United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTIONS TO DISMISS AND GRANTING MOTION TO WITHDRAW [RR: DOCKET NOS. 26, 30, 34, 38, 39, 48]
RONALD M. WHYTE, District Judge.
Defendants Scott Raley and Jeanie O'Connor move to dismiss plaintiff Pacific Almaden Investments, LCC's ("PAI") complaint. Dkt. Nos. 26, 34; see Dkt. No. 1 ("Complaint"). Cross-complaint defendants Walter Hammon, Travis Krepelka, and Chicago Title Company, along with defendants Scott Raley and Jeanie O'Connor, move to dismiss cross-complainant Wylmina Hettinga's cross-complaint. Dkt. Nos. 30, 34, 39; see Dkt. No. 10, cross-complaint ("XC"). Because the court finds that it lacks subject matter jurisdiction over both the complaint and the cross-complaint, the court GRANTS the motions to dismiss and dismisses the complaint and cross-complaint against all defendants.
Counsel for plaintiff Pacific Almaden Investments, LLC, Jamie Harris, also moves to withdraw. Dkt. No. 38. Harris states that she has been unable to communicate with her client, as her client has not returned her calls or emails since June 2014. Id. The court finds this to be a sufficient justification for withdrawal and GRANTS Harris' motion.
This case arises out of cross-complainant Hettinga and defendant Timothy Loumena's state court divorce case, which has been ongoing since 2005. Defendants O'Connor and Chicago Title Company represent in their motion that "Hettinga is a principle [sic] of PAI." The complaint and cross-complaint allege similar facts and claims, all of which are nearly identical to the claim brought by Hettinga in an earlier case in this district against the same defendants. See Case No. 13-cv-2217. This court recently dismissed that case for lack of subject matter jurisdiction under Rooker-Feldman and declared Hettinga to be a vexatious litigant. Id., Dkt. No. 107.
Cross-complainant, who is pro se, alleges in the cross-complaint that "[o]n February 27, 2013, [defendant] Kennedy, purporting to be acting under the color of law, fraudulently claimed that Wylmina E. Hettinga, trustee of The Loumena 2000 Revocable Trust Agreement, established the 6th of December, 2000, Wylmina E [sic] Hettinga as an individual, had, for a valuable consideration, receipt of which was acknowledged, granted the Property to Defendants." XC ¶ 30. The cross-complaint further states that "[a]t first glance it appears that Hettinga was acting as a part of the [orchestrated actions of defendants] in order to violate PAI's rights to hold [Hettinga and Loumena's former family residence (the "property")] or receive consideration from it, especially since approximately $200, 000 of the proceeds of a subsequent sale of the Property were used to pay off Hettinga's debts, but that is false." Id. ¶ 17. The complaint similarly alleges that "[t]he Grant Deed specifically says FOR A VALUABLE CONSIDERATION which of course PAI received no consideration whatsoever." Complaint ¶ 20 (emphasis in original). According to the Complaint, a grant deed was executed and the property was sold. Id. ¶ 21; see also XC ¶ 32. The proceeds were then divided among various creditors. XC ¶ 32.
Documents from the state divorce case reveal that the state court repeatedly ordered that the property be sold, with the proceeds being placed in a trust account. See Dkt. No. 34. In an order filed January 23, 2013, the state court wrote:
This Court previously ordered this property sold on 1 September 2011 (order filed 28 March 2012). Under that Order, Respondent Timothy Loumena was to select the realtor, both parties were to sign any and all necessary paperwork, and the net proceeds were to be placed into an interest-bearing trust account. The Court reiterates and modifies that Order as follows:
(a) The property shall be listed and sold forthwith. The listing agent shall be the individual named on the record by Mr. Loumena - Scott Raley of Customer Service Realty. Mr. Loumena shall be the sole lister of the property.
(b) Mr. Loumena shall work with the realtor to prepare the property for sale and make decisions concerning the appropriate list price, what to do with offers received, and any other necessary elements of the sales process.... As to any documents requiring any signatures from Ms. Hettinga, ... Mr. Loumena shall provide them, and those parties shall promptly sign and return the documents to Mr. Loumena. If three (3) days after presenting the documents, Mr. Loumena has not received the necessary signatures, he may bring the documents to Department 83 for the Court Clerk to sign as elisor on behalf of Ms. Hettinga, ....
Id. Ex. L. It appears that, pursuant to the January 23, 2013 state court order, Mr. Loumena was required to have the court clerk, defendant Kennedy, sign as elisor on behalf of Hettinga. The complaint alleges that "KENNEDY was not granted any right to transfer PAI's interest in the Property to Timothy P. Loumena, an unmarried man. " Complaint ¶ 22 (emphasis in original).
Plaintiff and cross-complainant each bring a single claim, for a civil rights violation under 42 U.S.C. § 1983. Plaintiff and cross-complainant's allegations arise directly out of the sale of the property in Hettinga's divorce case. Specifically, plaintiff and cross-complainant assert that the forced sale of the property violated the Fourth Amendment and the Takings Clause of the Fifth and Fourteenth Amendments. Complaint ¶¶ 61-63, 66; XC ¶¶ 35-37, 40. The Complaint names as defendants Hettinga, Timothy Loumena, Hettinga's ex-husband; Pamela Kennedy, the state court clerk; Scott Raley, the court-appointed real estate listing agent; and Jeanie O'Connor, who apparently has some relationship with Chicago Title Company. The cross-complaint names as defendants PAI; Loumena; Kennedy; Raley; O'Connor; Chicago Title Company, which was involved in the sale of the property; Walter Hammon, the attorney appointed by the state court to represent plaintiff's children; and Travis Krepelka, Loumena's attorney.
A. Legal ...