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Tso v. Murray

United States District Court, D. Colorado

December 18, 2018

GILBERT T. TSO, a natural person and an American, Plaintiff,
REBECCA MURRAY, a/k/a Tso, individually, TANYA AKINS, individually, SHERR PUTTMANN AKINS LAMB PC, law firm, JEANNIE RIDINGS, individually, KILILIS RIDINGS & VANAU PC, a law firm, RUSSELL MURRAY, individually, DENA MURRAY, individually, JOANNE JENSEN, individually, RICHARD F. SPIEGLE, PSY.D., individually, ELIZABETH A. STARRS, individually, DAVID P. BRODSKY, individually, CHARLES D. JOHNSON, individually, ROSS B.H. BUCHANAN, individually, DAVID H. GOLDBERG, individually, MONICA JACKSON, individual and official capacity, LARA DELKA, individual and official capacity, CHRISTIAN MADDY, individual and official capacity, JENNIFER ADELMANN, individual and official capacity, DON MARES, official capacity, BARRY PARDUS, official capacity, MICHAEL DIXON, official capacity, CYNTHIA COFFMAN, official capacity, 19th JUDICIAL CIRCUIT COURT, LAKE CO., IL, 2nd DISTRICT COURT, DENVER COUNTY, CO, DENVER DEPT. OF HUMAN SERVICES, COLORADO DEPT. OF HUMAN SERVICES, COLORADO DIVISION OF MOTOR VEHICLES, and CITY AND COUNTY OF DENVER, Defendants.



         This matter comes before the Court on Plaintiff's Objections to Magistrate Judge's Recommendations and Motion for Court Review of Magistrate's Order [Docket No. 162], wherein plaintiff Gilbert T. Tso seeks review of United States Magistrate Judge Scott T. Varholak's Order and Recommendation [Docket No. 158] dated September 26, 2018. This matter also comes before the Court on plaintiff's Motion for Leave to Amend Complaint [Docket No. 161] dated October 9, 2018.

         Judge Varholak recommends granting six motions to dismiss (collectively, the “motions to dismiss”), filed by: (1) defendants the 19th Judicial Circuit Court, Lake County, State of Illinois (the “Illinois 19th Judicial Circuit”), Charles D. Johnson, and David P. Brodsky (collectively, the “Illinois judicial defendants”) [Docket No. 98]; (2) defendants Elizabeth A. Starrs, Ross B.H. Buchanan, David H. Goldberg, Barry Pardus, Michael Dixon, Cynthia Coffman, the 2nd District Court, Denver County, Colorado (the “Denver District Court”), the Colorado Department of Human Services (“CO DHS”), and the Colorado Division of Motor Vehicles (“DMV”) (collectively, the “Colorado defendants”) [Docket No. 100]; (3) defendants Tanya Akins, Sherr Puttmann Akins Lamb, P.C., Jeannie Ridings, and Kililis Ridings & Vanau, P.C. (collectively, the “attorney defendants”) [Docket No. 102]; (4) defendants City and County of Denver (“Denver”), Denver Department of Human Services (“Denver DHS”), Monica Jackson, Lara Delka, Christian Maddy, Jennifer Adelmann, and Don Mares (collectively, the “Denver defendants”) [Docket No. 103]; (5) defendant Dr. Richard F. Spiegle [Docket No. 105]; and (6) defendants Rebecca Murray, Russell Murray, Dena Murray, and Joanne Jensen (collectively, the “Murray defendants”) [Docket No. 107]. Judge Varholak recommends denying plaintiff's Motion to Set Aside the Scheduling Order for Amendments to the Complaint and Motion for Leave to Amend and Supplement Complaint (the “motion to amend”) [Docket No. 117]. Judge Varholak also ordered that plaintiff's Motion for Judicial Notice [Docket No. 137] be granted in part and denied in part.

         Plaintiff filed a timely Objection to the Magistrate Judge's Recommendation and Motion for Court Review of Magistrate's Order [Docket No. 162]. The defendants filed timely Responses to the Objection. Docket Nos. 165, 168, 169, 170, 171, 172.

         I. BACKGROUND

         No parties object to the facts as set forth by Judge Varholak in his recommendation [Docket No. 158]. See Docket Nos. 162, 165. Those facts are drawn from the allegations in plaintiff's Third Amended Verified Complaint [Docket No. 96], which are to be taken as true in considering a motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). Accordingly, the Court adopts and incorporates those facts as if set forth herein. See Docket No. 158 at 3-17. The Court briefly restates background relevant to this case's procedural history here.

         A. Prior federal litigation (Tso I)

         On October 3, 2016, Mr. Tso filed a lawsuit against many of the same defendants named in this case, asserting similar claims and arising out of the same domestic proceedings in Illinois and Colorado. See Tso v. Murray, No. 16-cv-02480-WJM-STV (“Tso I”). Mr. Tso alleged that defendants violated his Fifth and Fourteenth Amendment rights, that defendants violated and conspired to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and that Colorado Revised Statute § 14-10-124 is unconstitutional. Docket No. 158 at 9. Magistrate Judge Shaffer recommended that Mr. Tso's claims be dismissed, and Judge Martinez adopted his recommendation in its entirety. Id. at 10. Though all claims have been dismissed, an appeal is currently pending before the Tenth Circuit, and a motion for relief filed by Mr. Tso is currently pending before Judge Martinez. Id.

         B. Current lawsuit

         While Judge Shaffer's recommendation in Tso I was pending, Mr. Tso filed the instant lawsuit. Id. He has amended his complaint three times, with the operative complaint being the Third Amended Complaint [Docket No. 96]. In granting Mr. Tso leave to file his then-proposed Third Amended Complaint, the Court set May 4, 2018, as the deadline to file any further amendments to the complaint. Docket No. 95.

         Mr. Tso's Third Amended Complaint, filed on April 17, 2018, asserts five causes of action arising out of the Illinois and Colorado domestic proceedings. See Docket No. 96. Mr. Tso's first claim alleges that the Denver defendants, Goldberg, Pardus, and the CO DHS violated the Fifth Amendment's Takings Clause. Docket No. 158 at 11. Mr. Tso's second, third, and fourth claims, all under RICO, allege that the defendants engaged in three separate racketeering schemes aimed at maximizing the amount of child support obligations owed by Mr. Tso. Id. at 12-13. Finally, Mr. Tso's fifth claim is a 42 U.S.C. § 1983 civil rights claim, alleging that the state and local agencies in Colorado, along with the defendants sued in their official capacities, violated Mr. Tso's substantive, procedural, and statutory rights. Id. at 13. Mr. Tso seeks a combination of damages and prospective and injunctive relief. Id. at 11-13.

         Defendants filed six motions to dismiss. See Docket Nos. 98, 100, 102, 103, 105, and 107. Defendants assert that (1) the Court lacks subject-matter jurisdiction over Mr. Tso's claims pursuant to both the domestic relations exception and the Rooker-Feldman doctrine; (2) the Court lacks personal jurisdiction over the Illinois judicial defendants and the Illinois attorneys; (3) some defendants are entitled to judicial immunity, quasi-judicial immunity, qualified immunity, or are immune from suit under the 11th Amendment; (4) Mr. Tso's allegations fail to state a valid Fifth Amendment, RICO, or Fourteenth Amendment claim; (5) Mr. Tso's § 1983 claim is barred by the statute of limitations; (6) Mr. Tso's claims are barred by res judicata and collateral estoppel because they are identical to those raised in Tso I; and (7) Mr. Tso's Third Amended Complaint fails to comply with the “short and plain statement” requirement of Fed.R.Civ.P. 8(a). Docket No. 158 at 13-16. Mr. Tso filed responses to each motion to dismiss. See Docket Nos. 119, 120, 121, 122, 123, 124, and 129-1.

         On May 31, 2018, Mr. Tso filed a Motion to Amend [Docket No. 117]. He filed a supplemented/amended version of that motion [Docket No. 128] seven days later.

         On September 26, 2018, Judge Varholak issued his Recommendation that the Court grant the motions to dismiss, deny Mr. Tso's motion to amend, and dismiss the action as to all defendants and all claims. Docket No. 158. On October 9, 2018, Mr. Tso filed another Motion for Leave to Amend his complaint. Docket No. 161. On October 10, 2018, Mr. Tso filed his Objection to the Recommendation. Docket No. 162.


         A. Pro se status

          The Court construes papers filed by Mr. Tso liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall, 935 F.2d at 1110.

         B. Rule 72

          When reviewing magistrate judge orders on non-dispositive matters, “[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed R. Civ. P. 72(a).

         When a magistrate judge issues a recommendation on a dispositive matter, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” 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). To be sufficiently specific, an objection must “enable[] the district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” See id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.” Id.

         In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings”).

         C. Rule 12(b)(1)

         A motion under Fed.R.Civ.P. 12(b)(1) is a request for 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). When the Court lacks subject matter jurisdiction over a claim for relief, dismissal is proper under Rule 12(b)(1). See Jackson v. City and Cty. of Denver, No. 11-cv-02293-PAB-KLM, 2012 WL 4355556 at *1 (D. Colo. Sept. 24, 2012).

         Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). 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., 343 F.3d 1282, 1296 (10th Cir. 2003).

         D. The ...

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