Opinion
Civil Action 1:20-cv-03559-CNS-SKC
04-20-2023
HOLLY MACINTYRE, Plaintiff, v. THE SUPREME COURT OF COLORADO AND THE JUSTICES THEREOF, IN THEIR OFFICIAL CAPACITIES, and JPMORGAN CHASE BANK, N.A., Defendants.
RECOMMENDATION RE: DEFENDANTS' RESPECTIVE MOTIONS TO DISMISS [DKTS. 38, 39]
S. Kato Crews United States Magistrate Judge
Upon referral and before the Court are Defendants' respective Motions to Dismiss Plaintiff's Second Amended Complaint [Dkts. 38 (Defendant JPMorgan Chase Bank) and 39 (Defendants Colorado Supreme Court and its Justices)] under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff, appearing pro se, filed responses opposing the Motions.[Dkts. 49, 50.]
Without acting as an advocate, the Court liberally construes Plaintiff's pleadings. See Lawrence v. Polis, 505 F.Supp.3d 1136, 1141 n.5 (D. Colo. 2020).
The Court, after carefully reviewing the Motions, related briefings, case docket, and applicable law, RECOMMENDS the Motions be GRANTED for the reasons further discussed below.
I. Background
The Court draws the following facts from Plaintiff's Second Amended Complaint (SAC) [Dkt. 37], taking all well-pleaded factual allegations as true and construing them in the light most favorable to Plaintiff:
The Court, in its discretion, has also taken judicial notice of matters of public record from the related state and federal court proceedings involving this Plaintiff and the Property. Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008).
Plaintiff was the owner of residential real property located at 13025 West 63rd Place Unit E, Arvada, Colorado 80004, in Jefferson County, Colorado (the “Property”). [Dkt. 37 at ¶ 1.] On December 16, 2014, Defendant JP Morgan Chase Bank (“Chase”) obtained a judgment of judicial foreclosure against the Property in the Jefferson County District Court, Case No. 13CV32183. [Id. at ¶ 2.] Thereafter, Plaintiff filed a series of legal actions to stay or undo the foreclosure.
First, Plaintiff filed a motion to stay in Jefferson County District Court. [Id. at ¶¶ 7-9.] Her motion was denied on March 31, 2015. She then filed two motions to stay in the Colorado Court of Appeals, Case No. 15CA111. [Id. at ¶ 9.] Both motions were denied, one on July 24, 2015, and the other on January 6, 2016. [Id. at ¶ 17.] Next, in December of 2015, Plaintiff sued the Colorado Supreme Court in Denver District Court-Civil Action No. 15cv708-“in an effort to enjoin the impending sale of her property because C.R.C.P. 121(c), Section 1-23, Subsection 3(a), which deprived her of a stay, is unconstitutional.” [Id. at ¶¶ 22, 25.]
On January 21, 2016, the Denver District Court denied Plaintiff's request for a temporary restraining order to forestall the foreclosure of her Property; the Property was then sold to a third party at a sheriff's sale that same day. [Id. at ¶¶ 29-33.] On February 4, 2016, the state court stayed that case pending resolution of Plaintiff's case before the Colorado Court of Appeals. [Id. at ¶ 39.] On April 28, 2016, the Colorado Court of Appeals issued its opinion affirming the judgment of foreclosure. [Id. at ¶ 42.]
Plaintiff next filed a petition for writ of certiorari with the Colorado Supreme Court, Case No. 16SC479. [Id. at ¶¶ 40, 47.] “In December 2016, [Plaintiff] finally concluded that the Colorado Court of Appeals had improperly ruled, without jurisdiction, on a moot appeal because . . . execution of the foreclosure judgment irrevocably moots the appeal of that judgment.” [Id. at ¶ 48.] According to Plaintiff, “[t]hat conclusion led necessarily to another one: that the Supreme Court of Colorado likewise lacked the jurisdiction to reverse the foreclosure judgment.” [Id. at ¶ 49.] Consequently, Plaintiff “filed a Suggestion of Mootness and Motion to Dismiss as Moot on December 21, 2016,” with the Colorado Supreme Court. [Id. at ¶ 50.] On January 3, 2017, the Colorado Supreme Court granted the “Suggestion” and dismissed Plaintiff's certiorari petition on mootness grounds. [Id. at ¶ 51.]
On July 25, 2017, the Denver District Court dismissed Plaintiff's claims against the Colorado Supreme Court as moot. [Id. at ¶ 57.] She appealed this dismissal to the Colorado Court of Appeals in Case Number 17CA1599, and the appellate court affirmed the trial court. [Id. at ¶ 60.] At some point, she also filed two motions in the Colorado Court of Appeals to “recall the mandate and correct the opinion to reflect the fact that the court had ruled on a moot appeal.” [Id. at ¶ 66.] The appellate court denied these motions in March 2017 and October 2018, respectively. [Id. at ¶ 67.]
On January 18, 2019, Plaintiff next sued Chase in the United States District Court for the District of Colorado, Case Number 19-cv-00172-DDD-NYW. [Id. at ¶ 72.] There she sought “monetary relief from Chase for having used forged indorsements and falsified documents at the state foreclosure trial, and for securing three stay denials with fraudulent misinformation.” [Id.]
On April 11, 2019, the Colorado Court of Appeals denied a motion Plaintiff filed seeking to vacate the judicial foreclosure, stating: “Case was mandated on January 4, 2017. No further motion to vacate will be considered.” [Id. at ¶ 77.] And on June 28, 2019, the federal court dismissed Plaintiff's federal lawsuit under the Rooker-Feldman doctrine.[Id. at ¶ 80.]
The Rooker-Feldman doctrine provides that only the Supreme Court has jurisdiction to hear appeals from final state court judgments. Mayotte v. U.S. Bank Nat'l Ass'n for Structured Asset Inv. Loan Tr. Mortg. Pass-Through Certificates, Series 2006-4, 880 F.3d 1169, 1173 (10th Cir. 2018).
Plaintiff next filed suit in this court on December 2, 2020, against both the Supreme Court and its Justices, and Chase. [Dkt. 1.] Plaintiff's SAC asserts three claims: (1) Claim One against the Colorado Supreme Court and its Justices claiming Colo. R. Civ. P. 121(c), § 1-23(3)(a) (“Rule 121”) is facially unconstitutional; (2) Claim Two against the Colorado Supreme Court and its Justices claiming Rule 121 and Colo.App. R. 8(a)(2)(E) are unconstitutional as applied; and (3) Claim Three against Chase alleging “Chase is a state actor under 42 U.S.C. § 1983.”
II. Discussion
A. Legal Standards
1. Subject Matter Jurisdiction
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Under Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's subject matter jurisdiction is a question of law. Madsen v. United States ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack a complaint's allegations, or it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-03.
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 1003 (internal citations omitted); see also Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Court accepts the well-pleaded facts as true and views the allegations in the light most favorable to the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). But the Court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To 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.” Id. at 678 (internal quotation marks omitted).
The Twombly/Iqbal pleading standard requires courts to take a two-prong approach to evaluating the sufficiency of a complaint. Id. at 678-79. The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The standard is a liberal one, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
B. Analysis
1. Claims 1 and 2 Against the Court and its Justices
a. Eleventh Amendment Immunity
“An official capacity claim against a government officer is really a claim against the government that employs that officer.” Strepka v. Miller, 28 Fed.Appx. 823, 828 (10th Cir. 2001). Plaintiff has brought this lawsuit against “The Supreme Court of Colorado, and the Justices Thereof, in Their Official Capacities” [Dkt. 37 (case caption) (emphasis added).] Consequently, her claims against the Colorado Supreme Court and its Justices, in their official capacities, are deemed claims against the State of Colorado. See Colo. Const. art. VI, § 1 (“The judicial power of the state shall be vested in a supreme court[.]”).
The Eleventh Amendment “generally bars suits brought by individuals against state officials acting in their official capacities. This bar does not apply, however, if the state waives its sovereign immunity, if Congress validly abrogates the state's immunity, or if the Ex parte Young exception applies.” Harris v. Owens, 264 F.3d 1282, 1289-90 (10th Cir. 2001). Ex parte Young creates an exception to Eleventh Amendment immunity for a suit against a state official that “seeks prospective relief for the official['s] ongoing violation of federal law.” Id. at 1290.
It is undisputed Colorado has not waived its Eleventh Amendment immunity to be sued in federal court. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). It is also undisputed, to the extent applicable to these Defendants, that 42 U.S.C. § 1983 does not abrogate a state's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979). And, as the judicial Defendants point out, the SAC does not seek prospective relief; it instead pleads claims seeking redress for past wrongs, even when construed liberally. [Dkt. 37, ¶¶ 89-107.] Specifically, Claim 1 appears to seek redress for the Colorado Supreme Court's dismissal of Plaintiff's petition for writ of certiorari on mootness grounds. [Id. at ¶ 95.] And Claim 2 appears to seek redress for the Colorado Supreme Court's prior enactment of Rule 121 and Colo.App. R. 8(a)(2)(E). [Id. at ¶¶ 104-07].
See infra note 5.
For these reasons, the Court recommends finding Claims 1 and 2 against the Colorado Supreme Court, and its Justices in their official capacities, are barred by the Eleventh Amendment.
b. Absolute Legislative Immunity
Considering this Court's recommendation regarding the application of Eleventh Amendment immunity, to the extent applicable, the Court further recommends finding the Justices are also entitled to absolute legislative immunity.
The Court liberally construes Claims 1 and 2 as challenging only the Justice Defendants' promulgation of Rule 121 and Colo.App. R. 8(a)(2)(E).The Colorado Supreme Court, acting by and through the Justices, is authorized to “make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases[.]” Colo. Const. art. VI, § 21. As it relates to Claims 1 and 2, the Justices exercised this rulemaking power by enacting Rule 121 and Colo.App. R. 8(a)(2)(E), which are procedural rules of general applicability to civil and appellate cases in state courts. See, e.g., Colo. R. Civ. P. 121(c) (“The Colorado Rules of Civil Procedure and the following rule subject areas called ‘Practice Standards' are declared to be of statewide concern and shall preempt and control in their form and content over any differing local rule[.]”); Bill Dreiling Motor Co. v. Court of Appeals, 468 P.2d 37, 41 (Colo. 1970) (holding the Colorado Supreme Court has authority to adopt rules for the regulation of the business of the courts and the procedure to be followed by litigants); People v. Eason, 2022 COA 54, ¶ 20 (citing Colo. Const. art. VI, § 21) (“The state's judicial power is vested in the courts. One such power is the supreme court's power to make [procedural] rules . . .”).
The Court reaches this construction for the reasons described by the judicial Defendants in their Motion. The SAC fails to plausibly allege the Justices themselves ever applied either of these rules to her in the only Colorado Supreme Court case she filed related to the judicial foreclosure proceeding brought by Chase. Rather, the SAC specifically alleges the Justices dismissed her petition for writ of certiorari on mootness grounds after she requested a dismissal based on mootness. Also, Plaintiff never filed a petition for writ of certiorari to the Colorado Supreme Court challenging the February 19, 2019 decision of the Colorado Court of Appeals (in Case No. 17CA1599), which affirmed the dismissal of Denver District Court Case No. 15CV708. Thus, given the procedural history of her state cases, of which the Court has taken judicial notice, there is no reasonable way to liberally construe her claims against the Justices (or their court), including her as-applied challenge in Claim 2, as challenging these Defendants' application of these rules to Plaintiff.
It is well-settled that a state court “and its members are immune from suit when acting in their legislative capacity,” such as by promulgating “rules of general application [that] are statutory in character.” Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 731-34 (1980); see also Collins v. Daniels, 916 F.3d 1302, 1317-18 (10th Cir. 2019) (New Mexico Supreme Court justices acted in their legislative capacity when amending the state's rules of criminal procedure and were entitled to legislative immunity); Abick v. Michigan, 803 F.2d 874, 877-78 (6th Cir. 1986) (Michigan Supreme Court's promulgation of rules of practice and procedure was a legislative activity and therefore the justices were entitled to legislative immunity).
Here, there can be no reasonable or credible dispute that Rule 121 and Colo.App. R. 8(a)(2)(E) are rules of general application to civil lawsuits and civil and criminal appeals filed in state courts. And because the Justices' enactment of these rules was a legislative act, the Court recommends finding the Colorado Supreme Court and its Justices are also entitled to absolute legislative immunity.
2. Claim 3 Against Chase
Plaintiff asserts Claim 3 against Chase and titles it, “Chase is a state actor under 42 U.S.C. § 1983.” [Dkt. 37 p. 24.] From the allegations in the SAC, the claim is premised upon Chase having “availed itself of ‘state judicial procedures' that are unconstitutional and unilaterally beneficial to itself.” [Id., ¶ 109 (emphasis in original); see also Id. at ¶¶ 110-15.] The Court agrees with Chase that the SAC fails to plausibly allege it is a state actor for purposes of a Section 1983 claim.
“The Tenth Circuit has held that banks generally do not operate under color of state law, and therefore, cannot be held liable pursuant to § 1983.” See Silva v. U.S. Bank Nat'l Ass'n, 294 F.Supp.3d 1117, 1131 (D. Colo. 2018); see also Ramsey v. Citibank, N.A., No. 10-cv-02653-WYD-CBS, 2011 WL 4485922, at *9-10 (D. Colo. July 28, 2011), report and recommendation adopted, 2011 WL 4485918 (D. Colo. Sept. 28, 2011), aff'd, 475 Fed.Appx. 711 (10th Cir. 2012) (finding plaintiff's challenge to legal merits of defendant banks' eviction efforts was insufficient to transform banks into state actors); Elliott v. May, 122 Fed.Appx. 944, 946 (10th Ci show that defendants, including a bank, “who are private e ‘color of state law.'”).
Because it is settled law that a bank does not beco seeks to enforce its contractual or legal right to commen foreclosure of property in state court, the Court recommend to dismiss. The SAC fails to plausibly allege Chase is a s claims against it under § 1983.
Based on the reasons above, the Court RECOMMENDS Defendants' Motions to Dismiss [Dkts. 38, 39] be GRANTED and this case be dismissed. The court recommends finding the Colorado Supreme Court and its Justices are entitled to Eleventh Amendment and absolute legislative immunity on Claims 1 and 2 (the only claims against them), and the SAC fails to plausibly allege Chase is a state actor under Claim 3 (the only claim against Chase). Based on this recommendation, the Court does not reach or address Defendants' other arguments for dismissal.
ADVISEMENT
The parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz , 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn , 474 U.S. 140, 155 (1985); Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991).