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Carey v. United States

May 6, 2010

GEORGE CAREY, ET. AL., PLAINTIFFS,
v.
UNITED STATES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiffs, proceeding in pro per, bring this action to quiet title to real property. Originally filed in Shasta County Superior Court on July 28, 2008, the United States removed the case to this court on October 21, 2008, pursuant to 28 U.S.C. § 1442. Pending before the court is the United States' motion to dismiss.

I. Background

In the original complaint, Plaintiff names Michael Carey, Leone Carey, Patricia Welch & the United States of America (USA) as defendants in this action. The complaint alleges the plaintiffs are the beneficiaries of the Ranch Holding Trust and Hidden Meadows Holding Trust and have beneficial interests in three parcels of real property, referred to as the Palo Cedro, Bella Vista and Redding properties. The complaint claims The Ranch Holding Trust obtained title to the Palo Cedro and Redding properties on July 15, 1996, from Michael and Leone Carey; and The Hidden Meadows Holding Trust obtained title to the Bella Vista property in August 1996, from Patricia Welch. The complaint claims the USA is estopped from any claims that the properties belong to Michael and Leone Carey due to their bankruptcy proceedings, but that the USA is still claiming a lien or other interest, and claiming the trusts are alter-egos and/or nominees of the Carey defendants.

Following removal of this action, Defendant USA filed a motion to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). The USA argues the complaint fails to state a claim for which relief can be granted, as the claims raised in the complaint have already been determined by this court in a separate case, United States of America v. Michael Carey, et al., case number 05cv2176 (referred to hereinafter as "foreclosure proceedings"), and are therefore barred under the doctrine of res judicata. Plaintiffs filed an opposition, and Defendant filed a reply. A hearing on this matter was held on January 14, 2009. Following the hearing, the court took the matter under submission, and the parties were provided an opportunity to file supplemental briefs.

Instead of filing a supplemental brief, Plaintiffs filed a first amended complaint. The amended complaint makes essentially the same factual allegations. In addition, the amended complaint alleges that the judgment in the foreclosure proceedings was entered in error based on the bankruptcy proceedings. Specifically, Plaintiffs allege that "[i]n direct contradiction to the bankruptcy proceedings, which held the properties at issue here did not belong to the bankruptcy estate (and the Carey defendant bankruptcy petitioners), this Court's judgment ruled that the properties did belong to the Carey defendants, and entered a foreclosure judgment." (Am. Compl., Doc. 12, at 4). Plaintiffs further allege that they were not named as defendants in the foreclosure proceeding, and had they been so named they would have raised this bankruptcy issue in the foreclosure proceedings.

In response to the amended complaint, Defendant argued the allegations made in the amended complaint were previously addressed by the motion to dismiss, and requested the court to consider the pending motion to dismiss as related to the first amended complaint. This request was granted, and the court provided the parties another opportunity to provide additional briefs. Both parties have filed their additional briefs.

In the interim, one of the plaintiffs filed a petition to commence a Chapter 7 bankruptcy case. As a result, this case was stayed pending completion of the bankruptcy proceedings. The court received notice that the bankruptcy petition was dismissed, and granted a motion to dissolve the stay of this case. The defendant's motion to dismiss is still pending, and the court finds it is now appropriate to address the merits of that motion.

II. MOTION TO DISMISS

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

A. Judicial Notice

There are two cases which are relevant to the issues raised in the motion to dismiss. Both cases are referred to in Plaintiffs' amended complaint, and are material to the issues before the court. The court may take judicial notice pursuant to Federal Rule of Evidence 201 of matters of public record. See U.S. v. 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008). Thus, this court may take judicial notice of state court records, see Kasey v. Molybdenum Corp. of America, 336 F.2d 560, 563 (9th Cir. 1964), as well as its own records, see Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 1967). The court therefore takes judicial notice*fn1 of the proceedings in the United States Bankruptcy Court, Eastern District of California, case In re: Carey, no. 04-29060-B-7, and the foreclosure proceedings in the United States District Court, Eastern District of California, case United States of America v. Carey, no. 2:05-cv-2176-MCECMK.*fn2

Therefore, the undersigned finds it appropriate to set forth what the previous cases determined. In the bankruptcy proceedings of the Plaintiffs' parents, Michael and Leone Carey (the Carey defendants), the Internal Revenue Service (IRS) filed an adversary proceeding, requesting the bankruptcy court find the tax liabilities non-dischargeable. In an April 25, 2005 memorandum decision, the bankruptcy court found the debtors used sham trusts for the purpose of tax evasion, and determined the taxes were non-dischargeable. Before the bankruptcy court was the question of whether the tax liability was dischargeable. There ...


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