California Cases December 07, 2022: Mikhak v. Univ. of Phx., Inc.

Case Description

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ORDER GRANTING MOTION TO DISMISS

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

Now pending is Defendants' Motion to Dismiss Plaintiff Bahar Mikhak's First Amended Complaint (FAC). See Mot. (dkt. 116). Mikhak has opposed the motion, see Opp'n (dkt. 123) and Defendants have replied, see Reply (dkt. 128). The Court finds this matter suitable for resolution without oral argument, see Civil Local Rule 7-1(b), and grants the motion, dismissing the FAC with prejudice.

I. BACKGROUND

This litigation has a lengthy backstory. In short, Mikhak brought suit in Mikhak v. University of Phoenix et al., Case No. 16-cv-901-CRB, in 2016, arguing that her former employer, UOP, failed to hire or promote her because of her religion, subjected her to a hostile work environment, and retaliated against her, all in violation of Title VII and FEHA. See generally Compl. (dkt. 1) in Case No. 16-cv-901-CRB. UOP moved to compel arbitration. See Mot. to

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Compel (dkt. 14) in Case No. 16-cv-901-CRB. As this Court later described:

The Court granted the motion to compel arbitration on June 21, 2016. See Order Granting Motion to Compel (dkt. 27) in Case No. 16-901. Mikhak could have initiated arbitration any time thereafter. Instead, Mikhak moved for reconsideration of that order in August 2017, see Mot. for Reconsideration (dkt. 32) in Case No. 16-901, and the Court explained that she had failed “to show reasonable diligence,” Order Denying Reconsideration (dkt. 34) in Case No. 16-901. Mikhak then moved to stay the case, see Mot. to Stay (dkt. 36) in Case No. 16-901, and the Court denied the motion, issuing an oral order to show cause that dismissed the case for failure to prosecute unless Mikhak filed a declaration by November 27, 2017 stating that she had initiated arbitration, see Motion Hearing (dkt. 43) in Case No. 16-901. Instead of initiating arbitration, Mikhak sent a letter to the Court on November 24, 2017, asking for an “extended continuance” with “no time pressure,” and she terminated her counsel. Letter (dkt. 44) in Case No. 16-901; Motion for Leave to File (dkt. 45) in Case No. 16901. The Court explained:

The Court will not reconsider its June 2016 order compelling arbitration. Nor will the Court give Plaintiff a ‘no time pressure' extension to do something the Court compelled her to do nearly a year and a half ago. Plaintiff asserts that she has ‘been working on this case for 3 years' and that she does not want to ‘los[e] all [of her] investment in striving for justice.' See Plaintiff Letter at 1. If Plaintiff wishes to pursue her case, she must do so in arbitration . See Order re Arbitration; see also Fidelity Philadelphia Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978) (‘It is a well established rule that the duty to move a case is on the plaintiff and not on the defendant or the court.').

Order of Conditional Dismissal in Case No. 16-901 at 1-2.

The Court dismissed the case for failure to prosecute pursuant to Rule 41(b), but it provided “that if Plaintiff shall certify to this Court, within thirty days of this Order, that she has initiated arbitration, the foregoing Order shall stand vacated and this case shall forthwith be restored to the calendar.” Id. at 2. Mikhak filed an “Opposition to Defendant's motion to dismiss without prejudice,” which largely reargued the facts of her case, see Plaintiffs Opposition to Defendant's Motion, and the Court explained again how the Order of Conditional Dismissal operated, and stated that “the Court will not consider any submissions by the parties in this case, save and except from Plaintiff, filed on or before January 4, 2018, stating that she has initiated arbitration,” Order re “Plaintiff's Opposition to Defendant's Motion” in Case No. 16-901. Mikhak filed a Notice of Appeal, thus terminating her case in this Court. See Notice of Appeal in Case No. 16-901.

Not insignificantly, in that appeal, the Ninth Circuit upheld this Court's dismissal of Mikhak's case for failure to prosecute. See USCA Memorandum in Case No. 16-901. The court held that this

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Court “did not abuse its discretion by dismissing Mikhak's action for failure to prosecute because Mikhak did not comply with the district court's orders directing Mikhak to initiate arbitration despite being warned that noncompliance could result in dismissal.” Id. at 2.

Order Denying Motion to Set Aside Judgment (dkt. 69) at 5-6. The Ninth Circuit further “reject[ed] as unsupported by the record [Mikhak's] contentions that defendant and its counsel committed perjury, that defendant's counsel and the district court engaged in misconduct, or that [Mikhak] was denied an opportunity to file reply briefs in response to various filings by defendant.” Id. at 3.

Mikhak sought both a panel rehearing and a rehearing en banc at the Circuit, both of which were denied. See Order (dkt. 85) in Case No. 16-cv-901-CRB at 1. And Mikhak sought a writ of certiorari at the United States Supreme Court, which was also denied. See USCA Order (dkt. 90) in Case No. 16-cv-901-CRB at 1.

In September 2021, Mikhak filed a new case, Mikhak v. University of Phoenix et al., Case No. 21-cv-6919-CRB, again suing UOP and individual UOP employees, as well as the law firm Littler Mendelson, P.C. and individual attorneys who had represented UOP. See generally Compl. (dkt. 1). The Court related Mikhak's new case to Mikhak's earlier case, see Order Relating Cases (dkt. 50), and- after ruling on additional motions, see, e.g., Order Denying Motion for Recusal (dkt. 68); Order Denying Motion to Set Aside Judgment; Order Denying Motion to Disqualify Judge (dkt. 87)-granted Defendants' motion to dismiss, see Order Granting Motion to Dismiss (dkt. 96). The Court held that the complaint violated Rule 8 of the Federal Rules of Civil Procedure because it “includes sixty-two causes of action against thirteen defendants,” had to be filed on ECF in six parts, included five sets of exhibits, and totaled 1,369 pages. Id. at 2. The Court further explained that the complaint was “‘confusing, distracting, ambiguous, and unintelligible.'” Id. (quoting Schmidt v. Hermann, 614 F.2d 1221, 1224 (9th Cir. 1980)). And the Court explained that it

cannot determine with certainty if Ms. Mikhak is attempting to relitigate her previous case before this Court, Mikhak v. University of Phoenix et al., No. 16-cv-901-CRB. The Complaint actually refers to Part 1 as “My Initial Complaint” and to Part II as “My New Complaint,” See Compl. at 1, 2, and it appears that both the 16-cv-901-CRB case and Part I of the current case allege that Ms. Mikhak was subjected to discrimination, harassment and retaliation while

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employed at UOP. See Opp'n at 4 (conceding that “both involve the same transactional nucleus of facts”). This raises concerns about res judicata, as the Court dismissed the prior case in a final judgment that Ms. Mikhak appealed and the Ninth Circuit affirmed.

Id. at 3. The Court granted Mikhak leave to amend, directing her to keep the amended complaint “short and to the point.” Id. at 4.

Mikhak filed the FAC on August 22, 2022. See FAC. The FAC is 96 pages, attached to which is a 48-page Addendum and 32 pages of flow charts and tables. Id. It includes sixty-two separate claims, many of which fail to state which defendant is allegedly liable for the alleged misconduct. See, e.g., Claims 1-22. Despite Mikhak's efforts to improve upon the original complaint, the FAC is not a model of clarity. It is repetitive. It is not “short and to the point.” Mikhak seems to believe that short and to the point is not possible. See Motion to Exceed Page Limit (dkt. 120) (Mikhak asserting: “Plaintiff's case has evolved into a Complex Litigation Case involving allegations based on events that happened over the span of many years.”).

There are two main threads in the FAC. First, the FAC contends that Littler Mendelson and the attorney defendants committed fraud, and violated related statutes, by making false representations to the Court in the course of the first litigation. Second, it contends that the UOP defendants committed fraud, and violated related statutes, by drafting and implementing the arbitration agreement improperly, by lying to the Court in the course of the first litigation, and by giving a false reference when a prospective employer inquired about Mikhak.

Defendants have moved to dismiss the FAC based on Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. LEGAL STANDARD

Under Rule 12(b)(6), the Court may dismiss a complaint for failure to state a claim upon which relief may be granted. The Court may base dismissal on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (cleaned up). A complaint must plead “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

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face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to survive a 12(b)(6) motion. Id. (citing Twombly, 550 U.S. at 555). When evaluating a motion to dismiss, the Court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987).

If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, a court may deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).

Courts must construe pro se pleadings liberally and hold such pleadings to a less stringent standard than those drafted by attorneys. Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam) ; Hughes v. Rowe, 449 U.S. 5, 9 (1980) (“It is settled law that the allegations of [a pro se litigant's complaint] ‘however inartfully pleaded' are held ‘to less stringent standards than formal pleadings drafted by lawyers . . . .'” (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))). A court should dismiss a pro se complaint if “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

III. DISCUSSION

The Court turns first to (A) the claims against the attorney defendants, then to (B) the claims against the UOP defendants, and finally to (C) the federal claims.

A. Claims Against Attorney Defendants

The FAC's claims against the attorney defendants fail for a number of reasons. This order

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addresses three.

1. Litigation Privilege

Mikhak contends that UOP's attorneys-all of them, though Defendant Dal Cielo's name is ubiquitous in the FAC-“presented the UOP's witnesses' perjured testimonies and forged documents to create an ‘optical illusion,' or to intentionally make false representations of my faculty status at the time of contract formation. In this way, they helped the UOP to continue to harass and retaliate against me even during trial, post-trial, and appeal to win the arbitration argument and the dismissal of my Original Complaint with prejudice.” FAC at 2 ¶ 8. Each claim against the attorneys involves their allegedly fraudulent or deceptive conduct in the course of representing UOP in the earlier lawsuit. See, e.g., id. at 12 ¶ 63 (“When the attorney defendants utilized the tactics of perjury and fraud during trial, post-trial, and appeal proceedings, they helped the UOP to harass and retaliate against me in its continuing violation of [FEHA].”); id. at 13 ¶ 67 (“Their retaliation was in the form of Dal Cielo filing a ‘letter-response' (dkt. 46) that can best be described as a ‘motion for summary judgment' urging the district court to a harsh and unfair dismissal of my entire civil rights case with prejudice”); id. at 21 ¶ 111 (“Dal Cielo unlawfully presented forged evidence under oath to make a false representation that the UOP had given me ‘plenty of time' to familiarize myself with the arbitration agreement”); id. at 33 ¶ 171 (“Dal Cielo failed to disclose that contract formation happened at a time that I had not even yet passed the Certification Stage”); id. at 39 ¶ 203 (“Dal Cielo unlawfully concealed that the UOP had induced me to click ‘Accept,' to make a false representation that ‘parties manifested mutual assent .” ).

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That the FAC only brings claims against these defendants based on their actions as attorneys is further evident in the FAC's Table 1 (“A summary of each attorney defendants' involvement”), which includes only columns for “Made an appearance during the EEOC mediation,” “Participated in pleading preparations during trial or post-trial,” “Made appearance during trial,” and “Participated in pleading preparations during appeal.” FAC Table 1 (dkt. 111-1) at 2.

Actions by attorneys in the context of litigating disputes are absolutely privileged pursuant to California Civil Code § 47(b)(2), the litigation privilege, which “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Silberg v. Anderson, 50 Cal.3d 205, 212 (1990). It does not matter if the attorneys are acting out of malice. See Ascherman v. Natanson, 23 Cal.App.3d 861, 864-65 (1972). The “only exception” to the absolute privilege is for malicious prosecution actions. Silberg, 50 Cal.3d at 216. The Supreme Court of California has explained that “in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.” Id. at 214; see also Edwards v. Centex Real Estate Corp., 53 Cal.App.4th 15, 30 (1997) (“the privilege is extended to attorneys to protect them from the fear of subsequent derivative actions for communications made in the context of judicial proceedings.”). This Court, and the parties, have been engaged in a seemingly “unending roundelay of litigation” for the past six years.

Mikhak's arguments for why the litigation privilege should not end the roundelay are unpersuasive. There is no requirement that relevant communications be made in good faith. The

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language Mikhak cites to, from Edwards, pertains to communication prior to litigation. See Opp'n at 17-18 (citing Edwards, 53 Cal.App.4th at 34-35); Edwards, 53 Cal.App.4th at 35 (“the verbal proposal of litigation must be made in good faith ”). The communication alleged here all transpired during the litigation. See, e.g., FAC at 9 (“Dal Cielo participated in pleading preparations during trial and post-trial . . . and during appeal.”). The litigation privilege is not limited to government actors. See Opp'n at 18; Silberg, 50 Cal.3d at 210 (defendant at issue was spouse's attorney; no indication she was a government actor). The causes of action for which the attorney defendants assert the litigation privilege arise under state law. See Opp'n at 19; Reply at 4. And the acts Mikhak complains of are entirely communicative acts. See Opp'n at 18-19. The sole example she offers of a non-communicative act is “Dal Cielo's malicious actions of filing her MTD 2.0, which resulted in [negative litigation consequences to Mikhak].” Id. at 19. Filing a motion to dismiss is of course a communicative act, regardless of what consequences flow from it. See, e.g., G&G Closed Circuit Events, LLC v. Parker, No. 20-cv-1017 TWR (MDD), 2021 WL 5299850, at *3 (S.D. Cal. Aug. 2, 2021) (“Court filings are precisely the type of communications that are subject to the Litigation Privilege.”).

Mikhak's assertion that there are five applicable exceptions to the litigation privilege is also incorrect. Her reference to the “crime-fraud” exception to the attorney-client privilege has no bearing on the litigation privilege. See Opp'n at 21-22. Her argument that because there is an exception for the tort of “malicious prosecution,” there should be an exception for the non-tort of “malicious defense,” see id. at 23-25, has no legal basis. The claims Mikhak has brought, none of which are malicious prosecution claims, are plainly subject to the privilege. See Ang v. Wells Fargo Bank, N.A., No. 18-199 PSG (SHKx), 2018 WL 6131212, at *5 C.D. Cal. June 25, 2018)

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(allegations that lawyer for Wells Fargo participated in fraudulent court case against him were barred by the litigation privilege). Her reliance on Silberg 's reference to extrinsic fraud is also misguided. See Opp'n at 25 (citing Silberg, 50 Cal.3d at 214). Silberg, in the course of recognizing the litigation privilege as “‘the backbone to an effective and smoothly operating judicial system,'” stated that a litigant should not be permitted “to attack the integrity of evidence after the proceedings have concluded except in the most narrowly circumscribed situations such as extrinsic fraud,” lest such an attack “impermissibly burden, if not inundate, our judicial system.” 50 Cal.3d at 214 (quoting McClatchy Newspapers, Inc. v. Superior Court, 189 Cal.App.3d 961, 970 (1987)). Mikhak has only alleged intrinsic-not extrinsic-fraud in this case, see Kachig v. Boothe, 22 Cal.App.3d 626, 632-33 (1971) (“California cases uniformly hold that the introduction of perjured testimony or false documents in a full litigated case constitutes intrinsic rather than extrinsic fraud”), and her attacks on the earlier lawsuit implicate Silberg 's concerns. Nor have Defendants here intentionally destroyed or altered physical evidence, implicating the spoliation exception of Civil Code section 47(b)(2). Mikhak asserts only that Defendants “presented forged documents and perjured testimonies,” Opp'n at 6; see also FAC at 2 ¶ 8, which is distinct from destroying or altering existing evidence. Moreover, the exception “only applies when the alleged alteration or destruction is intended to deprive a party of the ‘use' of that evidence.” Laborde v. Aronson, 92 Cal.App.4th 459 (2001). Defendants' alleged acts- misrepresenting to the Court what the evidence showed-do not implicate the spoliation exception. See Kupiec v. Am. Int'l Adjustment Co., 235 Cal.App.3d 1326, 1333 (1991) (instructing clients to lie in depositions is not destruction of evidence, as “the ‘destruction' was accomplished entirely by statements made in the litigation.'”); Kenne v. Stennis, 230 Cal.App.4th 953, 971 (2014) (“all the communications . . . including the allegedly false declarations . . . were connected directly to the prosecution of those two petitions” and were therefore subject to the litigation privilege).

Accordingly, the litigation privilege bars Mikhak's claims against the attorney defendants.

2. Statute of Limitations

Mikhak's claims against the attorney defendants are also time-barred. Mikhak concedes

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that she discovered the attorney defendants' alleged fraud two weeks before the Court dismissed her earlier lawsuit. See Opp'n Ex. 7C (dkt. 123-8) at 10 (identifying November 24, 2017 as the date “when Plaintiff first discovered fraud on the court”). She concedes that the statute of limitations for a fraud claim is three years. Opp'n at 43. And she brought this second suit on September 7, 2021, see Compl., more than three years after November 24, 2017. She argues, though, that her claims are timely because of equitable estoppel and equitable tolling. See Opp'n at 35. Not so.

a. Equitable Tolling

Equitable tolling focuses on “whether there was excusable delay by the plaintiff: ‘If a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until the plaintiff can gather what information he needs.'” Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (citing Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (2000)). Mikhak makes a number of arguments for tolling, none of which are persuasive.

Mikhak argues that her fraud claims were tolled because she “raised the issue of fraud in contract formation” in her late 2017 filings. Opp'n at 35. The Court does not understand this argument, nor how arguing that she was fraudulently induced by the UOP defendants to enter into the arbitration agreement would toll the argument that UOP's lawyers subsequently defrauded the Court in litigating the validity of the arbitration agreement. Mikhak also argues that her claims were tolled because she “did not know contract law and did not know that her counsel was misled and that she could no longer rely on them.” Opp'n at 37. But Mikhak knew by November 24, 2017 that the attorney defendants had allegedly lied; moreover, “it is the discovery of facts, not their legal significance, that starts the statute.” Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1113 (1988).

Mikhak argues that the statute of limitations was tolled based on the continuing violations doctrine until the “last alleged unlawful act,” or, relatedly, the “last overt act” of the conspiracy. Opp'n at 37-40. She argues that defendants' misconduct “continued into appeal until 1/21/2019.” Id. at 38. The “last overt act” is a concept related to conspiracies, which this is not. See generally

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FAC. Moreover, the continuing violations doctrine does not apply where there was “a series of discrete, independently actionable alleged wrongs” and the plaintiff was “aware of, and recognized as wrongful” the acts prior to the limitations period. See Atyeh v. Canon Business Solutions, Inc., 55 Cal.4th 1185, 1198 (2013). Though Mikhak contends that the “last alleged unlawful act” here was the attorney defendants' participation in the appeal of the earlier lawsuit, see Opp'n at 38, Defendants note that their final appellate filing, and therefore their last opportunity to have made a fraudulent misrepresentation, was actually in October 2018. See Reply at 11 (citing Ninth Circuit Case 17-17535 dkts. 33-35). In addition, the Court agrees with Defendants that the “new” fraud that Dal Cielo allegedly introduced at that time is the same argument Defendants and Mikhak have been sparring about from the beginning-whether the term “faculty member” includes “faculty candidates.” Compare FAC ¶ 53 (Dal Cielo “resorted to presenting new perjured testimonies during appeal to make an intentional false representation that ‘faculty member' is an all-encompassing term for ‘faculty candidate'”); with id. ¶ 42 (Dal Cielo at the district court “falsely suggested that ‘faculty member' is an umbrella term for ‘faculty candidate'”). It was not a new argument in October 2018, but had been conveyed to Mikhak well before she “discovered fraud for the first time” in November 2017. No representations made by Defendants in October 2018 extended the start of the limitations period. Mikhak has also failed to demonstrate either that her filing with DFEH or her appeal of the earlier lawsuit tolled the statute of limitations here.

b. Equitable Estoppel

“Equitable estoppel . . . ‘focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit.'” Johnson, 314 F.3d at 414 (citing Santa Maria, 202 F.3d at 1176). Equitable estoppel does not apply here because, as Mikhak recognizes, she would have to

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point to some conduct by Defendants apart from their initial alleged wrongdoing. See Opp'n at 35; Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1051-52 (9th Cir. 2008) (“the plaintiff must point to some fraudulent concealment, some active conduct by the defendant ‘ above and beyond the wrongdoing upon which the plaintiff's claim is filed, to prevent the plaintiff from suing in time.'”) (quoting Guerrero v. Gates, 442 F.3d 697, 706 (9th Cir. 2006)). She has not. Mikhak argues that “When Dal Cielo committed her fraud upon the court, she equitably estopped the SOLs” because Dal Cielo “filed the ‘2.0 version of her Motion to Dismiss.'” Opp'n at 35. But that conduct is part of Mikhak's fraud claims. That conduct also had nothing to do with preventing Mikhak from filing suit (indeed, Dal Cielo argued that Mikhak had failed to take action to move the pending suit forward). And there is no basis to conclude that that conduct was intended to induce Mikhak to act to her detriment-rather, it was intended to get the Court to act.

Mikhak also points to conduct by this Court as a basis for equitable estoppel. See Opp'n at 36 (“Judge Breyer also equitably estopped the SOL because it robbed Plaintiff of an opportunity to move the Court to hold the Defendants accountable for having won the arbitration agreement by fraud.”). But conduct by the Court cannot establish equitable estoppel. See Johnson, 314 F.3d at 414 (“Equitable estoppel . . . ‘focuses on actions taken by the defendant '”).

Accordingly, neither equitable tolling nor equitable estoppel apply, and the claims against the attorney defendants are untimely.

3. Failure to State a Claim

Mikhak's claims against the attorney defendants also fail, to the extent that they are premised on fraud, because they fail to state a claim for fraud. “Under California law, a cause of action for fraud requires the plaintiff to establish: (1) a knowingly false representation by the defendant; (2) made with intent to deceive or induce reliance by the plaintiff ; (3) justifiable reliance by the plaintiff ; and (4) resulting damages.” Smith v. Allstate Ins. Co., 160 F.Supp.2d 1150, 1152 (S.D. Cal. 2001) (emphasis added). Again and again, though, the FAC alleges that the attorney defendants made misrepresentations to the courts -about the circumstances of Mikhak entering into the arbitration agreement, the effect of the arbitration agreement, and what kind of person Mikhak was. See, e.g., FAC ¶ 42 (“Dal Cielo falsely suggested that ‘faculty member' is an umbrella term for ‘faculty candidate'”);

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id. ¶ 111 (“Dal Cielo unlawfully presented forged evidence under oath to make a false representation that the UOP had given me ‘plenty of time' to familiarize myself with the arbitration agreement”); id. ¶ 171 (“Dal Cielo failed to disclose that contract formation happened at a time that I had not even yet passed the Certification Stage”); id. ¶ 203 (“Dal Cielo unlawfully concealed that the UOP had induced me to click ‘Accept,' to make a false representation that ‘parties manifested mutual assent .); id. ¶ 69 (“the district court relied on Dal Cielo's . . . misrepresentations of me as the ‘plaintiff wants to flout the court's order,' or the ‘Noncompliant plaintiff who with her undue delay wasted tax payer's resource[.]”).

Mikhak does not allege that the misrepresentations were made with the intent to deceive her. Nor does she allege that she “saw and relied on the alleged misrepresentations” to her detriment. See Brown v. Vans Int'l Foods, Inc., No. 22-cv-00001-WHO, 2022 WL 1471454, at *12 (N.D. Cal. May 10, 2022). Indeed, as Defendants point out, she could not, as she asserts that she was unaware of the fraudulent statements until November 24, 2017, more than a year after the Court compelled arbitration. See FAC ¶ 25 (“November 24, 2017, the date I first discovered the fraud.”). And she could not have relied on any statements after November 24, 2017, because at that point she knew that they were fraudulent. See Country Fresh Batter, Inc. v. Lion Raisins, Inc., No. 1:17-cv-1527-DAD-BAM, 2018 WL 1071330, at *3 (E.D. Cal. Feb. 23, 2018) (“The California Supreme Court has held that as a matter of law, a plaintiff may not claim justifiable reliance in support of a fraud claim when it knew the defendant's statement to be false.”).

Mikhak argues in her opposition brief that she and her counsel saw and relied on the Spence declaration, which Defendants submitted in support of the motion to compel arbitration in the earlier lawsuit. Opp'n at 14. Specifically, Mikhak points to the following statement: “faculty and faculty candidates, collectively, are hereinafter referred to as ‘faculty.'” Id. That language is from the first paragraph of Spence's declaration, where Spence was defining the terms that she would use in the remainder of the declaration. See Spence Decl. (dkt. 1-7 at 201). A

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declarant is entitled to define the terms in her declaration however she likes. She could have said: “faculty and faculty candidates, collectively, are hereinafter referred to as ‘zebras.'” That statement would not be false unless she did not thereafter refer to them as zebras. Spence's statement was not a false representation, let alone one directed at Mikhak. Nor does it make sense that Mikhak would have justifiably relied on Spence's definition of a term in her declaration, resulting in damages. See also Wescott v. Daniel, No. 21-cv-10011-JCS, 2022 WL 2496264, at *3 (N.D. Cal. May 25, 2022) (“no authority recognizing a fraud or misrepresentation claim where a party relies on opposing counsel's . . . characterization-in a filing to a court or similar tribunal. . . . no indication in California caselaw that the state courts would embrace . . . novel theory of fraud by opposing counsel”). Mikhak's repeated assertions that either her counsel or the Court allegedly relied on other false representations, see Opp'n at 15-16, also do not support a fraud claim brought by Mikhak against these attorney defendants.

Accordingly, because of the litigation privilege, because of the statute of limitations, and because of the FAC's failure to state a claim for fraud, the claims against the attorney defendants are DISMISSED.

B. Claims Against UOP Defendants

The FAC's claims against the UOP defendants fall into three categories: (1) claims relating to their conduct pre-litigation, (2) claims relating to their conduct in the course of litigation, and (3) a false reference claim. All fail.

1. Litigation Conduct

The FAC alleges, among other things, that the UOP defendants used perjury and fraud to harass Mikhak during trial, see FAC ¶ 63, harassed and retaliated against her with their fraudulent misrepresentations and perjury during the judicial and appeal proceedings, id. ¶ 64, “voluntarily disclosed that [she] had clicked ‘Accept' to the Faculty Acknowledgment Detail,” id. ¶ 204, and omitted material facts with evidentiary value about the Faculty Handbook, id. ¶ 422. The Court

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addresses a few of the reasons these claims do not succeed.

a. Litigation Privilege

Just as with the attorney defendants, conduct by the UOP defendants in the course of litigating the earlier lawsuit is protected by the litigation privilege. California Civil Code § 47(b)(2) privileges “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Silberg, 50 Cal.3d at 212. The privilege extends not only to parties but to witnesses. See Pettitt v. Levy, 28 Cal.App.3d 484, 488 (1972) (“The privilege is accorded not only to parties but to witnesses, even where their testimony is allegedly perjured and malicious....The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.”) (cleaned up); see also Carden v. Getzoff, 190 Cal.App.3d 907, 915 (1987) (“our Supreme Court long ago ruled that injurious perjury and suborning perjury cannot be the basis of a civil action....even malicious publications ‘are protected as part of the price paid for affording litigants the utmost freedom of access to the courts.'”). Just as with the attorney defendants, Mikhak's arguments against the application of the privilege here, see Opp'n at 17-27, are unpersuasive.

Accordingly, the litigation privilege bars Mikhak's litigation-related claims against the UOP defendants.

b. Statute of Limitations

Mikhak's fraud claims against the UOP defendants for their litigation conduct are untimely for the same reasons that her fraud claims against the attorney defendants are untimely. Her Title VII and FEHA claims against the UOP defendants are also untimely. Defendants' last appellate filing was October 1, 2018, and so Mikhak was required to file a DFEH charge by October 1, 2019. See Romano v. Rockwell Intern., Inc., 14 Cal.4th 479, 492 (1996). Mikhak's DFEH

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charge was not filed until October 23, 2020 at the earliest. See Opp'n at 43 (“Plaintiff filed her complaint with the DFEH on 10/23/20”); see also FAC ¶ 23 (alleging only that the DFEH issued her a right-to-sue notice on May 25, 2021); but see Opp'n Ex. 6A at 5 (May 4, 2021 DFEH complaint). That was late. In addition, Mikhak was required to file a charge with the EEOC within 180 days of the last act of discrimination (again, at the latest, October 1, 2018). See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081-82 (9th Cir. 2006). Mikhak alleges that she received a Notice of Right to Sue from the EEOC on June 7, 2021, but does not allege when she filed a charge with the EEOC. See FAC ¶ 24. She does not attach her charge with the EEOC to her opposition brief, but the Notice of Right to Sue that she does attach, dated June 7, 2021, states that “Less than 180 days have passed since the filing of this charge,” see Opp'n Ex. 6B at 6. Accordingly, the EEOC charge was also late. Mikhak's argument that her ongoing litigation over her earlier case would have tolled these deadlines or prevented her from meeting them is unpersuasive.

Accordingly, the litigation-related claims against the UOP defendants are time-barred.

c. Failure to State a Claim

Just as with the attorney defendants, Mikhak's litigation-related claims against the UOP defendants, to the extent that they are premised on fraud, fail to state a claim. Because she alleges that the UOP defendants made false representations to the courts, see, e.g., FAC ¶64 (UOP defendants harassed and retaliated against her with their fraudulent misrepresentations and perjury during the judicial and appeal proceedings), Mikhak fails to adequately allege either that these misrepresentations were “made with intent to deceive or induce reliance by [her]” or that there was “justifiable reliance by [her].” See Smith, 160 F.Supp.2d at 1152.

2. Pre-Litigation Conduct

The FAC also includes allegations involving UOP defendants' conduct that occurred before the first litigation. See, e.g., FAC ¶ 98 (“UOP obtained my consent by fraud; when it asked me to click ‘Accept' to the arbitration agreement before I finished the Certification stage of my faculty qualification process ”);

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id. ¶ 116 (“UOP intentionally obtained my consent by fraud when it asked me to study and take a quiz on the Dispute Resolution Policy and Procedures on the outdated (2011-2012) Faculty Handbook that did not include the arbitration agreement.”); id. ¶ 129 (UOP intentionally surprised me with the arbitration agreement”). These claims are both time-barred and subject to res judicata.

a. Statute of Limitations

Plaintiff accepted the arbitration agreement with UOP in March 2014. See Order Granting Motion to Compel in Case No. 16-cv-901-CRB at 3. She filed this action in September 2021- seven and a half years later. See Compl. None of the causes of action she brings has a statute of limitations even approaching seven and a half years. See Mot. at 13 (listing statutes of limitations for Mikhak's claims). Mikhak's arguments about equitable estoppel and equitable tolling, which seem aimed at both sets of defendants, are no more persuasive as to the UOP defendants than they were as to the attorney defendants. See Opp'n at 34-45. In fact, they are less so. Mikhak was aware of the UOP defendants' alleged pre-litigation fraud before November 24, 2017-the date “when Plaintiff first discovered fraud on the court” pertaining to the litigation. See Opp'n Ex. 7C (dkt. 123-8) at 10. She knew contemporaneously that she was asked to click “Accept” on the arbitration agreement before she had finished the Certification stage of her faculty qualification process, she knew that she had been asked to take a quiz on the 2011-2012 Faculty Handbook but asked to click “Accept” to a later Handbook, and she knew that she felt surprised by having to agree to the arbitration agreements. Whether or not she knew that such actions could support a cause of action is not the point. See Jolly, 44 Cal.3d at 1113 (“it is the discovery of facts, not their legal significance, that starts the statute.”). Even accepting Mikhak's suggestion that she did not know those facts contemporaneously, she admits in her opposition brief that she knew them while the earlier litigation was going on. See Opp'n at 31-32, n.40 (“Plaintiff's new allegations of fraud were not raised as ‘tort claims' in Plaintiff's Original Complaint because the fraud was discovered at the end .”); see also Order of Conditional Dismissal (dkt. 47) in Case No. 16-cv-901-CRB (dismissing case pursuant to Rule 41(b) on December 5, 2017).

The pre-litigation claims against the UOP defendants are therefore untimely.

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b. Res Judicata

“Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims that were raised or could have been raised' in a prior action.” Stewart v. United States Bancorp, 297 F.3d 953, 959 (9th Cir. 2002) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). “Res judicata applies when there is: ‘(1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties.'” Id. All three are met here.

First, the earlier lawsuit ended in a final judgment on the merits when the Court dismissed the case for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Order Denying Motion to Set Aside Judgment at 5-6. That Rule states that unless an order dismissing a case for failure to prosecute says otherwise, such a dismissal “operates as an adjudication on the merits.” Fed.R.Civ.P. 41(b). The Court's order did not state otherwise; moreover, Mikhak seems to have understood the order to be final, because she appealed shortly thereafter. See Order Denying Motion to Set Aside Judgment at 5-6.

Second, there is either identity or privity between the parties. UOP was actually a party in the first lawsuit. See Compl. in Case No. 16-cv-901-CRB. While the UOP employee defendants, Taylor, Spence, Pepicello, and Walls, were not named in the first lawsuit, they are in privity with UOP. See Chunhye Kim Lee v. Arizona Bd. of Regents, No. 14-15404, 633 Fed.Appx. 453, 454 (9th Cir. March 21, 2016) (“An employer-employee relationship satisfies the claim preclusion privity requirement.”); Knox v. Potter, No. C-03-3638 MMC, 2004 WL 1091148, at *13 (N.D. Cal. May 4, 2004), aff'd 131 Fed.Appx. 567 (9th Cir. 2005) (“Generally, an employer-employee relationship will satisfy the privity requirement for matters within the scope of employment, irrespective of whether the employer or employee is sued first.”).

Third, all of the pre-litigation claims that Mikhak brings against the UOP defendants were or could have been raised in the first lawsuit. Mikhak argues that “Plaintiff's NEW Complaint does not involve her employment and religious discrimination claims, and . . . Plaintiff's new allegations of fraud were not raised as ‘tort claims' in Plaintiff's Original Complaint because the fraud was discovered at the end.” Opp'n at 31-32, n.40. But Mikhak's assertion that the cases contain different claims misses the mark. “[T]wo cases can have the same transactional nucleus of

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facts even if the second lawsuit identifies new claims.” Lenk v. Monolithic Power Sys., Inc., No. 16-cv-2625-BLF (NC), 2017 WL 2491597, at *2 (N.D. Cal. Apr. 20, 2017). “If claims are related to the same set of facts and could be conveniently tried together, then there is identity of claims.” Id.

The FAC's pre-litigation claims against the UOP defendants here arise out of Mikhak's employment with the UOP, and, in particular, the hiring process. See generally FAC. That is precisely what the first case was about. See generally Compl. in Case No. 16-cv-901-CRB. While the claims here focus on the arbitration agreement, and the claims in the earlier case focused on UOP's allegedly discriminatory decision not to hire Mikhak, there is no denying that both involve Mikhak trying to obtain faculty status at UOP. That is the same nucleus of facts, and both topics could handily be tried together. See Mpoyo v. Litton Electro-Optical Systems, 430 F.3d 985, 987 (9th Cir. 2005) (“Because both sets of Mpoyo's claims arise from Litton's conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts.”); Garcia v. Honeywell Int'l, Inc., No. 13-cv-2399-BAD (WVG), 2014 WL 2511509, at *2-4 (S.D. Cal. June 3, 2014) (where first case involved claims of discrimination, harassment, retaliation, unlawful employment practices, breach of contract, and intentional infliction of emotional distress, and second case involved claims of fraud, obstruction of justice and conspiracy, RICO conspiracy, and spoliation of evidence, the “purported ‘subsequent wrongs' arise from the same transactional nucleus of facts that formed the basis of the [first case]-the circumstances of his employment and subsequent termination”). Indeed, the formation of the arbitration agreement was very much at issue in the first case. See Opp'n to Mot. to Compel. (dkt. 18) in Case No. 16-cv-901-CRB at 5 (“Plaintiff's reasonable understanding . . . was that if she clicked ‘Accept' to the 2014-2015 Faculty Handbook, she was in agreement to the policies that would apply to her at the time they will apply to her, when she became a full time faculty member.”), id. at 9 (“One had to acknowledge and accept the arbitration policy if one desired to keep on working at UOP.”); Order Granting Motion to Compel in Case No. 16-cv-901-CRB at 3 (“According to Mikhak, the University first provided her with an outdated 2011-2012 handbook that lacked any information about arbitration.”) (citing Mikhak Decl. (dkt. 18-1) ¶ 16);

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id. at 25 (concluding that arbitration agreement was valid and enforceable, and compelling arbitration).

Accordingly, res judicata bars the pre-litigation claims against the UOP defendants.

3. False Reference

The FAC includes a lone cause of action alleging that the UOP violated California Labor Code § 1050 by providing a false reference about Mikhak to potential future employers. FAC ¶¶ 448-49. Mikhak alleges that this claim “is based on circumstantial evidence which is something that needs to be investigated during the discovery stage.” Id. ¶ 449. She alleges that in June of 2020, she applied to teach a class in the Fall of 2020 at the University of San Francisco, and she never received a response from the department chair. Id. The chair allegedly asked Mikhak in an email about her prior experience teaching a psychology class at UOP, Mikhak answered her, and then “she did not reply to any of my emails.” Id. Mikhak concludes: “I cannot rule out the possibility that she may have contacted the UOP for an employment reference, and the reason I never heard back from her was because the UOP gave me a negative reference in retaliation for my lawsuit.” Id. She concedes, however, that “It is also possible that she did not offer me a job interview because, as she had alluded to in her initial email, she was prioritizing those with prior psychology teaching experience” and that “[a]nother explanation is that the USF's department chair may have looked up my name online and found out about my employment discrimination lawsuit being dismissed with prejudice.” Id. ¶ 450.

These allegations do not plausibly state a claim for false reference. While they might have sufficed under the Conley pleading standard, see Conley v. Gibson, 355 U.S. 41, 47 (1957) (“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.”), they do not represent “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” see Iqbal, 556 U.S. at 678; see also id. at 679 (“where the well-pleaded facts

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do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'”) (quoting Fed.R.Civ.P. 8(a)(2)). The Court need not accept as true Mikhak's speculation that the UOP might have given her a false reference. See In re Gilead Scis. Sec Litig., 536 F.3d 1055 (9th Cir. 2008) (court need not “‘accept as true . . . unwarranted deductions of fact, or unreasonable inferences.'”) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)); Lenk v. Monolithic Power Sys., Inc., No. 20-cv-8094-BLF, 2021 WL 5233078, at *8 (Nov. 10, 2021) (“Lenk's theory is that MPS must have given him negative references because he was not hired by On Semiconductor even though he was exceptionally qualified. Lenk's bare speculation as to MPS's conduct, and motivation for such conduct, is insufficient to state a claim for blacklisting.”). Nor does Mikhak assert in her opposition brief that there are any allegations she could add to strengthen her claim; rather, she asks the Court to “allow Plaintiff's claim to move forward so she can attain certainty after investigating it during discovery.” Opp'n at 46-47. The Court will not do so. See Iqbal, 556 U.S. at 678-79 (“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

Accordingly, the false reference claim and all of the other claims against the UOP defendants are DISMISSED.

C. 1983 and Fifth Amendment Claims

Finally, the FAC includes two claims based on 42 U.S.C. § 1983, and one claim based on the Fifth Amendment. See FAC ¶¶ 66-73 (alleging that Defendants violated Mikhak's right to due process of law under the Fourteenth Amendment “because they all contributed, in their own way, to the fraudulent misrepresentation that helped them win the arbitration argument, and later to the dismissal of my entire civil rights case with prejudice.”); id. ¶ 74 (alleging that “[w]ith their fraudulent misrepresentation and perjury described above, [Defendants] all violated my Right to Equal Protection of the Law under the Fourteenth Amendment (42 U.S.C. § 1983). . . .”); id. ¶¶ 75-86 (alleging that Defendants' “fraudulent misrepresentation and perjury . . . violated my Fifth Amendment Right to Due Process in the Constitution of the United States and their California state law counterparts....”). These claims fail because Defendants are private actors.

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To state a claim for violation of section 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The “definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Id. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Defendants in this case are all private individuals or entities. See, e.g., Gibson v. Univ. of Phoenix, Inc., No. H-07-947, 2007 WL 9754328, at *3 (S.D. Tex. June 29, 2007) (holding that plaintiff could not state a section 1983 claim against UOP because it is a “private university” and plaintiff did not allege any state action). “[P]rivate parties are not generally acting under color of state law, and . . . ‘conclusory allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act.'” Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (quoting Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984)). Certainly there are times when private actors act under color of state law. See Gorenc v. Salt River Project Agr. Imp. & Power Dist., 869 F.2d 503, 506-09 (9th Cir. 1989) (citing Lugar, 457 U.S. at 939); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). But the FAC includes no allegations that Defendants acted under color of state law here.

Mikhak argues in her opposition brief that Defendants were acting under color of state law because they “appeared to have engaged in corrupt ‘conspiracy' with a judge in conjunction with the judge's performance as an official judicial act,” citing Dennis v. Sparks, 449 U.S. 24, 28-29 (1980). See Opp'n at 46. Dennis involved allegations that “an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge,” which meant that “private parties conspiring with the judge were acting under color of state law.” 449 U.S. at 28. There are no allegations in the FAC that Defendants conspired with (or bribed) the Court. To the contrary, the FAC alleges repeatedly that Defendants misled the Court. See, e.g., FAC ¶ 42 (“Dal Cielo falsely suggested that ‘faculty member' is an umbrella term for ‘faculty candidate' to mislead the court into thinking that the unequal bargaining power was minimal”); id. ¶ 69 (“the district court

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relied on Dal Cielo's unjustified pressure tactics and her misrepresentations of me as the ‘plaintiff wants to flout the court's order,' or the ‘Noncompliant plaintiff who with her undue delay wasted tax payer's resource[.]”). And Mikhak cites to no evidence supporting the conspiracy assertion in her opposition brief. She has failed to allege that Defendants were acting under color of state law for the purposes of section 1983.

Similarly, the Fifth Amendment applies “only to actions of the federal government” and dismissal is proper when defendants are not federal actors. Lee v. City of Los Angeles , 250 F.3d 668, 687 (9th Cir. 2001); Barge v. Horwitz , Np. 21-cv-2558-JCS, 2021 WL 6053849, at *6 (N.D. Cal. Aug. 27, 2021) (“the Fifth Amendment claim fails because the Due Process Clause of the Fifth Amendment applies to deprivations by the United States and Plaintiff does not allege that the United States was involved in any of the conduct that gives rise to the claims in this case.”). The Defendants here are not federal actors. Mikhak has therefore failed to allege a Fifth Amendment claim.

Accordingly, the section 1983 and Fifth Amendment claims are DISMISSED.

IV. CONCLUSION

For the foregoing reasons, the FAC is DISMISSED in its entirety. Dismissal is with prejudice, as amendment would be futile. See Leadsinger , 512 F.3d at 532; see also Akhtar . 698 F.3d at 1212 (“it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”). All pending motions are denied as moot. This Court no longer has jurisdiction over this case. The parties shall address any additional filings to the Circuit.

IT IS SO ORDERED.