United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF JUDGE
before the Court are numerous motions to dismiss for failure
to state a claim and for lack of jurisdiction, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(Dkts. 10, 13, 23, 30, 43, 53, 64). Also pending before the
court are Washington Federal Savings' Motion to Dismiss
for Insufficient Service of Process (Dkt. 75),
plaintiff's Motions for Default against Beneficial
Financial, I, Inc. (Dkt. 43) and defendant Washington Federal
(Dkt. 74), plaintiff's Motion to Strike (Dkt. 80), and
plaintiff's Application for Order Directing Service by
United States Marshal (Dkt. 26).
motions are fully briefed and at issue. The Court finds that
oral argument is not necessary to resolve the pending
motions. As discussed below, the Court will grant
defendants' respective motions to dismiss and deny those
filed by plaintiff.
case arises from multiple lawsuits filed in Idaho state court
stemming from the conveyance of real property in Madison
County, Idaho and related foreclosure proceedings. Having
exhausted her options to appeal the state court decisions,
Thomason, proceeding pro se, now brings the present action
against 34 named defendants involved in those proceedings,
including all Justices of the Idaho Supreme Court, three
Judges of the Idaho Court of Appeals, two Idaho District
Court Judges, as well as numerous parties, attorneys, and
witnesses to the above-name cases.
central allegation is that the defendants engaged in a
conspiracy to deprive her of equal protection and due
process, and that the above-mentioned state court judgments
against her are void. Count One asserts the following civil
rights claims against all defendants: 42 U.S.C. § 1983
(deprivation of civil rights); 42 U.S.C. § 1985(2)-(3)
(conspiracy to interfere with civil rights and obstruction of
justice); 42 U.S.C. § 1986 (refusal or neglect to
prevent deprivation of civil rights). Count One also alleges
a claim under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §
1962(a)-(d), and seeks recovery of attorney fees under 42
U.S.C. § 1988. Count Two alleges a violation of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1962, against
only Beneficial Financial I Inc., Aldridge Pite, LLP, Elisa
S. Magnuson, Peter J. Salmon, and Casper J. Rankin. Finally,
Count Three seeks to set aside the above-mentioned state
court judgments under Federal Rule of Civil Procedure 60(b).
The Complaint seeks monetary, declaratory, and injunctive
defendants who have acknowledged service seek dismissal. In
their respective motions, defendants raise the following
grounds for dismissal: Rooker-Feldman doctrine's
jurisdictional bar, res judicata, judicial immunity, failure
to state a claim upon which relief may be granted, and
state court litigation referred to in the Complaint includes
the following actions for quiet title and judicial
foreclosure proceedings brought by and against Thomason, as
well as subsequent appeals.
Quiet Title Action: Bagley I
first lawsuit was a quiet title action, filed on May 6, 2008
by Terrence Bagley and John Bagley as to property in Madison
County at one time owned by Thomason and her late husband.
Bagley v. Thomason (Bagley I), 241 P.3d 972
(Idaho 2010) (originally CV-2008-359). The Idaho District
Court entered a partial summary judgment quieting title to
the real property to the Bagleys. The Thomasons appealed the
judgment, asserting inter alia that the Bagleys
lacked standing because the deed by which they were granted
title did not contain the Bagleys' complete address, as
required by Idaho Code § 55-601. The Idaho Supreme Court
affirmed the district court's order quieting title to
real property in the Bagleys' favor, explaining that the
question of whether a valid contract existed went to the
merits of the claim, rather than the issue of jurisdictional
Appurtenant Water Rights: Bagley II
January 30, 2009, the Bagleys filed a second complaint
against the Thomasons, this time seeking declaratory judgment
as to the water rights appurtenant to the Madison County
property. Bagley v. Thomason (Bagley II),
241 P.3d 979 (Idaho 2010) (originally CV-2009-88). The
Thomasons again asserted that the Bagleys lacked standing
because the warranty deed failed to comply with Idaho Code
§ 55-601. The District Court granted the Bagleys certain
shares of water previously held by the Thomasons. On appeal,
the Thomasons renewed their standing argument and also
contended that the Bagleys engaged in various types of
misconduct. The Idaho Supreme Court affirmed the District
Court's grant of summary judgment.
Final Appeal: Bagley III
third appeal of the prior decisions quieting title to the
Madison County property, the Thomasons alleged violations to
their equal protection and due process rights, lack of
jurisdiction, lack of standing, breach of contract, and
various acts of misconduct, including fraud. Bagley v.
Thomason (Bagley III), 307 P.3d 1219 (Idaho
2013). The Idaho Supreme Court affirmed the district court
judgment and award of attorney fees. Thomason's
subsequent petition for writ of certiorari was denied by the
U.S. Supreme Court.
State Partition Action: Madison Real Property
April 4, 2008, Madison Real Property (“MRP”)
filed a complaint for partition and accounting of a 75-acre
parcel of farm land previously owned in three undivided fee
simple interests by Marilynn and Byron Thomason, Nicholas and
Sandra Thomason, and Greg and Diana Thomason. Madison
Real Property, LLC v. Thomason, No. 39799, 2013 WL
6008921 (Idaho Ct. App. Aug. 12, 2013) (originally
CV-2008-271). MRP is the successor in interest to William
Forsberg, who received his interest in the property by a deed
from Greg and Diana Thomason on October 30, 2001. Marilynn
Thomason appealed the final judgment against her on
plaintiff's Motion to Dismiss, asserting inter
alia that: (1) MRP lacked standing because it relied
on a fraudulent deed purporting to grant interest in the
property to Forsberg from Greg and Diana
Thomason; (2) and the district court violated her
right to equal protection. The Court of Appeals of Idaho
affirmed the lower's court's decision, finding that
she failed to adequately demonstrate either claim.
Id. at *8.
Tax Sale Matter: Abundant Land Holdings
April 28, 2014, Abundant Land Holdings, LLC filed a quiet
title action regarding real property once owned by Thomason
and her late husband that Abundant Land Holdings had obtained
through tax sale. Abundant Land Holdings, LLC v.
Thomason, et al., No. CV-2012-520. Judgment was rendered
in favor of Abundant Land Holdings.
Judicial Foreclosure Action: Beneficial Financial
final proceeding is not mentioned by Thomason but it appears
to be the only basis for the second cause of action, which
alleges a violation of the Fair Debt Collection Practices
Act. Beneficial Financial I brought a judicial foreclosure
action against Thomason, arising from default of a note and
deed of trust executed by Byron T. Thomason and Marilynn
Thomason and secured by the Madison County property.
Beneficial Financial I Inc. v. Thomason, et al., No.
CV-2015-74. This matter is still pending in state court.
facilitate the discussion of Thomason's claims, the Court
has grouped the moving defendants into seven categories: (1)
Idaho District Court Judges Gregory W. Moeller and Darren B.
Simpson; Idaho Appellate Court Judges Karen L. Lansing, David
W. Gratton, and Sergio A. Gutierrez; and Idaho Supreme Court
Justices Jim Jones, Roger S. Burdick, Daniel T. Eismann, Joel
D. Horton, and Warren E. Jones (collectively “Judicial
Defendants”); (2) all previous parties to the
above-mentioned state court proceedings, including John
Bagley, Luella Bagley, Terrence Bagley, Elizabeth Bagley,
Bagley Enterprise, River Bottom, LLC, Beneficial Financial I
Inc., Madison Real Property, LLC, Abundant Land Holdings,
LLC, Thomas Luthy, and Laura Luthy (collectively
“Financial Defendants”); (3) counsel for these
parties in the state court proceedings, including Beard St.
Clair Gaffney PA, Lance Schuster, Aldridge Pite, LLP, Elisa
S. Magnuson, Casper J. Rankin, Peter J. Salmon, William
Forsberg, and Colleen Forsberg (collectively “Attorney
Defendants”); (4) Madison County employees, including
Sherry Arnold, Madison County Treasurer Suzanne Bagley, a
Madison County deputy sheriff, and Troy Evans, a Madison
County prosecuting attorney (collectively “Madison
County Defendants”); (5) Liberty Park Irrigation and
its legal counsel, Rigby, Andrus, & Rigby, Chtd.; (6)
Washington Federal Savings; and (7) John Doe Defendants.
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss “does not
need detailed factual allegations, ” it must set forth
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Id. at 555. To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is
plausible on its face.” Id. at 570. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. at 556. The plausibility standard is
not akin to a “probability requirement, ” but it
asks for more than a sheer possibility that a defendant has
acted unlawfully. Id. Where a complaint pleads facts
that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to
relief.'” Id. at 557.
Supreme Court identified two “working principles”
that underlie Twombly in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). First, the court need not accept as
true, legal conclusions that are couched as factual
allegations. Id. Rule 8 does not “unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.” Id. at 678- 79. Second, to
survive a motion to dismiss, a complaint must state a
plausible claim for relief. Id. at 679.
“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.
complaints are held to “less stringent standards than
formal pleadings drafted by lawyers.” See Haines v.
Kerner, 404 U.S. 519, 520 (1972). Where a plaintiff is
proceeding pro se, the Court has an obligation to construe
the pleadings liberally and to afford the plaintiff the
benefit of any doubt. See Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985) (en banc). However, pro se
pleadings must still allege facts sufficient to allow a
reviewing court to determine whether a claim has been stated.
See Ivey v. Bd. of Regents of Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982).
subject matter jurisdiction is challenged pursuant to Federal
Rule of Civil Procedure 12(b)(1), the plaintiff bears the
burden of persuasion. Indus. Tectonics, Inc. v. Aero
Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing
McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936)). A party who brings a Rule 12(b)(1)
challenge may do so by referring to the face of the pleadings
or by presenting extrinsic evidence. See White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“Rule
12(b)(1) jurisdictional attacks can be either facial or
factual . . . .”). In the former, the challenger
asserts that the allegations contained in a complaint are
insufficient on their face to establish federal jurisdiction.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). “By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction.” Id. In resolving a factual
attack on jurisdiction, the court need not presume the
truthfulness of the plaintiff's allegations, and may
review evidence beyond the complaint without converting the
motion to dismiss into a motion for summary judgment.
Motions to Take Judicial Notice
threshold matter, the Court considers the motions to take
judicial notice of the underlying Idaho state court decisions
(Dkts. 32, 46), later joined by additional defendants (Dkts.
38, 39, 47, 54).
Rule of Evidence 201(b) provides: “A judicially noticed
fact must be one not subject to reasonable dispute in that it
is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” The Court “may
take judicial notice of court filings and other matters of
public record, ” Reyn's Pasta Bella, LLC v.
Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006), but not of
a fact that is “subject to reasonable dispute, ”
MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th
Ninth Circuit has consistently held that courts may take
judicial notice of documents filed in other court proceedings
to establish the fact of such litigation and face of
averments made, but not to establish the truth of the matters
asserted. Compare United States v. Black, 482 F.3d
1035, 1041 (9th Cir. 2007) (“A federal court may take
notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings
have a direct relation to matters at issue.”) (internal
quotation and citation omitted), with M/V Am. Queen v.
San Diego Marine Constr. Corp., 708 F.2d 1483, 1491 (9th
Cir. 1983) (“[A] court may not take judicial notice of
proceedings or records in another cause so as to supply,
without formal introduction of evidence, facts essential to
support a contention in a cause then before it”).
judicial notice of the state court documents is proper. The
court documents are matters of public record from sources
whose accuracy cannot reasonably be questioned. Additionally,
these cases directly relate to the matters at issue here.
However, the Court will take notice only for the limited
purpose of recognizing the fact that certain court
proceedings took place, the subject matter of that
litigation, and the allegations and judicial acts recorded in
them. The Court does not accept the veracity of the facts
recited in those cases or correctness of these decisions.
Therefore, the Motions for Judicial Notice (Dkts. 32, 46)
will be granted and the Court will consider these noticed
documents for the purposes of the pending Motions to Dismiss
under Rule 12(b)(6). United States v. Ritchie, 342
F.3d 903, 907-908 (9th Cir. 2003) (A court may consider
matters of judicial notice without converting the motion to
dismiss into one for summary judgment).
Plaintiff's Motion for Service by U.S. Marshal and for
Assertion of Jurisdiction Over Defendants' Property and
seeks an order directing the United States Marshal to serve
fifteen of the named defendants. Under Federal Rule of Civil
Procedure 4, “[a]t plaintiff's request, the court
may order that service be made by a United States
Marshal․ The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C.
§ 1915․” Fed.R.Civ.P. 4(c)(3). Plaintiff is
not proceeding in forma pauperis and thus does not
automatically qualify for that entitlement. Nor do the
circumstances here suggest that appointment of the United
States Marshal is appropriate here. The Advisory Committee
Notes state that appointment is generally proper when
necessary to keep the peace, a circumstance not present here.
Adv. Comm. Note to 1993 Amendments. Plaintiff also
does not indicate that she has exhausted other reasonable
methods of effective service, or that she lacks the financial
resources to do so. The Court therefore declines to exercise
its discretion to appoint the Marshal here.
further requests an order of the court, pursuant to Federal
Rule of Civil Procedure 4(n)(1), asserting jurisdiction over
the assets and properties of the above-named defendants to
compensate any expenses incurred by Plaintiff in effecting
service. Rule 4(n)(1) provides that “[t]he court may
assert jurisdiction over property if authorized by a federal
statute. Notice to claimants of the property must be given as
provided in the statute or by serving a summons under this
rule.” Plaintiff fails to point to a federal statute
which authorizes such an assertion of jurisdiction here.
Accordingly the motion is denied in full.
Washington Federal's Motion to Dismiss for Insufficient
Service of Process
Washington Federal, National Association (“Washington
Federal”), successor-in-interest to named defendant
Washington Federal Savings, filed a Motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(5), on the
ground that Thomason has failed to effect sufficient service
of process. (Dkt. 75).
defendant challenges the method of service of process under
Federal Rule of Civil Procedure 12(b)(5), the plaintiff bears
the burden of establishing that service was valid under Rule
4. Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.
2004). Federal Rule of Civil Procedure 4 authorizes service
upon a domestic or foreign corporation “by delivering a
copy of the summons and of the complaint to an officer, a
managing or general agent, or to any other agent authorized
by appointment or by law to receive service of
process.” Fed.R.Civ.P. 4(h); (e)(1). In addition, Rule
4 permits service to be made in the manner prescribed by the
law of Idaho, the state in which this Court sits.
Idaho Rules of Civil Procedure similarly require a foreign
corporation to “be served by delivering a copy of the
summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment
or by law to receive service of process.” Idaho R. Civ.
P. 4(d)(3)(B). However, they do allow for service by
registered or certified mail “[w]hen the agent
designated for service by a foreign corporation, partnership
or association which has qualified in this state by
filing with the Secretary of State or a domestic
corporation, partnership or association is unavailable. . .
.” Idaho R. Civ. P. 4(d)(3)(C) (emphasis added).
the record demonstrates that neither Washington Federal nor
its predecessor-in-interest and named defendant in this
matter, Washington Federal Savings, are entities which have
“qualified in [Idaho] by filing with the Secretary of
State.” Idaho R. Civ. P. 4(d)(3)(C). Accordingly, Idaho
Rule 4(d)(3)(C) does not apply, and Thomason was required to
effectuate personal service upon Washington Federal. It is
uncontested that Thomason never personally served any officer
or agent of Washington Federal. Rather, she mailed a copy of
the summons and Complaint to Washington Federal's CEO in
Seattle, Washington. Accordingly, the Court will grant
Washington Federal's Motion to Dismiss (Dkt. 75) under
Federal Rule of Civil Procedure 12(b)(5) for insufficient
service of process.
Plaintiff's Motion to Strike
filed a Motion to Strike, asserting that the Affidavit of
Arian Colachis (Dkt. 77), filed in support of Washington
Federal's Motion to Dismiss for Insufficient Service of
Process (Dkt. 75), should be stricken for lack of personal
knowledge, as inadmissible hearsay, for lack of supporting
specificity and/or supporting evidence, and for being
Court finds the motion completely groundless. To be sure, for
summary judgment purposes, “[a]n affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
Fed.R.Civ.P. 56(e)(1). Arian Colachis' affidavit meets
all these requirements. Colachis states that she is General
Counsel and Corporate Secretary for Washington Federal,
National Association. Ms. Colachis further states that she
“has personal knowledge of the facts” testified
to “from her involvement in managing the Bank's
legal affairs or from a review of the Bank's
files.” Colachis Aff. at 1, Dkt. 77. She is
undoubtedly competent to testify as to the matter, due to her
position within the company and oversight of the Bank's
the affidavit contains no inadmissible hearsay. Although
Thomason never explains which portion of the affidavit she
claims to be hearsay, the only plausible source is the
business records reviewed by Ms. Colachis. Testimony
regarding the absence of a record is excluded from the
general hearsay prohibition. Fed.R.Evid. 803(7) (allowing for
admission of evidence “that a matter is not included in
a [business record] . . . to prove that the matter did not
occur or exist [if the] record was regularly kept for a
matter of that kind.”).
the affidavit untimely filed. The timing requirement on which
Thomason relies comes from Federal Rule of Criminal
Procedure 47(d), which states that the “moving party
must serve any supporting affidavit with the motion.”
The Federal Rules of Criminal Procedure do not apply to this
case, and the Civil Rules contain no analogous provision.
the specificity of the affidavit is irrelevant, as Washington
Federal does not bear the burden of proving insufficient
service. “Once service is challenged, plaintiffs bear
the burden of establishing that service was valid under Rule
4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th
Cir. 2004). As the Court explains above, Thomason has failed
to demonstrate compliance with the personal service
requirement. Striking the Colachis Affidavit would not change
the Court denies Thomason's Motion to Strike (Dkt. 80).
Plaintiff's Motions for Default Judgment
has filed a Motion for Default Against Defendant Beneficial
Financial I, Inc. (Dkt. 43) and a Motion for Default Against
Defendant Washington Federal (Dkt. 74). The Court finds
Thomason's Motions to be without merit.
Federal Rule of Civil Procedure 55(b)(2), “[w]hen a
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by
these rules, and the fact is made to appear by affidavit or
otherwise, the clerk must enter the party's
default.” A Judgment of Default may, thereafter, be
entered on application to the Court. See Fed. R.
Civ. P. 55(b); Eitel v. McCool, 782 F.2d 1470, 1471
(9th Cir. 1986) (noting the “two-step process”
required by Rule 55: (1) request for clerk's entry of
default under Rule 55(a); and (2) subsequent motion for
default judgment under Rule 55(b)).
defendant's default does not automatically entitle a
plaintiff to a court-ordered judgment. Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Rather,
entry of default judgment is left to the court's sound
discretion, guided by the following factors: (1) potential
prejudice to the plaintiff; (2) the merits of plaintiff's
substantive claim; (3) the sufficiency of the Complaint; (4)
the amount at stake in the action; (5) the possibility of a
dispute concerning material facts; (6) whether the default
was due to excusable neglect; and (7) the strong policy
underlying the Federal Rules favoring a decision on the
merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
the Court finds several procedural and substantive problems
with Thomason's Motions for Default. First, Thomason has
improperly asked this court to enter a default judgment
without first obtaining an entry of default by the clerk, in
accordance with the requirements of Rule 55. Fed.R.Civ.P. 55.
More critically, defendant Washington Federal was not
properly served under Idaho or ...