Professional Documents
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Bryan
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Plaintiff,
v.
NO. CV12-5088-RJB
MOTION TO DISMISS FILED BY DEFENDANTS AIKEN AND ACOSTA (Cowlitz County Superior Court Cause No. I 2-2-00036-l)
Noted for Consideration: March 2012
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JPMORGAN CHASE & CO.; USBANCORP/US BANK; LEE MITAU; GENERAL MORTGAGE GMAC; MERSCORP; MERS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; JOHN V. ACOSTA; ANN AIKEN; MATTHEW CLEVERLEY; C. MARIE ECKERT; TERESA H. PEARSON; JEANNE KALLAGE SINNOTT; ET AL,
Defendants.
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COME NOW the defendants, John V. Acosta and Ann Aiken (collectively, "Defendants" or "the Government"), in their official capacities as federal judicial officers
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in the United States District Court for the District of Oregon, by and through their
undersigned counsel of record, Jenny A. Durkan, United States Attorney for the Western
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District of Washington, and Rebecca S. Cohen, Assistant U.S. Attorney for said District,
and hereby respectfully request the Court to dismiss all claims against the Government
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack
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of subject matter jurisdiction and failure to state a claim upon which relief can be granted.
MOTION TO DISMISS - I
(cv l2-5088-RJB)
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I.
BACKGROUND
On November 3, 2008, Plaintiff Roberta Kelly filed a lawsuit against U.S. Bank in
the Multnomah County Circuit Court in Oregon. Kelly v. U.S. Bank, Case No. 081115858 (Multnomah County Circuit Ct.). Plaintiff's Complaint sought to prevent U.S.
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Bank from foreclosing on real property she owned in Multnomah County. On December 5,2008, U.S. Bank removed the case to the United Stated District Court for the District of Oregon. Kelly v. U.S. Bank,Case No. 08-CV- 1421 (D.Oregon) (the "2008 Litigation").
Magistrate Judge John V. Acosta was the judge assigned to preside over the 2008
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a Findings
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& Recommendation ("F&R") in which he recommended that the Court grant summary
judgment in favor of U.S. Bank. Kelly v. U.S. Bank, Case No. 08-CV-1421, at Dkt. No.
218 (D. Oregon), On October 15,2010, District Court Judge Michael W. Mosman
adopted Judge Acosta's F&R as his own. Id. at Dkt. No.
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9,2010, Judge Mosman issued a Judgment dismissing Plaintiff's claims with prejudice
and awarding judgment in favor of U.S. Bank on its counterclaim in the amount
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of
gI97 ,146.04, plus prejudgment and post-judgment interest. Id. at Dkt. No. 279. During
the course of the 2008 Litigation, Chief Judge Anne L. Aiken issued orders rejecting
Plaintiff's attempts to remove Judge Acosta from presiding over the case. Id. atDkt.
Numbers 144, 179.
Since filing the 2008 Litigation, Plaintiff has filed no less than five additional
cases
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in the District of Oregon, all of which have been dismissed.' See Case Numbers 09-
l,
-CV-
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Judge Aiken and Judge Acosta were named as defendants in three of the cases. See Case
' Plaintiff also recently filed a new case in the Multnomah County Circuit Court, which has now been removed to the District of Oregon. See Case No. lz-CV - 199 (D. Oregon). The defendants include Chief Judge Aiken, Judge Acosta, Judge Mosman, and Bankruptcy Court Judge Randall Dunn.
MOTION TO DISMISS - 2
UNITED STATES ATTORNEY
700 Stevart Streel, Suile 5220 Seattle, WashirgtoD 98 I 0l -l 27 I (206\ 553-7970
(cv l2-5088-RJB)
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Chief Judge Aiken issued a Pre-Filing Order against Plaintiff Roberta Kelly that read in
relevant part as follows:
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WEBSTER, individually, collectively, or in alleged connection with any other party, SHALL BE REVIEWED BY THIS COURT AND ORDERED FILED ONLY IF SUCH FILINGS ARE DEEMED NOT FRIVOLOUS OR REPETITIVE.
In re Kelly,
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Case
(D. Oregon).
On January
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Court against U.S. Bank, Chief Judge Aiken, Judge Acosta, and approximately ten additional defendants. Case No. l2-2-AW6-1 (Cowlitz County Superior Court). Although
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ambiguous, the Complaint appears to relate to the foreclosure of property in Castle Rock,
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Washington. Plaintiff's Complaint has been filed at Docket No. 3 to this action, and does
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not give any indication as to why Chief Judge Aiken and Judge Acosta were named
as
defendants. Because the allegations in the Complaint appear to relate to the facts at issue
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in her prior cases in the District of Oregon, the Government has assumed that the
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Complaint asserts claims against Chief Judge Aiken and Judge Acosta in their official
capacities, and thus that the claims are actually claims against the federal Government.2
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See, e.g., Kentuclqt v. Graham, 473 U.S. 159, I 65-66 (1985) (explaining that
"official
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capacity" claims against an officer of the government are "only another way of pleading
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Cowlitz County case to this Court pursuant to 28 U.S.C. g 1442, because Defendants
"Acosta and Aiken are both judicial officers of the courts of the United States who were at
all times relevant to this lawsuit acting under color of their office and/or in the
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as
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2 It should be noted that even if Plaintiff intended to assert claims against Chief Judge Aiken and Judge Acosta in their individual capacities, they would be entitled to absolute immunity because "[]udges are absolutely immune from civil liability for damages for their judicial acts." Mullis v. U.^S. Bankr. Courtfor Dist. of Nevada,828 F.2d 1385, 1388 (9th Cir. 1987); see also Ashelman v. Pope,793 F.2d 1072, 1075 (9th Cir. 1986). The doctrine "should be broadly construed to effectuate the policies supporting ffudicial] immunity." Ashelman,793 F.2d at 1076.
MOTION TO DISMISS - 3
UNITED STATES ATTORNEY
700 Slcwan Strrcl, Suitc 5220 Seattle, Washirglon 981 0l.l 271
(cv l2-5088-RJB)
(206) ss3.1970
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Dkt. No. 1; 28 U.S.C . $ Va2@)(3). Defendants now respectfully move the Court f,or an
order dismissing all claims against the Government.
II.
claims
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Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of
if
the court lacks subject matter jurisdiction. Jurisdiction is a threshold issue that
should be addressed before considering the merits. Steel Co. v. Citizens for a Better Env't,
523 U.S. 83,g4-96 (1998); Retail FlooringDealers of Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146,1148 (9th Cir. 2003). "Defects in subject matter jurisdiction may be raised
at any time, by the parties or by the court on its own motion, and may never be waived."
Cripps
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v.Lfe Ins. Co. of N. Am.,980 F.2d 1261,1264 (gth Cir. 1992). The burden of
jurisdiction." Thontpson
v. McCombe, 99 F.3d 352,353 (9th
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proving subject matter jurisdiction in this case rests upon the plaintiff, the "party invoking
the federal court's
Cir.
1996).
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If the court finds that it lacks subject matter jurisdiction, then it "must dismiss the action."
Fed. R. Civ. P. 12(hX3).
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The United States, as sovereign, is immune from suit unless it consents to be sued.
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u.s. v. Mitchell,445 u.s. 535, 538, 100 S.Cr. 1349 (198A); Cato v. U.5.,70 F.3d 1103,
I 107 (9th
Cir. 1995). Any waiver of that immunity must be strictly construed in favor of
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terms
of
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Likewise, a complaint should be dismissed for failure to state a claim upon which
relief can be granted if it appears beyond a doubt that the plaintiff can prove no set of facts
in support of the claim that would entitle him to relief. Fed. R. Civ. P. 12(bX6). While
detailed factual allegations are not generally required, the facts alleged must state a claim
for relief that is plausible on its face and "must be enough to raise a right to relief above
the speculative level. . .
."
A claim has facial plausibility when a plaintiff pleads factual content that allows the court
MOTION TO DISMISS - 4
UNITED STATES ATTORNEY
700 SlewBn SEeer, Suire 5220 Scattlc, W aslriDgloD 98 I 0 l -l 271 (206\ 553-7970
(cv 12-5088-RJB)
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to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.; see also Ashcroft v. Iqbal, et al., 129 S. Ct. 1937,1949 (2009). "Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
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suffice." Iqbal,l29
S.
generally taken as true in motions to dismiss, however, the Court is "not bound to accept
as true a legal conclusion couched as a factual
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pleadings are held to less rigid standards than those drafted by attorneys, they still "must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept. of the Navy,66 F.3d 193,199 (9th Cir.
1995); see also GJR Invs., Inc. v. County of Escambia,
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Fla.,
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In the present case, Plaintiff's Complaint fails to identify any waiver of sovereign immunity that would allow her to pursue claims against federal judicial officers in their
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official capacities, and the claims against the Government must therefore be dismissed for
lack of subject matter jurisdiction. Nor does Plaintiff's Complaint articulate any specific
cause
of action against the Government. In fact, other than including their names in the
caption and in the Certificate of Service, the onlymention of Chief Judge Aiken and Judge Acosta in the Complaint is language stating that all of the defendants were direct participants in what Plaintiff describes as a "Sail Fail" that allegedly caused harm to property in Portland, Oregon. Dkt. No. 3, at page to raise a right to relief above the speculative
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Complaint makes no attempt to describe the "Sail Fail" or how it allegedly harmed
Plaintiff, to explain how Chief Judge Aiken or Judge Acosta were any way involved, or to
assert a specific cause
claims against the Government must be dismissed due to Plaintiff's failure to state a claim.
MOTION TO DISMISS - 5
(cv r 2-5088-RJB)
UNITED STATES ATTORNEY 700 Slevafr Steet, Srite 5220 Seanlc, Washington 9E l0l-12? I
(206) 553-7970
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III.
CONCLUSION
For the foregoing reasons, the Government respectfully requests the Court to grants
its Motion and dismiss all claims against Defendants Aiken and Acosta. A proposed form
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of order is submitted herewith for the Court's consideration. DATED this 8th day of February, 2012.
Respectfully submitted,
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Assistant United States Attorney United States Attorney's Office 700 Stewart Street, Suite 5220 Seattle, Washington 98 1 0 I -127 I Phone: 206-553-7970 Fax: 206-553-4073 E-mail: rebecca.cohen@usdoj.gov
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MOTION TO DISMISS - 6
(cv l2-s088-RJB)
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that she is an employee in the United States Attorney
Office for the Western District of Washington and is a person of such age and discretion
be competent to serve papers;
as to
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That on February 8,2012, she caused copies of the Notice of Removal of Civil Action to be served upon the individual(s) hereinafter named by first class mail, addressed as follows: Roberta Kelly 200 Coyote Lane Castle Rock, WA 98611 Roberta Kelly 5109 NE Ainsworth Street Portland, OR 97218
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Jeff C. Duncan Brecht Sussman Shank LLP 1000 SW Broadway, Ste. 1400 Portland, OR 97205-3089 (GMAC) Matthew Cleverley Fidelity National Title Group I20A - 6th Ave., Ste. 620
Seattle, WA 98101-3 125 Stephen M. Cutler, Esq. & Co. 270 Park Ave., Fl. 48 New York, NY 10017-2014
JP Morgan Chase
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C. Marie Eckert Miller Nash LLP 118 SW 5th Ave., Ste. 3400 Portland, OF.97204 (US Bank)
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Michael J. McMahon Etter McMahon Lamberson Clary & Oreskovich PC 618 W. Riverside Ave., Ste. 210 Spokane, WA 99201-0602 (JP Morgan Chase)
Lee Mitau
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MOTION TO DISMISS - 7
(cv 12-5088-RJB)
)
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Teresa H. Pearson Miller Nash LLP 111 SW 5th Ave,, Ste. 3400 Portland, OR 97204 (US Bank)
Jeanne Kallage Sinnott
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David A. Weibel Bishop White Marshall & Weibel 720 Olive Way, Ste. 1201
Seattle, WA 98101- I 878
PS
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s/Sharon P. Gore
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Legal Assistant United States Attorney's Office 700 Stewart Street, Suite 5220 Seattle, Washington 98 1 0 l -127 I Phone: 206-553-7970 FAX: 206-553-4073 E-mail: sharon. gore@usdoi. gov
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MOTION TO DISMISS -
(cv 12-5088-RJB)
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Plaintiff,
V.
NO. CVl2-5088-RJB
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JPMORGAN CHASE & CO.; USBANCORP/US BANK; LEE MITAU; GENERAL MORTGAGE GMAC; MERSCORP; MERS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; JOHN V. ACOSTA; ANN AIKEN; MATTHEW CLEVERLEY; C. MARIE ECKERT; TERESA H. PEARSON; JEANNE KALLAGE SINNOTT; ET AL,
Defendants.
IPROPOSEDI ORDER
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This matter came before the Court on the Motion to Dismiss frled by Defendants Ann
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Aiken and John V. Acosta ("the Government"). The Court having read and considered the
Government's Motion, any documents filed in opposition, and the Government's reply, the Court finds itself fully advised and hereby ORDERS:
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(cv l2-5088-RIB)
s53-7970
Page 1
of
Motions
3:12-cv-05088-RJB Kelly v. JPMorqan Chase & Co. et al
U.S. District
Court
.
filed on2l8l20L2
Ann Aiken John V Acosta Document Number:6 Docket Text: MOTION to Dismiss by Defendants John V Acosta, Ann Aiken. {Attachments: # (1} Proposed
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