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Tso v. Murray

United States District Court, D. Colorado

February 28, 2018

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.


          William J. Martínez United States District Judge.

         This 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' Motions”).

         Plaintiff 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.


         A. Rule 72(b)

         When a 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.”).

         Because 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).

         B. Rule 12(b)(1)

         A 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).

         When a 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 Cir. 2000).

         Only 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.

         C. Rule 12(b)(2)

         The 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)).

         To 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”).

         The 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).

         D. Rule 12(b)(6)

         Under 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).


         No 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 at 2-3.)

         Briefly, 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. (Id.)

         By June 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.)

         Plaintiff 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. (Id.)

         Defendants 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.)


         The 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.

         A. Illinois Defendants

         The 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 ...

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