Smith v. Seene

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MICHAEL SMITH, Case No.: 20CV173 GPC(JLB) 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS WITH PREJUDICE 14 KENNETH J. SEENE, 15 Defendant. [Dkt. No. 7.] [16] 17 Before the Court is Defendant Kenneth Seene’s motion to dismiss for lack of 18 subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for 19 failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 20 7.) Plaintiff Michael Smith filed an opposition. (Dkt. No. 10.) Defendant filed a reply. 21 (Dkt. No. 11.) Based on the reasoning below, the Court GRANTS Defendant’s motion to 22 dismiss with prejudice. 23 Background 24 On January 27, 2020, Plaintiff Michael Smith (“Plaintiff” or “Smith”), proceeding 25 pro se, filed a complaint against Defendant Kenneth J. Seene (“Defendant” or “Seene”). 26 (Dkt. No. 1, Compl.) On January 29, 2020, the Court sua sponte dismissed the complaint 27 for lack of subject matter jurisdiction because the complaint did not assert any facts to 28 support a federal cause of action and merely listed five state law causes of action and a 1 reference to fraud upon the court citing Federal Rule of Civil Procedure 60. (Dkt. No. 3 2 at 3.1) 3 On February 24, 2020, Smith filed a first amended complaint (“FAC”). (Dkt. No. 4 4, FAC.) He alleges the Court’s independent jurisdiction under Federal Rule of Civil 5 Procedure (“Rule”) 60(d)(1)(3) based on fraud upon the court. (Id. ¶ 2.) He also 6 summarily alleges “[a]buse of discretion and erroneous decision by state judgment, acting 7 with his jurisdiction, is violation, by state, of right under the Fifth and Fourteenth 8 Amendment which will bring action within jurisdiction of federal court.” (Id. ¶ 7.) 9 The FAC alleges that on January 3, 1991, Jacob Seene, Sr. (“Jacob Seene”) 10 inherited, inter alia, real property located at 3669 Myrtle Avenue in San Diego, CA. (Id. 11 ¶ 12; id., Ex. A.) On June 2, 1993, Jacob Seene and Bernadine A. Seene executed the 12 Seene Family Trust as Settlors. (Dkt. No. 4, FAC ¶ 13; id., Ex. B.) On November 17, 13 1997, Jacob Seene, gifted his separate property located at 3669 Myrtle Avenue to 14 Plaintiff after Jacob’s death. (Dkt. No. 4, FAC ¶ 14; id., Ex. C.) On November 6, 1999, 15 Plaintiff met with Jacob Seene along with his son Jake where Jacob Seene reiterated his 16 desire to leave the property to Plaintiff. (Dkt. No. 4, FAC ¶ 21.) On December 27, 1999, 17 Jacob Seene passed away. (Id. ¶ 22.) On January 14, 2000, Defendant Kenneth Seene 18 filed a petition to ascertain beneficiaries of trust and resolve property dispute. (Id. ¶ 23.) 19 Plaintiff claims that Seene and his counsel, James Boyd, committed fraud on the court by 20 using deceit to deprive him of property and committed embezzlement. (Id.) He alleges 21 that James Boyd committed fraud upon the court and violated Plaintiff’s Fifth and 22 Fourteenth Amendment rights. (Id. ¶ 24.) 23 According to judicially noticed documents2, Plaintiff’s claims arise from an 24 underlying state court probate action that was filed in January 2000 in the San Diego [26] 1 Page numbers are based on the CM/ECF pagination. 27 2 Without providing legal authority, Defendant filed a request for judicial notice of court filings between the parties in San Diego Superior Court and the dockets of the California Court of Appeal and the [28] 1 Superior Court. (Dkt. No. 7-2, D’s RJN, Ex. 1.) After the death of Jacob Seene on 2 December 27, 1999, Kenneth Jacob Seene, decedent’s son, filed a petition to ascertain 3 beneficiaries of trust and resolve property dispute in January 2000. (Id., Ex. 1.) After a 4 trial, the state court found against Smith’s claim to the property located at 3669 Myrtle 5 Avenue, San Diego CA 92104. (Id., Ex. 2.) Smith filed a notice of appeal which 6 affirmed the trial court decision on June 6, 2002. (Id., Ex. 3.) On August 21, 2002, the 7 California Supreme Court denied Smith’s petition for review. (Id., Ex. 4.) Before the 8 California Supreme Court’s denial, Smith filed a civil complaint against Seene in San 9 Diego Superior Court which was later dismissed after demurrer on January 24, 2003. 10 (Id., Exs. 5, 6.) On appeal, the court of appeal affirmed the lower court’s decision on 11 March 5, 2004. (Id., Ex. 7.) The California Supreme Court denied Smith’s petition for 12 review on May 19, 2004. (Id., Ex. 8.) Petitioner then filed a petition to set aside the prior 13 probate court order based on fraud on the court on February 24, 2003. (Id., Ex. 9.) Smith 14 filed a motion for order requiring security. On April 22, 2003, the probate court found 15 that Smith had not submitted any new evidence and found to have no reasonable 16 probability of prevailing in the case. (Id., Exs. 11, 12.) 17 Seventeen years later, on January 27, 2020, Smith filed the instant complaint 18 alleging similar claims raised in state court. After the Court dismissed the complaint for 19 lack of subject matter jurisdiction, Plaintiff filed a first amended complaint. (Dkt. No. 4.) 20 Defendant has moved to dismiss the FAC for lack of subject matter jurisdiction and for 21 failure to state a claim. 22 / / / 23 / / / [25] 26 because the Court may take judicial notice of filings in other courts, it GRANTS Defendant’s request for judicial notice. See Reyna Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 746 n. 6 (9th Cir. 2006); 27 United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“We may take notice of proceedings in other courts, both within and without the federal judicial [28] 1 Discussion 2 A. Legal Standard on Federal Rule of Civil Procedure 12(b)(1) 3 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) provides for dismissal of a 4 complaint for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 5 12(b)(1) jurisdictional attacks can be either facial or factual. White v. Lee, 227 F.3d 6 1214, 1242 (9th Cir. 2000). Here, Defendant appears to be mounting a facial attack. “In 7 a facial attack, the challenger asserts that the allegations contained in a complaint are 8 insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, [9] 373 F.3d 1035, 1039 (9th Cir. 2004). When evaluating a facial attack, the court assumes 10 the truth of the complaint's allegations and draws all reasonable inferences in plaintiff's 11 favor. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). “If the court 12 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 13 action.” Fed. R. Civ. P. 12(h)(3). 14 There are two bases for federal subject matter jurisdiction: (1) federal question 15 jurisdiction under 28 U.S.C. § 1331 ; and (2) diversity jurisdiction under 28 U.S.C. § 16 1332. A district court has federal question jurisdiction in “all civil actions arising under 17 the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 . Plaintiff 18 appears to invoke federal question jurisdiction under Rule 60(d)(1)(3) and alleges 19 violations of the Fifth and Fourteenth Amendments to the U.S. Constitution. (Dkt. No. 4, 20 FAC ¶¶ 2, 7.) 21 B. Analysis 22 First, Defendant moves to dismiss the complaint for lack of subject matter 23 jurisdiction arguing that the Rooker-Feldman doctrine bars Plaintiff’s claim challenging 24 the underlying state court judgment. Plaintiff does not address this argument in the 25 opposition. 26 The Rooker–Feldman doctrine is a “well-established jurisdictional rule prohibiting 27 federal courts from exercising appellate review over final state court judgments.” 28 Reusser v. Wachovia Bank, N.A., 525 F.3d 855 , 858–59 (9th Cir. 2008) (citing Dist. of 1 Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 , 482–86 (1983); Rooker v. Fidelity 2 Trust Co., 263 U.S. 413 , 415–16 (1923)). “Rooker–Feldman prohibits a federal district 3 court from exercising subject matter jurisdiction over a suit that is a de facto appeal from 4 a state court judgment”, in part, because the United State Supreme Court is granted 5 jurisdiction to review a state court judgment under 28 U.S.C. § 1257 . Kougasian v. 6 TMSL, Inc., 359 F.3d 1136 , 1139 (9th Cir. 2002). Rooker-Feldman bars jurisdiction in 7 federal court when “a federal plaintiff asserts as a legal wrong an allegedly erroneous 8 decision by a state court, and seeks relief from a state court judgment”; however Rooker9 Feldman does not bar jurisdiction in federal court if “a federal plaintiff asserts as a legal 10 wrong an allegedly illegal act or omission by an adverse party.” Id. (quoting Noel v. 11 Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)). “Rooker–Feldman thus applies only when 12 the federal plaintiff both asserts as her injury legal error or errors by the state court and 13 seeks as her remedy relief from the state court judgment.” Kougasian, 359 F.3d at 1140. 14 In Kougasian, the court held that Rooker-Feldman did not apply to alleged extrinsic 15 fraud. Id. at 1140. It explained that while the plaintiff sought relief from the state court 16 judgments, she did not allege she had been harmed by legal errors made by the state 17 court, instead, she alleged the defendants’ wrongful conduct caused her harm. Id. 18 Similarly, the Complaint appears to argue that Kenneth Seene and his counsel 19 committed fraud on the state court, and not that the state court committed any legal 20 errors.3 (Dkt. No. 4, FAC ¶¶ 23, 24.) Accordingly, it does not appear that the Rooker21 Feldman argument applies and Defendant’s argument is without merit. 22 On his second argument, Defendant claims that Rule 60(d) does not provide the 23 Court with independent jurisdiction over the case. (Dkt. No. 7-1 at 7.) Plaintiff again 24 does not address this argument. [27] 3 Defendant even asserts that “it is unclear if Plaintiff is asking this court to reverse the judgment in the [28] 1 Rule 60(d) provides that a court has the power to “(1) entertain an independent 2 action to relieve a party from a judgment, order, or proceeding; (2) grant relief under 28 3 U.S.C. § 1655 to a defendant who was not personally notified of the action; or (3) set 4 aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d). This language has been 5 interpreted as allowing a party to either file a motion within the same case under Rule 6 60(b), or to file an entirely new complaint under Rule 60(d). Wood v. McEwan, 644 F.2d 7 797, 801 (9th Cir. 1981). However, “[w]hen the prior judgment attacked in the 8 ‘independent action’ is that of a different court, the new court must be one having 9 ‘independent and substantive equity jurisdiction.’” Carney v. United States, 462 F.2d 10 1142, 1144 (Ct. Cl. 1972); Bankers Mortg. Co. v. United States, 423 F.2d 73, 79 (5th Cir. 11 1970); Jovaag v. Ott, No. 12cv3316 RMW, 2012 WL 3686087 , at *2 (N.D. Cal. Aug. 24, 12 2012). Accordingly, because Rule 60(d) does not provide an independent basis for 13 federal jurisdiction, the Court does not have “independent” jurisdiction to entertain 14 Plaintiff’s FAC because a federal question is not presented. See Holder v. Simon, 384 15 Fed. App’x 669, at *1 (9th Cir. 2010) (unpublished) (district court properly dismissed 16 plaintiff complaint sua sponte as “Rule 60(b) does not provide a basis for subject matter 17 jurisdiction over a claim for relief from a state court judgment”). 18 To the extent the FAC summarily alleges violations of his rights under the Fifth 19 and Fourteenth Amendments, (Dkt. No. 4, FAC ¶ 7), it is well established that the Fifth 20 Amendment applies to federal actors and the Fourteenth Amendment applies to state 21 actors. Betts v. Brady, 316 U.S. 455, 462 (1942) (“Due process of law is secured against 22 invasion by the federal Government by the Fifth Amendment and is safeguarded against 23 state action in identical words by the Fourteenth.”), overruled on other grounds by 24 Gideon v. Wainwright, 372 U.S. 335 (1963). Here, Plaintiff's citations to the Federal 25 Constitution are unavailing as Defendant is not alleged to be a federal or state actor. 26 Therefore, Plaintiff cannot invoke this Court’s jurisdiction based on allegations that 27 Defendant violated Plaintiff’s constitutional rights. Accordingly, the Court concludes [28] 1 || that it does not have subject matter jurisdiction over the first amended complaint and 2 || GRANTS Defendant’s motion to dismiss under Rule 12(b)(1). 3 Because the Court lacks subject matter jurisdiction over the FAC, the Court need * || not address Defendant’s motion to dismiss for failure to state a claim. 5 B. Leave to Amend 6 In the event the Court dismisses his claims, Plaintiff, in his opposition, seeks leave 7 || of court to file a second amended complaint. (Dkt. No. 10 at 11.) In reply, Defendant 8 asks the Court to grant dismissal without leave to amend. (Dkt. No. 11 at 4.) ? Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 10 || the court determines that the allegation of other facts consistent with the challenged V1 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 12 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 13 Co., 806 F.2d 1393 , 1401 (9th Cir. 1986)). In other words, where leave to amend would 14 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 15 || 806 F.2d at 1401. 16 Here, in a prior order, the Court granted Plaintiff leave to amend on the issue of V7 subject matter jurisdiction. The FAC failed to correct the deficiencies alleged in the 18 complaint and the Court concludes that it would be futile to grant Plaintiff leave to amend 19 || based on the allegations and relief he seeks. Accordingly, the Court denies Plaintiff's 20 request for leave to file a second amended complaint. 21 Conclusion 2 For the reasons set forth above, the Court GRANTS Defendant’s motion to dismiss 23 DISMISSES the Complaint with prejudice for lack of subject matter jurisdiction. 94 || The hearing set on October 30, 2020 shall be vacated. 25 IT IS SO ORDERED. 26 Dated: October 22, 2020 (2 27 Hon. athe Cae 28 United States District Judge