Motion To Dismiss Filed By Defendants Aiken And Acosta No. CV-12-5088-RJB

8/2/2019 Motion To Dismiss Filed By Defendants Aiken And Acosta No. CV-12-5088-RJB

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT TACOMA

Hon. Robert J. Bryan

NO. CV12-5088-RJB

MOTION TO DISMISS FILED BYDEFENDANTS AIKEN ANDACOSTA

(Cowlitz County Superior CourtCause No. I 2-2-00036-l)

Noted for Consideration: March 2o

2012

Roberta Kelly, Pro-Se,

Plaintiff,

v.

JPMORGAN CHASE & CO.;USBANCORP/US BANK; LEE MITAU;GENERAL MORTGAGE GMAC;MERSCORP; MERS; MORTGAGEELECTRONIC REGISTRATIONSYSTEMS; JOHN V. ACOSTA; ANNAIKEN; MATTHEW CLEVERLEY; C.MARIE ECKERT; TERESA H.PEARSON; JEANNE KALLAGE

SINNOTT; ET AL,

MOTION TO DISMISS - I

(cv l2-5088-RJB)

Defendants.

COME NOW the defendants, John V. Acosta and Ann Aiken (collectively,

"Defendants" or "the Government"), in their official capacities as federal judicial officers

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

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

of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

UNITED STATES ATTORNEY

700 Stcwafl Street, Suile 5220

Seatle, W ssbiDgtoD 98 l0 I -l 2? I

(206) 553-7970



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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. 0811-

15858 (Multnomah County Circuit Ct.). Plaintiff's Complaint sought to prevent U.S.

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

Litigation. After lengthyproceedings, on July 29,2010, Judge Acosta issued a Findings

& 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. 262. Accordingly, on December

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 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 in the District of Oregon, all of which have been dismissed.' See Case Numbers 09-

CV-1 125, I1 -CV-002 I l, 1 I -CV -949, 1I-CV -97 5, 1 I -CV- 1 1 78 (D. Oregon). Chief

Judge Aiken and Judge Acosta were named as defendants in three of the cases. See Case

Numbers ll-CV-949,IL-CV-97 5, 11-CV-l178 (D. Oregon). On November 2,2011,

' Plaintiff also recently filed a new case in the Multnomah County Circuit Court, whichhas now been removed to the District of Oregon. See Case No. lz-CV - 199 (D. Oregon). Thedefendants include Chief Judge Aiken, Judge Acosta, Judge Mosman, and Bankruptcy CourtJudge Randall Dunn.

MOTION TO DISMISS - 2

(cv l2-5088-RJB)


700 Stevart Streel, Suile 5220

Seattle, WashirgtoD 98 I 0l -l 27 I

(206\ 553-7970



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Chief Judge Aiken issued a Pre-Filing Order against Plaintiff Roberta Kelly that read in

relevant part as follows:

All filings from ROBERTA KELLY AND/OR BRENT

WEBSTER, individually, collectively, or in allegedconnection with any other party, SHALL BE REVIEWEDBY THIS COURT AND ORDERED FILED ONLY IFSUCH FILINGS ARE DEEMED NOT FRIVOLOUS ORREPETITIVE.

In re Kelly, Case No. 1I-MC-9266, at Dkt, No. 1 (D. Oregon).

On January lI, 2012, Plaintiff filed a Complaint in the Cowlitz County Superior

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

ambiguous, the Complaint appears to relate to the foreclosure of property in Castle Rock,

Washington. Plaintiff's Complaint has been filed at Docket No. 3 to this action, and does

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

in her prior cases in the District of Oregon, the Government has assumed that the

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

See, e.g., Kentuclqt v. Graham, 473 U.S. 159, I 65-66 (1985) (explaining that "official

capacity" claims against an officer of the government are "only another way of pleading an

action against an entity of which an officer is an agent").

On February I,2012, the Government filed a Notice of Removal removing the

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

performance of their duties as judicial officers of the courts of the United States."

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 alsoAshelman v. Pope,793 F.2d 1072, 1075 (9th Cir. 1986). The doctrine "should be broadly construed toeffectuate the policies supporting ffudicial] immunity." Ashelman,793 F.2d at 1076.


(cv l2-5088-RJB)


700 Slcwan Strrcl, Suitc 5220

Seattle, Washirglon 981 0l.l 271

(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. ANALYSIS AND ARGUMENT

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of

claims 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 v.Lfe Ins. Co. of N. Am.,980 F.2d 1261,1264 (gth Cir. 1992). The burden of

proving subject matter jurisdiction in this case rests upon the plaintiff, the "party invoking

the federal court's jurisdiction." Thontpson v. McCombe, 99 F.3d 352,353 (9th Cir. 1996).

If the court finds that it lacks subject matter jurisdiction, then it "must dismiss the action."

Fed. R. Civ. P. 12(hX3).

The United States, as sovereign, is immune from suit unless it consents to be sued.

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

theUnitedStates. U.S.v.NordicVillage, lnc.,503U.S.30,33-34(1992);Jervesv.(J.5.,

966 F .2d 517 , 521 (9th Cir, 1 992). It a claim does not fall squarely within the strict terms

of a waiver of sovereign immunity, a district court is without subject matter jurisdiction.

See, e.g., Mundy v. U.5., 983 F.2d 950,952 (9th Cir. 1993).

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). Whiledetailed 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. . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570-72 (2007).

A claim has facial plausibility when a plaintiff pleads factual content that allows the court


(cv 12-5088-RJB)UNITED STATES ATTORNEY

700 SlewBn SEeer, Suire 5220

Scattlc, W aslriDgloD 98 I 0 l -l 271

(206\ 553-7970



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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

suffice." Iqbal,l29 S. Ct. al1949-1950. Factual allegations of the complaint are

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 allegation." Id. And, althoughpro se

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, Fla., 132 F.3d 1359, 1369 (11th

Cir. 1998) (leniency afforded pro se litigants does not permit coufi to serve as "de facto

counsel" and "rewrite an otherwise deficient pleading in order to sustain an action").

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

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 2. This language is simply not "enough

to raise a right to relief above the speculative level. . ," as required by Twombly, as the

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 of action against the Government. Under these circumstances, the

claims against the Government must be dismissed due to Plaintiff's failure to state a claim.


(cv r 2-5088-RJB)


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

of order is submitted herewith for the Court's consideration.

DATED this 8th day of February, 2012.

Respectfully submitted,

JENNY A. DURKANUnited States Attorney

s/ Rebecca S. Cohen

Assistant United States Attorney

United States Attorney's Office700 Stewart Street, Suite 5220Seattle, Washington 98 1 0 I -127 IPhone: 206-553-7970Fax: 206-553-4073E-mail: [email protected]


(cv l2-s088-RJB)


700 Slewsn Strccl, Suite 5220

Sestlle, WssbingloD 98 I 0 I -l 27 I

{206) 553-7970



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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 as to

be competent to serve papers;

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 Kelly200 Coyote LaneCastle Rock, WA 98611

Roberta Kelly5109 NE Ainsworth StreetPortland, OR 97218

Jeff C. Duncan BrechtSussman Shank LLP1000 SW Broadway, Ste. 1400Portland, OR 97205-3089(GMAC)

Matthew CleverleyFidelity National Title GroupI20A - 6th Ave., Ste. 620Seattle, WA 98101-3 125

Stephen M. Cutler, Esq.JP Morgan Chase & Co.270 Park Ave., Fl. 48New York, NY 10017-2014

C. Marie EckertMiller Nash LLP118 SW 5th Ave., Ste. 3400Portland, OF.97204(US Bank)

Michael J. McMahonEtter McMahon Lamberson Clary & Oreskovich PC618 W. Riverside Ave., Ste. 210Spokane, WA 99201-0602

(JP Morgan Chase)

Lee MitauU SBANCORP/US BANK/GMAC/MERS800 Nicollet Mall, BC MN-H231Minneapolis, MN 55462


(cv 12-5088-RJB)


700 Slevan Stccl, Suite 5220

Seattle, WashitrgloD 9t l0I -l 27 I

{206) 553-?970



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Teresa H. PearsonMiller Nash LLP111 SW 5th Ave,, Ste. 3400Portland, OR 97204(US Bank)

Jeanne Kallage SinnottMiller Nash LLP111 SW 5th Ave., Ste. 3400Portland, OR 97204(US Bank)

David A. WeibelBishop White Marshall & Weibel PS

720 Olive Way, Ste. 1201Seattle, WA 98101- I 878

AKA Homecomings FinancialGMAC

P. O. Box 200Detroit, M[48265

MERSc/o GMAC3451 Hammond Ave.Mail Code 507-345-186Waterloo, IA 50702

DATED this 9th day of February, 2012.

s/Sharon P. Gore

Legal AssistantUnited States Attorney's Office700 Stewart Street, Suite 5220Seattle, Washington 98 1 0 l -127 IPhone: 206-553-7970FAX: 206-553-4073E-mail: sharon. gore@usdoi. gov


(cv 12-5088-RJB)


700 Stewsn Srrecl, Suite 5220

Seanle, WasbitrgtoD 9E I 0l-1271(206) 553-79?0



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Honorable Robert J. Bryan

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT TACOMA

Plaintiff, NO. CVl2-5088-RJB

Roberta Kelly,

V.

JPMORGAN CHASE & CO.;USBANCORP/US BANK; LEE MITAU;GENERAL MORTGAGE GMAC;MERSCORP; MERS; MORTGAGEELECTRONIC REGISTRATION

SYSTEMS; JOHN V. ACOSTA; ANNAIKEN; MATTHEW CLEVERLEY; C.

MARIE ECKERT; TERESA H.PEARSON; JEANNE KALLAGESINNOTT; ET AL,

ORDER GRANTING MOTION TO DISMISS - 1

(cv l2-5088-RIB)

IPROPOSEDI

ORDER

Defendants.

This matter came before the Court on the Motion to Dismiss frled by Defendants Ann

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:


700 St€wan Sreer, Suile 5220

Soattle, WashiEgtoD 981 0 l -127 I

(206'^) s53-7970



WAWD CM/ECF Version 4.2

Motions3:12-cv-05088-RJB Kelly v. JPMorqan Chase & Co. et al

Page 1 of 1

U.S. District Court.

United States District Court for the Western District of Washington

Notice of Electronic Filing

The following transaction was entered by Cohen, Rebecca on2l8l2012at 10:53 AM PST and filed on2l8l20L2

Case Name: Kelly v. JPMorgan Chase & Co. et al

Case Number: 3:12-cv-05088-RJB

Filer: Ann Aiken

John V Acosta

Document Number:6

Docket Text:

MOTION to Dismiss by Defendants John V Acosta, Ann Aiken. {Attachments: # (1} ProposedOrder) Noting Date 31212012, (Gohen, Rebecca)

3:12-cv-05088-RJB Notice has been electronically mailed to:

JeffD Brecht [email protected]

Michael J McMahon [email protected]

Rebecca Shapiro Cohen [email protected], [email protected], ECF-

[email protected], [email protected], [email protected], [email protected]

3:12-cv-05088-RJB Notice will not be electronically mailed to:

Roberta Kelly200 Coyote Lane

Castle Rock, WA 98611

The following document(s) are associated with this transaction:

Document description:Main Document

0riginal filename:n/aElectronic document Stamp:

ISTAMPdcecfStam p_ID: I 03 5 9 2927 1

lDate:ZI 8 I 20 1 2]

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Document description:Proposed Order

Original filename:n/aElectronic document Stamp:

ISTAMP dcecfStamp_ID: I 0 3 5 9 2927 I lDate:Z I 8 I 20 I 2] [F i leNumber:4 I 3 0 879- I ]

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Documents

Motion To Dismiss Filed By Defendants Aiken And Acosta No. CV-12-5088-RJB