1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 MARTIN MALBERG, Case No. 5:22-cv-03613-EJD

8 Plaintiff, ORDER GRANTING MOTIONS TO DISMISS 9 v. Re: ECF Nos. 12, 14, 18, 23, 26, 31 10 JOANNE MCCRACKEN, et al.,

11 Defendants.

12 MARTIN MALBERG, Case No. 5:22-cv-03928-EJD 13 Plaintiff, 14 Re: ECF Nos. 10, 11, 21, 26 v. 15 JOANNE MCCRACKEN, et al., 16 Defendants. 17 18 Pro se Plaintiff Martin Malberg has brought the above-named actions alleging 19 constitutional violations against Defendants Judge Joanne McCracken, Judge Christine Garcia-Sen 20 (with Judge McCracken, the “Judicial Defendants”), the California Attorney General Rob Bonta, 21 and the State of California (with Attorney General Bonta, the “State Defendants”). Plaintiff’s 22 grievances arise from a restraining order issued against him by his ex-wife pursuant to the 23 California Domestic Violence Prevention Act (“DVPA”). The case numbered 5:22-cv-3613 24 (“3613 Case”) asserts violation of Plaintiff’s Fifth Amendment Due Process right to be provided 25 with a charging document, and the case numbered 5:22-cv-3928 (“3928 Case”) implicates 26 Plaintiff’s Second Amendment rights. Both actions otherwise involve the same Defendants and 27 allege the same substantive facts. 1 The Judicial Defendants and the State Defendants have each filed separate motions to 2 dismiss in both cases. See 3613 ECF Nos. 12 (“3613 State Mot.”), 14 (“3613 Judge Mot.”); 3928 3 ECF Nos. 10 (“3928 Judge Mot.”), 11 (“3928 State Mot.”).1 Plaintiff filed identical oppositions 4 to both motions to dismiss in both cases, entitled “Response in Oppostion [sic] to All Motions to 5 Dismiss; Declaration.” 3613 ECF No. 24; 3927 ECF No. 19. 6 I. FACTUAL BACKGROUND AND RELATED CASE 7 The 3613 and 3928 Cases are two cases in a salvo of lawsuits Plaintiff filed against nearly 8 all individuals—including the judges and opposing counsel—involved in the state court 9 proceedings that resulted in a domestic restraining order entered against him. 10 On January 11, 2021, Plaintiff’s wife filed a petition for dissolution and a request for a 11 domestic violence restraining order against Plaintiff in the Superior Court of California, County of 12 Santa Clara (the “State Proceeding”). Judge McCracken granted the temporary restraining order 13 ex parte subject to a subsequent hearing, and Judge Garcia-Sen subsequently issued the full 14 restraining order against Plaintiff (“Restraining Order”). On March 11, 2022, the Superior Court 15 entered a final judgment of dissolution. 16 On March 14, 2022, Plaintiff mailed a letter to Attorney General Rob Bonta, requesting 17 that the Attorney General “take appropriate legal action to enforce compliance with the U.S. 18 Constitution or remove judges who refuse to uphold it in violation of their Oaths of Office.” The 19 Attorney General’s office responded that his office is prohibited from representing private 20 individuals or providing legal advice or analysis. 21 On June 21 and July 5, 2022, Plaintiff filed the 3613 Complaint and 3928 Complaint, 22 respectively, naming as defendants the two Superior Court judges that presided over the State 23 Proceedings, Attorney General Bonta, and the State of California. Plaintiff seeks several types of 24 injunctive relief, including an “emergency injunction” of the State Proceedings, the Restraining 25 Order, vacatur of all judgments and rulings in the State Proceedings, and a “strike down” of the 26 27 1 The Court will use “3613 ECF No.” to refer to docket entries in the 3613 Case and “3928 ECF 1 allegedly unconstitutional California Domestic Violence Prevention Act (“DVPA”), at Cal. 2 Family Code §§ 6200, et seq. Plaintiff seeks damages in “606 oz delivered silver bullion” and 3 “55.5 ounces total of U.S. Gold Eagles” in his 3613 and 3928 Complaints, respectively. Id. 4 Plaintiff also demands prison time and criminal referrals for all individual Defendants. Id. 5 On March 15, 2023, the Court related the instant 3613 and 3928 Cases above with Case 6 No. 22-cv-1713 (“1713 Case”), which is the lowest numbered case Plaintiff filed. Plaintiff’s 7 complaint in the 1713 Case invokes his rights under the First Amendment, but otherwise names 8 the exact same Defendants and alleges nearly identical facts to the 3613 and 3928 Cases. 9 II. DISCUSSION 10 The State Defendants and Judicial Defendants moves for dismissal in the 3613 and 3928 11 Cases on the same grounds as in the earlier filed 1713 Case, with the additional threshold 12 argument that the 3613 and 3928 Cases should be dismissed as duplicative of the 1713 Case. See 13 3613 ECF Nos. 10, at 5; 12, at 7 n.2; 3928 ECF No. 11, at 6 n.2; 14, at 5. 14 A. Claim Splitting 15 It is a well-established premise of our justice system that a plaintiff is “not at liberty to split 16 up his demand, and prosecute it by piecemeal, or present only a portion of the grounds upon which 17 special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There 18 would be no end to litigation if such a practice were permissible.” United States v. Haytian 19 Republic,

(1894)). This means that plaintiffs “generally have no right to 20 maintain two separate actions involving the same subject matter at the same time in the same court 21 and against the same defendant.” Mendoza v. Amalgamated Transit Union Int’l,

, 886 22 (9th Cir. 2022) (internal quotation marks omitted) (quoting Adams v. Cal. Dep’t of Health Servs., 23

, 688 (9th Cir. 2007) (citations omitted), abrogated on other grounds by Taylor v. 24 Sturgell,

(2008)). District courts have “broad discretion to control their dockets 25 [and] may exercise [their] discretion to dismiss a duplicative later-filed action, to stay that action 26 pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or 27 to consolidate both actions.” Adams, 487 F.3d at 688. 1 To determine whether a suit is duplicative, the Ninth Circuit “use[s] the transaction test, 2 developed in the context of claim preclusion.” Id. at 689. “Whether two events are part of the 3 same transaction or series depends on whether they are related to the same set of facts and whether 4 they could conveniently be tried together.” Id. The Ninth Circuit has identified four criteria for 5 courts to consider in evaluating whether two actions are duplicative, as follows: 6 (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; 7 (2) whether substantially the same evidence is presented in the two actions; 8 (3) whether the two suits involve infringement of the same right; and 9 (4) whether the two suits arise out of the same transactional nucleus of facts. 10 11 Adams, 487 F.3d at 689 (quoting Costantini v. Trans World Airlines,

, 1201–02 (9th 12 Cir. 1982)). The “most important factor is whether the two suits arise out of the same 13 transactional nucleus of facts.” Mendoza,

(internal quotation marks omitted). 14 B. Analysis 15 Here, the Court finds that the 3613 and 3928 Cases are duplicative of the related 1713 16 Case. Turning first to the fourth and most important factor, the Court notes that all three suits 17 arise from the same factual nucleuses, namely the Judicial Defendants’ imposition of a DVPA 18 restraining order and the State Defendants’ response to Plaintiff. This is evidenced by the near 19 identical factual allegations set forth against the same four Defendants in all three complaints, as 20 well as Plaintiff’s self-styled identical oppositions to “to All Motions to Dismiss,” all filed on 21 October 27, 2022. 3613 ECF No. 24; 3927 ECF No. 19 (emphasis added); see also 1713 ECF No. 22 47. Plaintiff’s identical oppositions also establish the second Adams factor as to whether the 23 “same evidence is presented in the two actions,” 487 F.3d at 689; indeed, it is. Likewise, because 24 of this substantial overlap, it is also readily apparent that the first Adams factor is satisfied. 25 Permitting continued litigation of near-identical suits would impair the rights and finality 26 established by the 1713 Case, especially given that the Court had dismissed the complaint in the 27 1713 Case on grounds that would apply with equal force to both the 3613 and 3928 Cases. 1 Finally, the Court recognizes that the 3613 and 3928 Cases invoke different constitutional 2 rights from the 1713 Case—the 1713 Case alleges the DVPA Restraining Order violated 3 Plaintiff’s First Amendment rights, whereas the 3613 and 3928 Cases claim the same Restraining 4 Order also violated his Fifth and Second Amendment rights, respectively. However, this 5 distinction alone does not permit Plaintiff to “maintain two separate actions involving the same 6 subject matter at the same time in the same court and against the same defendant.” Mendoza, 30 7 F.4th at 886. To do so otherwise would run afoul of the Ninth Circuit’s guidance that the “most 8 important factor is whether the two suits arise out of the same transactional nucleus of facts,” id. at 9 887 (internal quotation marks omitted), which the Court finds in the affirmative here. Indeed, the 10 Ninth Circuit in Mendoza had found two cases to be duplicative despite more substantial 11 distinctions, holding that the “fact that [the later filed case] involves somewhat different legal 12 theories and a somewhat broader range of related conduct and damages does not alter the 13 underlying fundamental identity of the suits.” Id. at 887 (emphasis added); see also Wathan v. 14 Pazin,

, at *7 (E.D. Cal. Nov. 21, 2007) (“The issue is not settled . . . by the 15 cosmetics of how the claims for relief are framed.”). In short, Plaintiff’s tactical decision to split 16 up his claims based upon the underlying rights alleged does not permit him to maintain three 17 different actions for the same grievance in federal court. 18 Plaintiff has advanced a series of arguments and theories, none of which address the 19 Defendants’ threshold argument of duplicative actions. In addition to the uniform opposition that 20 he had filed in response to all motions to dismiss, Plaintiff has also filed several “logic briefs” 21 claiming that the State of California “had its sovereignty usurped by the STATE OF 22 CALIFORNIA CORPORATION,” which created a “CORPORATE LAW jurisdiction that is 23 currently known as the Uniform Commercial Code (UCC).” 3613 ECF No. 27; 3928 ECF No. 22. 24 He has also filed multiple “logic briefs” decrying the general doctrine of judicial immunity, based 25 solely upon the U.S. Constitution and the Declaration of Independence and which do not engage 26 with the judicial immunity analysis at all. 3613 ECF No. 32; 3928 ECF No. 27. The identical 27 nature of these filings in all his cases further supports the finding that Plaintiff’s actions are 1 duplicative and may not be maintained as individual separate actions. 2 In addition to his various “logic briefs,” Plaintiff has also filed a document in both the 3 3613 and 3928 Cases entitled, “Petition for a Redress of Grievances; Claim for Relief; 4 Declaration, Petition for Injunction, Motion for Summary Judgment in Favor of Plaintiff.” 3613 5 ECF No. 23; 3928 ECF No. 18. This filing, however, is not accompanied by any brief supporting 6 the relief requested or addressing the deficiencies identified by Defendants’ motions to dismiss. 7 Rather, Plaintiff only attaches (1) the Bill of Rights, (2) an affidavit wherein he states that he is 8 “presently alive” and “terminate[s] any and all contracts unknowingly entered into using any form 9 of [his] name,” (3) another affidavit re-stating the facts in the State Proceeding and enumerating 10 the Amendments he is invoking, and (4) a copy of the Restraining Order entered against him.

11 Having reviewed these filings, the Court cannot identify any contention or evidence that pertains 12 to—much less rebuts—the “claim splitting” duplication argument advanced by Defendants. 13 In summary, the Court finds that the 3613 and 3928 Cases are duplicative of the earlier 14 filed related 1713 Case. Although these cases involve different constitutional rights, all three 15 cases arise out of the same restraining order and interaction with the Attorney General, all present 16 identical evidence in support, and all potentially impair the 1713 judgment if allowed to proceed. 17 Accordingly, the Court may exercise its discretion to dismiss, stay, enjoin, or consolidate the 18 duplicative 3613 and 3928 Cases, see Adams, 487 F.3d at 688, which it proceeds to consider next. 19 C. Resolution of Duplicative Actions 20 The Court begins by recounting the bases upon which it previously dismissed the 1713 21 Case. On March 31, 2023, the Court dismissed all defendants in the 1713 Case complaint without 22 leave to amend except for the claim against Attorney General Bonta, which the Court dismissed 23 with leave to amend. 1713 ECF No. 61 (“1713 Order”). Specifically, the Court found most of 24 Plaintiff’s complaint to be barred by the Rooker-Feldman doctrine, which prohibits federal district 25 courts from exercising de facto appellate jurisdiction over state court judgments. Id. at 5–9. The 26 Court also found that the Judicial Defendants’ conduct was shielded by absolute judicial 27 immunity, id. at 9–10, and the State Defendants’ conduct was mostly protected by Eleventh ] Amendment immunity, id. at 10-11. However, the Court granted Plaintiff leave to amend his 2 || complaint for the limited purpose of pursuing a facial constitutional challenge to the California 3 DVPA statute against Attorney General Bonta per Ex parte Young. Id. at 10-12. Although 4 || Plaintiff was given thirty days to amend his complaint, he took no action for over six months, and 5 || the Court ultimately entered judgment against Plaintiff. 1713 ECF No. 65. 6 Given that the 1713, 3613, and 3928 Cases allege violations of different constitutional 7 || rights, the Court would initially be inclined to consolidate all three actions instead of dismissing 8 || the duplicative actions outright. However, because the Court had dismissed the 1713 Case for 9 || reasons unrelated to the specific constitutional right alleged, the Court’s evaluations of the present 10 || 3613 and 3928 Cases in a hypothetical consolidated action would be identical to its analysis in the 11 1713 Order, thereby warranting dismissal in any event. Furthermore, because the Court had 12 || dismissed the 1713 complaint with only leave to amend a constitutional challenge to the DVPA 13 statute and Plaintiff evidently declined to do so, any action other than a full dismissal without 14 || leave to amend would impair the finality of the judgment in the 1713 Case. Accordingly, given 15 || the final judgment in the 1713 Case and Plaintiffs near identical prosecution in the instant 3613 a 16 || and 3928 Cases, the Court finds that dismissal of the duplicative later-filed actions would be in the 2 17 || interests of finality and judicial economy. 18 || I. CONCLUSION 19 Based on the foregoing, the Court GRANTS Defendants’ motions to dismiss in Case No. 20 || 5:22-cv-3613 and Case No. 5:22-cv-3928. Because both cases are duplicative of the earlier filed 21 related Case No. 5:22-cv-1713, in which final judgment was entered, Plaintiff's complaints in both 22 || the 3613 and 3928 Cases are DISMISSED WITHOUT LEAVE TO AMEND. 23 IT IS SO ORDERED. 24 || Dated: September 25, 2023 25 26 27 United States District ludge 28