IN THE HIGH COURT
 OF THE 
REPUBLIC OF THE MARSHALL ISLANDS

CIVIL ACTION NOS. 2010-0207 & 2011-0022 

LUTZ KAYSER and SUSANNE KAYSER-SCHILLEGGER,
Plaintiffs,

v

THE HONORABLE CHIEF 
JUSTICE CARL B. INGRAM,
 GOOGLE, INC.,
 MICROSOFT CORP.,
 IAC/InterActive Corp.,
 YBRAND DIGITAL,
 LIMITED, YAHOO INC.,
Defendants.

THE HONORABLE JOHN C. COUGHENOUR

ORDER

This matter comes before the Court on the motions to dismiss of Yahoo! Inc., Microsoft, Google Inc., Y Brand Digital, and IAC/InterActive Corp. (collectively "the Internet Defendants"), the motion to dismiss of Chief Justice Carl Ingram, and several related motions. Having thoroughly considered the parties' briefing, the relevant record, and oral argument held on Majuro, the Court rules as follows.

I. BACKGROUND

This case arises out of several other lawsuits ("the Underlying Litigation"), all relating back to a 2006 real-estate deal that went sour. Plaintiffs (the Kaysers) entered into a joint venture with Robbie Chutaro and Michele Stanley (the Chutaros) called Pacific Trading and Development, Inc. (PTDI). The purpose of PTDI was to turn a group of minor islands in the Marshall Islands into deluxe resorts.

A. Case No. 2010-0207 Background

When the Kaysers noticed certain alleged irregularities in the Chutaros' financial practices, they filed an action in 2007 for the surrender of all PTDI' s business records held by the Chutaros (Civil Case No. 07-078). Relations between the Kaysers and the Chutaros deteriorated further. The Kaysers filed a second lawsuit in 2008 as a result of disputes over lease of the property in question and storage of materials intended for development of the property (Civil Case No. 08-096) (together "the Underlying Chutaro Litigation").

Chief Justice Ingram is the Chief Justice of the High Court of the Marshall Islands and presided over the 2007 and 2008 cases between the Kaysers and the Chutaros. The present case stems from Chief Justice Ingram's decisions in those cases. Plaintiffs allege that Chief Justice Ingram granted a petition of dissolution of PTDI favorable to the Chutaros, permitted the Chutaro's counsel to continue to appear and file documents after removing him from the case, struck Plaintiffs' pleadings, and issued orders without jurisdiction. (Complaint 17-32.) The Kaysers have filed suit against Chief Justice Ingram seeking punitive damages, compensatory damages, and costs. (Complaint at 24.) Chief Justice Ingram now moves to dismiss.

A. Case No. 2011-022 Background

In 2006 John G. Snook invested in the project. In October 2006, he demanded that Plaintiffs return $21,000 of his investment. When Snook did not receive the amount he had asked for, he purchased an ad on Google AdWords. (Complaint ¶ 14.) Snook configured the ad so that when somebody searched for phrases related to the Marshall Islands or the Plaintiffs, a message would appear announcing that Plaintiffs are crooks and liars and warning against investing with the Plaintiffs. (Complaint ¶15.) Plaintiffs allege that they asked Google to remove the ad and that Google did not comply. (Id. at 17.)

In May 2008, Plaintiffs filed a motion for injunction against Google, Microsoft, Ask.com, IAC World, Lycos, and Yahoo, requesting removal of the advertisement. (Civil Action Nos. 2008-016 and 2008-017, collectively ("The Underlying Internet Litigation"). It is the result of that litigation that Plaintiffs challenge in the current action. Plaintiffs now bring suit against Chief Justice Ingram and the Internet Defendants for conspiracy, abuse of process, trespass, fraud, perjury, and violations of due process and equal protection.

I. APPLICABLE LAW

A. United States Law

In deciding a 12(b)(6) motion to dismiss, this Court may consider, without being bound by, the decisions of United States federal courts. See Kabua v Kabua, l MILR (Rev.) 96, 104 (S. Ct. 1988).

B. Motion to Dismiss

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (U.S. 2009) A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (U.S. 2007). Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949. In reviewing Defendant's motion, then, the court accepts all factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of Plaintiffs. Al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). Although Rule 12(b)(6) does not require courts to assess the probability that a plaintiff will eventually prevail, the allegations made in the complaint must cross the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S. Ct. at 1949.

C. Pro Se Plaintiffs

"The Supreme Court has instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants." Eldridge v Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v MacDougall, 454 U.S. 364, 365 (1982)). In practice, this means that pro se plaintiffs are ultimately held "to less stringent standards than formal pleadings drafted by lawyers." Haines v Kerner, 404 U.S. 519, 520 (1972). This does not mean, however, that a court can make the Plaintiff's case where he has failed to do so. "[C]ourts should not have to serve as advocates for pro se litigants." Noll v Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Indeed, "[h]e who proceeds pro se with full knowledge and understanding of the risks does so with no greater rights than a litigant represented by a lawyer, and the trial court is under no obligation to ... assist and guide the pro se layman[.]" Jacobsen v Filler, 790 F.2d 1362, 1365, n. 5 (9th Cir. 1986) (quoting United States v Pinkey, 548 F.2d 305 (10th Cir. 1977)).

II. DISCUSSION

A. Verification and Attorney Testimony

As a preliminary matter, Plaintiffs repeatedly allege that Defendants have submitted unverified briefing. (Verified Objection 2-3.) This argument lacks any basis in the law. Plaintiffs provide no support for their contention that briefing must be "verified."

Plaintiffs further object that Defendant's attorney is improperly "testifying" and making non-meritorious "averments." Defendant's attorney is not "testifying" to factual matters; he is making legal arguments. Attorneys are permitted to make legal arguments.

B. Judicial Immunity

Chief Justice Ingram's motions to dismiss are founded primarily on the doctrine of judicial immunity. A long line of precedents holds that, generally, judges are immune from suit for money damages. This does not simply mean that a judgment against a judge is invalid or void; it means that a judge cannot be taken to court in the first place. Mireles v Waco, 502 U.S. 9 (U.S. 1991) "[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages. Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." Id. (citations omitted). Nor is judicial immunity overcome by allegations of a conspiracy between the judge and a party. Ashelman v Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) ("[A] conspiracy between judge and [a party] to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity extended to judges ...."). Judicial immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Forrester v White, 484 U.S. 219 227-29 (1988); Stump v Sparkman, 435 U.S. 349, 360 (1978). Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356-357; Bradley v. Fisher, 80 U.S. 335 (1872).

Plaintiffs first argue that assertions of judicial immunity are not appropriate in a 12(6)(6) motion to dismiss. Plaintiffs repeated this claim in oral argument, stating that a defense of judicial immunity must be proven at trial. This argument stems from a simple misunderstanding of the law. The case Plaintiffs cite stands for the proposition that a defense of qualified immunity cannot ordinarily support 12(b)(6) dismissal. Liffiton v Keuker, 850 F.2d 73, 76 (2d Cir. 1988). As the opinion explains, this is because further facts are often required to be able to determine whether a defendant is entitled to qualified immunity or another form of immunity. Judges, however, enjoy absolute immunity unless a plaintiff has alleged one of the two circumstances described above. See Moore v Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996). As explained below, Plaintiffs have not properly alleged either of those circumstances. Accordingly, dismissal based on an assertion of judicial immunity is proper on a 12(b)(6) motion.

1. Were Chief Justice Ingram's Disputed Actions Judicial or Nonjudicial?

First, the Court must determine whether Chief Justice Ingram's actions were "judicial acts" or acts that simply happen to have been committed by a judge. The Supreme Court of the United States has made clear that "whether an act by a judge is a 'judicial' one relates to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Mireles, 502 U.S. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (U.S. 1978)). Each of the actions the Plaintiffs challenge is a normal judicial function. Granting motions and petitions, denying motions and petitions, considering or not considering motions and petitions, and permitting appearances from counsel are all uniquely judicial actions. Plaintiffs clearly object to the result of those decisions, but they cannot assert that Chief Justice Ingram's decisions were not judicial.

2. Did Chief Justice Ingram Act in Complete Absence of all Jurisdiction?

Second, the Court must determine whether Chief Justice Ingram acted within his jurisdiction, "in excess of jurisdiction", or "in complete absence of all jurisdiction." Judges are not liable for actions in excess of their authority, but are liable for actions in complete absence of jurisdiction. Stump v Sparkman, 435 U.S. 349, 356 (U.S. 1978). The distinction between acts in excess of jurisdiction and acts in complete absence of all jurisdiction was first articulated in Bradley v Fisher, in which the Supreme Court of the United States explained that if a probate judge, with jurisdiction over wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune. 80 U.S. 335, 352 (1872). Two additional ways in which a judge can lose immunity were articulated in Rankin v Howard, 633 F.2d 844, 849 (9th Cir. 1980): "But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost." Rankin v Howard, 633 F.2d 844, 849 (9th Cir. 1980).

First, Plaintiffs offer no action Chief Justice Ingram performed that is categorically outside of the role and responsibilities of a Justice of the High Court of the Marshall Islands. Rather, Plaintiffs make argue that: 1) he did not have in personam jurisdiction over PTDI (2010 Complaint in ¶¶ 17, 19b, 24, 25; 2010 Amended Complaint ¶ 17, 19a), 2) the Chutaros did not have standing to bring a petition of dissolution; and because the Chutaros lacked standing, Chief Justice Ingram lacked subject matter jurisdiction. (2010 Complaint at ¶ 22, 23, 30; 2010 Amended Complaint 21, 23, 24, 25), and 3) he did not have jurisdiction over the Internet Defendants, but ruled in their favor regardless. (2011 Complaint 24 & 29.) Even if these rulings were in error, they are not the sort of jurisdictional errors that result in liability: "It is not sufficient that the court in fact lacked jurisdiction. Because jurisdictional issues are often difficult to resolve, judges are entitled to decide such issues without fear of reprisal should they exceed the precise limits of their authority." Id. (citing Stump v Sparkman, 435 U.S. at 356) (overruled on other grounds by Ashelman v Pope, 793 F.2d 1072, 1078 (9th Cir. 1986).) Plaintiffs' case is exactly this sort of reprisal that the law of judicial immunity was created to prevent.

Second, Plaintiffs offer no credible allegations that Chief Justice Ingram knew that his actions were in excess of jurisdiction. Plaintiffs repeatedly allege that Chief Justice Ingram acted "knowingly" "intentionally" and "with ulterior motive," but provide no factual support. These are the sort of "naked assertion[s]" devoid of "further factual enhancement" the Supreme Court has deemed to be insufficient. Twombly., 550 U.S. at 557.

Third, Plaintiffs offer no statute expressly depriving the High Court of the Marshall Islands of jurisdiction over matters such as these. Plaintiffs cite to the MIRC to argue that the Chutaros had no standing to petition for dissolution. (Complaint 22.) But nowhere in their complaint or amended complaint can they cite to a statute depriving the High Court of all jurisdiction over dissolution petitions.

Plaintiffs provide a lengthy string of legal citations dating back to 1870 in support of their arguments, many of which are interpretations of state law or irrelevant. The Court will not address each of Plaintiffs' citations, but a few examples are illustrative. Plaintiffs cite to Von Kettler v Johnson, 57 Ill. 109 (1870) for the quotation: "But, if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers." This is an interpretation of Illinois law, not the law of the United States and certainly not the law of the Marshall Islands. Plaintiffs also quote Davis v Burris, 51 Ariz. 220, 223 (1938): "In order to claim immunity from civil action for his acts, it is generally necessary that a judge be acting within his jurisdiction as to subject matter and person." This is an interpretation of Arizona law and is not relevant here. More importantly, these decisions conflict with the opinions of the Supreme Court of the United States, and it is those opinions that this Court must use in this case.

Chief Justice Ingram has absolute judicial immunity in these actions and all of the Plaintiffs lawsuits against him are DISMISSED.

3. Representation by the Attorney General

Plaintiffs move to disqualify Attorney General Frederick Canavor as counsel for Chief Justice Ingram. Their primary argument is that Chief Justice Ingram is being sued in his personal capacity and as such, is not entitled to defense from the Attorney General. This is wishful thinking. Plaintiffs cite no compelling authority to suggest that Mr. Canavor cannot represent Chief Justice Ingram. And even if there were such authority, the issue would be moot as Plaintiffs lawsuits against Chief Justice Ingram are dismissed.

C. Jurisdiction Over Internet Defendants

The Internet Defendants argue that the case against them must be dismissed pursuant to MIRCP 12(b)(2) because the Court lacks personal jurisdiction over them. When a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is appropriate. Sher v Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). However, in cases such as this one, "the plaintiff need only make a prima facie showing of jurisdictional facts," based on the pleadings and any affidavits served in connection with the motion to dismiss. Id. Although the plaintiff cannot "simply rest on the bare allegations of its complaint," Amba Marketing Systems, Inc. v Jobar International, Inc., 551 F.2d 784, 787 (9th Cir. 1977), uncontroverted allegations in the complaint must be taken as true. AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).

The long-arm statute of the Marshall Islands permits jurisdiction to the full extent permitted by due process. See Section 251 of the Judiciary Act 1983; See also R.M.I. CONST. art. II § 4. Due process requires that nonresident defendants have certain minimum contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. International Shoe v Washington, 326 U.S. 310, 316 (1945). The contacts analysis comes in two varieties: specific and general jurisdiction.

1. Specific Jurisdiction

In order for the exercise of jurisdiction over the Internet Defendants to be proper here, Plaintiffs' claims must arise out of or relate to the Internet Defendants' forum-related activities. See Schwarzenegger v Fred Martin Motor Co., 374 F. 3d 797, 801 (9th Cir. 2004). The parties vigorously contest the proper scope of the Internet Defendants' forum-related activities. Plaintiffs argue that the Internet Defendants' maintenance of a website accessible from the Marshall Islands is a forum-related activity, and that these activities are enough to subject the Internet Defendants to this suit. The Internet Defendants argue that their internet presence is sufficiently passive that they should not be forced to defend against a lawsuit so far removed from their place of business. However, the nature of the Internet Defendants' web presence and the amount of commerce they conduct is irrelevant to the question of specific jurisdiction. The Court looks only to the claims raised in the present complaint, and asks if those actions are forum-related activities.

Plaintiffs' complaint raises allegations of abuse of process, conspiracy, and perjury. Without exception, these claims arise from the Internet Defendants conduct during the Underlying Internet Litigation. Likewise, the majority of Plaintiffs' response to the motion to dismiss is concerned with repeating allegations of tortious conduct and business transactions from the Underlying Litigation. But these allegations are futile if Plaintiffs' claims in this lawsuit do not arise out of those alleged torts or transactions. Actions in a previous lawsuit cannot be sufficient to confer jurisdiction; if a party were subject to jurisdiction in a forum merely for responding to a lawsuit in that forum, then a plaintiff could secure jurisdiction over any party it wanted simply by suing that party it wanted by suing that party enough times. See Clark v Meijer, Inc., 376 F. supp 2d 1077, 1085-86 (D.N.M. 2004) ("It would be an odd result if the [plaintiffs] were able to eventually obtain personal jurisdiction over the [defendants] that the Court did not have originally by continuing to sue them.") The Court finds no specific jurisdiction over the Internet Defendants.

2. General Jurisdiction

A defendant whose contacts with the Marshall Islands are "substantial" or "continuous and systematic" can be haled into Marshall Islands courts in any action, even if the action is unrelated to those contacts. See Helicopteros Nacionales de Colombia, S.A. v Hall, 466 U.S. 408, 415 (1984). This is known as general jurisdiction. The standard for establishing general jurisdiction is "fairly high," Brand v Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986), and requires that the defendant's contacts be of the sort that approximate physical presence. Bancroft & Masters v Augusta Nat'L, 223 F.3d 1082, 1085 (9th Cir. 2000). Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there. Id. (citing Hirsch v Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir. 1986)).

In this case, the Internet Defendants' contacts do not qualify as either substantial or continuous and systematic. Plaintiffs have not alleged that any of the Internet Defendants a) are registered or licensed to do business in the Marshall Islands, b) pay taxes in the Marshall Islands, c) maintain bank accounts in the Marshall Islands, or d) target print, television, or radio advertising toward the Marshall Islands. Plaintiffs argue that the Internet Defendants have continuous and systematic contacts because they are available twenty-four hours a day. Yet Plaintiffs have failed to identify a single piece of authority to suggest that availability over the internet, or even limited commerce, is sufficient to establish general jurisdiction. "Engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state's borders." Id.

Plaintiffs cite to Cybersell, Inc. v Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997), and claim that this case says that where websites engage in commercial transactions over the internet, "jurisdiction is almost always proper." That case says nothing of the sort. The only mention of general jurisdiction in that case is: "[Plaintiff] concedes that general jurisdiction over [defendant] doesn't exist in Arizona, so the only issue in this case is whether specific jurisdiction is available." Plaintiffs also argue that the Internet Defendants are "doing business" in the Marshall Islands based on a definition from Carolina Components Corp. v Brown Wholesale Co., 272 S.C. 220, 223 (S.C. 1978). This is a wildly irrelevant citation. First, Plaintiffs cite the case as though it is a Supreme Court of the United States opinion (272 S. Ct. 220), when in fact it is an opinion of the Supreme Court of South Carolina (272 S.C. 220). Second, the opinion deals with the interpretation of a South Carolina law forbidding corporations doing business without authority from maintaining lawsuits in state courts. The Court is disappointed by Plaintiffs misrepresentations and finds no general jurisdiction over the Internet Defendants.

D. Collateral Attacks and Appeals

Generally speaking, the problem with Plaintiffs' lawsuits is that they are challenges to the result of other lawsuits. The legal system has a mechanism for such challenges-the appeal. It appears that many, if not all, of Plaintiffs arguments should be raised according to the rules of the Supreme Court of the Marshall Islands. In oral argument, Plaintiffs stated that this was not a satisfactory option for them because an appellate decision does not void judgment. While this may be a correct statement of the law in some instances, it is irrelevant in this case. When an appellate court determines that a lower court had no jurisdiction over a matter, a judgment is voided. See Schwartz v United States, 976 F.2d 213, 217 (4th Cir. 1992) (A judgment is void "only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.") When an appellate court determines that a lower court has made a mistake, a judgment is vacated.

Further, there is no way for any court to specifically change the outcome of a completely different lawsuit. If Plaintiffs seek to have Chief Justice Ingram's decisions reversed, an appeal is the proper procedure. If Plaintiffs seek to have Chief Justice Ingram's judgment voided, and appeal is still the proper procedure. A subsequent decision in another case would neither render any judgment against Plaintiffs void nor vacate that judgment. If Plaintiffs seek to challenge the Underlying Litigation, the Court respectfully urges Plaintiffs to focus their energies on appealing. Plaintiff's current strategy is one that the rules anticipate and carefully prevent-it will not succeed.

E. Vexatious Litigants

The Internet Defendants have moved this Court for an order declaring that Plaintiffs are vexatious litigants. See MIRCP 11.1. Pursuant to MIRCP 11.1(a)(6)(C), a vexatious litigant is one who "in any litigation while acting pro se, repeatedly files un-meritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." The Court can require that such litigants post a security at any time until a judgment is entered. The Court can also prohibit a vexatious litigant from filing any new litigation in the courts of the Republic pro se without first obtaining leave of the presiding judge. The Court is committed to full access to the courts and would only grant such a motion after careful consideration. Upon review of the record, however, the Court has determined that such an order is appropriate.

The Court offers no opinion of the merits of the Plaintiffs' case in the Underlying Litigation. But Plaintiffs' conduct in the present litigation has been completely unacceptable, regardless of Plaintiffs pro se status. Examples discussed in this order include: filing of motions with absolutely no legal basis whatsoever such as the motions challenging the authority of attorneys to act for parties, accusing Chief Justice Ingram of treason at oral argument with no evidence to support the accusation, arguing completely contradictory positions regarding jurisdiction over the Internet Defendants, submitting briefs with multiple irrelevant citations, misrepresenting the holdings of opinions, and generally using the legal system to improperly relitigate matters from other lawsuits. These actions are wasteful, burdensome, and frivolous. Plaintiffs are hereby declared to be vexatious litigants. Plaintiffs are prohibited from filing any new litigation in the courts of the Republic pro se without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of this order may be punished as a contempt of court.

III. CONCLUSION

For the foregoing reasons, Defendants' motions to dismiss are GRANTED. These cases are DISMISSED. Plaintiffs are declared to be vexatious litigants, with the conditions imposed above. All other motions are STRICKEN as MOOT.

DATED this 2nd day of August 2011.

John C. Coughenour
ASSOCIATE JUSTICE OF THE HIGH COURT OF THE REPUBLIC OF THE MARSHALL ISLANDS PRO TEM