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Tso v. Murray

United States District Court, D. Colorado

August 12, 2019

GILBERT T. TSO, a natural person and an American, Plaintiff,
v.
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.

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion to Re-Open/Amend Judgment Pursuant to Fed. R. Cv. P. 59 and Fed. R. Cv. P. 60(a), (b)(6); with Notice of Exhibits in Support [Docket No. 190] and Plaintiff's Motion to Amend Judgment Pursuant to Fed. R. Cv. P. 52(b) in Support of and Relating to ECF #190 [Docket No. 191].

         This case arises from the dissolution of plaintiff's marriage to defendant Rebecca Murray and the resulting domestic proceedings in Illinois and Colorado.[1] Plaintiff's Third Amended Complaint alleges five claims for relief: a claim for violation of the Fifth Amendment's Takings Clause, three claims for separate racketeering schemes under RICO, and a claim under 42 U.S.C. § 1983. See Docket No. 96; Docket No. 188 at 4-5. After all defendants filed motions to dismiss the case, Magistrate Judge Scott T. Varholak recommended that, because plaintiff's claims were barred by the Rooker-Feldman doctrine, the Court grant the motions to dismiss and deny plaintiff's motion for leave to amend the complaint. Docket No. 158. Plaintiff filed an objection to the recommendation, see Docket No. 162, as well as a second motion for leave to amend. Docket No. 161. On December 18, 2018, the Court entered an order (the “order”) adopting the magistrate judge's recommendation. Docket No. 188. The Court concluded that all of plaintiff's claims were barred by the Rooker-Feldman doctrine, overruling plaintiff's objection. Id. at 11-19. The Court also denied both of plaintiff's motions for leave to amend the complaint. Id. at 20-22 (denying Docket Nos. 117 and 161).

         On January 8, 2019, plaintiff filed a motion to alter the judgment pursuant to Fed.R.Civ.P. 59(e) and 60(b)(6). Docket No. 190. On January 14, 2019, plaintiff filed a motion to amend the order pursuant to Fed.R.Civ.P. 52(b). Docket No. 191. On January 16, 2019, plaintiff filed a notice of appeal with the Tenth Circuit. Docket No. 192. That appeal is abated pending resolution of plaintiff's post-judgment motions. Docket No. 214.[2]

         The Court construes plaintiff's filings 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.

         As an initial matter, plaintiff's motion pursuant to Fed.R.Civ.P. 52(b), see Docket No. 191, will be denied because Rule 52(b) is inapplicable. “The primary purpose of Rule 52(b) is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and judgment entered thereon.” Brooks v. Medina, No. 13-cv-02213-CMA-KMT, 2015 WL 4197070, at *1 (D. Colo. July 13, 2015) (citing Penncro Assocs. v. Sprint Spectrum L.P. d/b/a Sprint PCS, 2006 WL 1999121, at *2 (D. Kan. July 17, 2006)). The order plaintiff seeks to amend is based upon motions to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(1). Docket No. 188. “In considering a Rule 12 motion, the Court does not ‘find' facts, but rather assumes the truth of the factual allegations to determine if the plaintiff has stated a plausible claim for relief.” Brooks, 2015 WL 4197070, at *2. The Court made no “findings” in its order; therefore, plaintiff's Rule 52(b) motion is improper.

         The Court turns to plaintiff's motion requesting relief pursuant to either Fed.R.Civ.P. 59(e) or 60(b)(6). “Whether a motion is construed as a Rule 59(e) or Rule 60(b) motion depends upon the time in which the motion is filed.” Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006). If the motion is filed within 28 days of the entry of judgment, it is treated as a Rule 59(e) motion; if it is filed after that time it falls under Rule 60(b). Cf. id.; Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).[3] Here, final judgment entered on December 19, 2018, see Docket No. 189, and plaintiff filed his motion on January 8, 2019. See Docket No. 190. As the motion was filed within 28 days of the entry of judgment, the Court construes plaintiff's motion as a Rule 59(e) motion. “Grounds warranting a motion to alter or amend the judgment pursuant to Rule 59(e) include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Alpenglow Botanicals, LLC v. United States, 894 F.3d 1187, 1203 (10th Cir. 2018) (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). A Rule 59(e) motion is appropriate where “the court has misapprehended the facts, a party's position, or the controlling law, ” but not to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id. The decision to grant or deny a Rule 59 motion is committed to the Court's discretion. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).

         Plaintiff argues that the judgment must be altered or amended in order to correct clear error or prevent manifest justice.[4] Plaintiff asserts that the Court erred in applying Rooker-Feldman to his claims because the claims do not seek to overturn a state-court judgment; rather, they attack the “enforcement” of that judgment. Docket No. 190 at 5-6. Plaintiff frames his claims as alleging “procedural due process violations during the enforcement of judgment, ” id. at 6, stating that Rooker-Feldman does not bar plaintiff from bringing an “independent claim” alleging that the “formal [state-court] procedures were inadequate” and that “the state proceeding had been subverted . . . by corruption.” Id. at 6-7. Plaintiff maintains that his RICO claims and his § 1983 claim are such “independent claims” and that the Court therefore erred in granting the motions to dismiss as to those claims. Id. at 7-8.[5]

         Plaintiff's arguments are meritless. As an initial matter, plaintiff's arguments “revisit issues already addressed or advance arguments that could have been raised in prior briefing, ” and are therefore inappropriately raised in a post-judgment motion. See Alpenglow Botanicals, 894 F.3d at 1203. To the extent that plaintiff raises new arguments, plaintiff fails to identify any clear error committed in the Court's order dismissing the case. First, plaintiff inaccurately characterizes his complaint as only challenging “enforcement proceedings” rather than a “judgment.” The complaint alleges that certain defendants, including the Illinois state court, “abuse[d the] law and legal process” to impose an “interstate debt obligation” on plaintiff. See Docket No. 96 at 71, ¶ 228. In Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012), the Tenth Circuit held that Rooker-Feldman barred review of multiple “acts of the state court, ” namely, the state court's imposition of a bond and forfeiture order. 682 F.3d at 1285. Although plaintiff here claims he is not attacking a “judgment, ” he does not explain why a state-court order imposing an interstate debt obligation is distinguishable from a state-court order imposing a bond and a forfeiture order. Cf. id.; see also Tso v. Murray, 760 Fed.Appx. 564, 568 (10th Cir. 2019) (unpublished) (“Tso I”) (holding that Rooker-Feldman bars claims based on “deprivations that resulted from the state courts' orders”) (emphasis added)[6] The Court finds that, for purposes of Rooker-Feldman, there is no basis to conclude that the “interstate debt obligation” alleged in the complaint is reviewable.[7] Second, the order explained the legal basis why plaintiff's contention that he may overcome Rooker-Feldman by alleging that the state-court proceedings and judges were engaged in corruption is not supported by Tenth Circuit precedent. See Docket No. 188 at 17 (citing Bradshaw v. Gatterman, 658 Fed.Appx. 359, 362 (10th Cir. 2016) (unpublished) (noting that Tenth Circuit precedent does not support the theory that evidence of “extrinsic fraud” can overcome Rooker-Feldman)). Thus, there is no support for plaintiff's argument that his claims are “independent claims” that are reviewable despite attacking state-court proceedings and judgments.

         Moreover, plaintiff fails to distinguish the Tenth Circuit's ruling in a related case that applied the Rooker-Feldman doctrine to plaintiff's claims. Tso I, 760 Fed.Appx. 564. In Tso I, plaintiff alleged similar claims that flowed from the Illinois and Colorado domestic proceedings. See Tso I, 760 Fed.Appx. at 567 (plaintiff's claims included a Fifth Amendment claim and two RICO claims). The Tenth Circuit upheld the district court's application of the Rooker-Feldman doctrine to plaintiff's claims “with one insignificant exception, ” reasoning that plaintiff's complaint

seeks relief from alleged harms flowing from acts of the state court. That is, the allegedly wrongful act that caused damage was the state-court order itself, and his claims required a determination of the bona fides of the prior state-court judgment. Though he complains of various acts taken by the defendants, whether through a RICO “conspiracy” or denial of just compensation, the only harms alleged involved deprivations that resulted from the state courts' orders. His claims are therefore barred by Rooker-Feldman.

Id. at 567-68.[8] Similarly, here plaintiff is seeking relief “flowing from acts of the state court, ” as he acknowledges in his argument. See Docket No. 190 at 5 (arguing that the complaint challenges “other actions taken by the state-courts and state agencies” to enforce the dissolution of marriage). Plaintiff's attempt to distinguish the state-court judgment that ended plaintiff's marriage from the orders entered to enforce the initial dissolution of marriage cannot save his claims because “the only harms alleged” all flow from “deprivations that resulted from the state courts' orders.” See Tso I, 760 Fed.Appx. at 568; see also Docket No. 188 at 12-18 (explaining why plaintiff's claims are subject to Rooker-Feldman).[9]

         Plaintiff has failed to meet his burden to show that the judgment should be altered or amended pursuant to Rule 59(e). It is therefore

         ORDERED that Plaintiff's Motion to Re-Open/Amend Judgment Pursuant to Fed. R. Cv. P. 59 and Fed. R. Cv. P. 60(a), (b)(6); with Notice of Exhibits in ...


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