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Terry v. Dewine

United States District Court, D. Columbia.

December 17, 2014

LUE CINDY TERRY, Plaintiff
v.
MICHAEL DEWINE, et al., Defendant

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LUE CINDY TERRY, Plaintiff, Pro se, Gahanna, OH.

For KIMBERLY COCROFT, ZACH SCOTT, RON O'BRIEN, Defendants: Justin Michael Flint, LEAD ATTORNEY, ECCLESTON & WOLF, Washington, DC.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge.

Lue Cindy Terry,[1] proceeding pro se, brought this action against Defendants Michael DeWine, Attorney General of Ohio; Judge Kimberly Cocroft of the Franklin County, Ohio, Court of Common Pleas; Zach Scott, Franklin County, Ohio, Sheriff; and Ron O'Brien, Franklin County, Ohio, Prosecutor. (The Court refers to all Defendants but DeWine as the Franklin County Defendants.) While the precise nature of the challenges is far from clear from the pleadings, Plaintiff attempts to challenge actions surrounding the foreclosure of a property in Ohio. See Compl. at 2. Presently before the Court is the Franklin County Defendants' [7] Motion to Dismiss, as well as Plaintiff's first [4] Motion for Immediate Default Judgment and Award and second [10] Motion for Immediate Default Judgment and Award. Upon consideration of the pleadings,[2] the relevant

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legal authorities, and the record as a whole, the Court GRANTS the Franklin County Defendants' motion to dismiss. The Court concludes that there is no personal jurisdiction over the Franklin County Defendants. The Court also concludes that, under the Rooker-Feldman doctrine, it does not have jurisdiction over this action effectively challenging a state-court final judgment. Because the Court has no jurisdiction over any of the claims in this action, the Court does not address any of the Franklin County Defendants' arguments pertaining to the merits. Although Defendant DeWine has not appeared in this action, the Court also concludes that there is no jurisdiction over the claims against him for the reasons described below. Therefore, the Court sua sponte dismisses the claims against DeWine. For these and related reasons, the Court denies Plaintiff's first and second default judgment motions, as well. The Court DISMISSES this action in its entirety.

I. BACKGROUND

A. Factual Background

The facts of this case are far from clear, and Plaintiff's filings subsequent to the complaint do little to dispel the absence of clarity. At core, this action appears to pertain to the foreclosure of a property in Ohio state court. See Compl at 1 (" [T]his proceeding seeks to challenge the alleged free and clear title awarded to [the bank] in Civil Foreclosure Case No. 13-CV-006485 in this Court" ). Because the Court concludes, below, that it has no jurisdiction over any of the claims in this action and because Plaintiff has not conveyed them in a clear fashion, it is not necessary to recite the facts further at this point. Insofar as the facts of this case are essential to resolving the jurisdictional questions before the Court, the Court presents them below.

B. Procedural History

On June 25, 2014, Plaintiff filed this action, proceeding pro se. On July 7, 2014, Plaintiff filed an affidavit of service with the acknowledgment of service delivery via Certified Mail to all four defendants at their business addresses.[3] As of July 8, 2014, no defendant had filed an appearance, and Plaintiff filed a [4] Motion for Immediate Default Judgment and Award.[4]

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On August 1, 2014, the Court " reluctantly" granted the Franklin County Defendants' [6] Motion for Extension of Time to File Response to Plaintiff's Complaint and Plaintiff's Motion for Immediate Default Judgment. Those defendants complied with the deadline established by the Court's order, filing both their [7] Motion to Dismiss and their [8] Memorandum of Points and Authorities in Opposition of Plaintiff's Motion of Immediate Default Judgment. Shortly thereafter, Plaintiff filed a second [10] Motion for Immediate Default Judgment and Award,[5] and the Franklin County Defendants filed an opposition. After the Court advised Plaintiff that, if Plaintiff did not respond to the Franklin County Defendants' Motion to Dismiss, the Court may grant the motion as conceded, Plaintiff filed an opposition to that motion. Defendant DeWine has yet to file a response to the complaint or to file any other papers in this action.

Subsequent to the completion of the aforementioned briefing on the motions before the Court, the Court issued an order requiring Plaintiff to show cause as to why this Court has jurisdiction over the claims against DeWine. See Order, dated October 14, 2014, ECF No. 15. The gravamen of Plaintiff's response appears to be that Plaintiff is not suing Defendant DeWine in his official capacity, and that therefore the Court's concerns with respect to jurisdiction are of no moment. See Pl.'s Show Cause Response at 2. Plaintiff also claims, for the first time, that there is diversity jurisdiction over this action as well. Id. at 4-5. In response to Plaintiff's responsive filing, the Court issued an order informing Plaintiff of the Court's conclusion that Plaintiff had not yet served Defendant DeWine in his individual capacity and requiring Plaintiff to file proof of service of DeWine in that capacity. See Order, dated November 17, 2014, ECF No. 17. Plaintiff filed a response but did not file any additional proof of service. See Pl.'s Service Response. The gravamen of her response appears to be that there is no difference between suing DeWine in his individual capacity and suing him in his official capacity such that additional service is necessary in order to proceed against DeWine in his individual capacity. See id. at 1.[6]

II. LEGAL STANDARD

The Franklin Country Defendants move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(2), arguing that the Court lacks personal jurisdiction over them, and pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing

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that the Court lacks subject matter jurisdiction over Judge Cocroft because of the Rooker-Feldman doctrine. Moreover, the Court is obligated to assure itself of its jurisdiction " whether or not the parties challenge it." Wagner v. Fed. Election Comm'n, 717 F.3d 1007, 1010, 405 U.S.App.D.C. 213 (D.C. Cir. 2013); accord Fogo De Chao (Holdings) Inc. v. U.S. Dep't of Homeland Sec., 769 F.3d 1127, 1138 (D.C. Cir. 2014).

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456, 282 U.S.App.D.C. 295 (D.C. Cir. 1990). To establish that personal jurisdiction exists, the plaintiff cannot rest on bare allegations or conclusory statements but " must allege specific acts connecting [each] defendant with the forum." Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524, 348 U.S.App.D.C. 238 (D.C. Cir. 2001) (internal quotation marks omitted). " To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial[; ]" but rather, the plaintiff may " rest her arguments on the pleadings, 'bolstered by such affidavits and other written materials as [she] can otherwise obtain.'" Urban Inst. v. FINCON Servs., 681 F.Supp.2d 41, 44 (D.D.C. 2010) (quoting Mwani v. Osama Bin Laden, 417 F.3d 1, 7, 368 U.S.App.D.C. 1 (D.C. Cir. 2005)). In the case of a pro se plaintiff, although the Court is required to construe the pro se complaint liberally, see Howerton v. Ogletree, 466 F.Supp.2d 182, 183 (D.D.C. 2006), " [p]ro se plaintiffs are not freed from the requirement to plead an adequate jurisdictional basis for their claims." Gomez v. Aragon, 705 F.Supp.2d 21, 23 (D.D.C. 2010) (citation omitted).

" Federal courts are courts of limited jurisdiction" and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id. To survive a motion to dismiss pursuant to Rule 12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S.App.D.C. 18 (D.C. Cir. 2007). In determining whether there is jurisdiction, the Court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S.App.D.C. 72 (D.C. Cir. 2003) (citations omitted).[7]

III. DISCUSSION

As noted above, the Franklin County Defendants move to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant to Rule 12(b) (2) for lack of personal jurisdiction. They also move to dismiss pursuant to Rule 12(b)(6) for failure to timely and properly state a claim upon which relief can be granted.

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Generally, courts must evaluate a motion to dismiss for lack of subject matter or personal jurisdiction prior to considering a motion to dismiss for failure to state a claim. See, e.g., Feinstein v. Resolution Trust Corp., 942 F.2d 34, 40 (1st Cir. 1991) (" [C]ourts should ordinarily satisfy jurisdictional concerns before addressing the merits of a civil action." ); Combs v. Bakker, 886 F.2d 673, 675 (4th Cir. 1989) (finding the district court's decision to first address defendants' Rule 12(b)(6) motion " awkward" and that the " proper course of review" required defendants' Rule 12(b)(2) motion to be considered first). Although this rule need not be mechanically applied, as this Court has previously observed:

Not only does logic compel initial consideration of the issue of jurisdiction over the defendant--a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim--but the functional difference that flows from the ground selected for dismissal likewise compels considering jurisdictional and venue questions first. A dismissal for lack of jurisdiction or improper venue does not preclude a subsequent action in an appropriate forum, whereas a dismissal for failure to state a claim upon which relief can be granted can be granted with prejudice.

IMark Marketing Servs., LLC v. Geoplast S.p.A, 753 F.Supp.2d 141, 149 (D.D.C. 2010) (quoting Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963)). In view of these considerations, and because this Court concludes that it plainly lacks both personal jurisdiction over the Franklin County Defendants and subject matter jurisdiction over Plaintiff's claims against those ...


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