The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM, DECISION AND ORDER
This matter is before the Court on nine separate motions to dismiss for failure to state a claim upon which relief can be granted, and for lack of jurisdiction. (Dkts. 4, 21, 25, 30, 34, 38, 39, and 41). The Court also has before it Plaintiff's Motion to Strike (Dkt. 45) and Motion for Sanctions (Dkt. 46). Having reviewed the parties' briefing and the written record, the Court finds that oral argument will not aid in the decisional process and issues the following Memorandum Decision and Order granting the Defendants' motions to dismiss, denying Plaintiff's motion to strike, and motion for sanctions, and dismissing Plaintiff's Amended Complaint (Dkt. 28) without prejudice.
This lawsuit is the third in a series filed by Plaintiff regarding a dispute between private parties over ownership interests in real property located at 23231 Freeze Out Road, Caldwell, Idaho. Plaintiff claims that he purchased the property in 1967.
At some time after purchasing the property, Plaintiff apparently put the property up as collateral for a Farmers Home Administration (FmHA) loan. It is unclear from the record, but it appears that Plaintiff defaulted on those loan obligations and FmHA foreclosed on the property. Thus, in January 1996, as part of a debt settlement, Plaintiff "redeemed the property."
However, because Plaintiff did not have sufficient funds to redeem the property alone, he alleges that in exchange for provided a portion of the money to redeem the property, Defendant Lois G. Rawlinson would hold the property "in common" with him. Plaintiff acknowledges that one month prior to redeeming the property, he "quit claimed the Freezeout Propety to [Rawlinson]." (Amended Complaint, Dkt. 3 at 14). In so doing, Plaintiff claims that he and Rawlinson entered an "oral contract" they would hold the property together, and benefit equally from any future sale. According to Plaintiff, until April 1999, he and Rawlson resided at the property together. Then, Rawlson moved out, and shortly thereafter, the ownership of the property came before the courts.
In 2001, Plaintiff brought suit in state court against Defendants Lois Genice Rawlinson, John Scott, Jackie Scott and The Genice Rawlinson Revocable Trust ("Rawlinson Defendants"). Defendants Michael E. Duggan and Gregg E. Lovan ("Duggan Defendants") represented Plaintiff at trial, while Defendants Thomas C. Morris and Shelly H. Cozakos ("Morris Defendants") represented the Rawlinson Defendants. (Defs.' Motion to Dismiss, Dkt. 21-1 at 2; Defs.' Motion to Dismiss, Dkt. 25-1 at 2.) In March 2003, after a three day trial, judgment was entered against Plaintiff Harold Ford. That court found that Ford had no ownership interest in the Freeze Out property and dismissed the action with prejudice. (Defs.' Motion to Dismiss, Dkt. 4-1 at 2.)
Thereafter, Plaintiff retained Defendant Rolf Kehne as appellate counsel. The appeal was dismissed in 2004, apparently due to Kehne's failure to timely file. (Def.'s Motion to Dismiss, Dkt. 30-2 at 1.)
Accordingly, in July 2006, Plaintiff filed complaints with the Idaho Bar against the Duggan Defendants for failing to diligently pursue records necessary to prove Ford's case at trial (Defs.' Motion to Dismiss, Exht. A, Dkt. 21-2 at 1-2) and against Kehne for failing to timely appeal. (Def.'s Motion to Dismiss, Dkt. 30-2 at 1).
On January 12, 2009, the Idaho State Bar Association notified the parties of the Bar Counsel's findings that Duggan violated Idaho Rule of Professional Conduct 1.3, and that Lovan violated Idaho Rule of Professional Conduct 5.1. (Defs.' Motion to Dismiss, Exht. A, Dkt. 21-2 at 2). Defendant Kehne was also found by the Bar to have violated the professional code of conduct. (Plaintiff's Amended Verified Complaint ¶ 13, Dkt. 28; Memo. in Support of Motion to Dismiss, Dkt. 30-1 at 1.)
Shortly after the Idaho State Bar's determination, Plaintiff initiated three lawsuits in state court related to the Bar's ethics findings ("2009 Lawsuits"). The first and second action, both filed on March 11, 2009, were for professional malpractice against the Duggan Defendants and Defendant Kehne. On May 28, 2009, the Ada County District Court found the claims to be time-barred by the statute of limitations. Plaintiff appealed the district court's decision, but the Idaho Court of Appeals upheld the dismissal.
On April 27, 2009, Plaintiff brought a third lawsuit against the Rawlinson Defendants, the Morris Defendants, and notary public Defendant Robin Starr. Defendant Bryan Walker represented Starr in this action. (Def.'s Motion to Dismiss, Dkt. 34-1 at 2.) As to the Rawlinson Defendants, Plaintiff alleged that they failed to turn over discoverable documents, committed perjury, breached an oral contract, and engaged in a fraud on the court. (Id.)
On September 25, 2009, the Canyon County District Court dismissed all the claims against the Rawlinson and Morris Defendants as time-barred. (Pickens Aff. Exht. A, Dkt. 4-2 at 2.). Plaintiff's claims that Starr violated her oath of office, and committed a fraud upon the Court by inappropriately stamping her notary seal and falsifying a deed, were dismissed on the pleadings. (Motion to Dismiss of Def. Bryan K. Walker, Dkt. 34-2 at 2). Furthermore, the Court found that the claims were brought frivolously and awarded $3,260.70 to the Rawlinson Defendants and $5,688 to Defendant Starr in reasonable costs and attorney fees. (Picket Aff., Exht. B, Dkt. 4-2 at 5).
On March 10, 2011, the Court of Appeals for the State of Idaho affirmed the district court's dismissal with prejudice and directed that the district court award fees and costs associated with the appeal. (Id., Exht. 3, Dkt. 4-2 at 1.) Plaintiff's subsequent Petition for Review to the Idaho Supreme Court was denied on April 19, 2011. The district court awarded $2,320 to the Rawlinson Defendants, and $13,647.88 to the Morris Defendants. (Picket Aff., Exht. D, Dkt. 4-2 at 1-2.)
In this instant action, Plaintiff largely duplicates or restates the claims he brought in the 2001 and 2009 lawsuits. (Amended Verified Complaint ("Compl.") ¶22, Dkt. 28.) However, Plaintiff now seeks to invoke federal jurisdiction by referring to several federal statutes, including 18 USC § 1512; 42 USC §§ 1983, 1985, 1986, and 1988, and Idaho R. Civ. P. 60(b)(3). (Id. ¶ 11.) Unlike his previous lawsuits, Plaintiff also includes Defendant Bryan Walker as a party, claiming that he aided his client in avoiding a deposition, and that he lied under oath. (Id. ¶ 64-66.) It appears that all of Plaintiff's remaining claims, including his new claims of alleged fraud against the court and continuous damage tort, were raised in at least one, if not all, of the 2009 lawsuits. (Id ¶ 11.)
Plaintiff addresses the statute of limitations issue by arguing that he qualifies for equitable tolling because there are "extraordinary circumstances" which prevented him from timely filing, and that he acted with reasonable diligence throughout the period to be tolled. Plaintiff points out that New York law authorizes the use of equitable tolling when a plaintiff has been induced by fraud or deception to refrain from filing a timely action. (Plaintiff's Motion to Strike ¶ 3, Dkt. 45-1.).
Most recently, Plaintiff filed a Motion for Sanctions and a Motion to Strike.
A. Plaintiff's Motion for Sanctions (Dkt. 46)
In his Motion for Sanctions, Plaintiff claims that the Duggan Defendants' Motion to Dismiss (Dkt. 21) was not properly served on him, and argues that these defendants should be subject to sanctions because their failure to serve unnecessarily delayed these proceedings and prevented him from adequately responding to the motion
When pleadings or motions are filed with the court, the filing party certifies that the paper "is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation" and that "the claims, defenses, and other legal contentions are warranted by existing law, or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law." Fed. R. ...