United States District Court, D. Colorado
GILBERT T. TSO, individually, and as the parent and on behalf of M.X.T., Plaintiff,
REBECCA MURRAY, individually; TANYA AKINS, individually and official capacities; SHERR PUTTMAN AKINS LAMB PC, a law firm; JEANNIE RIDINGS, individually and official capacities; KILILIS RIDINGS & VANAU PC, a law firm; RUSSELL M. MURRAY, individually; DENA MURRAY, individually; JOANNE JENSEN, individually; DAVID P. BRODSKY, individually and official capacities; ELIZABETH A. STARRS, individually and official capacities; CHARLES D. JOHNSON, individually and official capacities; ROSS B. H. BUCHANAN, individually and official capacities; DAVID H. GOLDBERG, individually and official capacities; THE COUNTY OF LAKE, ILLINOIS, and THE STATE OF ILLINOIS; MITCH MCKEE, official capacity; MONICA JACKSON, individually and official capacities; LARA DELKA, individually and official capacities; and THE CITY & COUNTY OF DENVER, COLORADO, & THE STATE OF COLORADO, Defendants.
ORDER ADOPTING RECOMMENDATIONS OF MAGISTRATE JUDGE
GRANTING DEFENDANTS' MOTIONS TO DISMISS AND DISMISSING
William J. Martínez United States District Judge.
matter is before the Court on United States Magistrate Judge
Craig B. Shaffer's Report and Recommendation dated
September 26, 2017. (ECF No. 237 (“the
Recommendation”).) Judge Shaffer recommends granting
six motions to dismiss; filed respectively by: (1) Defendants
Rebecca Murray, Russell M. Murray, Dena Murray, and Joanne
Jensen (Collectively, “Murray Defendants”) (ECF
No. 135); (2) the City and County of Denver and the Denver
Department of Human Services (collectively, the “Denver
Defendants”) (ECF No. 137); (3) the Denver District
Court and the Colorado Department of Human Services
(collectively, the “Colorado Defendants”) (ECF
No. 139); (4) Tanya Akins and Sherman Puttman Akins Lamb,
P.C. (collectively, the “SPAL Defendants”) (ECF
No. 141); (5) Jeannie Ridings and Kililis Ridings & Vonau
P.C. (collectively, the “Illinois Defendants”)
(ECF No. 142); and (6) Richard Spiegle, Psy.D (“Dr.
Spiegle”) (collectively, “Defendants'
Gregory T. Tso (“Plaintiff”) filed a timely
Objection to the Recommendation (ECF No. 259 (“the
Objection”).) The Murray Defendants (ECF No. 246), the
Denver Defendants (ECF No. 249), the Colorado Defendants (ECF
No. 262), the SPAL Defendants (ECF No. 252), the Illinois
Defendants (ECF No. 252), and Dr. Spiegle (ECF No. 267) filed
responses to the Objection (collectively, Defendants'
Responses). For the reasons set forth below, Plaintiff's
Objection is overruled, Judge Shaffer's Recommendation is
adopted, Defendants' Motions are granted, and
Plaintiff's claims are dismissed.
STANDARD OF REVIEW
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine de novo any
part of the magistrate judge's [recommendation] that has
been properly objected to.” An objection to a
recommendation is properly made if it is both timely and
specific. United States v. One Parcel of Real Property
Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th
Cir. 1996). An objection is sufficiently specific if it
“enables the district judge to focus attention on those
issues-factual and legal-that are at the heart of the
parties' dispute.” Id. In conducting its
review, “[t]he district court judge may accept, reject,
or modify the recommendation; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Id. In the absence of a timely
and specific objection, “the district court may review
a magistrate . . . [judge's] report under any standard it
deems appropriate.” Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn,
474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P.
72 Advisory Committee's Note (“When no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record.”).
Plaintiff is proceeding pro se, the Court must
liberally construe his pleadings. Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Trackwell v. United States
Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The
Court, however, cannot act as an advocate for Plaintiff, who
must still comply with the fundamental requirements of the
Federal Rules of Civil Procedure. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
motion under Rule 12(b)(1) is a request upon the court to
dismiss a claim for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of
establishing that the court has jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). Dismissal of a complaint under Fed.R.Civ.P. 12(b)(1)
is proper when the Court lacks subject matter jurisdiction
over a claim for relief. See SBM Site Services, LLC v.
Garrett, 2012 WL 628619, *1 (D. Colo. Feb. 27, 2012).
court's subject matter jurisdiction is challenged, the
court may review materials outside the pleadings without
converting the Rule 12(b)(1) motion to dismiss into a motion
for summary judgment. Davis ex rel. Davis v. U.S.,
342 F.3d 1282, 1296 (10th Cir. 2003) (stating that
“when a party challenges the allegations supporting
subject-matter jurisdiction, the ‘court has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts.'” (quoting Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995)));
Pringle v. United States, 208 F.3d 1220, 1222 (10th
where the jurisdictional question is intertwined with the
merits (not present here) is conversion of a Rule 12(b)(1)
motion into a motion for summary judgment under Rule 56
appropriate. Holt, 46 F.3d at 1003.
purpose of a motion to dismiss pursuant to Rule 12(b)(2) is
to test whether the Court has personal jurisdiction over the
named parties. The plaintiff bears the burden of establishing
personal jurisdiction over a defendant. Behagen v.
Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th
Cir. 1984). As is true here, when the court does not hold an
evidentiary hearing before ruling on jurisdiction, “the
plaintiff need only make a prima facie
showing” of personal jurisdiction to defeat a motion to
dismiss. Id. (citing Am. Land Program, Inc. v.
Bonaventura Uitgevers Maatschappij, N.V., 710 F.2d 1449,
1454 n.2 (10th Cir. 1983)). A plaintiff “may make this
prima facie showing by demonstrating, via affidavit
or other written materials, facts that if true would support
jurisdiction over the defendant.” OMI Holdings,
Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091
(10th Cir. 1998). To defeat the plaintiff's prima
facie case, a defendant “must present a compelling
case demonstrating ‘that the presence of some other
considerations would render jurisdiction
unreasonable.'” Id. (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
obtain personal jurisdiction over a nonresident defendant,
the plaintiff “must show that jurisdiction is
legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process
clause of the Fourteenth Amendment.” Benton v.
Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004)
(quoting Soma Med. Int'l v. Standard Chartered
Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)). In
Colorado, the state's long arm statute “confers the
maximum jurisdiction permissible consistent with the Due
Process Clause.” Archangel Diamond Corp. v.
Lukoil, 123 P.3d 1187, 1193 (Colo. 2005) (referring to
Colo. Rev. Stat. § 13-1-124). Thus, the Court need only
address the constitutional question of whether the exercise
of personal jurisdiction over the defendants comports with
due process. Dudnikov v. Chalk & Vermillion Fine
Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (the
state jurisdictional analysis in Colorado “effectively
collapses into the second, constitutional, analysis”).
Court will accept the well-pled factual allegations of the
complaint as true to determine whether Plaintiffs have made a
prima facie showing that personal jurisdiction
exists. Id. Any factual conflicts arising from
affidavits or other submitted materials are resolved in the
plaintiff's favor. Wenz v. Memery Crystal, 55
F.3d 1503, 1505 (10th Cir. 1995).
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim in a complaint for “failure to state a
claim upon which relief can be granted.” The 12(b)(6)
standard requires the Court to “assume the truth of the
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
parties object to the recitation of facts set forth by Judge
Shaffer in the September 26, 2017 Recommendation. (ECF No.
237 at 2-3.) Accordingly, the Court adopts and incorporates
those facts as if set forth herein. (See ECF No. 237
Plaintiff, proceeding pro se, initiated this case
after the dissolution of his marriage to Ms. Murray in
November 2012. (ECF No. 237 at 2.) The domestic proceedings
in an Illinois court granted residential custody of the
couple's child to Ms. Murray and also permitted her to
move to Colorado. (Id.) The Illinois court also
entered a “duty of support” against Plaintiff,
but deferred establishment of a child support order.
2013, Plaintiff, Ms. Murray, and their child had all moved to
Colorado. (Id.) However, the Illinois court retained
jurisdiction over the child support issue and ultimately
entered a support order that included arrearages of
approximately $17, 500 owed by Plaintiff. (Id.) The
Illinois Appellate Court affirmed the Illinois trial
court's exercise of jurisdiction over the child support
order. (Id.) In 2015, the Denver District Court
granted Ms. Murray's motion for registration and
enforcement of the Illinois support order. (Id.)
filed his Second Amended Complaint (“SAC”) (ECF
No. 120) on June 9, 2017. Plaintiff's SAC alleges that
the Colorado and Denver Defendants violated his Fifth and
Fourteenth Amendment rights (respectively, “Claim
One” and “Claim Four”). (ECF No. 237 at 3.)
Plaintiff also contends that Colorado Revised Statute §
14-10-124 is unconstitutional on its face (“Claim
Five”). (Id.) Additionally, Plaintiff asserts
two civil Racketeer Influenced and Corrupt Organizations Act
(“RICO”) claims against all of the Defendants
(Claim Two and Claim Three). (Id.) Plaintiff's
RICO claims are based on his contention that the Murray
Defendants, the Illinois Defendants, the SPAL Defendants, and
Dr. Spiegel formed an enterprise with the goal of obtaining
court orders that are financially onerous to Plaintiff.
filed their Motions to Dismiss on the basis that (1) the SAC
does not comply with the Federal Rule of Civil Procedure 8;
(2) this court lacks jurisdiction under the
Rooker-Feldman doctrine; (3) Plaintiff lacks
standing to bring his RICO claims; (4) Plaintiff has failed
to state any claim for relief; (5) the court lacks personal
jurisdiction over the Illinois Defendants; (6)
Plaintiff's claims are barred by the Eleventh Amendment
and the statute of limitations; and (7) some of the
Defendants are protected by quasi-judicial immunity.
(Id.) Judge Shaffer reviewed these motions, along
with Plaintiff's Response (ECF No. 202) and
Defendants' Replies (ECF Nos. 209, 213, 216, 222), and
issued his Recommendation granting the Motions to Dismiss and
dismissing the action as to all Defendants and all claims.
(See ECF No. 237.)
MOTIONS TO DISMISS
Court's analysis follows the same structure as Judge
Shaffer's Recommendation and Plaintiff's Objection.
Thus, the Court first considers the Defendants who will be
dismissed for lack of personal jurisdiction and then turns to
remaining RICO claim and constitutional claim.
Illinois Defendants include attorney Jeannie Ridings and her
firm, Kililis Ridings & Vonau, P.C., who represented Ms.
Murray in the Illinois court proceedings. Plaintiff claims
that the Illinois Defendants, along with the Murray
Defendants, “sought to eliminate Plaintiff's
parental rights through a vigorous campaign of defamation,
slander, false allegations, abuses of process, malicious
prosecution and vexatious litigation that would shock the
conscience.” (ECF No. 120 at 19.) The Colorado court
dismissed Plaintiff's claims against the Illinois
Defendants for lack of personal jurisdiction, because they
were not residents of Colorado, and had no involvement in any
proceedings in Colorado and had not purposefully availed
themselves of the privilege of conducting business in
Colorado. (ECF 142-6 at 3-4, 5.) Plaintiff did not appeal
this determination. (ECF No. 142-7.) In ...