BACKGROUND

On December 11, 2014, Plaintiff, proceeding pro se, filed a complaint alleging three causes of action, including violation of the California Invasion of Privacy Act (“CIPA”) (Cal. Penal Code § 630, et. seq.), conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”) (18 U.S.C. § 1962(d)), and the Telephone Consumer Protection Act (“TCPA”) (47 U.S.C. § 227) (Doc. No. 1).[1] Plaintiff’s claims arise from allegations that Defendants sent threatening text messages, unlawfully recorded telephone conversations, and impermissibly contacted Plaintiff in violation of the Do Not Call Registry. (See id.) On January 6, 2015, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). (Doc. No. 3.) Much of Defendants' motion challenges whether federal jurisdiction exists as to Plaintiff’s RICO and TCPA claims, and urges the Court to decline to exercise supplemental jurisdiction over Plaintiff’s state law CIPA claim. (Doc. No. 3-1, p. 6.) Defendants also challenge whether Plaintiff has stated a claim upon which relief may be granted as to each cause of action. (Id. p. 7-11) On January 8, 2015, Plaintiff filed an opposition to the motion to dismiss. (Doc. No. 8.) Defendants did not file a reply brief. On January 29, 2015, Plaintiff filed a motion for sanctions against Defendant Every Data, Inc. and its counsel of record. (Doc. No. 11.) Defendants filed an opposition to the motion for sanctions on February 13, 2015. (Doc. No. 14.) The facts as alleged in Plaintiff’s complaint are set forth below and taken as true for the limited purpose of ruling on Defendants' motion to dismiss. See Parks School of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

FACTUAL ALLEGATIONS

Beginning on November 21, 2014, Defendant Phillip A. Flora (“Flora”) allegedly sent a series of threatening text messages to Plaintiff. (Doc. No. 1, ¶ 2.) On the same date, Tim McCormack and Defendant Finance Store Inc.,[2] or one of its employees, agents or contractors, called Plaintiff on his personal cellular telephone, which Plaintiff had previously registered on the Do Not Call list. (Id. ¶ 4.) During the telephone calls by Defendants to Plaintiff, Tim McCormack allegedly threatened that Flora would use his computer and internet knowledge to publish false and defamatory web pages about Plaintiff to ruin Plaintiff’s reputation. (Id. ¶ 4.) Plaintiff also alleges that a man named Trey Sublette or his agent, who identified himself as “Charles Tran,” engaged in extortionate threats against Plaintiff and placed Plaintiff in fear for his safety. (Id. ¶ 4.)

*2 Plaintiff claims that Defendants[3] manage five domestic and international call centers at which Defendants use automated telephone dialing systems and recording devices to record telephone calls with Plaintiff and other California residents. (Id. ¶¶ 5-6.) Plaintiff claims that on November 21, 2014, Defendants allegedly called Plaintiff and engaged in confidential communications with Plaintiff, during which Plaintiff was not advised that the calls might be recorded by Defendants. (Id. ¶ 15.) Plaintiff claims that due to the sensitive nature of the personal and confidential information being discussed during the telephone calls, Plaintiff had an objectively reasonable expectation of privacy. (Id. ¶ 15.) Plaintiff alleges that Defendants continue to monitor and record telephone calls to California residents, and that during the relevant period Defendants recorded thousands of telephone calls with individuals in California, including Plaintiff.[4] (Id. ¶ 7.)

DEFENDANTS' MOTION TO DISMISS

I. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “A court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (internal citation omitted). However, a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. A “motion to dismiss is not the appropriate procedural vehicle to test the merits of Plaintiff’s complaint.” Walker v. City of Fresno, No. 1:09-cv-1667, 2010 WL 3341861, at *4 (E.D. Cal. Aug. 23, 2010) (citing Navarro, 250 F.3d at 732).

With respect to pro se pleadings, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]’ ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal citations omitted); Silva v. DiVittorio, 658 F.3d 1090, 1101 (9th Cir. 2011). That Plaintiff is proceeding pro se does not relieve Defendants of the burden to show that dismissal is appropriate. SeeAbbey v. Hawaii Employers Mutual Ins. Co., No. 09-000545, 2010 WL 4273111, at *4 (D. Hawaii Oct. 22, 2010) (stating that although the pro se complaint “is not a model of clarity,” the defendant bears the burden of persuading the court that dismissal is warranted). Further, in the Ninth Circuit, “before a District Court may dismiss a pro se complaint for failure to state a claim, the Court must provide the pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds, 104 F.3d 1133, 1136 (9th Cir. 1997).

II. DISCUSSION

A. Federal Question Jurisdiction

*3 As part of its motion to dismiss, Defendants challenge the jurisdictional allegations in Plaintiff’s complaint and assert that federal subject matter jurisdiction is lacking with respect to Plaintiff’s claims under the TCPA and RICO. Specifically, Defendants argue that “Plaintiff’s complaint fails to allege cognizable grounds for federal question jurisdiction.” (Doc. No. 3-1, p. 3.) Defendants cite to the case of Murphey v. Lanier, for the proposition that federal courts do not have jurisdiction to hear TCPA claims. (Doc. No. 3-1, p. 5); see Murphey v. Lanier, 997 F. Supp. 1348 (S.D. Cal. 1998) aff'd, 204 F.3d 911 (9th Cir. 2000). Further, Defendants contend the Court may decline to exercise federal jurisdiction over Plaintiff’s RICO claim, and thus the Court should dismiss Plaintiff’s complaint with prejudice. (Doc. No. 3-1, p. 5.)

Federal courts are courts of limited subject matter jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). The Supreme Court has emphasized that district courts have an independent obligation to address subject matter jurisdiction sua sponte. Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 593 (2004) (quoting United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 972 (E.D. Cal. 2004)). However, as Plaintiff notes in his opposition, the Supreme Court case of Mims v. Arrow Fin. Servs., LLC, addressed the former split among circuit courts regarding whether state courts have exclusive jurisdiction over private actions brought under the TCPA. Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 747 (2012). Finding in favor of federal jurisdiction over private TCPA claims, the Supreme Court noted that federal jurisdiction for claims arising under federal law, such as the TCPA, “endures unless Congress divests federal courts of their § 1331 adjudicating authority.” Id. at 749. Mimsremains the relevant and controlling law to-date, and as such, the Court has jurisdiction to hear Plaintiff’s TCPA claim.

Defendants also argue that the Court should “decline to exercise federal jurisdiction over Plaintiff’s poorly pleaded RICO claim” and “for these reasons alone” should dismiss Plaintiff’s complaint with prejudice. (Doc. No. 3-1, p. 5.) With respect to subject matter jurisdiction, regardless of whether Plaintiff’s RICO claim is properly pleaded, federal district courts have concurrent jurisdiction with state courts over RICO claims. See Tafflin v. Levitt, 493 U.S. 455, 467 (1989) (holding that state courts have concurrent jurisdiction to consider civil claims arising under RICO). The grant of concurrent jurisdiction over RICO claims to state courts does not divest a federal court of jurisdiction. Thus, although Defendants appear to challenge the pleading of Plaintiff’s RICO claim, Defendants' contention that Plaintiff’s complaint fails to allege cognizable grounds for federal question jurisdiction as to the RICO and TCPA claims is incorrect. Similarly, Defendants' challenge to the Court’s exercise of supplemental jurisdiction over Plaintiff’s CIPA claim is premised on the incorrect assumption that there is no independent basis for federal jurisdiction. (Doc. No. 3-1, p. 7.) However, since federal question jurisdiction exists and permits the Court to hear Plaintiff’s TCPA and RICO claims, the exercise of supplemental jurisdiction over Plaintiff’s CIPA claim is appropriate at this stage. Having confirmed the authority to hear Plaintiff’s claims, the Court now considers whether Plaintiff has adequately pleaded claims for violation of the TCPA, RICO, and CIPA.

B. California Invasion of Privacy Act

Plaintiff’s first cause of action is for violation of the CIPA, as set forth in California Penal Code section 630, et seq. CIPA is California’s anti-wiretapping and anti-eavesdropping statute and is designed “to protect the right of privacy.” Cal. Penal Code § 630. The Act provides for a civil action for damages based on violations of section 632 which prohibits recording a “confidential communication” “intentionally and without the consent of all of the parties.” Id.; Cal. Penal Code § 637.2(a) (“Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation.”). To state a claim for violation of section 632, the three elements that a plaintiff must plead are “(1) an electronic recording of (or eavesdropping on); (2) a ‘confidential’ communication; [where] (3) all parties did not consent.” Weiner v. ARS Nat'l Servs., Inc., 887 F. Supp. 2d 1029, 1032 (S.D. Cal. 2012) (citing Flanagan v. Flanagan, 27 Cal. 4th 766, 774-76 (2002)); see also Stoba v. Saveology.com, LLC, No. 13CV2925, 2014 WL 3573404, at *3 (S.D. Cal. July 18, 2014). Section 632(c) defines a “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” Cal. Penal Code § 632(c). Excluded from protection are communications in “circumstance[s] in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Roberts v. Wyndham Int'l, Inc., No. 12CV5083, 2012 WL 6001459, at *5 (N.D. Cal. Nov. 30, 2012); Cal. Penal Code § 632(c).

*4 Defendants argue that Plaintiff’s claim for violation of section 632 fails because Plaintiff’s complaint lacks specificity as to what confidential or personal circumstances and affairs were discussed with Defendants, and that the allegations are otherwise conclusory in nature. (Doc. No. 3-1, p. 8.) Plaintiff’s reply in opposition does not appear to address the CIPA claim individually, and instead reasserts many of the same facts set forth in the complaint. (See generally Doc. No. 8.)

Plaintiff’s complaint alleges that Defendants recorded telephone conversations with Plaintiff on several occasions, (Doc. No. 1, ¶¶ 16, 23), and that Plaintiff did not consent to the recording (Id. ¶¶ 17, 30). Plaintiff also alleges that due to the personal and financial nature of the conversations with Defendants, Plaintiff had a reasonable expectation of privacy. (Id. ¶ 28.) Although Plaintiff does not state in detail the nature of the conversations, such specificity regarding the alleged confidential communication is not necessary. In interpreting CIPA, the California Supreme Court has held that “a conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan, 27 Cal. 4th at 777; see also Mirkarimi v. Nevada Prop. 1 LLC, No. 12CV2160, 2013 WL 3761530, at *2 (S.D. Cal. July 15, 2013). As Plaintiff alleges that he had a reasonable expectation of privacy regarding the communications with Defendants, and additionally supports his claim with numerous allegations regarding the recording of telephone calls without Plaintiff’s permission, Plaintiff has adequately stated a CIPA claim. Defendants' motion to dismiss Plaintiff’s CIPA claim is DENIED.

C. RICO Violation and Conspiracy

Plaintiff’s second cause of action is for “RICO Conspiracy 18 U.S.C. § 1964(c).” (Doc. No. 1, p. 17.) Section 1964(c) governs civil remedies associated with RICO violations, not conspiracy to commit RICO. See 18 U.S.C. § 1964. Plaintiff, however, references and appears to allege violations of section 1962(c) and (d), RICO violation and RICO conspiracy.[5]Accordingly, the Court will evaluate whether Plaintiff has stated a claim under 18 U.S.C. section 1962(c) or (d). McCabe v. Arave, 827 F.2d 634, 640 n.6 (9th Cir. 1987) (“[C]ourts are to make reasonable allowances for pro se litigants and to read pro se papers liberally.”).

To state a claim for a RICO violation under section 1962(c) a plaintiff must allege: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996); Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). An “enterprise” in the text of RICO is fairly straightforward and not demanding, Odom v. Microsoft Corp., 486 F.3d, 541, 548 (9th Cir. 2007), and includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “Racketeering activity” is any act indictable under the several provisions of Title 18 of the United States Code. 18 U.S.C. § 1961(1); Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004). A “pattern of racketeering activity” requires at least two predicate acts. Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9th Cir. 2008) (internal citations omitted).

*5 Defendants challenge Plaintiff’s RICO allegations as being conclusory in nature, failing to establish a pattern of racketeering activity, and failing to plead “how [Plaintiff’s] business or property was purportedly injured.” (Doc. No. 3-1, p. 9-10.) Plaintiff’s opposition reasserts many of the same allegations regarding the RICO claim found in his complaint. (See Doc. No. 8.) Plaintiff argues that pleading a RICO violation does not require proof of injury. (Doc. No. 8, ¶ 30.) Plaintiff’s opposition also cites to a myriad of new facts including previous cases between the parties, alleged violations of the Do Not Call Registry, and citations to various provisions of the federal criminal code.[6] (See Doc. No. 8, ¶¶ 19-22.) Considering the allegations in Plaintiff’s complaint, even given the liberal interpretation afforded to pro se pleadings, the Court finds Plaintiff has failed to state a claim for either RICO violation or RICO conspiracy.

To support his claims for RICO violation and RICO conspiracy, Plaintiff alleges that Defendants engaged in predicate acts of wire fraud and money laundering, but fails to allege any facts specific to these allegations. (SeeDoc. No. 1, ¶ 46.) Although Plaintiff states that Defendants engaged in wire fraud, and cites to various provisions of Title 18, Plaintiff does not support these allegations with sufficient factual context to plead a RICO violation. To the extent Plaintiff’s RICO violation claim is predicated on wire fraud, that claim must be pleaded with the specificity required by Federal Rule of Civil Procedure 9(b). Edwards v. Marin Park. Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004) (stating that Rule 9(b) applies equally to civil RICO claims and that the plaintiff must state with particularity the circumstances constituting the fraud); Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (dismissing RICO claims because predicate acts of mail and wire fraud were not pleaded with the specificity required by Rule 9(b)). Allegations of wire fraud must identify the time, place, and manner of each fraud plus the role of each defendant in each scheme. Schreiber Distrib. Co., v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986). It is unclear from Plaintiff’s complaint the time, place, and manner of each instance of wire fraud. It is also unclear from Plaintiff’s complaint precisely which acts Plaintiff alleges constitute the predicate RICO violations. For example, Plaintiff’s complaint references money laundering and extortion, which also can serve as predicate violations, but the complaint lacks factual allegations regarding these acts. Additionally, Plaintiff’s opposition cites to several Title 18 code sections that are not referenced in the complaint. Mere reference to a variety of potential predicate acts is insufficient, even under the more liberal pleading standards afforded to pro se litigants, to adequately plead a RICO violation. Accordingly, Plaintiff has failed to plead a RICO violation under section 1962(c).

As Plaintiff has failed to adequately plead a RICO violation, Plaintiff’s cause of action for RICO conspiracy also fails. To establish a RICO conspiracy under section 1962(d), a plaintiff must allege either an agreement that is a substantive violation of RICO or that the defendants agreed to commit, or participated in, a violation of two predicate offenses.” Howard v. America Online, Inc., 208 F.3d 741, 751 (9th Cir. 2000); see also Baumer v. Pachl, 8 F.3d 1341, 1346 (9th Cir. 1993). The failure to adequately plead a substantive violation of RICO precludes a claim for conspiracy. Howard, 208 F.3d at 751. Here, because Plaintiff has failed to adequately plead the predicate offense of wire fraud, or any other potential predicate act, Plaintiff’s conspiracy claim also fails. Further, to adequately allege a claim of RICO conspiracy, Plaintiff must allege that the defendants knew about and agreed to facilitate conduct that violated RICO. Id.; Baumer, 8 F.3d at 1346-47 (“A RICO conspiracy requires the assent of each defendant who is charged, although it is not necessary that each conspirator knows all of the details of the plan or conspiracy.”). As currently pleaded, Plaintiff’s complaint also lacks sufficient facts from which the Court can conclude that Defendants knew about and agreed to facilitate conduct that violates RICO. Thus, the allegations in Plaintiff’s complaint fail to state a claim for RICO conspiracy. Defendants' motion to dismiss the RICO claims asserted in Plaintiff’s complaint is GRANTED WITH LEAVE TO AMEND.

D. Telephone Consumer Protection Act

*6 Plaintiff’s third cause of action is based on 47 U.S.C. section 227, which makes it unlawful to use an automatic telephone dialing system (“ATDS”) without the prior express consent of the called party, to call any cellular telephone. Mims, 132 S. Ct. at 745; see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). To sufficiently allege a violation of the TCPA, Plaintiff must plead two elements: (1) a call to a cellular telephone; (2) via an ATDS. Robbins v. Coca Cola Co., No. 13CV132, 2013 WL 2252646, at *2 (S.D. Cal. May 22, 2013). Whether a plaintiff consented to the telephone calls is not an element of a prima facie case, but instead is an affirmative defense to be raised and proved by a defendant. Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364, at *3 (S.D. Cal. June 11, 2012); Robbins, 2013 WL 2252646, at *2.

Defendants argue that Plaintiff’s TCPA allegations are conclusory and that Plaintiff fails to acknowledge “that Defendants only engage in contacting numbers that are gathered by publicly available business information, as opposed to privately collected data and information.” (Doc. No. 3-1, p. 10.) Defendants' challenges are not well-taken, particularly at this stage in the proceedings.

Defendants are reminded that a motion to dismiss is not a vehicle through which to challenge the truthfulness of Plaintiff’s allegations.[7] Throughout the complaint, Plaintiff alleges that Defendants used an ATDS to make calls to Plaintiff’s cellular telephone. (Doc. No. 1, ¶ 21-23.) In addition to the direct allegation of ATDS use, Plaintiff alleges thousands of calls were made by Defendants, (Doc. No. 1, ¶ 21), which makes use of an ATDS a reasonable inference. See Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174, 2013 WL 3776927, at *2-3 (S.D. Cal. July 16, 2013) (“Alleging the use of either an ATDS or an artificial or prerecorded voice would suffice[.]”); Robbins, 2013 WL 2252646, at *2 (allegations, though indirect, suffice when reasonable inference of ATDS use can be drawn). Evaluating Plaintiff’s complaint as a whole, the Court finds Plaintiff has sufficiently stated a claim for violation of the TCPA. Defendants' motion to dismiss Plaintiff’s TCPA claim is DENIED.

PLAINTIFF'S MOTION FOR RULE 11 SANCTIONS

I. LEGAL STANDARD

“Rule 11 is intended to deter baseless filings in district court and imposes a duty of reasonable inquiry so that anything filed with the court is well grounded in fact, legally tenable, and not interposed for any improper purpose.” Islamic Shura Council of S. California v. F.B.I., 757 F.3d 870, 872 (9th Cir. 2014) (internal quotation marks omitted). Rule 11 authorizes sanctions when a party files a lawsuit or motion that is frivolous, legally unreasonable, without factual foundation, or is otherwise brought for an improper purpose. Warren v. Guelker, 29 F.3d 1386, 1388 (9th Cir. 1994). When one party seeks sanctions against another, the Court must first determine whether any provision of Rule 11(b) has been violated. Id. at 1389. A finding of subjective bad faith is not required under Rule 11. Smith v. Ricks, 31 F.3d 1478, 1488 (9th Cir. 1994) (“Counsel can no longer avoid the sting of Rule 11 sanctions by operating under the guise of a pure heart and empty head.”). Instead, the question is whether, at the time the paper was presented to the Court, or later defended, it lacked evidentiary support or contained frivolous legal arguments. See Fed. R. Civ. P. 11(b).

II. DISCUSSION

*7 On January 29, 2015, Plaintiff filed a motion for sanctions against Defendant Every Data, Inc. and defense counsel, Babak Samini. Plaintiff enumerates several reasons, and points to a variety of allegations, in support of sanctions against Defendant Every Data, Inc. and its counsel. In opposition, Defendants argue that Plaintiff’s motion for sanctions failed to comply with Rule 11’s safe harbor provision, which requires service of the motion 21 days prior to filing. See Fed. R. Civ. P. 11(c)(2). This “safe harbor” gives the party subject to the Rule 11 motion 21 days to withdraw the offending pleading and thereby escape sanctions. See Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998). The safe harbor period proscribed by Rule 11is mandatory, and an absolute prerequisite to a motion for sanctions brought by any party. Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 789 (9th Cir. 2001).

In his motion for sanctions, Plaintiff states that “it has been over 21 days after service of notice of this motion for sanctions.” (Doc. No. 11, p. 7.) Plaintiff also states that Defendant “was informed of the motion for sanctions over 21 days prior to its filing.” (Doc. No. 11, p. 2.) Although Plaintiff provides a declaration in support of his motion for sanctions, the declaration does not address service of the actual motion or otherwise demonstrate that Plaintiff complied with the safe harbor period required by Rule 11. (Doc. No. 11, p. 13.) To the contrary, the declarations of defense counsel indicate that although Plaintiff sent defense counsel an email stating Plaintiff’s intention was to file a Rule 11 motion, Plaintiff failed to serve a copy of the motion on defense counsel until January 28, 2015, just one day before the motion was filed.[8] (See Doc. No. 12, p. 9-10.)

Giving defense counsel notice of the intent to file a Rule 11 motion is insufficient to meet the safe harbor requirement which necessitates actual service of the motion on the party against whom sanctions are sought 21 days prior to filing. The Ninth Circuit has rejected litigants' attempts to cure violations of the safe harbor period by arguing that the non-movant had actual notice of the violation, or that the district court could have issued sanctions sua sponte. Radcliffe, 254 F.3d at 789. Failure to provide the required notice precludes an award of Rule 11 sanctions. Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 826 (9th Cir. 2009); Barber, 146 F.3d at 710 (holding that “[a]n award of [Rule 11] sanctions cannot be upheld” where party seeking sanctions did not provide the 21 day notice period). Thus, because Plaintiff’s motion for sanctions did not comply with the safe harbor period prescribed by law, the Court is precluded from issuing sanctions pursuant to Rule 11.

Plaintiff’s motion also seeks fees and costs pursuant to 28 U.S.C. section 1927 and based on the Court’s “equitable powers” to award attorneys fees. (Doc. No. 11, p. 8-9.) Section 1927 authorizes an award of attorneys fees and costs in instances where an attorney “unreasonable and vexatiously” increases the costs of litigation. 28 U.S.C. § 1927. Plaintiff requests approximately $11,000.00 in fees associated with work that Plaintiff did regarding the instant motion for sanctions and the opposition to Defendants' motion to dismiss. (Doc. No. 11, p. 8.) For the reasons set forth below, the Court declines to sanction defense counsel or award Plaintiff the fees requested.

First, many of the grounds asserted in Plaintiff’s motion for sanctions, or otherwise brought to the Court’s attention, do not warrant the imposition of sanctions. For example, defense counsel’s use of a different first name—what appears to be an abbreviated version of his given first name—does not warrant sanctions. There is no basis from which the Court can conclude that defense counsel’s use of the name “Bobby,” as opposed to “Babak,” was intended to mislead the Court or otherwise achieve some improper purpose. Plaintiff’s allegations that defense counsel is somehow engaging in criminal conduct by using an abbreviated first name is both legally and factually unsupported.[9] Likewise, the failure to include a table of contents in Defendants' motion to dismiss, although in violation of Local Rule 7.1.h, does not warrant sanctions at this time. However, defense counsel should be cognizant of all relevant local and chamber rules and follow them accordingly.

*8 Plaintiff’s allegations that Defendant Every Data Inc. is not registered to do business in the state of California and has failed to pay taxes to the California Franchise Tax Board also does not, in the immediate context, warrant the imposition of sanctions. It is notable, however, that Defendants have not addressed the allegations related to the status of Defendant Every Data Inc. It is unclear from the opposition to Plaintiff’s motion for sanctions[10] whether Defendant Every Data Inc. is authorized to conduct business in the state of California, registered with the Secretary of State, or a corporation of suspended status due to the failure to pay tax obligations. Defendants and its counsel are urged to ensure that Defendant Every Data Inc. can properly defend this action. Failure to establish appropriate corporate status could result in further action by the Court, if necessary, as the case progresses.

Plaintiff also raises defense counsel’s citation to incorrect authority regarding the Court’s subject matter jurisdiction to hear TCPA claims, as a grounds for sanctions. (Doc. No. 11, p. 9.) Though finding sanctions unwarranted, and unavailable in light of Plaintiff’s failure to comply with the requirements of the safe harbor period, defense counsel should endeavor to ensure that future pleadings, moving papers, and the citations contained therein, are correct and reflect current law. Although the Court has inherent authority to issue sanctions as part of its duty to supervise the conduct of attorneys appearing before it, see Erickson v. Newmar Corp., 87 F.3d 298, 303 (9th Cir. 1996), the imposition of sanctions “must be exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Given the facts of this matter, the Court does not find sanctions are warranted on any of the grounds asserted by Plaintiff.[11] The Court does caution the parties to ensure that their legal arguments are grounded in relevant and controlling authority, and are not asserted for an improper purpose. Further, all parties and counsel are to engage in professional and respectful conduct, both in the legal arguments represented to the Court, as well as in the course of communications with each other. Failure to abide by the professional and ethical obligations imposed upon attorneys who practice in this district is of concern to the Court. Although Plaintiff is proceeding pro se, he is reminded not to employ his pro se status as a means to engage in improper and unprofessional conduct.

For the reasons set forth above, Plaintiff’s motions for sanctions is DENIED.

CONCLUSION

Based on the foregoing, Defendants' motion to dismiss Plaintiff’s complaint is GRANTED WITH LEAVE TO AMEND as to Plaintiff’s RICO claims and DENIED as to the remaining causes of action. Plaintiff’s motion for sanctions is DENIED. If Plaintiff wishes to amend his complaint to cure the deficiencies noted herein, he must file an amended complaint within thirty (30) days of the date of this order.

IT IS SO ORDERED.

DATED: March 25, 2015.

The caption of Plaintiff’s complaint appears to also assert claims for extortion, stalking, terrorists threats, and fraud. (See Doc. No. 1, p. 1.) Plaintiff does not, however, separately plead these causes of action in the body of his complaint, and thus the Court will not consider them as individual causes of action.

On March 19, 2015, Plaintiff filed a notice of voluntary dismissal as to Defendant Finance Store, Inc. (Doc. No. 18.)

Plaintiff refers to Defendants as “Flora Racketeers” throughout the complaint. (See Doc. No. 1, p. 2.)

Throughout Plaintiff’s filings, including the opposition to the motion to dismiss, and the motion for sanctions, Plaintiff requests the Court take judicial notice of several facts. (Doc. No. 8, p. 8, 16, nn.1, 4, 8; Doc. No. 11, p. 2, n.1.) The Court hereby DENIES Plaintiff’s requests for judicial notice as the matters Plaintiff requests the Court take judicial notice of are either subject to dispute or irrelevant to the Court’s analysis of the instant motions. See Fed. R. Evid. 201.

Further, although the Court will not analyze factual allegations in Plaintiff’s opposition to the motion to dismiss that are not included in the complaint, Plaintiff’s opposition does state that Plaintiff’s RICO claim is “based, in part, on conspiracy to commit racketeering.”) (Doc. No. 8, p. 20, ¶ 29) (emphasis in original).)

Plaintiff is reminded that in evaluating a motion to dismiss, the Court is limited to analyzing the factual allegations in the complaint, and not those contained in other filings such as Plaintiff’s opposition to the motion to dismiss. See Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (“Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.”).

Defendants also argue that Plaintiff’s complaint contains erroneous and false allegations, and was brought for the “improper purpose of harassing and causing needless increase in the cost of litigation.” (Doc. No. 3-1, p. 10-11.) Defendants reference contemplation of their own motion for sanctions, however, no such motion has been filed.

Although Plaintiff’s motion was docketed on January 30, 2015, it was filed nunc pro tunc to January 29, 2015.

Plaintiff refers to defense counsel as a “criminal” throughout his opposition to the motion to dismiss, as well as the motion for sanctions. Plaintiff must refrain from making such allegations in future filings.

Defendants did not file a reply brief in support of the motion to dismiss leaving numerous arguments raised in Plaintiff’s opposition largely unaddressed.

Plaintiff’s motion for sanctions also requests that the Court strike Defendants' “defective drafting” contained in the motion to dismiss. (Doc. No. 8, p. 11.) Plaintiff has not brought a motion to strike, however, or otherwise demonstrated that striking portions of Defendants' motion to dismiss is appropriate. Thus, Plaintiff’s request is DENIED.