsch, et al. v. Dreamworks Animation the time of settlement the record was substantially
SKG Inc. 14cv4062 LHK developed and both sides had a clear view of the
risks of continuing litigation.
“Plaintiffs also litigated two motions to dis-
Animators for Dreamworks, Blue Sky, Sony, miss, a motion to compel arbitration and stay pro-
Pixar, Disney and Lucasfilm will receive $168 mil- ceedings, and a motion for class certification. The
lion to settle claims that the big movie studios con- discovery process at the time of the settlements was
spired to suppress their wages. thorough.
In 2014, senior character effects artist Robert “The fourth factor, the experience and views of
Nitsch sued the studios, claiming they colluded to counsel, also supports final approval. Both plaintiffs
fix wages and restrict career opportunities for artists and the settling defendants are represented by com-
by agreeing not to cold call each others’ employees, petent, experienced, and sophisticated counsel, all of
to notify each other when making an offer to an em- whom favor settlement.
ployee, and not to offer higher pay if the current em- “The fifth factor, the presence of a governmen-
ployer made a counteroffer. tal participant, is irrelevant because there is no gov-
Judge Lucy Koh in the Northern District grant- ernmental participant in this action.
ed final approval to the settlement agreement, under “The sixth factor, the reaction of the class
which 10,000 current and former animation workers members to the proposed settlements, strongly sup-
will receive recovery. ports final approval. Out of more than 10,000 class
“Overall, the court finds the settlement agree- members, only five class members have opted out of
ments are fair, adequate, and reasonable in light of the settlements, two class members have objected to
the relevant factors. The first factor, the strength of the settlements, and two non-class members have
the plaintiffs’ case, supports final approval. As this

court has previously held, legal uncertainty favors
The plan of allocation is fair, reasonable,
approval of a settlement.
and adequate. It will provide each class
“The second factor, the risks, expense, com-
plexity, and likely duration of further litigation, also member with a fractional share based
supports final approval. Plaintiffs and the settling upon each class members’ total com-
defendants entered into the settlements before the pensation received during the conspir-
parties filed motions for summary judgment. At the
acy period. In addition, there will be no
time of the settlements, the outcome of the motions
reversion of funds back to DreamWorks
for summary judgment was unknown. If the case
or the Disney defendants
had proceeded to trial, the issues would have been
complex and significant. Through the settlements,
the parties reduced the scope of the ongoing litiga-
tion and lessened the expense and burden of sum- objected
mary judgment and trial. “Five of the six factors that the Ninth Circuit
“The third factor, the extent of discovery com- has outlined favor final approval in this case, and the
pleted and the stage of the proceedings, supports fi- sixth factor is irrelevant. Therefore, the court finds
nal approval. In litigating this action, plaintiffs have the settlement agreements are fair, adequate, and
relied on much of the discovery taken in the related reasonable in light of these factors.
case of In re High-Tech. “The court further finds that the settlement
“Between the discovery completed in High- agreements are in the best interests of the Settle-
Tech and the discovery taken in the instant case, at ment Class, and that notice thereof comports in all
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BRIEFS
respects with the Federal Rules of Civil Procedure DreamWorks or the Disney defendants with preju-
and due process. dice, with each side to bear its own costs and attor-
“The court further finds that the settlement neys’ fees except as provided by the settlements and
agreements are the result of arm’s-length negotia- this court’s orders.
tions between experienced counsel representing the “Class members who did not file with the court
interests of the class and the defendants. According- valid and timely requests for exclusion from the set-
ly, the settlements embodied in the settlement agree- tlement agreements are barred from further prose-
ments are hereby approved in all respects and shall cution of the released claims, and the released par-
be consummated in accordance with their terms and ties are released and forever discharged from liability
provisions. for the released claims.
“The plan of allocation is fair, reasonable, and “This court finds, pursuant to Federal Rules of
adequate. It will provide each class member with a Civil Procedure 54(a) and (b), that this final judg-
fractional share based upon each class members’ to- ment should be entered and that there is no just
tal compensation received during the conspiracy pe- reason for delay in the entry of this final judgment.
riod. In addition, there will be no reversion of funds Accordingly, the clerk is hereby directed to enter
back to DreamWorks or the Disney defendants. judgment immediately pursuant to Federal Rules of
“Upon the Effective Date, and subject to the Civil Procedure 54.”
provisions of Section X of this Final Judgment, the Plaintiff is represented by Daniel Small, Cohen
plaintiffs’ and the class’s claims in the SAC [Sec- Milstein. Defendant is represented by Cody Harris,
ond Amended Complaint] are dismissed as against Keker and Van Nest.
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CIVIL RIGHTS
NAACP Can Proceed Over Vigil Bust-Up
San Diego Branch of National Association for the this action.
Advancement of Colored People, et al. v. County of “In the present case, plaintiffs’ first two declar-
San Diego, et al. 16cv2575 JLS(BGS) atory relief requests are not viable; the police have
already taken the relevant actions, and plaintiffs
A group of protesters in El Cajon, California,
frame their requests as declarations that these past
can move forward with parts of their civil rights ac-
actions were unlawful. And even if the actions were,
tion against law enforcement for breaking up their
it would have little bearing on any future protests,
peaceful vigil.
which would each have to be evaluated anew for le-
On October 1, 2016, four days after police shot
gal compliance at the time of the protest.
and killed an unarmed black man named Alfred
“The crux of plaintiffs’ third request for declar-
Olango, community members gathered to hold a
atory relief is that plaintiffs have a right to engage
candlelight vigil at the parking lot of Los Panchos
in expressive activity at the location of Mr. Olango’s
restaurant where Olango was shot. Sheriff’s depu-
death because the location is a public forum under
ties showed up and dispersed the crowd, arresting
California law.
those who would not leave and tearing down signs.
“But the California Supreme Court recently
Another vigil was held on October 16, where police
held that ‘to be a public forum under our state Con-
again declared that attendees were trespassing.
stitution’s liberty-of-speech provision, an area within
The NAACP, eleven adults and three children
a shopping center must be designed and furnished in
sued the City of El Cajon, The County of San Diego
a way that induces shoppers to congregate for pur-
and its police chief, seeking a temporary restrain-
poses of entertainment, relaxation, or conversation,
ing order to block police from arresting communi-
and not merely to walk to or from a parking area,
ty members and prohibiting gatherings at the site.
or to walk from one store to another, or to view a
Judge Janis Sammartino in the Southern District
store’s merchandise and advertising displays.’ Ralphs
denied the order. The defendants then moved to dis-
Grocery Co. v. United Food & Commercial Workers
miss the underlying civil rights lawsuit. Sammartino
Union Local 8, 290 P.3d 1116, 1121 (Cal. 2012).
grants and denies the motion in part.
“Given the foregoing, the court grants defen-
“Defendants argue that the NAACP is not a
dants’ motions to dismiss plaintiffs’ first cause of ac-
proper party to the action because it fails to allege
tion.
any direct harm and does not meet the requirements
“In the present case, plaintiffs do not dispute
to have ‘associational’ standing. Plaintiff counters
that the vigil location is a private shopping center.
that the NAACP ‘is bringing its claim both with
Indeed, the location appears to be a block-long strip
respect to its own free speech rights as an organi-
mall with centralized parking for several stores and
zation, as well as that of its members[,]’ and argues
restaurants. Plaintiffs do not enjoy absolute First
that ‘[t]he organization has repeatedly been unable
Amendment rights in such a location.
to hold assemblies at the vigil site due to defendants’
“However, the complaint contains a pleading
position that they can bar all expressive activity on
distinction between the October 1 and October 15–
the property.’
16 incidents. Specifically, plaintiffs allege that ‘[o]
“However, the NAACP’s alleged inability to
n Saturday, October 1, 2016, community members
hold assemblies appears nowhere in the complaint,
held a vigil on private land with permission of Los
and thus the NAACP has not adequately alleged di-
Panchos. Given the foregoing, the court dismisses
rect injury. Accordingly, the only question is whether
all of plaintiffs’ First Amendment claims except for
the NAACP meets the requirements for association-
those regarding the October 1, 2016 vigil.
al standing. The court finds that it does not. Given
“Defendants argue that Heck v. Humphrey, 512
the foregoing, the court dismisses the NAACP from
U.S. 477, 487 (1994), and its progeny require either
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dismissal of certain claims or entry of a stay because ity—the California jury instruction for ‘Trespass:
plaintiffs are necessarily ‘challenging the legitimacy Unlawfully Occupying Property.’ In the present
of the charges against them in their state criminal case, there are no allegations that the plaintiffs who
actions but have not alleged those state criminal cas- were arrested for trespassing intended to remain at
es have concluded.’ the vigil site permanently. Accordingly, and in the
“However, Heck held only that “when a state absence of contrary authority, defendants’ argument
prisoner seeks damages in a § 1983 suit, the district here fails.
court must consider whether a judgment in favor of “Given the foregoing, the court grants in part
the plaintiff would necessarily imply the invalidity of defendants’ motions to dismiss and dismisses: (1)
his conviction or sentence; if it would, the complaint Sheriff Gore and the County of San Diego from this
must be dismissed unless the plaintiff can demon- action; (2) Plaintiff NAAACP from this action; (3)
strate that the conviction or sentence has already Plaintiffs’ First Cause of Action; (4) Plaintiffs’
been invalidated.” second cause of action except for those claims
“Given the foregoing, the court cannot at this relating to the October 1, 2016 vigil; (5) Plaintiffs’
time say that Heck and its progeny warrant dismissal fourth cause of action regarding the three children;
of these claims or a stay of this action. and (6) Plaintiffs’ sixth cause of action. Defendants’
“Defendants devote a paragraph to argument motions to dismiss are otherwise denied. Plaintiffs
regarding why the relevant officers had probable are granted leave to amend their complaint.”
cause to arrest the relevant plaintiffs for visiting Plaintiff is represented by Todd Cardiff. Defen-
the vigil site after October 16. This lone paragraph dant is represented by Carrie Mitchell, McDougal
in turn contains only one citation to legal author- Love.
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SANCTIONS
Supposed Prince Song Author Bounced
the relevant works from Prince to NPG Publish-
Rodney Herachio Dixon v. NPG Music Publishing ing. Plaintiff alleges that this recordation somehow
LLC, et al. 5:17cv363 ODW (DTB) caused all 965 of the transferred works to become
‘part of [the] Merc Supertext’ referenced in the pre-
A man who says he wrote all of the late musi- vious paragraph.
cian Prince’s songs in exchange for a billion dollars “Outside of these documents and related alle-
from Prince has no proof to support his copyright gations, the complaint does not otherwise allege any
claim. registration of the works at issue in this action—let
Rodney Herachio Dixon says he granted Prince alone any of the specifics of their registration. There-
a license to the works, which include songs on the fore, the court finds that plaintiff has not met the
Purple Rain, Around the World in Day, Sign O’ The registration prerequisite for filing an infringement
Times, and Emancipation albums, to Prince in 1982 claim and grants defendants’ motion to dismiss as
in exchange for a million dollars. He then extended to plaintiff’s first cause of action. As there is no in-
it for nine years in exchange for one billion dollars dication that plaintiff can remedy this deficiency, the
payable in 1994. Dixon claims that in 1995, he ex- dismissal is without leave to amend.
tended that license for the remainder of Prince’s life, “Defendants argue that plaintiff’s breach of
receiving one dollar as consideration from Prince’s contract claim and intentional inference with con-
lawyer Jerry Edelstein. The license terminated when tract claims are precluded by the doctrine of res judi-
Prince died on April 21, 2016. cata based on the Minnesota court’s August 29, 2016
On April 4, 2014, Prince transferred the pub- decision.
lishing rights to 965 of his songs to NPG Publishing, “Plaintiff’s sole argument in opposition is that
a company he managed. Dixon claims NPG has been the Minnesota court considered only the 1982 li-
copying and selling the songs without his permis-

sion, and has filed a number of lawsuits to recover
For instance, one of plaintiff’s declara-
his billion dollars, the first being in 1994, then lat-
tions indicates that he is ‘Pharaoh of the
er in 2016 in Prince’s home state of Minnesota. The
Minnesota court found Dixon failed to show that he World,’ includes lengthy biblical pur-
ever had a licensing agreement with Prince. suing a parallel petition to ‘change his
Dixon filed the present action on February 24,
name from Rameses America Mercury
2017 for copyright infringement and breach of con-
to Love.’ another of his declarations
tract, and defendants moved to dismiss.
from the 1994 action, plaintiff refers
Judge Otis Wright in the Central District dis-
missed the action, and granted defendants’ motion to himself as a ‘son of God’ and quotes
to declare Dixon a vexatious litigant. biblical passages without any mention
“In an attempt to establish the requisite reg- whatsoever of facts pertinent to the
istration, plaintiff has attached several documents
case.
from the United States Copyright Office to his com-
plaint. One of these documents is a registration for
‘Rameses XII; Merc [S]upertext; a handy manual censing agreement, which was not supported by ad-
for the serious student of spirituality’ by Rameses equate consideration and not the 1995 agreement,
America Mercury. which was supported by adequate consideration in
“However, this registration does not reference rendering its decision. Plaintiff misreads the Minne-
any of the works at issue in this action. The other sota court’s decision.
Copyright Office documents plaintiff has attached “Rather than viewing each successive licensing
to the complaint relate to the February 4, 2016 re- agreement as separate, the Minnesota court appears
cordation of an April 4, 2014 transfer of rights for to have analyzed the successive agreements together
© Copyright 2017 Four Districts Alamanac 9 February 20, 2017 Vol XXVI No. 22
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as part of a larger agreement that was ‘consummated’ ‘change his name from Rameses America Mercury
in 1995. to Love.’ another of his declarations from the 1994
“The court also notes that the portion of [lain- action, plaintiff refers to himself as a ‘son of God’
tiff’s argument relating to consideration is mislead- and quotes biblical passages without any mention
ing. Plaintiff’s Minnesota petition does not appear to whatsoever of facts pertinent to the case.
have contained the allegation about receiving con- “After reviewing plaintiff’s submissions, the
sideration from Jerry Edelstein that the court finds much of their content irrelevant, if not
present pleadings now contain. Therefore, deeply troubling. The content of plaintiff’s submis-
the Minnesota court was correct in stating that the sions weighs in favor of deeming plaintiff a vexatious
agreement or agreements (depending on how one litigant.
views them) were not supported by adequate con- “After reviewing the papers submitted in sup-
sideration. port of this motion and all relevant evidence, the
“Finding that the four elements of res judica- court finds that there is an extensive record on which
ta are met for the reasons described by defendants, to base a vexatious litigant finding. The court also
and finding plaintiff’s argument unavailing, the finds that the bizarre statements made by
court holds that plaintiff’s breach of contract claim plaintiff and the repetitive quality of the suc-
is barred by the doctrine of res judicata. cessive actions provide a strong substantive founda-
“A court may consider the content of a party’s tion for such a finding.
submissions in making a vexatious litigant determi- “In light of the foregoing, the court grants de-
nation. As defendants point out, plaintiff’s submis- fendants’ motion to dismiss without leave to amend
sions have at times left behind reality in addition to and grants defendants’ motion to deem plaintiff a
sound legal theory. vexatious litigant.”
“For instance, one of plaintiff’s declarations Plaintiff is pro se. Defendant is represented by
indicates that he is ‘Pharaoh of the World,’ includes Oscar Ramallo, Anold & Porter.
lengthy biblical pursuing a parallel petition to
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