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MELINDA HAAG (SBN 132612) United States Attorney JOANN M. SWANSON (SBN 88143) Chief, Civil Division Victoria R. Carradero (SBN 217885) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7181 Facsimile: (415) 436-6748 Email: victoria.carradero@usdoj.gov Attorneys for the United States of America

8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 WANXIA LIAO, 13 Plaintiff, 14 v. 15 UNITED STATES OF AMERICA, et al., 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C-11-2494 JSW UNITED STATES OF AMERICAS OBJECTION TO PLAINTIFFS REQUEST FOR JUDICIAL NOTICE. Date: April 6, 2012 Time: 9:00 a.m. Location: Courtroom 11, 19th Floor Judge: Honorable Jeffrey S. White

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Defendant the United States of America (USA) hereby submits this objection to Plaintiffs Request for Judicial Notice, Docket No. 88, filed on March 28, 2012. I. PLAINTIFFS REQUEST FOR JUDICIAL NOTICE WAS FILED LATE AND IS AN IMPROPER SUR-REPLY Civil Local Rule 7-3(a) provides that any Opposition to a motion is due no later than 14

days after the initial motion is filed. Section (d) regarding supplementary material specifically provides that [o]nce a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval, save for two exceptions, neither of which apply here.1 The USA filed the motion to dismiss on March 1, 2012. Thus any materials Plaintiff intended to be considered by the Court as part of her Opposition were due on March 15, 2012. She did not include these materials in her filing. Docket Nos. 84-85. Rather, she waited until nearly a week after the USA filed its reply brief to submit her purported Request for Judicial Notice, containing additional materials and legal argument. As these sur-reply materials are not properly before the Court, they should be stricken. Pascual v. Astrue, Case No. 08-2906 SBA, 2009 U.S. Dist. LEXIS 35936 (N.D. Cal., April 24, 2009) (noting sur-reply materials filed without permission not properly before the Court). II. PLAINTIFFS REQUEST FOR JUDICIAL NOTICE DOES NOT SAVE THE FATAL FLAWS IN THE FIRST AMENDED COMPLAINT Plaintiff requests that the Court to take judicial notice of seven documents, none of which

should save the complaint from dismissal with prejudice. A. Document Numbers 1-3: The United States Constitution, Article VI, Hague Convention and Federal Rule of Civil Procedure 4 Plaintiff contends that these documents dictate that the Hague Convention governs service of process here. Plaintiff is incorrect. The Hague Convention does not apply here because Plaintiff is suing defendants in a United States judicial forum, all of whom reside in the United States. Thus, there is no service abroad that would invoke the Hague Convention,
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The USA did not submit new evidence on reply, thus, subsection (1) is not applicable. Further, nothing in Plaintiffs purported request for judicial notice constitutes a relevant judicial opinion filed after the date the opposition or reply was filed. Accordingly, subsection (2) does not apply. Civ. Local Rule 7-3(d).

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hence the specific language of Federal Rule of Civil Procedure 4(f) (Serving an individual in a foreign country. Unless federal law provides otherwise, an individual...may be served at a place not within any judicial district of the United States...). The Supreme Court case of Atkiengesellschaft v. Schlunk, 486 U.S. 694 (1988) relied upon by Plaintiff sets forth the extensive history and purpose of the Convention, including the United States role in the negotiations and ratification. In discussing that history, the Supreme Court noted that the Conventions revision of 1964 was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad. Id., at 698 (emphasis added). The Court further went on to note that, [t]he negotiating history of the Convention also indicates that whether there is service abroad must be determined by reference to the law of the forum state...The committee that prepared the preliminary draft realized that this implied that the forums internal law would govern whether service implicated the Convention...Nevertheless, the delegates did not change the meaning of Article 1 in this respect. Id., at 701. Here, the law of the forum provides for when service abroad is triggered, and is limited to Federal Rule of Civil Procedure 4(f), the only provision in Rule 4 that provides for service abroad under the Hague Convention. As is clear by the language of the subsection, as well as the 1993 Advisory Committee Notes, that provision specifically applies only to persons not within any judicial district of the United States... See Fed. R. Civ. Proc. 4(f)(1); 1993 Advisory Committee Notes re 4f(1) (Therefore, this paragraph provides that, when service is to be effected outside a judicial district of the United States, the methods of service appropriate under an applicable treaty shall be employed if available and if the treaty so requires.) No such provision exists for suing the United States, its Agencies, Corporations, Officers, or Employees. See Fed. R. Civ. Proc. 4(i). This is consistent with the Ninth Circuits holding in Brockmeyer v. May, 383 F.3d. 798 (9th Cir. 2004), which concluded that [f]or service by international mail to be effective in federal court, it must also be affirmatively authorized by some provision in federal law. Federal Rule of Civil Procedure 4 governs service of process in federal court. Id., at 800. Here, as Plaintiff was

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responsible for effecting service of a United States District Court Summons and Complaint on federal defendants that reside within a judicial district of the United States, she was bound to abide by Rule 4(i), which she admittedly refuses to do. See Opp.; see also Carradero Decl., Ex. 21, fn. 1, Ex. 22, p. 3, Ex. 23, pp. 3-4, Ex. 33-34; Docket No. 56 (prior admonishments of Plaintiff by this court re service). B. Document Numbers 4-6: Universal Declaration of Human Rights of United Nations, 2010 Country Reports on Human Rights Practices by U.S. Department of State, Conference on Internet Freedom, Remarks by Secretary of State Hillary Rodham Clinton Plaintiff requests judicial notice of these documents to support her proposition that she

has legal rights under the United States Constitution, even though she is a citizen and resident of Canada and outside of the territorial boundaries of the United States. Nothing in these documents supports that proposition, nor do these documents in and of themselves provide Plaintiff with any legal entitlement or legal claim for relief under the Constitution. C. Document Numbers 62 and 8: General Function Regulations

Plaintiff contends that 28 C.F.R. .85 (Federal Bureau of Investigations (FBI) and 28 C.F.R. .50 (Department of Justice (DOJ), Civil Rights Division) provide a mandatory duty upon the FBI and DOJ to investigate violations of laws. Plaintiffs reliance on these regulations is misplaced. First, nothing in these regulations provides for a mandatory duty of the FBI or DOJ to investigate every single allegation of a violation of a law. Second, Plaintiff fails to cite to one case interpreting these or any other regulations and finding an affirmative mandatory duty of a federal agency to investigate every complaint alleging violations of criminal or civil laws. Martinez v. USA, 587 F. Supp., 2d 245 (D.C. Cir. 2008), is instructive. In that case, Martinez, while visiting Canada as a tourist, called an FBI field office to seek help because she was being victimized over and over in the United States in a Hate Crime that she considered to be persecution...of a criminal nature. Id., at 246. Martinez, like the Plaintiff here, did not

Presumably due to misnumbering, Plaintiff identifies a second document as Number 6. Docket No. 88, p. 3-4. 3

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receive a response that satisfied her and sued the government claiming the government did not do enough for her and did not take her claims seriously or professionally. Id. Martinez sought compensation for the intentional and deliberate depraved indifference to the Plaintiffs plea[s] for intervention in a Hate crime and other crimes that Plaintiff cannot take on herself. Id. The court dismissed Plaintiffs complaint for failure to state a claim on the grounds of the discretionary function exception to the Federal Tort Claims Act. Id., at 248. (The decision to allocate limited governmental resources to investigate a reported crime, like the decision to allocate limited resources to prosecute a crime, is a discretionary function. The Court noted: [D]ecisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and accordingly, courts have uniformly found them to be immune under the discretionary function exception...the federal governments decisions concerning enforcement of its criminal statues comprise a part of its pursuit of national policy. If the government could be held liable for prosecuting or failing to prosecute [a particular]...case, its choices in [an entire] area...could quite conceivably be affected by ...a [private] suit. Thus, a policy decision of the federal government might be influenced by a plaintiff with no governmental responsibility. Finally, the prosecutors decision whether or not to initiate prosecution has historically been subject to little or no judicial scrutiny and is not readily amenable to evaluation by courts. The discretion of the Attorney General choosing whether to prosecute or not prosecute, or to abandon a prosecution already started, is absolute. Id., at 248-49 (citations omitted). The Court specifically held that the FBIs decision whether or not to investigate the supposed criminal activity reported is a discretionary function and the United States is immune from suit for damages flowing from that decision.3 Id., at 249; see also Sieverding v. United States Department of Justice, 693 F. Supp. 2d 93, 110 (D.C. Cir., 2010) (citing Martinez supra, and dismissing Plaintiffs complaint alleging that DOJ had a specific statutory mandate to investigate [alleged] crimes and they chose not to: the Court held DOJ thus had no obligation
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Notably, specifically referencing the Attorney General Guidelines on criminal investigation that Plaintiff relies on in her Opposition, the court held that [t]he plaintiffs belief that the FBI had a duty to her that she may enforce through this civil action is mistaken. It has been determined that the Attorney Generals Guidelines on criminal investigations do not...create a duty in favor of the general public. Id., quoting Kugel v. United States, 947 F.2d 1504, 1507 (D.C. Cir. 1991). 4

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to pursue Ms. Sieverdings allegations of criminal behavior, and she cannot state a claim for relief based on her allegations of a failure to subpoena or investigate.); Wightman-Cervantes v. Mueller, 750 F. Supp. 2d 76, 80-81 (D.C. Cir. 2010) (dismissing suit against Director of FBI finding no mandamus relief or relief under the APA appropriate where plaintiff claimed right to appointment of special prosecutor and investigation into alleged criminal activity: [A]n agencys decision whether to prosecute, investigate, or enforce has been recognized as purely discretionary and not subject to judicial review.). The D.C. Circuits holdings do not diverge from this Courts holding in Terrell v. Attorney General State of California, et al., 1998 U.S. Dist. LEXIS 13720 (N.D. Cal., September 1, 1998), affd Terrell v. Lungren, 188 F.3d 515 (9th Cir. 1999). In that case, Terrell sued various local and state defendants, as well as the FBI and the supervisor of San Francisco FBI agents claiming, among other things, that the FBI failed to investigate his allegation of civil rights violations perpetrated by the other defendants. Id., at 8. In finding that the FBIs decision not to investigate the plaintiffs complaint does not amount to a constitutional wrong, the Court noted that it can find no binding authority requiring the FBI to investigate every complaint that it receives. To the contrary, courts have consistently described the FBIs mandate as a discretionary rather than mandatory authority. Id., at 8-9 quoting Agunbiade v. U.S., 893 F. Supp. 160, 163 (E.D.N.Y. 1995) (denying Plaintiffs petition for writ of mandamus compelling U.S. Attorneys Office and U.S. Department of Justice to investigate alleged criminal activity by AUSAs under 28 U.S.C. 535(a) regarding investigation of government officers and employees, finding court lacked authority to grant such relief). Similarly here, the federal defendants decision not to allocate limited taxpayer resources into investigating or prosecuting Plaintiffs allegations of purported violations of criminal or civil laws is discretionary and immune from judicial review. The FAC should be dismissed with prejudice. DATED: April 2, 2012 Respectfully submitted, MELINDA HAAG United States Attorney ________/s/________________ Victoria R. Carradero Attorneys for the USA 5