United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
case is before the court on defendant Karen Dixon's
motion to dismiss plaintiffs Anthony Bator and Irene
Bator's complaint for lack of subject matter jurisdiction
and failure to state a claim pursuant to Federal Rules of
Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6)
(ECF No. 7), and the court's April 23, 2019 order
directing plaintiffs' to show cause why sanctions should
not be imposed for failure to timely file a response to
defendant Dixon's motion (ECF No. 14). Plaintiffs have
also filed a first amended complaint, which the court
construes as a motion for leave to amend the complaint. ECF
No. 15. For the following reasons, the order to show cause is
discharged and it is recommended that defendant Dixon's
motion to dismiss be granted and plaintiffs' motion be
bring this action against defendants Karen Dixon, a state
court judge, and Siskiyou County Sheriff Jon Lopez. Their
complaint, which is styled as a “Complaint Title 42
Section 1983 Emergency Ex Parte Motion for Injunction to Stay
Sale of Mine Scheduled for January 9, 2019,
” concerns a state court action over which
defendant Judge Karen Dixon presided. ECF No. 1. Plaintiffs
claim that in the state court action Judge Dixon improperly
dismissed their cross-complaint and entered judgment against
them in the amount of $13 million. Id. at 49, 73.
Judge Dixon also allegedly ordered the judgment be satisfied,
at least in part, by the sale of a mine and mining equipment
owned by plaintiff Anthony Bator and the North American
Conservation Trust. Id. Plaintiffs allege that Judge
Dixon “ruled in violation of the law and the rights of
Anthony J. Bator and North American Conservator Trust”
by ordering the sale of the mine, which was scheduled for
January 9, 2019. Id. at 3-4. The complaint, which
does not identify any specific cause of action, requests that
this court enjoin that sale. Id. at 4.
Dixon filed her motion to dismiss plaintiffs' complaint
for lack of jurisdiction and failure to state a claim and
noticed it for hearing on March 27, 2019. ECF No. 7.
Plaintiffs were subsequently granted an extension of time to
respond to the motion, and the hearing was continued to May
1, 2019. Despite receiving an extension, plaintiffs failed to
timely file a response to Judge Dixon's motion.
Accordingly, the hearing was continued again, and plaintiffs
were ordered to show cause why sanctions should not be
imposed for their failure to timely respond to pending
motion. ECF No. 14. Plaintiffs were also ordered to file an
opposition or statement of non-opposition to the motion by no
later than May 15, 2019. Id. Plaintiffs filed a
response to the court's order to show cause (ECF No. 17),
but they did not file an opposition or statement of
non-opposition to the motion. Instead, plaintiffs filed a
first amended complaint, which the court construes as a
motion for leave to amend the compliant. ECF No. 15.
Order to Show Cause
response to the court's order to show cause, plaintiffs
claim that they were unable to timely file a response to
Judge Dixon's motion because Centinela State Prison,
where Anthony Bator is currently incarcerated, was on
lockdown for a five-week period and Ellen Bator's mother
recently passed away. ECF No. 17. In light of those
representations, the order to show cause is discharged and no
sanctions are imposed.
Motion to Dismiss
Dixon's motion to dismiss for lack of jurisdiction argues
plaintiffs' claims are barred by the Eleventh Amendment
and the Rooker-Feldman doctrine. ECF No. 7 at 3-5.
She also argues that the complaint must be dismissed for
failure to state a claim because she is entitled to judicial
immunity. Id. at 5-6. As discussed below,
plaintiffs' claims are clearly barred by the
Rooker-Feldman doctrine as well as absolute judicial
immunity. Accordingly, the complaint must be dismissed.
Rule 12(b)(1) Standards
federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U.S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U.S. Constitution, or (3) be authorized by a federal
statute that both regulates a specific subject matter and
confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court's diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
motion to dismiss pursuant to Rule 12(b)(1) seeks dismissal
for lack of subject matter jurisdiction. See Fed. R.
Civ. P. 12(b)(1). On a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction, plaintiff bears the
burden of proof that jurisdiction exists. See, e.g.,
Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d
817, 818 (9th Cir. 1995); Thornhill Pub. Co. v. General
Tel. & Electronics Corp., 594 F.2d 730, 733 (9th
Cir. 1979). Different standards apply to a 12(b)(1) motion,
depending on the manner in which it is made. See, e.g.,
Crisp v. United States, 966 F.Supp. 970, 971-72 (E.D.
Cal. 1997). “A Rule 12(b)(1) jurisdictional attack may
be facial or factual.” Safe Air For Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial
attack “asserts that the lack of subject matter
jurisdiction is apparent from the face of the
complaint.” Id. If the motion presents a
facial attack, the court considers the complaint's
allegations to be true, and plaintiff enjoys
“safeguards akin to those applied when a Rule 12(b)(6)
motion is made.” Doe v. Schachter, 804 F.Supp.
53, 56 (N.D. Cal. 1992).
a factual attack, often referred to as a “speaking
motion, ” challenges the truth of the allegations in
the complaint that give rise to federal jurisdiction and the
court does not presume those factual allegations to be true.
Thornhill, 594 F.2d at 733. Although the court may
consider evidence such as declarations or testimony to
resolve factual disputes, id.; McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988),
genuine disputes over facts material to jurisdiction must be
addressed under Rule 56 standards. “[W]hen ruling on a
jurisdictional motion involving factual issues which also go
to the merits, the trial court should employ the standard
applicable to a motion for summary judgment. Under this
standard, the moving party should prevail only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Trentacosta v. Frontier Pacific Aircraft
Industries, Inc., 813 F.2d 1553, 1558 (9th Cir. 1987)
(quotations and citations omitted) (emphasis added).
Dixon advances a facial attack, arguing that the allegations
of plaintiffs' complaint demonstrate jurisdiction is
absent and ...