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Watts v. Donley

United States District Court, D. Colorado

May 14, 2015

JESS WATTS, Plaintiff,
v.
CHRIS DONLEY, CHRIS DONLEY REAL ESTATE, GRANT W. LEWIS, LAW OFFICE OF GRANT W. LEWIS, and KATHY ELLIOTT, Public Trustee of Fremont County, Colorado, Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on Plaintiff Jess Watts' "Brief in support of his claim that this Court has subject matter jurisdiction" ("Brief"). (ECF No. 21). Plaintiff filed this Brief in response to the Court's show cause order as to whether the Court has subject matter jurisdiction. (ECF No. 17.) Also before the Court are Defendant Kathy Elliott's ("Elliot" or Public Trustee") motion to dismiss (ECF No. 15) and Defendants Chris Donley as well as Chris Donley Real Estate's (collectively, "Donley Defendants") motion to dismiss (ECF No. 19). Both motions are pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF Nos. 15; 19.)

For the reasons stated below, the Court (1) DISMISSES Plaintiff's Complaint (ECF No. 1); (2) GRANTS, in part, Public Trustee's motion to dismiss; (3) GRANTS, in part, Donley Defendant's motion to dismiss; and (4) DISMISSES, sua sponte, Defendants Grant W. Lewis and Law Office of Grant W. Lewis's (collectively "Lewis Defendants") counterclaim against Plaintiff (ECF No. 14, Countercl. ¶ 67).

I. BACKGROUND

A. Procedural Background

On February 17, 2015, Plaintiff filed a Verified Complaint ("Complaint")[1] alleging Defendants: (1) denied him due process pursuant to 42 U.S.C. § 1983 (ECF No. 1 at 16-20); (2) lacked standing to foreclose on a property owned by him (ECF No. 1 at 20-21); (3) engaged in mortgage fraud (ECF No. 1 at 21-22); (4) intentionally inflicted emotional distress (ECF No. 1 at 22-23); (5) slandered him (ECF No. 1 at 23-24); (6) deprived him of property pursuant to 42 U.S.C. § 1983 (ECF No. 1 at 24-25); (7) committed fraud on a court (ECF No. 1 at 25-26, 50); (8) engaged in a conspiracy pursuant to 42 U.S.C. § 1985(3) (ECF No. 1 at 50-51); and (9) wrongfully foreclosed on his property (ECF No. 1 at 51-53). Plaintiff's Complaint names as Defendants: (1) Chris Donley ("Donley"); (2) Chris Donley Real Estate (3) Grant W. Lewis ("Lewis"); (4) the Law Office of Grant W. Lewis; and (5) Kathy Elliott ("Elliott") in her official capacity as Public Trustee of Fremont County, Colorado. (ECF No. 1.) Plaintiff's Complaint does not specify any allegations as to the capacity of Public Trustee. ( See generally ECF No. 1.) Plaintiff's Complaint makes only allegations as to the capacities of Defendants Donley and Lewis. (ECF No. 1 at 3.) Plaintiff alleges that the Court has jurisdiction under 42 U.S.C. 1983 ("Section 1983"). Plaintiff challenges the constitutionality of a state statute, Section 38-38-101 of the Colorado Revised Statutes. ( See ECF No. 1 at 2, 53.)

On March 3, 2015, Lewis Defendants filed an answer and counterclaim. (ECF No. 14.)

On March 13, 2015, Public Trustee filed a motion to dismiss based upon the Court's lack of subject matter jurisdiction and Plaintiff's failure to state a claim. (ECF No. 15.) Plaintiff responded to Public Trustee's motion to dismiss on April 9, 2015. (ECF No. 24.)

On March 16, 2015, the Court denied without prejudice Plaintiff's motion for a temporary restraining order and preliminary injunction. (ECF No. 17.) The Court questioned whether Plaintiff had sufficiently alleged facts establishing the Court's subject matter jurisdiction. (ECF No. 17 at 4-5.) The Court ordered Plaintiff to show cause as to whether the Court has subject matter jurisdiction. (ECF No. 17 at 6.) On April 3, 2015, Plaintiff filed a Brief in response to the Court's order. (ECF No. 21.) Donley Defendants and Public Trustee filed a response to Plaintiff's Brief. (ECF Nos. 22; 23.)

On March 17, 2015, Donley Defendants filed a motion to dismiss based upon the Court's lack of subject matter jurisdiction and Plaintiff's failure to state a claim. (ECF No. 19.) Plaintiff responded to Donley Defendants' motion to dismiss. (ECF No. 24.)

Plaintiff brings three claims pursuant to federal law. (ECF No. 1 at 16-20, 24-25, 50-51.) Plaintiff alleges the following related to subject matter jurisdiction:

10. Plaintiff is informed and believe and thereon allege that at all times herein mentioned, each of the defendants sued herein was the agent and employee of the remaining defendants and was at all times acting within the purpose and scope of such agency and employment and that the acts were done under color of state law with the aid of a public trustee, an agent of the state. (ECF No. 1 at 17.)
12. In 2006, the Colorado state legislature passed HB-1387, which amended major portions of the foreclosure statute and subsequently the denial of due process rights was born. (ECF No. 1 at 17.)
13. This action arises out of Defendants interference with Plaintiffs due process and equal protection in the Rule 120 foreclosure proceeding. Plaintiff alleges this was a part of a broad conspiracy designed to deprive homeowners of due process in order to advance their own financial interests. When the legislature passed HB 1387, State action came into existence. (ECF No. 1 at 17.)
21. Plaintiff alleges that the essence of the Tort "abuse of process" lies in the misuse of the powers of the court. In this case, Defendants utilized several practices, including: fabrication of documents and falsified signatures to rob Plaintiff of his home. It is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. (ECF No. 1 at 25.)
34. Plaintiff alleges that the defendants have conspired for mutual gain, that the conspiracy was ongoing and prolonged through the use of spurious, fraudulent documents used to pursue foreclosure. (ECF No. 1 at 50.)

B. Factual Background

The following "facts" are taken from Plaintiff's allegations in his Complaint. (ECF No. 1.) The crux of Plaintiff's Complaint concerns property allegedly owned by him and upon which certain Defendants have ...


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