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Joseph Edward Marty v. Louis B. Green

April 5, 2011

JOSEPH EDWARD MARTY, PLAINTIFF,
v.
LOUIS B. GREEN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United Statesmagistrate Judge

ORDER, FINDINGS AND RECOMMENDATION, and ORDER TO SHOW CAUSE

Presently before the court is a motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6),which was filed by the following 18 defendants: Joan Barbee, Robert J. Barbot, Ron Briggs, Janet Walker Conroy, Mark Contois (erroneously sued as "Mark Tontois"), Worth Dikeman, Louis B. Green, Melinda Iremonger, Edward L. Knapp, John R. Knight, Beth McCourt, Becky Nelson, Ray Nutting, Vern R. Pierson, Norman Santiago, James R. Sweeney, Tim William, and Angela Wilson (collectively, the "Moving Defendants").*fn1 (Mot. to Dismiss, Dkt. No. 19.) Briefly stated, the Moving Defendants argue that plaintiff's First Amended Complaint should be dismissed because: (1) plaintiff failed to properly serve them with process; (2) this court lacks jurisdiction over plaintiff's claims because plaintiff's claims constitute an appeal of 18 state court judgments that is barred by the Rooker-Feldman doctrine; and (3) plaintiff's claims are subject to dismissal for failure to state a claim on which relief can be granted.

Plaintiff failed to file a written opposition to the pending motion to dismiss despite being given multiple opportunities to do so, and despite being warned that his failure to file a written opposition would constitute consent to the grant of the motion to dismiss and result in a recommendation that plaintiff's case be dismissed with prejudice. (See Order, Feb. 1, 2011, Dkt. No. 25.) Instead of filing a written opposition, plaintiff filed several documents that are not responsive to the motion to dismiss. (See Dkt. Nos. 24, 26, 28-33.)

Because oral argument would not have materially aided the resolution of the pending motion, this matter was submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g); Minute Order, Mar. 11, 2011, Dkt. No. 34. The undersigned has considered the briefs, and the appropriate portions of the record in this case and, for the reasons stated below: (1) grants the Moving Defendant's request for judicial notice filed January 4, 2011; (2) recommends that the Moving Defendants' motion to be dismiss be granted; and (3) recommends that the claims alleged against the Moving Defendants be dismissed with prejudice and that the Moving Defendants be dismissed from this action. The undersigned recommends that the Moving Defendants' request for sanctions be denied.

Finally, it is not clear from the court's records whether plaintiff served the remaining named defendants within the time provided in Federal Rule of Civil Procedure 4(m). Accordingly, the undersigned orders plaintiff to show cause in writing why the First Amended Complaint should not be dismissed with prejudice as to defendants Kelly Bently, "Sargent Foxworthy," Jeff Neves, Barbara Newman, Carol Stowell, and Tania Urgin pursuant to Federal Rules of Civil Procedure 4(m) and 41(b).

I. BACKGROUND

On July 14, 2010, plaintiff filed an application for a temporary restraining order ("TRO"), that United States District Judge Morrison E. England, Jr.*fn2 denied on July 15, 2010.*fn3 (Mot. for Emergency Inj., Dkt. No. 1; Order, July 15, 2010, Dkt. No. 6.) Judge England's order denying the application for a TRO noted several deficiencies in plaintiff's application, including that plaintiff failed to file a separate complaint, as required by the court's Local Rules. (Order, July 15, 2010, at 3.) Furthermore, noting that plaintiff's action seeks, among other things, damages of approximately $500 billion dollars, Judge England denied plaintiff's application for a TRO and stated, in part, that "[t]he inherent implausibility of the claims asserted by Marty makes it impossible for this Court to conclude there is any likelihood [he] will ultimately prevail." (Id. at 3.) Plaintiff subsequently filed a "Response" to Judge England's order denying plaintiff's application for a TRO (Dkt. No. 7), which Judge England denied to the extent that the "Response" constituted a motion for reconsideration (Order, Aug. 13, 2010, Dkt. No 8).

On September 8, 2010, plaintiff filed a document entitled "Motion For Orders To Void and Vacate: Judgments and Orders To Strike Liens of El Dorado County Superior Court," and noticed the "motion" for hearing on September 30, 2010. (Dkt. No. 9.) Because plaintiff's document was styled as a "motion" and was defectively noticed, the court ordered plaintiff to re-notice the motion in compliance with this court's Local Rule 230(b). (Minute Order, Sept. 13, 2010, Dkt. No. 10.) On October 5, 2010, plaintiff filed a document entitled "Amended Motion For Orders To Void and Vacate: Judgments and Orders To Strike Liens of El Dorado County Superior Court," which he noticed for hearing on November 18, 2010 (the "Amended Motion"). (Dkt. No. 11.)

Upon review of plaintiff's Amended Motion, the undersigned concluded that although styled as a "motion," the Amended Motion was not in fact a motion; instead, the Amended Motion appeared to be an amended complaint seeking relief relative to several decisions of the California Superior Court for the County of El Dorado. (Order, Oct. 14, 2010, Dkt. No. 12.) Accordingly, the undersigned construed the Amended Motion as a first amended complaint. (Id. at 2 ("Plaintiff's 'Amended Motion For Orders To Void and Vacate: Judgments and Orders To Strike Liens of El Dorado County Superior Court' (Dkt. No. 11) is hereby deemed to constitute a 'First Amended Complaint.'").) The undersigned refers to the Amended Motion as the First Amended Complaint in the remainder of this order.

On October 14, 2010, the court issued a summons requiring defendants to respond to plaintiff's First Amended Complaint within 21 days of being served with the summons and the First Amended Complaint. (See Dkt. No. 13.) The "Proof of Service" appended to plaintiff's First Amended Complaint indicates that plaintiff served the First Amended Complaint only by U.S. Mail on:

CAULFIELD, DAVIES & DONAHUE, LLP

Attn: Richard Caulfield P.O. BOX 277010 Sacramento, CA 95827-7010

(Proof of Service, attached to First Am. Compl., Dkt. No. 11 at 37-39; see also Mot. for Default J., Ex. A.) Caulfield, Davies & Donahue, LLP is not a named defendant. The court's docket does not contain a subsequently filed proof of service or certificate of service reflecting that plaintiff served the summons and First Amended Complaint on any defendants after the summons issued.*fn4

On December 6, 2010, plaintiff filed a motion for default judgment. (Mot. for Default J., Dkt. No. 14.) On January 28, 2011, the undersigned denied, after a hearing, plaintiff's motion for default judgment. (Order, Jan. 28, 2011, Dkt. No. 23.) The undersigned denied plaintiff's motion on the grounds that: (1) the motion was procedurally improper because plaintiff failed to seek and obtain a clerk's entry of default judgment pursuant to Federal Rule of Civil Procedure 55(a) prior to filing a motion for default judgment; and (2) plaintiff had not properly served the defendants against whom plaintiff sought a default judgment. (See Order, Jan. 28, 2011, at 5-10.)

On January 4, 2011, the Moving Defendants filed the pending motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). As noted above, plaintiff failed to file a written opposition to the motion to dismiss and, accordingly, the undersigned continued the hearing on the motion to dismiss and provided plaintiff with an additional opportunity to file a written opposition or statement of non-opposition. (See Order, Feb. 1, 2011.) Plaintiff has filed numerous documents since the entry of the undersigned's February 1, 2011 order, but none of them constitutes an opposition to the pending motion to dismiss.

II. DISCUSSION

Plaintiff's First Amended Complaint is subject to dismissal with prejudice as to

the Moving Defendants for several reasons. First, plaintiff's claims are subject to involuntary dismissal pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiff's failure to comply with the court's Local Rules and previously entered orders. Second, plaintiff's claims against the Moving Defendants are subject to dismissal because plaintiff failed to properly serve those defendants with the operative complaint and summons in this case. Finally, even assuming plaintiff properly served the Moving Defendants, this court lacks jurisdiction to hear plaintiff's claims against the Moving Defendants under the Rooker-Feldman doctrine. Accordingly, the undersigned recommends that the Moving Defendants' motion to dismiss be granted and need not reach the Moving Defendants' remaining arguments in favor of dismissal.

A. Plaintiff's Claims Against the Moving Defendants Are Subject to Dismissal Pursuant to Federal ...


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