United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Deutsche Bank National Trust
Company's Motion to Dismiss Second Amended Complaint
(“SAC”). ECF No. 23. Defendant argues this Court
lacks subject matter jurisdiction under the
Rooker-Feldman doctrine and Younger
abstention doctrine. Defendant also argues that issue
preclusion prevents Plaintiff from challenging the validity
of the underlying foreclosure at issue in this case. Finally,
Defendant argues that even if the Court were to reach the
merits of Plaintiff's claims, each claim should be
dismissed under Fed.R.Civ.P. 12(b)(6). For the reasons that
follow, the Motion is granted in part and
denied in part.
Statement of Facts
following factual allegations from Plaintiff's SAC are
taken as true pursuant to Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Additionally, the Court will consider
documents outside the pleading when appropriate under Tenth
acquired the single-family residence on the real property
commonly known as 3076 S. Holly Pl., Denver, CO 80222 (the
“Property”) by grant deed in 2004. ECF No. 12
¶ 7. On October 23, 2006, Plaintiff executed an
adjustable rate note (the “Note”) in the amount
of $286, 000.00 in favor of Fremont Investment & Loan
(“Fremont”). ECF No. 23-1. The Note was secured
by a deed of trust (the “Deed of Trust”) on the
Property. ECF No. 23-2. Plaintiff claims that although
Defendant “claims to be the [N]ote holder, ” ECF
No. 12 ¶ 8, it is not the true holder or beneficiary of
the instrument, id. ¶ 19. He further alleges
Defendant “created a series of instruments to give the
appearance that [Defendant] was in privity with
Plaintiff's contract . . . .” Id. ¶
2. Plaintiff also appears to allege that he made monthly
payments to Defendant under the terms of the Note even though
Defendant was not the beneficiary. Id. ¶ 23.
April 13, 2018, Defendant filed a Verified Motion for Order
Authorizing a Foreclosure Sale Under Colo. R. Civ. P. 120
(“Rule 120”) in the District Court, Arapahoe
County, Colorado. ECF No. 23-4. On May 9, 2018, that court
granted the motion. ECF No. 23-5. In doing so, the court held
there was a “reasonable probability” that
Plaintiff had defaulted, and Defendant was the real party in
interest. See Rule 120(d)(1). On May 31, 2018, the
Arapahoe County Public Trustee recorded a Confirmation Deed
that granted ownership of the Property to DFW Group LLLP. ECF
No. 23-8. The court then issued an Order Approving Sale on
July 6, 2018. ECF No. 23-6.
initiated this action on December 22, 2017, ECF No. 1, and
filed the operative SAC on May 11, 2018. ECF No. 12.
Plaintiff asserts claims for: (1) “wrongful
foreclosure”; (2) “restitution”; (3)
“no contract”; (4) fraud and deceit; (5) quiet
title; and (6) “declaratory and injunctive
relief.” Id. ¶¶ 16-47. In response,
Defendant filed the present Motion on October 5, 2018, ECF
No. 23, which was fully briefed on December 13, 2018, ECF No.
12(b)(1) empowers a court to dismiss a complaint for
“lack of subject matter jurisdiction.” Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a
plaintiff's case, but only a determination that the court
lacks authority to adjudicate the matter. See Castaneda
v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing
federal courts are courts of limited jurisdiction and may
only exercise jurisdiction when specifically authorized to do
so). A court lacking jurisdiction “must dismiss the
cause at any stage of the proceeding in which it becomes
apparent that jurisdiction is lacking.” Full Life
Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir.
2013). A Rule 12(b)(1) motion to dismiss must be determined
from the allegations of fact in the complaint, without regard
to mere conclusory allegations of jurisdiction. Smith v.
Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden
of establishing subject matter jurisdiction is on the party
asserting jurisdiction. Butler v. Kempthorne, 532
F.3d 1108, 1110 (10th Cir. 2008). Accordingly, Plaintiff in
this case bears the burden of establishing that the Court has
jurisdiction to hear his claims.
Rule 12(b)(1) motions to dismiss for lack of subject matter
jurisdiction take two forms. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995).
First, a facial attack on the complaint's allegations as
to subject matter jurisdiction questions the sufficiency of
the complaint. In reviewing a facial attack on the complaint,
a district court must accept the allegations in the complaint
Second, a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter
jurisdiction depends. When reviewing a factual attack on
subject matter jurisdiction, a district court may not presume
the truthfulness of the complaint's factual allegations.
A court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted). The present
motion launches a factual attack on this Court's subject
matter jurisdiction; therefore, the Court will consider
documents provided by Defendant that are necessary for the
Rule 12(b)(1) analysis. Pringle v. United States,
208 F.3d 1220, 1222 (10th Cir. 2000).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations that are legal conclusions, bare
assertions, or merely conclusory. Id. at 679.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs have not
nudged their claims across the line from conceivable to
plausible.” SEC v. Shields, 744 F.3d 633, 640
(10th Cir. 2014) (quoting Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The
nature and specificity of the allegations required to state a
plausible claim will vary based on context.” Safe
Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th
Cir. 2017) (quoting Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus,
while the Rule 12(b)(6) standard does not require that a
plaintiff establish a prima facie case in a complaint, the
elements of each alleged cause of action may help to
determine whether the plaintiff has set forth a plausible
claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to ...