1 JANE DOE

A.K.A. SHERYL MOULTON

2
IN PRO PER
3 P.O. Box 1005
Pacific Grove, CA 93950
4
(831) 250-8089
5
6
7
8
9 IN THE UNITED STATES DISTRICT COURT

10 FOR THE DISTRICT OF NEVADA

11
GAYLE A. KERN; GAYLE A. KERN, LTD, ) Case No. 3:11-cv-00296-RCJ-RAM
12 )
)
13 Plaintiffs, ) [AMENDED] NOTICE OF MOTION AND
vs. ) MOTION TO QUASH SERVICE AND DISMISS
14 ) COMPLAINT OR, IN THE ALTERNATIVE,
JANE DOE, a.k.a. SHERYL MOULTON ) TRANSFER CASE TO THE NORTHERN
15 )
) DISTRICT COURT OF CALIFORNIA
16 Defendant. )
)
17
18 Defendant, pro se, JANE DOE, a.k.a. SHERYL MOULTON, hereby, submits this amended

19 motion to correct inadvertent typographical errors and to provide clarification of issues.

20 Defendant moves for an order quashing service of process and dismissing this action

21 against her or, in the alternative, moves for an order transferring this case to the Northern

22 District of California, San Jose based on the ground of forum non conveniens.

23 This motion is made per to Fed.R.Civ.P. 11 and Fed.R.Civ.P. 12(b)(1),(2),(3),(4),(5),(6).

24 Defendant’s motion to dismiss should be granted pursuant to Fed.R.Civ.P. 11 for lack of

25 evidentiary support in Kern’s complaint. Defendant asserts this case is purely frivolous with the

26 sole intent to harass, abuse process, and abuse court’s time and resources.

27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 Dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is appropriate for lack of subject-matter
2 jurisdiction. This case, hereinafter “Kern II” does not appear to allege federal question or
3 federal claims.
4 Dismissal pursuant to Fed.R.Civ.P. 12(b)(2) is appropriate for lack of personal
5 jurisdiction. Sheryl Moulton, a citizen of the State of California and has lived in California most
6 all her life.
7 Dismissal pursuant to Fed.R.Civ.P. 12(b)(3) is appropriate for improper venue. District of
8 Nevada is not the proper venue for this action against a nonresident defendant. Furthermore,
9 Defendant moves for a change of venue based on the ground of forum non conveniens.
10 Dismissal pursuant to Fed.R.Civ.P. 12(b)(4),(5) is appropriate for insufficient process and
11 insufficient service of process. Defendant to this very day, has not yet received a copy of the
12 Complaint due to insufficient service and solely bases her arguments on Kern’s previously
13 adjudicated/dismissed countersuit, hereinafter “Kern I”, See Moulton v. Kern (U.S.D.C. D.
14 Nevada Case 3:11-cv-00087-RCJ-RAM 17, 42).
15 Dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is appropriate failure to state a claim upon
16 which relief can be granted.
17 In addition, Kern’s first lawsuit/countersuit “Kern I” was previously adjudicated and
18 dismissed by Judge Robert C. Jones (see Case 3:11-cv-00087-RCJ -RAM Doc. 42) and, therefore,
19 must be barred by res judicata.
20 This motion is based upon this notice of motion, the attached memorandum of points
21 and authorities, the attached exhibits, and upon all other pleadings, papers, records and other
22 documentary materials on file herein.
23
24
25 Dated: August 21, 2011 Respectfully submitted,
26 JANE DOE, a.k.a. SHERYL MOULTON
27 By: /s/Jane Doe, a.k.a. Sheryl Moulton
Jane Doe, a.k.a. Sheryl Moulton
28
In Pro Per

Page 2 of 2
[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES ................................................................................................................. ii
3 POINTS AND AUTHORITIES ............................................................................................................ 1
4 I. FACTS ................................................................................................................................. 1
5 II. ARGUMENT ........................................................................................................................ 6
6 A. Kern’s Second Complaint Should Be Barred by Res Judicata ............................................ 6
7 B. Kern Must Be Deemed “Vexatious Litigant” for “Bad Faith” Multiplication of
8 Proceedings Per 28 U.S.C. § 1927, Kern’s Actions Sanctionable Per Fed.R.Civ.P. 11 ........ 6
9 C. Motion to Dismiss Must Be Granted for Lack of Subject-Matter Jurisdiction Per
10 Fed.R.Civ.P. 12(b)(1) and Lack of Federal Question Per 28 U.S.C. § 1331 ......................... 7
11 D. Motion to Dismiss Must Be Granted for Lack of Personal Jurisdiction Per
12 Fed.R.Civ.P. 12(b)(2) and 28 U.S.C. 1391(b) ...................................................................... 8
13
E. Interests of Justice, Due Process, 28 U.S.C. § 1404(a) and Forum Non Conveniens,
14 All Dictate Transfer to an Alternate Forum ....................................................................... 9
15 F. Forum Transfer Must Be Granted, In Alternative to Dismissal, Per “First-to-File”
16 Doctrine, Forum Non Conveniens, FRCP 12(b)(3), 28 U.S.C. §§ 1391(b),(c),
17 28 U.S.C. § 1404(a), §1406(a) .......................................................................................... 12
18 G. Motion to Dismiss Must Be Granted for Insufficient Process and Insufficient Service
19 of Process Per Fed.R.Civ.P. 12(b)(4),(5); Kern’s “Service” of Summons & Complaint is
20
Defective Per Fed.R.Civ.P. 4 and Should Be Quashed ..................................................... 14
21 H. Motion to Dismiss Must Be Granted Per FRCP 12(b)(6)-Failure to State a Claim………….16
22 I. Plaintiff’s Entire Complaint Should Be Barred By Res Judicata ....................................... 17
23
III. CONCLUSION .......................................................................................................................... 18
24
25
26
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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
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1 TABLE OF AUTHORITIES
2 Cases
3 Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) ................................................................... 9
4 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) ................................................ 17
5 Brown v. Felson, 442 U.S. 127, 131 (1979) .................................................................................. 17
6 Burger King Corp. v. Rudzewicz, 471 US 462 - Supreme Court 1985471 U.S. 462 (1985) ........... 11
7 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 340 (9th Cir. 1996) .................................................. 16
8 Church of Scientology of California v. United States Department of the Army, 611 F.2d 738,
9 749 (9th Cir. 1979) ........................................................................................................... 12
10 Citizens For a Better Environment v. Union Oil Co., 861 F. Supp. 889, 897 (N.D. Cal. 1994) ...... 13
11 Coca Cola Co. v. Overland, Inc., 692 F.2d 1250 (9th Cir. 1982) ................................................... 16
12 Coleman v. Estes Exp. Lines, Inc., 631 F.3d 1010, 1016 (9th Cir. 2011) ........................................ 7
13 Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979) ................... 11
14 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834 (9th Cir. 1986)............................. 10
15 Direct Mail Specialists, Inc. v. Éclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir.
16 1988) ................................................................................................................................ 15
17 Doe, 248 F. 3d at 923 ..................................................................................................................... 9
18 Dombrowski v. Pfister, 380 U.S. 479 (1965) .................................................................................. 9
19 Espindola v. Nunez, 199 Cal. App.3d 1389, 1392 (1988) ............................................................. 16
20 Estate of Blas v. Winkler, 792 F.2d 858, 860 (9th Cir.1986) .......................................................... 7
21 Fuentes v. Shevin, 407 U. S. 67, 94-96 (1972) ....................................................................... 11, 12
22 Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-66 (1962) ............................................................... 14
23 Great Northern Railway Co. v. National Railroad Adjustment Board, 422 F.2d 1187, 1193
24 (7th Cir. 1970) .................................................................................................................. 12
25 Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 588 (9th Cir. 1992) ................... 11
26 Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84, 72 S.Ct.
27 219, 221, 96 L.Ed. 200 (1952). ......................................................................................... 13
28 King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) .................................................................... 13

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S., 375, 377 (1994) .......................................... 7
2 Kulko v. California Superior Court, 436 U. S., 92 ......................................................................... 11
3 Moulton v. Eugene Burger Management Corporation, (N.D. Cal 2007). .................................... 12
4 Murphy v. Schneider Nat'l, Inc ., 362 F.3d 1133, 1138 (9th Cir. 2004)........................................ 14
5 NAACP v. Button, 371 U. S. 415, 433 ............................................................................................. 9
6 National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 329 (1964) ................................... 11
7 New Alaska Development Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989) .................. 6
8 Owens v. Kaiser Found. Health Plain, Inc., 244 F.3d 708, 713 (9th Cir. 2001) ............................ 17
9 Pac. Car & Foundry v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) ................................................. 10
10 Pacesetter Systems Inc. v. Medtronic Inc., 678 F. 2d 93 (9th Cir. 1982) ............................... 12, 13
11 Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979) .................... 14
12 Pool Water Products v. Olin Corp. 258 F.3d 1024 (9th Cir. 2001) ............................................... 16
13 Pratt v. Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal. 1991)........................................................ 11
14 Salman v. Jameson, 1994 U.S. Dist. Lexis 19399 (D. Nev. 1994) ................................................... 6
15 Sherar v. Harless, 561 F.2d 791, 794 (9th Cir. 1977) ................................................................... 10
16 Sky Capital Group, LLC v. Rojas, 2009 U.S. Dist. LEXIS 37132, 11 (D. Idaho 2009) ........................ 9
17 Smith v. California, 361 U. S. 147 ................................................................................................... 9
18 Stewart Org. v. Ricoh Corp., 487 U.S. 30 (1988) .................................................................... 10, 13
19 The Bremen v. Zapata Off-Shore Co., 407 U. S., at 12, 18 ..................................................... 11, 12
20 Tosco Corp. v. Communities for a Better Env’t., 236 F.3d 495, 499 (9th Cir. 2001)...................... 7
21 Van Dusen v. Barrack, 376 U.S. 612, 622 (1964) ......................................................................... 13
22 Walker v. Carnival Cruise Lines, 107 F. Supp 2d 1135, 1137 n. 2 (N.D. Cal. 2000) ...................... 14
23 Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir.1986).................................................. 6
24 Ziegler v. Indian River County, 64 F.3d 470 (9th Cir. 1995) ........................................................... 8
25
26
27
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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
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1 Statutes
2 28 U.S.C. § 1331 ............................................................................................................................. 7
3 28 U.S.C. § 1391(b)....................................................................................................................... 13
4 28 U.S.C. § 1391(b)(2). ................................................................................................................... 8
5 28 U.S.C. § 1404 ........................................................................................................................... 13
6 28 U.S.C. § 1404(a) ................................................................................................................... 9, 14
7 28 U.S.C. § 1406(a) ....................................................................................................................... 14
8 28 U.S.C. § 1927 ............................................................................................................................. 6
9 42 U.S.C. § 1983 ............................................................................................................................. 9
10 Fed.R.Civ.P. 4................................................................................................................................ 14
11 Fed.R.Civ.P. 11 ............................................................................................................................... 7
12 Fed.R.Civ.P. 12(b)(1)....................................................................................................................... 7
13
Fed.R.Civ.P. 12(b)(2)....................................................................................................................... 8
14 Fed.R.Civ.P. 12(b)(3)............................................................................................................... 12, 14
15 Fed.R.Civ.P. 12(b)(4)..................................................................................................................... 15
16 Fed.R.Civ.P. 12(b)(5)..................................................................................................................... 15
17 Fed.R.Civ.P. 12(b)(6)..................................................................................................................... 16
18 Fed.R.Civ.P. 56 ............................................................................................................................. 16
19
20
21
22
23
24
25
26
27
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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 POINTS AND AUTHORITIES
2 I. FACTS
3 Defendant Moulton alleges the following:
4 Gayle A. Kern is attorney for Lakeside Plaza Condominium Association in Reno, Nevada,
5 (hereinafter “Lakeside Plaza”), where disabled victim homeowner, Defendant Sheryl Moulton
6 fell prey to a homeowners association embezzlement, extortion and illegal foreclosure scam.
7 This scam was perpetrated by former Lakeside Plaza Board President/Embezzler Frank Perau
8 and others.
9 On March 1, 2011, Gayle A. Kern filed a countersuit “Kern I” (see Case 3:11-cv-00087-
10 RCJ-RAM Doc. 17). Judge Jones ordered the case to be dismissed. (see Judge Jones’ Order, Case
11 3:11-cv-00087-RCJ-RAM Doc. 42).
12 The basis for Moulton’s prior complaints is for ongoing fraud at Lakeside Plaza
13 Condominium Association, including, but not limited to:
14  HOMEOWNER ASSOCIATION *ELECTION FRAUD*
15  EMBEZZLEMENT
16  UNLAWFUL KICKBACKS
17  EXTORTION/UNLAWFUL DEBT COLLECTION
18  PERJURY & FALSE STATEMENTS IN FEDERAL COURT BY ATTORNEY
19 GAYLE A. KERN
20  ABUSE OF PROCESS (USING FRAUDULENTLY-OBTAINED RESTRAINING
21 ORDERS TO ABUSE POLICE POWER, JUDICIAL POWER, OBSTRUCT
22 JUSTICE & RETALIATE AGAINST VICTIM/WHISTLE BLOWER
23 HOMEOWNERS
24  ILLEGAL FORECLOSURE/BANK FRAUD
25  BANKRUPTCY FRAUD (THEIR FRAUD IS FORCING HOMEOWNERS INTO
26 BANKRUPTCY)
27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 EXHIBIT LIST
2 (PLEASE REFER TO MOTION TO DISMISS/QUASH EXHIBITS FILED 7-20-11):
3 EMBEZZLEMENT Money wrongfully “assessed” Lakeside Plaza homeowners Exhibit 1
(violating state law & Lakeside Plaza CC&Rs) by Embezzler
4
Frank Perau and Gayle A. Kern, Esq. was used for
5 “embezzlement”). Washoe County District Attorney letter
verified embezzlement by Frank Perau.
6
EMBEZZLEMENT Letters from Embezzler Frank Perau, Gayle A. Kern, Esq., Exhibit 2
7 “ASSESSMENT” Eugene Burger Management demanding assessment money
from Lakeside Plaza homeowners which was later used for
8
embezzlement.
9 KICKBACK Admissions of kickbacks by Gayle A. Kern, Esq. and Exhibit 3
PAYMENTS TO management company, Eugene Burger Management
10
LAKESIDE PLAZA Corporation. Lakeside Plaza homeowner, Jack Bishop stated in
11 BOARD attached exhibit that he would file a complaint against Gayle
DIRECTORS Kern, Esq. with the Nevada Bar Association.
12 EXTORTION, State of Nevada letter, attached, confirmed unlicensed debt Exhibit 4
13 UNLAWFUL collection activities of Phil Frink & Associates, Inc.
DEBT
14 COLLECTION Gayle A. Kern, Esq. works closely with Phil Frink & Associates,
15 FDCPA Inc., (illegal/unlicensed debt collector), at several
VIOLATIONS homeowners associations.
16
17 State of Nevada Gayle A. Kern, Esq. is also Lakeside Plaza’s attorney and Phil
Letter Frink & Associates’ registered agent.
18 EXTORTION, Lakeside Plaza, by and through its attorney, Gayle A. Kern and Exhibit 5
19 UNLAWFUL extortionist/unlawful debt collector, Phil Frink & Associates,
DEBT demanded an extra $4,000 (in less than 4 months’ time)
20 COLLECTION totaling over $8,200. Defendant’s home was illegally
21 FDCPA foreclosed because Lakeside Plaza, Kern, Frink all refused to
VIOLATIONS validate the $8,200 extortion “debt” and refused to provide
22 homeowners financial disclosures as required by federal and
23 state laws and Fair Debt Collection Practice Act (FDCPA).
IRS TAX LIENS Phil Frink & Associates, Phil Frink, Linda Frink have Internal Exhibit 6
24 Revenue Service tax liens, establishing a long pattern of not
25 just cheating homeowners, but probably the IRS, as well.

26
27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
 LAWSUIT Bank of America “BAC” v. Phil Frink & Associates, et al. (2:11- Exhibit 7
1
v. Frink cv-00167-JCM-RJJ) Again, another example of alleged
2 unlicensed debt collector, Phil Frink & Associates collecting for
an HOA in collusion with Gayle A. Kern. Gayle A. Kern stated in a
3
letter to Bank of America’s representatives regarding the
4 pending foreclosure, “$180.00 is a fraction of what is due…and
is not sufficient…to stop the pending foreclosure.” Bank of
5
America disagreed with Kern’s analysis and cited Nevada
6 Revised Statute contradicted Kern’s claims.
LAWSUIT Neil M. Johnson v. Gayle A. Kern, Ltd. Gayle A. Kern, Phil Frink Exhibit 8
7 v. Kern/Frink & Associates, Phil Frink, Linda Frink, et al. (3:09-cv-587) alleges
8 conspiracy to commit fraud and conversion, unjust enrichment
LAWSUIT & Ernest C. Aldridge v. Gayle A. Kern, Phillip Frink (3:02-cv- Exhibit 9
9 AFFIDAVIT 00363-JLQ-VPC) alleges wrongful foreclosure.
10 v. Kern/Frink
COMPLAINT Lakeside Plaza homeowner, Carl Friedman alleges failure to Exhibit 10
11 & AFFIDAVIT audit, failure to notify homeowners of meetings, refusal to
12 Lakeside provide insurance disclosures, failure to uniformly enforce
Plaza Lakeside Plaza declarations (governing documents).
13 Homeowner
14 STATEMENT Lakeside Plaza homeowner, Carol Slabotzky alleges $563,553.33 Exhibit 11
Lakeside was withdrawn from the Condominium’s Reserve Account. Mr.
15 Plaza Slabotzky alleges, “Mr. Perau presently stands accused of
16 Homeowner embezzling additional funds...this is a large Condominium.
Many of the owners of units are absentee, or are old, sick, poor,
17 and/or mentally disabled. I believe that unless the State of
18 Nevada steps in to provide some form of receivership, this
Condominium will continue to be raided financially.”
19 COMPLAINT HOA resident alleges wrongful eviction by Gayle A. Kern – Exhibit 12
20 Wrongful “Gayle A. Kern has threatened eviction using a 3 day notice to
eviction by pay or quit…She never produces proof that the HOA is the
21 Gayle A. owner of the property, that a foreclosure sale for HOA unpaid
22 Kern, alleged dues has occurred, no deed produced and continually sends
by HOA bullying letters threatening eviction with a Sheriff…Apparently,
23 victim she has already been accused of fraudulently recording false
24 liens/foreclosures, and committed perjury in federal court.”

25
26
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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 PERJURY IN US Marshal’s Service attests in a signed affidavit stated that Exhibit 13
2 AFFIDAVIT Gayle A. Kern was served November 17, 2009. See attached
Gayle A. Kern affidavit/exhibit 13 from (D. Nevada Case 3:09-cv-00587-RCJ-
3 VPC, 29)
4
Gayle A. Kern, under penalty of perjury, in a signed and
5 notarized affidavit stated “On November 17, 2009, I learned
that someone who did not identify himself by name dropped
6
off documents at my office that consisted of the summons and
7 complaint…I was not personally served with the summons
and complaint.” (D. Nevada 3:09-cv-00587-RCJ-VPC, 15-2)
8
[emphasis added]
9
JUDGE DERISO Judge Susan M. Deriso of Sparks Justice Court was “paid” Exhibit 14
10
RECEIVED through campaign contribution by Gayle Kern, Esq. Judge
11 “PAYMENT” Deriso later, issued restraining orders, on Gayle Kern’s advice,
FROM GAYLE on THREE (3) “whistleblower” Lakeside Plaza embezzlement
12
A. KERN, ESQ. victims/homeowners, Sheryl Moulton, Carol Slabotzky and
13 Gwen Slabotzky.
JUDGE DERISO Embezzler Frank Perau, on advice of Gayle A. Kern, Esq. (see Exhibit 15
14
Abuse of exhibit), obtained restraining orders on THREE (3)
15 Process, whistleblower victims, Lakeside Plaza homeowners, Sheryl
Implied Right Moulton, Carol Slabotzky and Gwen Slabotzky. The restraining
16 to Honest orders are based upon a perjurious statement made by John
17 Services 28 Coleman (EBMC’s contractor, Embezzler Perau’s good friend),
U.S.C. §1346 who earlier made death threats to Sheryl Moulton and
18 Violations another victim. (See Exhibit 16). Due to these
19 fraudulent/perjurious restraining orders, that were made on
Gayle A. Kern’s advice, whistleblower victim homeowners
20 and residents were repeatedly harassed and threatened by
21 Washoe County Sheriff’s Department and Sparks Police.
DEATH August 17, 2006, John Coleman made death threats to Exhibit 16
22 THREATS ON Moulton and another victim. John Coleman is the same one
23 WHISTLE who later perjured himself in affidavits for Embezzler Frank
BLOWER Perau’s THREE (3) restraining orders on whistle blower
24 HOMEOWNER homeowners, Sheryl Moulton, Carol Slabotzky and Gwen
25 BY Slabotzky, all on request/advice of Gayle A. Kern, Esq.
EMBEZZLER’S
26 ASSOCIATE
27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 KERN USING Moulton was told by the then-property manager, Eugene Exhibit 17
2 POLICE Burger Management Corporation to go to Kern’s office to pick
HARASSMENT up the financial documents. Moulton and other Lakeside Plaza
3 TO AVOID homeowners arrived at Kern’s office requesting financials.
4 PROVIDING Kern refused to provide legally-required financials and called
FINANCIAL Reno Police on Moulton. This occurred before Lakeside Plaza
5 DISCLOSURES embezzlement became public and appears to be clear
obstruction by Gayle A. Kern, Esq.
6
NON- Gayle Kern defames whistleblowers Defendant Moulton and Exhibit 18
7 DISCLOSURE another concerned homeowner, Carl Friedman, asserting their
OF OTHER actions to get accountability for the embezzled money are
8
LITIGATION; costing Lakeside Plaza money. However, Kern conveniently
9 DEFAMATION refuses to disclose other litigation against Lakeside Plaza that
is also costing Lakeside Plaza money.
10
LAKESIDE Eugene Burger Management Corporation and Gayle Kern, Esq. Exhibit 19
11 PLAZA & NON- both failed to disclose other pending litigation during escrow
DISCLOSURE of Moulton’s Salem Plaza condo, as so evidenced by exhibit.
12
OF OTHER
13 LITIGATION
ELECTION September 24, 2006 letter from Eugene Burger Management, Exhibit 20
14
FRAUD refusing to honor homeowner petitions, stated, “We meet at
15 Kern/Lakeside 2:00 P.M. to accommodate the members of the board [not
Plaza Board homeowners] and our community manager.” *emphasis
16
Refused to Call added]
17 Elections;
Homeowners’ ELECTION FRAUD –Signed Lakeside Plaza homeowners’
18 Petitions petitions to change meeting times, audit the financials, repeal
19 Denied the assessment (which was embezzled), prohibit further
assessments without homeowner vote, request appointment
20 of a receiver, remove any/all the board members – were all
21 rejected by Lakeside Plaza, Gayle A. Kern and/or Kenyon &
Associates (property management).
22
23 FORECLOSURE “The Cost of Foreclosures for Cities and Communities…Homes Exhibit 21
STATISTICS in foreclosure that become vacant provide sites for crime or
24 other neighborhood problems. One foreclosure can impose up
25 to $34,000 in direct costs on local government agencies,
including inspections, court actions, police and fire department
26 efforts, potential demolition, unpaid water and sewage, and
27 trash removal…One foreclosure can result in as much as an
additional $220,000 in reduced property value and home
28 equity for nearby homes.” *emphasis added+ Source:
NeighborWorks America ForeclosureHelpandHope.org
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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
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1 II. ARGUMENT
2 A. Kern’s Second Complaint Should Be Barred by Res Judicata
3 First, and foremost, Defendant Moulton, to this day, has not received or been served a
4 summons and complaint by plaintiff Kern. Defendant’s response is based solely upon seeing a
5 publication of service in Reno Gazette Journal through an inadvertent internet search and by
6 referencing Kern’s first case (hereinafter “Kern I”), Case 3:11-cv-00087-RCJ-RAM, doc 17.
7 Secondly, Kern is merely re-litigating the same issues in the instant case (hereinafter
8 “Kern II”), and must be barred by res judicata.
9 Kern’s complaint is most likely nothing more than a re-litigation of the very issues in
10 “Kern I”. The plaintiff is trying one more time to assert defamation, false light, etc. etc.,
11 however these claims were rejected and dismissed by this court (Judge Jones) in Kern I, and she
12 cannot re-litigate it now.
13 The attempt at re-litigating the very same issue that was litigated in Kern I lawsuit is
14 barred by res judicata. See Salman v. Jameson, 1994 U.S. Dist. Lexis 19399 (D. Nev. 1994). In
15 Salman, this Court held that plaintiff may not bring a new action based on the same conduct
16 claiming the right to recover on the basis of different legal theories, without running afoul of
17 res judicata. This Court further noted: “The two suits arise out of the same transactional
18 nucleus of facts. This factor clearly calls for the application of res judicata in this case based on
19 these facts. This factor is the most important of these factors in determining if res judicata
20 applies.”
21 B. Kern Must Be Deemed “Vexatious Litigant” for “Bad Faith” Multiplication of
22 Proceedings Per 28 U.S.C. § 1927, Kern’s Actions Sanctionable Per Fed.R.Civ.P. 11
23 Title 28 U.S.C. § 1927 punishes the multiplication of proceedings. See Zaldivar v. City of
24 Los Angeles, 780 F.2d 823, 831 (9th Cir.1986). Courts award fees and costs under 28 U.S.C. §
25 1927 if an attorney "so multiplies the proceedings in any case unreasonably and vexatiously."
26 Section 1927 sanctions are premised on a finding of subjective bad faith. New Alaska
27 Development Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir.1989).
28

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1 "Bad faith is present when an attorney knowingly or recklessly raises a frivolous
2 argument, or argues a meritorious claim for the purpose of harassing an opponent." Estate of
3 Blas v. Winkler, 792 F.2d 858, 860 (9th Cir.1986) (citations omitted).
4 Pursuant to Fed.R.Civ.P. 11, dismissal should be granted for lack of evidentiary support
5 to support Kern’s meritless, frivolous claims. Plaintiff Kern’s actions should be sanctioned as she
6 is simply attempting a “second bite at the apple” with this frivolous, meritless litigation, wasting
7 this Court’s (taxpayers’) time and money with the sole intent to retaliate and harass
8 whistleblower/crime victim, Defendant Moulton for investigating Lakeside Plaza fraud and
9 embezzlement. (See “Judicial Notice” filed herewith).
10 Kern’s lawsuit is completely without merit and shall so be proven at Ninth Circuit based
11 upon precedent case law and indisputable evidence.
12 C. Motion to Dismiss Must Be Granted for Lack of Subject-Matter Jurisdiction Per
13 Fed.R.Civ.P. 12(b)(1) and Lack of Federal Question Per 28 U.S.C. § 1331
14 Dismissal pursuant to Fed.R.Civ.P. 12(b)(1) is appropriate for lack of subject-matter
15 jurisdiction. This case, “Kern II” does not appear to allege federal question or federal claims.
16 Federal courts are of limited jurisdiction, possessing only those powers granted by the
17 Constitution or statute.
18 Federal courts have original jurisdiction over "civil actions arising under the
19 Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "[T]he district court looks
20 to the ‘well-pleaded complaint,’ rather than to any subsequent pleading or evidence, in
21 determining whether there is federal question subject matter jurisdiction . . . ." Coleman v.
22 Estes Exp. Lines, Inc., 631 F.3d 1010, 1016 (9th Cir. 2011) (citations omitted).
23 A plaintiff bears the burden of demonstrating that subject matter jurisdiction exists
24 when challenged. See Tosco Corp. v. Communities for a Better Env’t., 236 F.3d 495, 499 (9th
25 Cir. 2001); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S., 375, 377 (1994).
26
27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 D. Motion to Dismiss Must Be Granted for Lack of Personal Jurisdiction Per
2 Fed.R.Civ.P. 12(b)(2) and 28 U.S.C. 1391(b)
3 Sheryl Moulton, a citizen of the State of California and has lived in California most all
4 her life. Dismissal pursuant to Fed.R.Civ.P. 12(b)(2) and 28 U.S.C. Sec. 1391(b) is appropriate for
5 lack of personal jurisdiction.
6 Plaintiff Kern must make a prima facie showing of personal jurisdiction. Ziegler v. Indian
7 River County, 64 F.3d 470 (9th Cir. 1995). Here, in the instant case, defendant resides in the
8 State of California. This Nevada court does not have personal jurisdiction over a California
9 resident.
10 Additionally, Kern’s very own actions (false statements in federal court) occurred in
11 California (U.S.D.C., San Jose, California), therefore, a civil action may be brought in a judicial
12 district in which a substantial part of the events giving rise to the claim occurred per 28 U.S.C. §
13 1391(b)(2).
14 Furthermore, Defendant’s due process is at stake. This Court cannot compel a disabled,
15 financially-indigent defendant (victim to several of Kern’s alleged crimes) to defend this case in
16 a forum state where true justice cannot be achieved due to public corruption and abuse of
17 police power.
18 The Due Process Clause of the Fourteenth Amendment protects persons against
19 deprivation of life, liberty, or property without due process of law. Therefore, this Court cannot
20 violate Defendant Moulton’s constitutional right to due process and inflict undue financial
21 burden and hardship onto a disabled, financially-indigent defendant in a forum non conveniens.
22 Even if the court declines to dismiss the complaint with prejudice, there is no basis for
23 this action pending in Nevada and should, in the alternative, be transferred to California.
24
25
26
27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 E. Interests of Justice, Due Process, 28 U.S.C. § 1404(a) and Forum Non Conveniens,
2 All Dictate Transfer to an Alternate Forum
3 In the alternative to dismissal, Defendant motions this Court to transfer this case to
4 another district in the interests of justice, on the grounds of due process, forum non
5 conveniens and 28 U.S.C. § 1404(a).
6 28 U.S.C. § 1404(a) provides: “*f+or the convenience of the parties and witnesses, in
7 the interest of justice, a district court may transfer any civil action to any other district or
8 division where it might have been brought.” [emphasis added].
9 State of Nevada has clearly exhibited no interest in justice. In fact, State of Nevada has
10 proven just the opposite. Nevada state actors, by and through, Gayle A. Kern, Esq., and/or
11 others, have deprived whistleblower/homeowner victim(s) of their civil liberties, right to
12 redress grievances, have been falsely arrested, threatened with felony arrest, issued fraudulent
13 restraining orders, suffered abuse of police power and malicious prosecutions, all shamefully
14 “under the color of the law” per 42 U.S.C. § 1983.
15 For "[t]he threat of sanctions may deter . . . almost as potently as the actual
16 application of sanctions. . . ." NAACP v. Button, 371 U. S. 415, 433. A criminal prosecution
17 under a statute regulating expression usually involves imponderables and contingencies that
18 themselves may inhibit the full exercise of First Amendment freedoms. See Smith v.
19 California, 361 U. S. 147.
20 The “denial of injunctive relief” *in the form of transfer to an alternate forum+ may
21 well result in the denial of any effective safeguards against the loss of protected freedoms of
22 expression, and cannot be justified.” See Dombrowski v. Pfister, 380 U.S. 479 (1965).
23 Quoting Sky Capital Group, LLC v. Rojas, 2009 U.S. Dist. LEXIS 37132, 11 (D. Idaho 2009),
24 citing Doe, 248 F. 3d at 923.
25 The exercise of jurisdiction must be reasonable…Idaho has a
strong interest in providing redress for its resident’s tortious
26
injury occurring in Idaho. The parties agree that there is no
27 conflict with sovereigns in this case.” *emphasis added] See also
Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 Defendant Moulton and the State of Nevada, clearly, have legal conflicts. Moulton sued
2 several Nevada state actors (see “Judicial Notice” filed herewith). Defendant asserts prejudice
3 and bias by Nevada (through its state actors), a forum state that was a party to Defendant’s
4 prior litigation actions.
5 Nevada and its state actors, clearly, do not express interest in justice, cleaning up public
6 corruption or honoring the constitutional rights of crime victims, therefore, this matter must be
7 adjudicated in an independent, alternate forum, such as California.
8 “In determining whether to transfer a case . . . the district court must determine
9 whether the ‘interests of justice’ dictate such a transfer.” Sherar v. Harless, 561 F.2d 791, 794
10 (9th Cir. 1977).
11 The “interests of justice” refer to “those public-interest factors of systemic integrity
12 and fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 30 (1988) [emphasis added].
13 Typically, a court should give a plaintiff’s choice of forum great deference unless the
14 defendant can show that other factors of convenience clearly outweigh the plaintiff’s choice of
15 forum. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). 805
16 F.2d at 843. However, a plaintiff’s choice of forum is afforded less deference *i+f the..forum has
17 no particular interest in the parties or the subject matter.” Pac. Car & Foundry v. Pence, 403
18 F.2d 949, 954 (9th Cir. 1968).
19 Nevada and its state actors, “under the color of the law” have made it crystal clear they
20 show little or no interest in protecting the rights of crime victims. Nevada and its state actors’
21 actions have created an atmosphere of fear and intimidation onto whistleblowers, victims of
22 crime. Nevada and its state actors’ actions of false arrest, threats of felony arrest, fraudulently-
23 obtained restraining orders through a judge that takes “campaign contributions” from a
24 perjurious attorney – all actions against whistleblowers, by no means constitutes a forum upon
25 which any justice can be upheld.
26 Nevada’s crimes against whistleblower crime victims hardly constitutes “systemic
27 integrity and fairness”, if anything, Nevada’s crimes constitute a systemic breakdown, ridden
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 with public corruption and contempt for upholding the law, therefore, transfer to an alternate
2 forum is highly appropriate.
3 In addition, Defendant and several of her witnesses live and reside in California and it
4 would be undue financial hardship and burden for them to travel hundreds of miles out of state
5 to Nevada to testify at trial. Denial of a transfer to California for the convenience of financially-
6 indigent, disabled Defendant Moulton and her witnesses would clearly violate Defendant’s due
7 process.
8 In determining whether to transfer or dismiss a case, the court may consider “the
9 relative injustice imposed on the parties…" See Johnson v. Payless Drug Stores Northwest, Inc.,
10 950 F.2d 586, 588 (9th Cir. 1992). "[T]he facts of each case must [always] be weighed" in
11 determining whether personal jurisdiction would comport with "fair play and substantial
12 justice." Burger King Corp. v. Rudzewicz, 471 US 462 - Supreme Court 1985471 U.S. 462 (1985)
13 quoting Kulko v. California Superior Court, 436 U. S., at 92.
14 The Court considers whether transferring the action would serve the interests of justice.
15 See Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); Pratt v.
16 Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal. 1991) (holding that the interests of justice “may be
17 decisive in ruling on a transfer motion”).
18 Defendant has only recently discovered her illegally-foreclosed home had a MERS deed
19 of trust based on fraud. Moulton contends this deed of trust fraud also voids and rescinds the
20 contract (condominium rider) with Lakeside Plaza Condominium Association, thereby,
21 converting this matter from a “real estate” issue, into a purely contractual one.
22 Courts also have emphasized that jurisdiction may not be grounded on a contract whose
23 terms have been obtained through "fraud, undue influence, or overweening bargaining power"
24 and whose application would render litigation "so gravely difficult and inconvenient that [a
25 party] will for all practical purposes be deprived of his day in court." The Bremen v. Zapata Off-
26 Shore Co., 407 U. S., at 12, 18. Fuentes v. Shevin, 407 U. S. 67, 94-96 (1972); National
27 Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 329 (1964) (Black, J., dissenting)
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 (jurisdictional rules may not be employed against small consumers so as to "crippl[e] their
2 defense").
3 Jurisdiction may not be grounded on a contract whose terms have been obtained
4 through “fraud”, therefore, jurisdiction under Fair Debt Collection Practices Act § 811 (a)(2)(B),
5 applies where the defendant resides as the contract terms have been obtained through
6 “fraud”. See The Bremen v. Zapata Off-Shore Co., 407 U. S., at 12, 18. Fuentes v. Shevin, 407 U.
7 S. 67, 94-96 (1972); National Equipment Rental, Ltd. v. Szukhent.
8 F. Forum Transfer Must Be Granted, In Alternative to Dismissal, Per “First-to-File”
9 Doctrine, Forum Non Conveniens, FRCP 12(b)(3), 28 U.S.C. §§ 1391(b),(c), 28 U.S.C.
10 § 1404(a), §1406(a)
11 Dismissal pursuant to Fed.R.Civ.P. 12(b)(3) is appropriate for improper venue. District of
12 Nevada is not the proper venue for this action against nonresident Defendant Moulton.
13 This case arises from a first-filed action by Defendant Moulton in California on
14 November 20, 2007. See Moulton v. Eugene Burger Management Corporation (N.D. Cal 2007).
15 Moulton alleged illegal foreclosure, unlawful debt collection, FDCPA and RICO violations.
16 Kern followed suit with two (2) retaliatory actions against Moulton in Nevada “Kern I”
17 (D. Nevada, Case 3:11-cv-00087-RCJ-RAM, doc. 17) and the instant action, “Kern II”.
18 Quoting, Pacesetter Systems Inc. v. Medtronic Inc., 678 F. 2d 93 (9th Cir. 1982)
19 There is a generally recognized doctrine of federal comity which
permits a district court to decline jurisdiction over an action when
20
a complaint involving the same parties and issues has already
21 been filed in another district. Church of Scientology of California
v. United States Department of the Army, 611 F.2d 738, 749 (9th
22
Cir. 1979); Great Northern Railway Co. v. National Railroad
23 Adjustment Board, 422 F.2d 1187, 1193 (7th Cir. 1970) [emphasis
added]
24
25 The Supreme Court has emphasized that the solution of these
problems involves determinations concerning "(w)ise judicial
26 administration, giving regard to conservation of judicial resources
27 and comprehensive disposition of litigation," and that "an ample
degree of discretion, appropriate for disciplined and experienced
28 judges, must be left to the lower courts." Kerotest Manufacturing

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84, 72 S.Ct.
219, 221, 96 L.Ed. 200 (1952).
2
3 Supreme Court further advises:
4
We will reverse the district court's decision applying the "first to
5 file" rule in light of considerations of sound judicial administration
6 only for an abuse of discretion. [emphasis added]. Pacesetter
Systems Inc. v. Medtronic Inc., 678 F. 2d 93 (9th Cir. 1982)
7
8 This Court has the discretion to transfer this case to an alternate forum per “First-to-
9 File” Doctrine or, in the alternative, Defendant will appeal to Ninth based on the Pacesetter
10 Systems Supreme Court ruling, and other case precedents. See “Judicial Notice” filed herewith.
11 The district court has the discretion to dismiss the case under Rule 12(b)(3) when venue
12 is improper or, when in the interest of justice, transfer the case to an appropriate venue
13 pursuant to 28 U.S.C. Section 1406(a). See King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992);
14 Citizens For a Better Environment v. Union Oil Co., 861 F. Supp. 889, 897 (N.D. Cal. 1994).
15 A district court has discretion “to adjudicate a motion for transfer according to an
16 ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org. v. Ricoh
17 Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
18 28 U.S.C. § 1391(b). Section (c) provides, in pertinent part, that a defendant is deemed
19 to reside "in any judicial district in which it is subject to personal jurisdiction at the time the
20 action is commenced." Defendant Moulton is a current California and has resided in
21 California for most of her entire lifetime.
22 Furthermore, Defendant moves for a change of venue based on the ground of forum
23 non conveniens. Defendant lives in California and most alleged actions would have occurred in
24 or arising from defendant’s state of California. Under 28 U.S.C. § 1404, a district court may "in
25 the interest of justice" transfer a case to any other district where venue lies "[f]or the
26 convenience of parties and witnesses" even if venue is proper in the original district under §
27 1391.The presence of a forum selection clause is a "significant factor" in the court's § 1404(a)
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 analysis. We also conclude that the relevant public policy of the forum state, if any, is at least as
2 significant a factor in the § 1404(a) balancing.
3 Section 1406(a) authorizes the transfer of cases "whether [or not] the court in which it
4 was file ha[s] personal jurisdiction over the defendants." Goldlawr, Inc. v. Heiman, 369 U.S. 463,
5 465-66 (1962). Under 28 U.S.C. § 1406, should a court determine that venue is improper within
6 its district, it dismiss the case or transfer it to a district where venue properly lies. See §1406(a).
7 When making a venue determination under Rule 12(b)(3), the well-pleaded allegations
8 of the Complaint are taken as true, and any evidence or disputed facts must be viewed in the
9 light most favorable to the non-moving party. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133,
10 1138 (9th Cir. 2004); Walker v. Carnival Cruise Lines, 107 F. Supp 2d 1135, 1137 n. 2 (N.D. Cal.
11 2000).
12 If genuine contested factual issues are presented, the court is obligated to draw all
13 reasonable inferences and resolve the factual conflicts in favor of the non-moving party.
14 Murphy, 362 F.3d at 1138-40.
15 Once the defendant challenges venue, the plaintiff bears the burden of establishing
16 that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th
17 Cir. 1979).
18 G. Motion to Dismiss Must Be Granted for Insufficient Process and Insufficient
19 Service of Process Per Fed.R.Civ.P. 12(b)(4),(5); Kern’s “Service” of Summons &
20 Complaint is Defective Per Fed.R.Civ.P. 4 and Should Be Quashed
21 Based upon plaintiff’s failure to comply with Fed.R.Civ.P. 4, Defendant moves that
22 service of the summons and complaint be quashed. First, and foremost, Defendant Moulton, to
23 this day, has not been served a summons and complaint by plaintiff Kern. Defendant’s response
24 is based solely upon seeing a publication of service though an inadvertent internet search and
25 by referencing the claims contained in Kern’s prior lawsuit, “Kern I”. Defendant Moulton, to this
26 date, has not received a copy of plaintiff’s current lawsuit, “Kern II”.
27 Dismissal pursuant to Fed.R.Civ.P. 12(b)(4) and Fed.R.Civ.P. 12(b)(5) is appropriate for
28 insufficient process and insufficient service of process. Defendant to this very day, has not yet

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 received a copy of the Complaint due to insufficient service and solely bases her arguments on
2 Kern’s previously adjudicated/dismissed countersuit, hereinafter “Kern I”, See Moulton v. Kern
3 (U.S.D.C. D. Nevada Case 3:11-cv-00087-RCJ-RAM Doc. 42).
4 Additionally, Kern has allegedly made service by publication in Nevada, not California
5 (where Defendant resides). Kern made publication allegedly in Reno Gazette Journal, fully
6 aware of Defendant’s California address, as it is listed in the publication of service.
7 “A federal court does not have jurisdiction over a defendant unless the defendant has
8 been served properly.” Direct Mail Specialists, Inc. v. Éclat Computerized Tech., Inc., 840 F.2d
9 685, 688 (9th Cir. 1988).
10 Kern’s publication of service onto Defendant Moulton is defective, as California Rules of
11 Civil Procedure § 415.50(b) provides that summons must be published in a named newspaper in
12 this state [California]:
13
§ 415.50(b) The court shall order the summons to be published in
14
a named newspaper, published in this state [CALIFORNIA], that is
15 most likely to give actual notice to the party to be served and
direct that a copy of the summons, the complaint, and the order
16 for publication be forthwith mailed to the party if his or her
17 address is ascertained before expiration of the time prescribed for
publication of the summons. Except as otherwise provided by
18 statute, the publication shall be made as provided by Section
19 6064 Gov't of the Government Code unless the court, in its
discretion, orders publication for a longer period. [emphasis
20 added].
21
22 Furthermore, plaintiff Kern, in order to effectuate “service by publication, ” § 415.50(a)
23 “A summons may be served by publication if upon affidavit it appears to the satisfaction of the
24 court in which the action is pending that the party to be served cannot with reasonable
25 diligence be served in another manner specified in this article…” *emphasis added+
26 Plaintiff must prove that defendant “cannot with reasonable diligence be served.” The
27 process server makes this showing by establishing 2 or 3 attempts to personally serve the
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 individual defendant before effectuating “substitute service” See Espindola v. Nunez, 199 Cal.
2 App.3d 1389, 1392 (1988).
3 It is unclear if plaintiff Kern ever filed an affidavit with this court to proceed with service
4 by publication. If Kern has not filed an affidavit, then she must be ordered to do so to proceed
5 with service by publication.
6 H. Motion to Dismiss Must Be Granted Per FRCP 12(b)(6) – Failure to State a Claim
7 Pursuant to FRCP 12(b)(6), a complaint should be dismissed where it appears beyond
8 doubt that plaintiff can prove no set of facts in support of his/her claim which would entitle
9 plaintiff to relief.
10 If the court treats a motion to dismiss as one for summary judgment, FRCP 12(b)(6)
11 provides that summary judgment shall be granted upon a showing that “there is no genuine
12 issues as to any material fact and that the moving party is entitled judgment as a matter of
13 law.”
14 “[M]atters outside the pleadings are presented and not excluded by the court, the
15 motion shall be treated as one for summary judgment and disposed of as provided in
16 Fed.R.Civ.P. 56. See Pool Water Products v. Olin Corp. 258 F.3d 1024 (9th Cir. 2001).
17 When the court does consider matters outside the pleadings, the court must view the
18 evidence in a light most favorable to the non-moving party. [emphasis added] See Coca Cola
19 Co. v. Overland, Inc., 692 F.2d 1250 (9th Cir. 1982).
20 All material allegations of the complaint are taken as true and construed in the light
21 most favorable to the nonmoving party. [emphasis added] See Cahill v. Liberty Mut. Ins. Co.,
22 80 F.3d 336, 340 (9th Cir. 1996).
23 "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
24 detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his
25 `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation
26 of the elements of a cause of action will not do. Factual allegations must be enough to raise a
27 right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
28 1964-65 (2007).

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 Kern’s complaint fails to present a claim upon which relief can be granted and is
2 meritless, futile and frivolous - with the sole intent to retaliate against and harass Defendant
3 Moulton. Kern’s first lawsuit against Moulton “Kern I” (see Case 3:11-cv-00087-RCJ –RAM)
4 was already adjudicated and dismissed by this court (see Docket #42), and must be barred by
5 res judicata.
6 I. Plaintiff’s Entire Complaint Should Be Barred By Res Judicata
7 In the instant case “Kern II”, plaintiff Kern has failed to present a claim upon which
8 relief can be granted, and should be barred by res judicata. Res judicata bars litigation in a
9 subsequent action of any claims that were raised or could have been raised in the prior
10 action. Owens v. Kaiser Found. Health Plain, Inc., 244 F.3d 708, 713 (9th Cir. 2001).
11 A primary purpose of the doctrine of res judicata is to prevent “vexatious litigation.”
12 Brown v. Felson, 442 U.S. 127, 131 (1979). Plaintiff makes the same claims against Defendant,
13 no new claims, no new facts, and no new allegations, which deems it vexatious.
14 Kern’s complaint must be dismissed with prejudice or, in the alternative, transferred
15 to forum conveniens (United States District Court, Northern California), the more-convenient
16 district for Defendant and her witnesses.
17 ///
18 ///
19 ///
20 ///
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA
1 III. CONCLUSION
2 Based upon the foregoing analysis and argument, Defendant Moulton moves that this
3 court issue an order quashing defective service of the service of the summons on the “Kern II”
4 complaint and/or dismissing this action based insufficiency of service of process, insufficiency
5 of process, lack of personal jurisdiction, lack of subject-matter jurisdiction, improper venue
6 and failure to state a claim upon which relief can be granted.
7 Additionally, this matter has already been adjudicated and dismissed in the “Kern I”
8 case by this court and must be barred by res judicata.
9 In the alternative, Defendant requests this matter be transferred to Northern District
10 of California based upon the grounds of Doctrine of Forum Non Conveniens and lack of
11 personal jurisdiction.
12
13
14 Dated: August 21, 2011 Respectfully submitted,
15 JANE DOE, a.k.a. SHERYL MOULTON
16 By: /s/Jane Doe, a.k.a. Sheryl Moulton
17 Jane Doe, a.k.a. Sheryl Moulton
In Pro Per
18
19
20
21
22
23
24
25
26
27
28

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[AMENDED] NOTICE OF MOTION AND MOTION TO QUASH SERVICE AND DISMISS COMPLAINT OR, IN THE
ALTERNATIVE, TRANSFER CASE TO THE NORTHERN DISTRICT COURT OF CALIFORNIA