Saturday, July 23, 2011

Only in America... and only in higher ed: weird lawsuits

Standford University sued for teaching the wave theory of light:

United States District Court, N.D. California,
San Jose Division.
Ben ITO, Plaintiff(s),

No. 5:10–cv–04750 EJD.
Docket Item Nos. 53, 58.
July 18, 2011.

Ben Ito, Arcata, CA, pro se.

Alice Kwong Ma Hayashi, Quinn Allen Arntsen, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, for Defendant.

EDWARD J. DAVILA, District Judge.
*1 In a First Amended Complaint (“FAC”), Plaintiff Ben Ito (“Ito”) alleges that Defendant Stanford University (“Stanford”) committed Major Fraud Against the United States in violation of U.S.C. § 1031. This is Ito's second attempt to plead an appropriate cause of action against Stanford. His first complaint was dismissed by the Court for lack of standing. See Docket Item No. 51. Stanford again moves to dismiss the FAC for lack of standing. Ito did not file an opposition to this motion, nor did he appear at the hearing on July 15, 2011. For the reasons stated below, the motion to dismiss will be granted. FN1

FN1. This disposition is not intended for publication in the official reports.

Ito alleges that Stanford is falsely representing the wave theory of light as valid, specifically, he claims that Stanford is “[s]cheming to justify the wave theory of light, using wave theory to represent matter ....” Complaint at ¶ 5. He also claims that Stanford has obtained federal grants based on those false representations. Id. Furthermore, Ito states that due to Stanford's support of the wave theory of light, he has suffered financial damages in the amount of $80,000. Id. at ¶ 20.

On January 24, 2011, Stanford filed a Motion to Dismiss for failure to plead standing and failure to state a claim upon which relief can be granted. On February 23, 2011, the court granted the motion with leave to amend. Ito filed an amended complaint on February 24, 2011. Stanford then filed the instant motion pursuant to Rule 12(b)(1), and in the alternative, Rule 12(b)(6) on May 2, 2011.

A party can file a motion to dismiss with the Court for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence. Id. When a defendant makes a facial challenge, all material allegations in the complaint are assumed true, and the court must determine whether lack of federal jurisdiction appears from the face of the complaint itself. Thornhill Publ'g Co. v. General Tel. Elec., 594 F.2d 730, 733 (9th Cir.1979).

On a factual challenge, the party opposing the motion must produce affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Under a factual attack, the court need not presume the plaintiff's allegations as true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); accord Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). In the absence of a full-fledged evidentiary hearing, however, disputed facts pertinent to subject matter jurisdiction are viewed in the light most favorable to the nonmoving party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996). The disputed facts related to subject matter should be treated as they would in a motion for summary judgment. Id.

*2 Leave to amend should be freely granted “unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000); Fed.R.Civ.P. 15(a). Where amendment to the complaint would be futile, the court may order dismissal with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir.1996).

The issue here is standing. A party invoking federal jurisdiction must establish that he has the requisite standing to sue before the Court may entertain the merits of his claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing ensures that regardless of the merits of a claim, a suit is brought by the proper party. Arakaki v. Lingle, 477 F.3d 1048, 1059 (9th Cir.2007).

The Major Fraud Act creates a private right of action for any individual who is discharged, demoted, threatened, or otherwise discriminated against “[i]n the terms and conditions of employment by an employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of a prosecution under this sectio[n]” and did not participate in the unlawful activity that is the subject of said prosecution. 18 U.S.C. § 1031(h). Therefore, to have standing to sue under § 1031, an individual must allege that: (1) he was an employee of the Defendant, and (2) Defendant took adverse employment action against him. See Id.

In the instant case, Ito does not allege either of the necessary elements for standing to sue under the Major Fraud Act. First, Ito fails to plead facts demonstrating that he is now, or has ever been, an employee of Stanford University. This alone is fatal to his claim. But nonetheless looking at the second element, Ito alleges that Defendant's support of the wave theory of light harmed him in the amount of $80,000; however, he does demonstrate the type of concrete injury required by the Act. Since he was never an employee, it is axiomatic that he will never be able to plead, let alone prove, an appropriate injury. Thus, Ito lacks standing to bring this action. For these reasons, as before, the complaint must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

The court previously afforded Ito the opportunity to amend his complaint and plead facts supporting his employment with Stanford and to show a concrete injury, yet he has failed to do so. Ito submitted an amended complaint largely identical to his original complaint and did not file an opposition to Stanford's Motion to Dismiss. In this regard, Plaintiff did not heed the court's warning that persistence in asserting claims which do not rest on any non-frivolous legal basis could be grounds for sanctions. It does not appear that Ito will be able to amend his complaint to cure the deficiency. Therefore, the Court finds it appropriate to dismiss the complaint without leave to amend.

*3 Based on the foregoing, Defendant's Motion to Dismiss is GRANTED without leave to amend. This order effectively terminates this case. The clerk shall therefore close this file.


Ito v. Stanford University
Slip Copy, 2011 WL 2847433 (N.D.Cal.)

Last week John F. Banzhaf III, a law professor at George Washington University, filed a complaint with the District of Columbia Office of Human Rights, charging that the new policy violates Washington’s Human Rights Act because it amounts to sex discrimination in housing.

University of Texas sues Ryan O'Neal over portrait of Farah Fawcett by Andy Warhol:

United States District Court, C.D. California,
Western Division.
Ryan O'NEAL, Defendant.
No. CV 11-05636GAF (JENMX).
July 8, 2011.

Jury Trial Demanded

Complaint for Conversion and Constructive Trust; Request Injunctive Relief

Charles E. Patterson (Ca SBN 120081),, Brian F. Mcmahon (Ca SBN 235373),, Morrison & Foerster LLP, 555 West 5 Street, Suite 3500, Los Angeles, California 90013-1024, Telephone: 213.892.5200, Facsimile: 213.892.5454, (Co-Counsel Continued on Last Page), Attorneys for Plaintiff, the Board of Regents for the University of Texas System on Behalf of the University of Texas at Austin.

Plaintiff, The Board of Regents for the University of Texas System on behalf of The University of Texas at Austin, files this Complaint for Conversion and Constructive Trust and requests injunctive relief against Defendant Ryan O'Neal, and would respectfully show, based on information and belief and otherwise, as follows:


1. The Board of Regents for The University of Texas System is the governing body of the University of Texas System, whose principal office and place of business is in Austin, Texas. The Board of Regents is authorized under the Texas Education Code to accept gifts on behalf of its member institutions, including The University of Texas at Austin. TEX. EDUC. CODE §65.31(e). Accordingly, this lawsuit is brought by The Board of Regents on behalf of The University of Texas at Austin (“UT Austin”).

2. Ryan O'Neal is a citizen and resident of the State of California. Upon information and belief, Mr. O'Neal currently resides at 21368 Pacific Coast Highway, Malibu, California, 90265. Mr. O'Neal may be served with process at 21368 Pacific Coast Highway, Malibu, California, 90265.


3. This Court has jurisdiction over this matter under 28 U.S.C. § 1332, because the matter in controversy is between a citizen of the State of Texas and a citizen of the State of California. The amount in controversy also exceeds $75,000.

4. This Court has personal jurisdiction over Mr. O'Neal, as he resides in California, and as the property at issue in this lawsuit is believed to be located in California.

5. Venue is proper in this district, because a substantial part of the events or omissions on which the claim is based occurred in Los Angeles area.


6. Farrah Fawcett was a film, television, and stage actress whose career in show business spanned over 30 years. She was also a native Texan who attended The University of Texas at Austin in the 1960s. During Ms. Fawcett's years as a student, she was discovered by a publicist which prompted her to move to California. Ms. Fawcett went on to appear in many television advertisements, television shows, and films. For example, Ms. Fawcett first appeared on the television show “Charlie's Angels” in 1976, and continued to frequently appear on screen and on stage for decades until the several years before her passing in 2009.

7. In the early 1980s, Fawcett was the subject of two famous portraits created by the artist Andy Warhol. Mr. Warhol gave those two portraits (hereinafter, the “Warhol Portraits”) to Ms. Fawcett as a gift. Ms. Fawcett owned the Warhol Portraits for almost three decades until her death on June 25, 2009. Ms. Fawcett obtained insurance and paid the premiums for that insurance on the Warhol Portraits, and publicly and privately represented that the portraits belonged to her. Several years before her death, Ms. Fawcett allowed the Warhol Portraits to be displayed side by side in an art exhibition at the Los Angeles County Art Museum - which is believed to be the only time these portraits were on public display. The Warhol Portraits are estimated to have substantial value. The enduring value and public interest in the Warhol Portraits is a testament not only to Mr. Warhol's talent and artistry, but also to Ms. Fawcett's status as a cultural icon.

8. During her lifetime, Ms. Fawcett created the Fawcett Living Trust, an instrument that would govern the distribution of certain assets at her death that were not covered by her Will. In the Fawcett Living Trust, Ms. Fawcett left all of her artwork and objects of art to UT Austin. The specific trust language pertaining to Ms. Fawcett's artwork in the Fawcett Living Trust is as follows:

Subject to any contrary disposition by Settlor pursuant to Paragraph 6.2(a) above, upon the death of Settlor, all of Settlor's artwork and any objects of art shall be distributed, outright and free of trust, to the University of Texas at Austin, Austin, Texas, for its general charitable purposes.

There are no contrary dispositions of the artwork in Ms. Fawcett's Estate other than the disposition in the Fawcett Living Trust.

9. Ms. Fawcett passed away on June 25, 2009, following an extended hospitalization and treatment for cancer. After her death, UT Austin received only one of Ms. Fawcett's Warhol Portraits. Thereafter, UT Austin discovered that Mr. O'Neal had taken possession of the missing portrait.

10. Mr. O'Neal has wrongfully converted the missing Warhol portrait that belongs to UT Austin. On information and belief, Mr. O'Neal may have converted other works of art from Ms. Fawcett's collection that rightfully belong to UT Austin. Mr. O'Neal was not included in Ms. Fawcett's Will, nor in the Fawcett Living Trust, and Ms. Fawcett's express wishes as stated in the Fawcett Living Trust have been thwarted by such conversion. UT Austin files this lawsuit to recover the missing portrait that Ms. Fawcett left to her alma mater.


11. Paragraphs 1 through 10 are incorporated by reference.

12. By virtue of the disposition of “all” of Ms. Fawcett's artwork and objects of art in the Fawcett Living Trust, UT Austin is the outright owner of all title and interest in the Warhol Portraits. On information and belief, Mr. O'Neal wrongfully converted one of the Warhol Portraits. UT Austin has suffered substantial damages as a result of Mr. O'Neal's conversion of its property, in an amount exceeding $1,000,000.

13. UT Austin also requests that the Court impose a constructive trust on the Warhol portrait in Mr. O'Neal's possession and compel the transfer of the Warhol portrait to UT Austin. Alternatively, UT Austin seeks damages equivalent to the monetary value of the Warhol portrait that has been converted by Mr. O'Neal.

14. In addition to these remedies, pursuant to California Civil Code § 3336, UT Austin seeks compensation for the time and money properly expended in pursuit of the property.

15. In the event that a finder of fact determines that Mr. O'Neal intentionally took the Warhol portrait, and did so with malice, exemplary damages are properly awardable in this case pursuant to California Civil Code §3294(a).


16. UT Austin also requests injunctive relief from the Court, pursuant to Fed. R. Civ. P. 65, requiring Mr. O'Neal to maintain the Warhol portrait in a safe and secure location, and maintain sufficient insurance on the portrait, pending the outcome of this case. UT Austin is likely to prevail on the merits, and seeks injunctive relief to avoid any sale, loss, damage, or other disposal of the Warhol portrait. The Warhol portrait is an irreplaceable piece of art for which legal damages could not fully compensate UT Austin if the portrait is lost or damaged during the pendency of this dispute. Injunctive relief is proper to avoid such irreparable harm.


17. UT Austin demands a trial by jury on all issues so triable and tenders the appropriate fee.


For these reasons, UT Austin asks that Ryan O'Neal be cited to appear and answer, and that the above-requested injunctive relief be granted, and that following a trial of this matter, judgment be entered against Ryan O'Neal for the following:

(i) The imposition of a constructive trust on the Warhol portrait, and an Order compelling Mr. O'Neal to transfer the Warhol portrait in his possession to its rightful owner, UT Austin;

(ii) Actual damages in an amount in excess of the jurisdictional minimum of this Court;

(iii) Exemplary damages, if applicable, in an amount determined by the trier of fact;

(iv) Pre- and post-judgment interest at the maximum rate allowable by law;

(v) Attorneys' fees; and

(vi) Costs of court.

UT Austin also requests all other and further relief to which it may show itself to be justly entitled.

Additional Counsel:

DAVID J. BECK (TX SBN 00000070) ( Application for Pro Hac Admission Forthcoming)


1221 McKinney Street, Suite 4500

Houston, TX 77010-2010

Telephone: (713) 951-3700

ERIC J.R. NICHOLS (TX SBN 14994500) ( Application for Pro Hac Admission Forthcoming)

TIMOTHY CLEVELAND (TX SBN 24055318) ( Application for Pro Hac Admission Forthcoming)


515 Congress Avenue, Suite 1750

Austin, TX 78701

Telephone: (512) 708-1000

Facsimile: (512) 708-1002

Dated: July 8, 2011




By: <>

Charles E. Patterson






David J. Beck

Attorneys for Plaintiff

The Board Of Regents For The University

Of Texas System On Behalf Of The

University Of Texas At Austin

Dated: July 8, 2011


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