1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT NEVILLE, MD, Case No.: 21cv1148-CAB-MDD

12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. JUDGMENT ON THE PLEADINGS [Doc. No. 5] 14 MARGUERITE DILL, 15 Defendant. 16

17 On July 14, 2021, Defendant Marguerite Dill filed a motion for judgment on the 18 pleadings under FRCP 12(c), or alternatively, to dismiss under FRCP 12(b)(6). [Doc. No. 19 5.] To date, no opposition has been filed. On August 11, 2021, Defendant filed a reply, 20 noting that Plaintiff Robert Neville, M.D. had failed to timely oppose the motion. [Doc. 21 No. 6.] For the reasons set forth below, the motion is GRANTED. 22 Procedural Background 23 On January 3, 2019, the United States District Court for the Southern District of 24 Georgia permanently enjoined Plaintiff “from, either directly or indirectly, litigating the 25 administration of Jessica Neville’s estate or the Bulloch Property transaction any further 26 in this Court.” Neville v. McCaghren (“McCaphren Action”), Case No. 6:17cv75-JRH- 27 28 1 JEG,

, at *6 (Jan. 3, 2019). Just over a month later, on February 14, 2 2019 Plaintiff, proceeding pro se and in forma pauperis, filed an action in this Court 3 related to the administration of Jessica Neville’s estate and the Bulloch Property 4 transactions, this time naming Marguerite Dill as defendant. [Neville v. Dill, Case No. 5 3:19cv321-CAB-MDD (S.D. Cal. 2019)(“Dill I”), Doc. Nos. 1, 6, 7.]2 6 Subsequently, on September 6, 2019, this Court issued an order of dismissal of Dill 7 I in its entirety with prejudice pursuant to Federal Rule of Civil Procedure 41. [Dill I, 8 Doc. No. 30.] The Court also ordered Plaintiff to pay sanctions to Defendant. [Dill I, 9 Doc. No. 31.] On September 6, 2019, the judgment of dismissal with prejudice was 10 entered in Dill I. [Dill I, Doc. No. 31.] 11 On March 9, 2020, Plaintiff filed a notice of appeal in the Ninth Circuit Court of 12 Appeal as to the judgment. [Dill I, Doc. No. 43.] On March 18, 2020, the Ninth Circuit 13 referred to the District Court the questions of whether in forma pauperis status should 14 continue to Neville’s appeal, and whether his appeal was frivolous or taken in bad faith. 15 [Dill I, Doc. No. 46.] 16 On March 18, 2020, the District Court issued an order on the Ninth Circuit’s 17 referral determining that “the appeal from the judgment of this Court entered on 18 September 6, 2019 is not taken in good faith pursuant to

(a)(3), and in 19 forma pauperis status should not continue for this appeal… Based on the record before it, 20 the Court finds and certifies that Plaintiff’s appeal has no arguable basis in law or fact, 21 rendering it frivolous and not taken in good faith under

(a)(3).” [Dill I, 22 Doc. No. 47 at 2:3-14.] 23 24 25 1 The McCaghren Action named as defendant Elizabeth McCaghren, Defendant Dill’s sister and Plaintiff Neville’s half-sister. McCaghren, Neville and Dill are all children of Jessica Neville, who was killed in a 26 Florida house fire in 2008. See

at *1; Doc. No. 6 at 1. 2 In deciding a motion for judgment on the pleadings, the Court may consider matters subject to judicial 27 notice under Federal Rule of Evidence 201. Heliotrope Gen., Inc. v. Ford Motor Co.,

, 981 28 n.18 (9th Cir. 1999). Accordingly, Defendant’s request for judicial notice [Doc. No. 5-2] is GRANTED 1 On November 12, 2020, the Ninth Circuit issued an order on Neville’s appeal 2 which stated: 3 The USDC certified that this appeal is not taken in good faith and revoked appellant’s in forma pauperis status. On March 23, 2020, the USCA ordered 4 appellant to explain in writing why this appeal should not be dismissed as 5 frivolous. Upon a review of the record and the responses to the USCA’s March 23, 2020 order, we conclude this appeal is frivolous. We therefore, 6 deny appellant’s motion to proceed in forma pauperis and dismiss this 7 appeal as frivolous, pursuant to

(e)(2). [Dill I, Doc. No. 49.] 8 On December 8, 2020, the Ninth Circuit issued a mandate dismissing Plaintiff’s 9 appeal. [Dill I, Doc. No. 50.] On April 1, 2021, Plaintiff attempted to file in the District 10 Court a “Motion to Reinstate the Case” which was rejected. [Dill I, Doc. No. 51.] 11 On May 3, 2021, Plaintiff (still proceeding pro se and with a fee waiver), filed 12 against Defendant an action in the Superior Court of California for the County of San 13 Diego for alleged “estate fraud” in connection with the administration of the Estate of 14 Jessica Neville. The San Diego Superior Court action was captioned Neville v. Dill, San 15 Diego Superior Court Case No. 37-2021- 00019955-CU-FR-NC (the “state court 16 action”). [Doc. No. 1-2.] Subsequently, on June 22, 2021, Defendant filed a Notice of 17 Removal in order to effectuate a transfer of the state court action to the Southern District 18 of California. [Doc. No. 1.] 19 Legal Standard 20 Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are 21 closed -- but early enough not to delay trial -- a party may move for judgment on the 22 pleadings.” In ruling on a motion for judgment on the pleadings brought pursuant to Rule 23 12(c), “the allegations of the non-moving party must be accepted as true, while the 24 allegations of the moving party which have been denied are assumed to be false.” See Hal 25 Roach Studios, Inc. v. Richard Feiner and Co., Inc.,

(9th Cir. 1990) 26 (internal citations omitted). Judgment on the pleadings is proper when the moving party 27 28 1 clearly establishes on the face of the pleadings that no material issue of fact remains to be 2 resolved and that it is entitled to judgment as a matter of law. See

3 Rule 12(c) is functionally identical to Rule 12(b)(6) and the same standard of 4 review “applies to motions brought under either rule.” See Dworkin v. Hustler Magazine, 5 Inc.,

(9th Cir. 1989). Accordingly, whether brought under Rule 6 12(b)(6) or Rule 12(c), the inquiry before the court is whether, accepting the allegations 7 in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the 8 complaint has stated “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 9 Twombly,

(2007). “The plausibility standard is not akin to a 10 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 11 has acted unlawfully.” Ashcroft v. Iqbal,

(2009). “Threadbare recitals 12 of the elements of a cause of action, supported by mere conclusory statements, do not 13 suffice.”

Although legal conclusions “can provide the framework of a complaint, they 14 must be supported by factual allegations.”

. 15 Discussion 16 Plaintiff’s claims in this action are barred by the doctrine of res judicata. As set 17 forth above, this Court dismissed Dill I with prejudice pursuant to its authority under 18 Federal Rule 41(a)(2). The claims in this action are identical to Plaintiff’s claims in Dill 19 I. Both the First Amended Complaint in Dill I and the operative complaint here allege 20 “estate fraud” against Defendant with regards to the administration of the estate of Jessica 21 Neville. [Compare Dill I, Doc No. 6 with Doc. No. 1-2.] Both complaints seek damages 22 in connection with the alleged “estate fraud.”

Furthermore, the facts alleged in both 23 complaints are, in substance, identical (i.e. that Jessica Neville had been involved in an 24 automobile accident leading to brain damage).

25 “The doctrine of res judicata provides that when a final judgment has been entered 26 on the merits of a case, it is a finality as to the claim or demand in controversy, 27 concluding parties and those in privity with them, not only as to every matter which was 28 offered and received to sustain or defeat the claim or demand, but as to any other 1 ||admissible matter which might have been offered for that purpose.” Nevada v. United 2 || States,

(1983)(internal citations omitted). The elements necessary 3 || to establish res judicata in the second action are (1) an identity of claims between the first 4 second actions, (2) a final judgment on the merits in the first action, and (3) privity 5 || between the parties of the first and second actions. Hells Canyon Preservation Council v. 6 || U.S. Forest Service,

(9th Cir. 2005)(nternal citations omitted). 7 Here, all three elements required to establish res judicata are present. First, the 8 |{identity of Plaintiffs claims are substantively identical to those brought in Dill I, and 9 relate entirely to the administration of Jessica Neville’s estate. [Compare Dill I, Doc No. 10 with Doc. No. 1-2.] Second, this Court dismissed Dill I with prejudice, which 11 || constitutes a final judgment on the merits. Hells Canyon,

. Lastly, the 12 || parties in this action are identical to those in Dill I, which satisfies the privity 13 ||requirement. [Compare Dill I, Doc No. 6 with Doc. No. 1-2.] Because all three elements 14 || are met, the claims are barred by the doctrine of res judicata. 15 Conclusion 16 For the reasons set forth above, Defendant’s motion for judgment on the pleadings 17 ||is GRANTED. The Clerk of Court shall enter judgment accordingly. 18 IT IS SO ORDERED. 19 Dated: August 12, 2021 i i 20 Hon. Cathy Ann Bencivengo 21 United States District Judge 22 23 24 25 26 27 28