United States District Court, D. Colorado
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.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
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].
case arises from the dissolution of plaintiff's marriage
to defendant Rebecca Murray and the resulting domestic
proceedings in Illinois and Colorado. 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).
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.
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.
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.
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). 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).
argues that the judgment must be altered or amended in order
to correct clear error or prevent manifest
justice. 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.
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) 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. 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.
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
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
Id. at 567-68. 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
has failed to meet his burden to show that the judgment
should be altered or amended pursuant to Rule 59(e). It is
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 ...