Opinion
Civil Action 23-cv-01765-CNS-KAS
07-12-2024
HOLLY MACINTYRE, Plaintiff, v. THE SUPREME COURT OF COLORADO, and the Justices thereof, in their official capacities, and JP MORGAN CHASE BANK N.A., Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHRYN A. STARNELLA, MAGISTRATE JUDGE
This matter is before the Court on Defendant JP Morgan Chase Bank N.A.'s Motion to Dismiss Plaintiff's Second Amended Complaint [#38](the “Chase Motion to Dismiss”); the State Judicial Defendants' Rule 12(b)(1) and 12(b)(6) Motion to Dismiss the Second Amended Complaint [#40] (the “Judicial Defendants' Motion to Dismiss”); and on Defendant JP Morgan Chase Bank N.A.'s Motion to Impose PreFiling Restrictions on Plaintiff Holly McIntyre [#46] (the “Pre-filing Restrictions Motion”). Plaintiff, who proceeds as a pro se litigant,has filed Responses [#58, #59] in opposition to the Motions to Dismiss [#38, #40] and a Response [#56] to the Motion to Impose Pre-filing Restrictions [#46]. Defendants have filed Reply briefs [#60, #61] in support of their Motions to Dismiss [#38, #40], and Defendant JP Morgan Chase Bank N.A. (“Defendant Chase”) has filed a Reply [#57] in support of its Motion to Impose Prefiling Restrictions [#46]. The Court has reviewed the briefs, the entire case file, and the applicable law.
“[#38]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, the Court should neither be the pro se litigant's advocate nor “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
For the reasons set forth below, the undersigned RECOMMENDS that the Chase Motion to Dismiss [#38], the Judicial Defendants' Motions to Dismiss [#40], and the Prefiling Restrictions Motion [#46] be GRANTED.
I. Background
A. Factual Allegations
The following factual allegations are taken from Plaintiff's Second Amended Complaint [#31]. Plaintiff was the owner of residential real property located in Jefferson County, Colorado, until January 2016. Second Am. Compl. [#31], ¶ 1. In December 2014, Defendant Chase obtained an in rem judicial foreclosure against Plaintiff, in JP Morgan Chase Bank v. MacIntyre, No. 13CV32183 (Colo. Dist. Ct., Jefferson Cnty.). Id., ¶ 2. Plaintiff appealed the foreclosure judgment to the Colorado Court of Appeals, Case No. 15CA111. Id., ¶ 3. Plaintiff filed three motions to stay the foreclosure judgment during the pendency of her appeal. Id., ¶ 7. All three motions were denied. Id., ¶ 12.
Plaintiff alleges that Defendant Chase's lawyers made false allegations to the Court in opposition to the motions for stay. Id., ¶ 13. She alleges that the equity in the property far exceeded the amount owed, so Defendant Chase could, and did, comfortably wait a full year to schedule the foreclosure sale. Id., ¶ 16. She argues that the refusal of the Colorado Court of Appeals to enter a stay precipitated the loss of appellate jurisdiction because the foreclosure would render any relief moot. Neither the Court of Appeals nor the Jefferson County District Court granted Plaintiff a supersedeas bond and so, “[c]onvinced nonetheless that mootness imperiled her appeal-despite the silence of the appellate court and the vague reassurance of the trial court [that Plaintiff likely could proceed on appeal whether or not foreclosure occurred],” in December 2015, Plaintiff sued the Supreme Court of Colorado in an effort to enjoin the sale of her property. Id., ¶¶ 29-22. In that case, she argued that Colo. R. Civ. P. 121(c) § 1-23(3)(a), which governs bonds in civil actions, was unconstitutional. Id., ¶ 22. Plaintiff filed that lawsuit in Colorado district court, in Denver County, because she understood the case law as requiring her to seek relief from state courts, if available, before seeking relief in federal court. Id., ¶ 23.
Plaintiff's claims heavily rely on her interpretations of Colorado law, but “when legal conclusions are involved in the complaint ‘the tenet that the court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions.'” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, the Court discusses Plaintiff's legal theories to the extent they are relevant to her claims, but in doing so, does not automatically accept them as accurate.
On January 21, 2016, Plaintiff's property was scheduled to be sold at a sheriff's sale. Id., ¶ 28. Plaintiff had moved for a temporary restraining order (a “TRO”) to halt the sale because she believed that, once the sale had occurred, the TRO would be moot. Id., ¶ 31. The Denver County District Court denied the TRO because granting it would “entail overruling the denial of the stay by both the Jefferson County District Court and the Colorado Court of Appeals.” Id., ¶ 34. The January 21, 2016 sheriff's sale proceeded, and Plaintiff's property was sold for approximately $25,000 more than the amount Chase was owed. Id., ¶ 36. On February 4, 2016, the Denver County District Court stayed the case pending resolution of Plaintiff's appeals. Id., ¶ 39.
Meanwhile, on April 28, 2016, the Colorado Court of Appeals affirmed the foreclosure judgment, “ignoring the . . . fact that the property had already been sold three months earlier.” Id., ¶ 40. Plaintiff argues that the case was mooted by the sale, so Defendant Chase “contrived an alternative issue” to keep the controversy alive by requesting attorney fees for the appeal. Id., ¶ 45. She alleges that the Colorado Court of Appeals “tacitly cooperated” by awarding fees, keeping the controversy alive. Id., ¶ 46.
Plaintiff petitioned the Colorado Supreme Court for a writ of certiorari in MacIntyre v. JP Morgan Chase Bank, Case No. 2016SC479. Id. ¶ 47. Plaintiff concluded that the Colorado Court of Appeals had ruled without jurisdiction because the appeal had become moot, and she decided that the Colorado Supreme Court lacked jurisdiction to reverse the foreclosure. Id., ¶¶ 48-49. Thus, she filed a Suggestion of Mootness and Motion to Dismiss [the Supreme Court appeal] as Moot, which the Supreme Court granted. Id., ¶¶ 49-51. The Colorado Supreme Court did not award Chase its attorney fees or costs, and Chase did not seek them. Id., ¶ 52.
Plaintiff returned to the Denver County District Court, which dismissed Plaintiff's case as moot on July 25, 2017, because the foreclosure sale had occurred and an appellate decision on the merits had been issued. Id., ¶¶ 56-57. Plaintiff appealed the Denver County District Court's dismissal to the Colorado Court of Appeals, which affirmed. Id., ¶ 60. Plaintiff argues that under United States Supreme Court precedent, “if a case is mooted on appeal, it is the duty of the appellate court to reverse or vacate the judgment below and remand with a direction to dismiss,” but that the Colorado courts refused to adopt. Id., ¶ 62 (citing Van Schaack Holdings Ltd. v. Fulenwider, 798 P.2d 424, 427 (Colo. 1990).Essentially, Plaintiff argues that her case was “involuntarily moot” rather than voluntarily mooted by her filing both (1) a suggestion of mootness and (2) a motion to dismiss as moot. Id., ¶¶ 63-72.
As even Plaintiff acknowledges, the Colorado Supreme Court specifically explained that it was “not bound by the federal law on this matter”-i.e., rules of appellate procedure. Van Schaack Holdings, Ltd., 798 P.2d at 427. The Van Schaack Holdings court recognized an exception to the general rule requiring reversal or vacatur and remand with dismissal where “the appealing party voluntarily takes an action which renders the appeal moot.” Id.
On January 18, 2019, Plaintiff filed suit in the United States District Court for the District of Colorado against Defendant Chase seeking monetary relief “for having used forged indorsements and falsified documents at the state foreclosure trial, and for securing three stay denials with fraudulent misinformation.” Id., ¶ 73 (referencing MacIntyre v. JP Morgan Chase, N.A., No. 19-cv-00172-DDD-NYW (D. Colo. 2019)). Her complaint in that action did not allege that Colorado's bond rules, Colo. R. Civ. P. 121(c) § 1-23 or C.A.R. 8(2)(E), were unconstitutional “because relief from the consequences of both rules appeared to be available, if needed, in the federal court.” Id., ¶¶ 75-76.
Once the Colorado Court of Appeals denied Plaintiff's motion to vacate the judgment, she promptly filed a copy of that denial in U.S. District Court, and Defendant Chase successfully argued that the state court judgment implicated the Rooker-Feldman doctrine and deprived the federal court of subject matter jurisdiction. Id., ¶¶ 78-80. The U.S. District Court agreed and awarded attorney fees. Id., ¶¶ 81-82. Plaintiff appealed the dismissal and attorney fees award, and the Tenth Circuit Court of Appeals affirmed both in Case Nos. 19-1290 and 20-1016. Id., ¶ 83. She argues that her “efforts to obtain a federal exception to the preclusive effect of the unvacated state court judgment were thwarted by that very judgment, before the federal court could even consider the requested exception, due to Rooker-Feldman.” Id., ¶ 85.
On March 16, 2021, Plaintiff filed a petition for a Rule to Show Cause in the Colorado Supreme Court seeking vacatur of the judgment below as moot, which was denied on July 12, 2021, without comment. Id., ¶¶ 87-88. She argues that “this denial would not have been possible if the Colorado Supreme Court had adopted the Munsingwear rule”, i.e., the rule that mootness on appeal requires reversal or vacatur and remand of the underlying judgment with directions to dismiss. Id., ¶ 89. Plaintiff argues that the Supreme Court of Colorado's refusal to vacate the mooted judgment was a failure to perform a mandatory duty that was “independent of any antecedent events.” Id., ¶ 92. She further warns that “[i]f this federal court, adjudicating the declaratory judgment requested herein, determines that the mooted foreclosure judgment is entitled to preclusive effect and/or to the full faith and credit bestowed by 28 U.S.C. § 1738, the determination will constitute a new independent injury to [Plaintiff] and will inaugurate a new, two-year period for adjudication under [Colo. Rev. Stat.] § 13-80-102(1)(g).” Id., ¶ 93 (emphasis omitted).
Plaintiff argues that it is an unconstitutional violation of the Equal Protection Clause that monetary judgment appellants are entitled to automatic stays while non-monetary judgment appellants “must satisfy an arbitrary, four-part test set forth in Romero v. City of Fountain [, 307 P.3d 120, 122 (Colo.App. 2011)].” Id., ¶ 106-07. She argues that to comport with the Constitution, the Colorado Supreme Court was required to apply the “Munsingwear rule”. Id., ¶ 110 (citing United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950) (stating that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.”). She argues that the Colorado Supreme Court's Van Schaack Holdings opinion is unconstitutional itself and asks “for a judgment declaring that Van Schaack Holdings v. Fulenwider, 798 P.2d 424, 427 (Colo. 1990), as applied, is unconstitutional.” Id. at 27 and ¶ 113. She also argues that Defendant Chase, “by reason of its status of co-mooter of the foreclosure judgment . . . is a state actor[.]” Id., ¶ 115.
Finally, she argues that the Jefferson County District Court judgment is not entitled to full faith and credit. Id., ¶¶ 117-18. She asks this Court to enter judgment against the Colorado Supreme Court and against Chase “enjoining all Colorado courts from giving preclusive effect to the [Jefferson County District Court] judgment” and “declaring that [the Jefferson County District Court] judgment is not entitled to the full faith and credit bestowed by 28 U.S.C. § 1738.” Id. at 27.
II. Legal Standards
A. Rule 12(b)(1)
Under Rule 12, the court may dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). If the court determines, at any time, that it lacks subject-matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). This is because a court which lacks jurisdiction cannot render judgment. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). The party invoking the federal court's jurisdiction bears the burden of establishing subject-matter jurisdiction. Id. Rule 12(b)(1) motions take two forms: either “a facial attack on the complaint's allegations as to subject matter jurisdiction [which] questions the sufficiency of the complaint” or a “challenge [to] the facts upon which subject matter jurisdiction depends.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995), abrogated in part on other grounds by Cent. Green Co. v. United States, 531 U.S. 425 (2001). In reviewing a facial attack on the complaint, as here, “the court presumes all of the allegations contained in the complaint to be true.” MacIntyre v. Supreme Court of Colorado, No. 20-cv-03559-CNS-SKC, 2023 WL 4230603, at *1 (D. Colo. June 28, 2023) (citing Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)).
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint includes ‘well-pleaded allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitled to relief.'” Carraway v. State Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
However, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do, [n]or does the complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally insufficient to state a claim.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). Finally, “facts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment,” and such facts include the court's “own files and records, as well as facts which are a matter of public record.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (citations omitted).
C. Issue Preclusion
The doctrine of issue preclusion“prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same issue in another lawsuit.” In re Corey, 583 F.3d 1249, 1251 (10th Cir. 2009). Preclusion conserves resources and provides consistency in judicial decisions. Id. However, under federal law, “issue preclusion attaches only ‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.'” Arizona v. California, 530 U.S. 392, 414 (2000) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982)) (alteration in original)).
The term res judicata is sometimes used to encompass both issue and claim preclusion, but to be more precise, res judicata refers to claim preclusion while collateral estoppel refers to issue preclusion. See Allen v. McCurry, 449 U.S. 90, 94 n.5 (1980); Beckett ex rel. Cont'l W. Ins. Co. v. United States, 217 F.R.D. 541, 543 (D. Kan. 2003) (citing Jackson Trak Grp., Inc. v. Mid States Port Auth., 751 P.2d 122, 128 (Kan. 1988)).
The elements of issue preclusion are: “(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Chavez v. Bd. of Cnty. Comm'rs of Lake Cnty., 423 F.Supp.3d 1106, 1111 (D. Colo. 2019) (quoting United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992)). “Issue preclusion applies even when a prior decision ‘never reached the merits'; that is, ‘dismissals for lack of jurisdiction preclude future relitigation of that jurisdictional question.'” Boulter v. Noble Energy Inc., No. 23-1118, 2024 WL 1526289, at *3, *4 (10th Cir. Apr. 9, 2024) (citing Boulter v. Noble Energy Inc., 74 F.4th 1285, 1289 (10th Cir. 2023)).
D. Pre-Filing Restrictions
“[T]he right of access to the courts is neither absolute nor unconditional and there is no constitutional right of access to the courts to prosecute an action that is frivolous or malicious.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (internal citations omitted). Federal district courts have the power, under 28 U.S.C. § 1651(a), to enjoin litigants who abuse the court system to harass their opponents. Id. at 352 (collecting cases). Thus, courts may impose even onerous conditions on a litigant, so long as those conditions are designed to curb the at-issue abusive behavior and so long as they do not deny the litigant meaningful access to the courts. Id. (quoting Carter v. United States, 733 F.2d 735, 757 (10th Cir. 1984), cert. denied, 469 U.S. 1161 (1985); citing Bounds v. Smith, 430 U.S. 817 (1977)).
Injunctions restricting further filings are appropriate “where (1) ‘the litigant's lengthy and abusive history' is set forth; (2) the court provides guidelines as to what the litigant ‘must do to obtain permission to file an action'; and (3) the litigant received ‘notice and an opportunity to oppose the court's order before it is instituted.'” Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) (quoting Tripati, 878 F.2d at 352). However, pre-filing restrictions must be carefully tailored. See, e.g., Sieverding v. Colo. Bar Ass'n, 469 F.3d 1340, 1343 (10th Cir. 2006). For example, “it is not appropriate for a federal district court to restrict access to the state courts,” and it would be unreasonable for the district court “to attempt to limit access to [the Tenth Circuit] or any other court of appeal.” Id. at 1344. Similarly, a restriction on “filings on any subject matter and as to any defendant” is likely overbroad. Id. However, the Tenth Circuit has upheld restrictions which “prohibited filings based on the series of transactions described in that initial federal action” where the plaintiff “ha[d] focused her efforts on filing actions against the persons, entities, counsel, and insurance companies of the parties involved in [the initial federal action].” Id. at 1345.
III. Analysis
A. Claims Against Judicial Defendants
Plaintiff raises two claims against the Judicial Defendants: (1) that “the judgment in Case Number 13CV32183, Jefferson County District Court, is constitutionally infirm”; and (2) that “the judgment in Case Number 13CV32183, Jefferson County District Court, is not entitled to the full faith and credit bestowed by 28 U.S.C. § 1738.” Second Am. Compl. [#31], at 22, 26. She asks the Court for “a judgment enjoining all Colorado courts from giving preclusive effect to the judgment in Case Number 13CV32183” and for “a judgment declaring that Van Schaack Holdings v. Fulenwider, 798 P.2d 424, 427 (Colo. 1990), as applied, is unconstitutional.” Id. at 27.
The Judicial Defendants argue that certain claims against them in their official capacity are barred by Eleventh Amendment sovereign immunity; they are entitled to judicial and legislative immunity; that Plaintiff's claims are barred by the Rooker-Feldman doctrine;that the Colorado Supreme Court is not a “person” subject to 42 U.S.C. § 1983; and that Plaintiff's claims are time-barred. Judicial Defendants' Motion to Dismiss [#40] at 7-16. In her Response [#59], Plaintiff argues that the Colorado Supreme Court is not legislatively immune because she is challenging an opinion, not promulgated rules; that the Ex parte Young, 209 U.S. 123 (1908), exclusion to immunity applies because the harm to her is ongoing; that judicial immunity cannot apply because she is suing the Justices in their official capacity; and that neither the Rooker-Feldman doctrine nor the statute of limitations apply. Response [#59] at 4-10.
Under the Rooker-Feldman doctrine, “lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463 (2006). The doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Because the Court recommends dismissal based on issue preclusion as to sovereign immunity (i.e., Plaintiff has already fully litigated and lost on the issue of Defendants' sovereign immunity), the Court need not examine the parties' other arguments, including the Rooker-Feldman doctrine.
1. Eleventh Amendment Immunity
Plaintiff's Second Amended Complaint [#31] echoes the claims she alleged in her prior federal case in this District, MacIntyre v. Supreme Court of Colorado, No. 1:20-cv-03559-CNS-SKC, 2023 WL 4230603, at *4 (D. Colo. June 28, 2023). There, “Plaintiff alleged (i) [Colo. R. Civ. P.] 121(c), § 1-23(3)(a) (on the filing of a supersedeas bond to stay execution of a money judgment) is facially unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, and (ii) that both [Colo. R. Civ. P.] 121(c) § 1-23(3)(a) and C.A.R. 8(a)(2)(E) (the latter, on the power of an appellate court to condition relief on a party's finding a bond or other appropriate security) are unconstitutional as applied to her[.]” Id. at *2. The court found that “Plaintiff's claims against the State Judicial Defendants are properly deemed claims against the State of Colorado, and that the Eleventh Amendment generally bars suits brought by individuals against state officials acting in their official capacities[.]” Id. (citing Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 (10th Cir. 2010)). The Court further found that “none of the three established exceptions to Eleventh Amendment immunity apply in this case”-that is, the state had not waived its immunity and consented to be sued; Congress had not validly abrogated the state's immunity via federal statute; and the plaintiff was not seeking prospective injunctive relief rather than redress for past wrongs.” Id. (citing Neiberger v. Hawkins, 70 F.Supp.2d 1177, 1187 (D. Colo. 1999)).
The Court takes judicial notice of the recommendations, orders, and complaint that were filed in Case No. 20-cv-03559-CNS-SKC (D. Colo.). See Tal, 453 F.3d at 1264 n.24.
The previous court also found that the Judicial Defendants had legislative immunity because Plaintiff was challenging two procedural rules which the Colorado Supreme Court had promulgated through its “legislative” power under the Colorado Constitution. Id. at *3 (citing Colo. Const. art. VI, § 21). Therefore, the court found that the “State Judicial Defendants are entitled to both sovereign immunity and legislative immunity”) (emphasis added). Id. at *4.
2. The Ex parte Young Exception
Plaintiff attempts to sidestep the prior finding of judicial immunity by reframing the relief she seeks as prospective and the harm as ongoing. Second Am. Compl. [#31], ¶ 114. The Judicial Defendants challenge this framing in their Motion to Dismiss [#40], arguing that Plaintiff is truly seeking vindication of past rights. Judicial Defendants' Motion to Dismiss [#40] at 8-9 (arguing that the Ex parte Young exception to immunity cannot be used to obtain a declaration that a state officer violated a plaintiff's federal rights in the past) (citing Collins v. Daniels, 916 F.3d 1302, 1316 (10th Cir. 2019)). Plaintiff has no cogent response-she insists that she is seeking to address an “ongoing violation of federal law,” i.e., “the ongoing preclusive effect of the judgment whose appeal was mooted by Chase.” Response to Judicial Defendants' Motion to Dismiss [#59] at 7. However, as the Judicial Defendants argue in their Reply [#61], Plaintiff made “no factual allegation in the [Second Amended Complaint] establishing that any Colorado court currently is giving preclusive effect to the final judgment in Jefferson County District Court in Case No. 13CV32183[.]” Reply [#61] at 7 (emphasis omitted). The Court agrees with Defendants-even if Plaintiff has plausibly alleged past harm, she has not alleged ongoing or future harm.
As the United States Supreme Court has stated, the Ex parte Young exception to Eleventh Amendment immunity is narrow: “It applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past, and has no application in suits against the States and their agencies, which are barred regardless of the relief sought[.]” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (internal citations omitted). Thus, for example, a criminal defendant could not sue the New Mexico Supreme Court in federal court to challenge bail-related rules it had promulgated because the court was an “arm[s] of the state” entitled to immunity and the criminal defendant's challenge was only retrospective. Collins, 916 F.3d at 1307. In determining whether Ex parte Young avoids an Eleventh Amendment bar to suit, “a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Id. at 1316 n.10 (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002)).
Here, Plaintiff's new claims plainly do not fall within an Ex parte Young exception for two reasons. First, she seeks a declaration that the Colorado Supreme Court violated her constitutional rights in the past (by declining to adopt the United States Supreme Court's Munsingwear test in 1990) and that the Jefferson County District Court's past judgment violated her constitutional rights. Second, Plaintiff's “claims against the State Judicial Defendants are properly deemed claims against the State of Colorado.” See P.R. Aqueduct & Sewer Auth., 506 U.S. at 146; Second Am. Compl. [#31] at 27 (asking the Court to enter a judgment declaring Van Schaack Holdings v. Fulenwider, 798 P.2d 424, 427 (Colo. 1990), unconstitutional and asking the Court to “enjoin[] all Colorado courts from giving preclusive effect to the judgment in Case Number 13 CV 32183”); see also MacIntyre, 2023 WL 4230603, at *2.
No matter how Plaintiff dances around these issues, her objective is clear: she seeks to re-litigate and overturn the state court's past foreclosure judgment in Case No. 13CV32183. See Macintyre v. Supreme Court of Colorado, 2023 WL 4346887, at *4 (D. Colo. Apr. 20, 2023) (noting that Plaintiff's operative complaint “does not seek prospective relief; it instead pleads claims seeking redress for past wrongs, even when construed liberally”), affirmed and adopted, 2023 WL 4230603 (D. Colo. June 28, 2023). To divest the “preclusive effect” of a prior judgment is to invalidate or vacate that judgment. See, e.g., Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1132 (10th Cir. 2010) (stating that “vacatur is appropriate to prevent ‘a judgment, unreviewable because of mootness, from spawning any legal consequences.”) (quoting Munsingwear, 340 U.S. at 41). That is exactly the relief Plaintiff seeks no matter how Plaintiff spins her arguments.
Because Plaintiff seeks a declaration that the State of Colorado, through the Colorado Supreme Court, violated federal law in the past, her claims against the Judicial Defendants do not fall within an Ex parte Young exception.
3. Issue Preclusion
The Court also finds that Plaintiff is collaterally estopped from relitigating the issue of the Judicial Defendants' sovereign immunity. First, the sovereign immunity issue was litigated and necessarily adjudicated in Plaintiff's most recent federal case. MacIntyre v. Supreme Court of Colorado, 2023 WL 4230603, at *2, *4 (concluding that the Judicial Defendants were entitled to sovereign immunity).Second, Plaintiff was a party to the prior proceeding. Third, the prior matter was dismissed for lack of jurisdiction as to the Judicial Defendants, which precludes relitigation of issues determined in that ruling. Boulter, 74 F.4th at 1289 (finding elements of issue preclusion satisfied where the prior court had “made a final determination on jurisdiction, which [the] [p]laintiffs did not appeal”); Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't of Agric., 378 F.3d 1132, 1136 (10th Cir. 2004) (stating that dismissals for lack of jurisdiction preclude relitigation of the issues determined in ruling on the jurisdictional question) (internal quotation omitted). Fourth, Plaintiff had a full and fair opportunity to litigate the issues in the prior federal case. In addition to briefing on motions to dismiss, she had an opportunity to object to the magistrate judge's recommendation for dismissal based on sovereign and legislative immunity, the district judge considered her objection, and Plaintiff did not appeal. MacIntyre, 2023 WL 4230603, at *2 (stating that the Court considered “the Magistrate Judge's Recommendation, Plaintiff's Objection, the Second Amended Complaint, [and] the two Motions to Dismiss”).
There, the court explicitly found that no exceptions to sovereign immunity applied: (i) waiver and consent to be sued; (ii) valid abrogation by Congress; (iii) Ex parte Young. MacIntyre, 2023 WL 4230603, at *2.
Finally, no issue preclusion exception applies. Plaintiff does not argue that some intervening change in law warrants relief from collateral estoppel. See, e.g., Herrera v. Wyoming, 587 U.S. 329, 343 (2019) (“Even when the elements of issue preclusion are met, however, an exception may be warranted if there has been an intervening change in [the] applicable legal context.”) (internal quotation marks omitted) (quoting Bobby v. Bies, 556 U.S. 825, 834 (2009)) (alteration in original).
Therefore, the Court finds all four elements of issue preclusion satisfied. The issue of whether the Judicial Defendants have Eleventh Amendment sovereign immunity has already been decided and Plaintiff may not relitigate that issue in this proceeding. The Judicial Defendants are entitled to sovereign immunity. See MacIntyre, 2023 WL 4230603, at *4 (concluding “that the State Judicial Defendants are entitled to . . . sovereign immunity”). Accordingly, the Court recommends that the Judicial Defendants' Motion to Dismiss [#40] be granted.
B. Claims Against Defendant Chase
Plaintiff also raises two claims against Defendant Chase: (1) that “the judgment in Case Number 13CV32183, Jefferson County District Court, is constitutionally infirm”; and (2) that “the judgment in Case Number 13CV32183, Jefferson County District Court, is not entitled to the full faith and credit bestowed by 28 U.S.C. § 1738. Second Am. Compl. [#31], at 22, 26. In support of both claims, Plaintiff alleges that Defendant Chase is “a state actor” based on “a symbiotic relationship with the Supreme Court of Colorado and the Justices thereof.” Id., ¶¶ 115, 116, 120.
In its Motion to Dismiss [#38], Defendant Chase argues that collateral estoppel bars the entirety of Plaintiff's Complaint and, specifically, her allegations that Defendant Chase is a state actor through a “symbiotic relationship.” Chase Motion to Dismiss [#38] at 12-15. In her Response [#58], Plaintiff does not address or rebut Defendant Chase's collateral estoppel arguments, nor does she identify any factual allegations that substantiate her assertion that Defendant Chase is a “state actor.” See generally Response to Chase Motion to Dismiss [#58].
The Court finds that Plaintiff is collaterally estopped from relitigating whether Chase is a “state actor.” First, Plaintiff presented an identical argument in her prior federal lawsuit: that Defendant Chase is a state actor under 42 U.S.C. § 1983 by virtue of a “symbiotic relationship” with the Colorado court system. See MacIntyre v. Supreme Court of Colorado, No. 1:20-cv-03559-CNS-SKC, 2023 WL 4230603, at *4 (D. Colo. June 28, 2023). Second, the prior action was adjudicated on the merits as to Defendant Chase's arguments. Id. at *5 (granting “Defendant Chase's Renewed Motion to Dismiss Plaintiff's Second Amended Complaint”), *4 (stating that “the Court fully agrees with the Magistrate Judge's conclusion that a bank like Defendant Chase ‘does not become a “state actor” when it seeks to enforce its contractual or legal right to commence and pursue a judicial foreclosure of property in state court'”) (citations omitted). Third, Plaintiff was party to the prior adjudication. Fourth, Plaintiff had a full and fair opportunity to litigate the issue in the prior action. Id. at *4 (considering and rejecting Plaintiff's arguments about her allegation of a “symbiotic relationship” between Defendant Chase and the Colorado court). Further, no exception applies. Plaintiff does not argue that some intervening change in law warrants relief from collateral estoppel. See Herrera, 139 S.Ct. at 1697.
Therefore, the Court finds all four elements of issue preclusion satisfied. The issue of whether Defendant Chase may be a “state actor” through a theory of “symbiotic relationship” has already been decided. Plaintiff may not relitigate that issue in this proceeding. On the alleged facts, including the “symbiotic relationship” theory, Plaintiff has not plausibly alleged that Defendant Chase is a state actor. See MacIntyre, 2023 WL 4230603, at *5 (concluding “that Plaintiff has failed to plausibly allege Defendant Chase's status as a ‘state actor'”).
Because Plaintiff is collaterally estopped from arguing that Defendant Chase is a state actor based on “symbiotic relationship” theory, both of her claims against it necessarily fail. Accord MacIntyre v. Supreme Court of Colorado, 2023 WL 4230603, at *5 (granting Defendant Chase's motion to dismiss because “Plaintiff has failed to plausibly allege Defendant Chase's status as a ‘state actor' for purposes of her § 1983 claim”).
Accordingly, The Court recommends that Defendant Chase's Motion to Dismiss [#38] be granted.
C. Pre-Filing Restrictions
Defendant Chase asks the Court to enjoin Plaintiff from:
filing additional civil suits in any United States District Court, including the District of Colorado, against Chase related to the Foreclosure Judgment . . . or any other subject matter underlying the above-referenced lawsuits, without either (a) prior leave of the Court or (b) the signature of an attorney, licensed to practice before the Court, representing [Plaintiff] in such a lawsuit, motion or other paper[.]Pre-filing Restrictions Motion [#46] at 22-23. Plaintiff argues against such limitations because, she claims, she has not been abusive in how she has pursued her multiple state and federal cases. See, e.g., Response [#56] at 7, 16. Finally, in Reply [#57], Defendant Chase argues that Plaintiff's abuse of process is demonstrated by her “repackag[ing] and rebrand[ing] previously rejected claims in new, yet always futile, ways to try and avoid dismissal” and in her repeated attempts “to impermissibly attack or undo the foreclosure judgment - yet again.” Reply [#57] at 2, 9.
The Court considers the three Tripati factors, as they were summarized in Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) (stating that pre-filing restrictions are appropriate where (1) “the litigant's lengthy and abusive history” is set forth; (2) the court provides guidelines as to what the litigant “must do to obtain permission to file an action”; and (3) the litigant received “notice and an opportunity to oppose the court's order before it is instituted.”) (quoting Tripati v. Beaman, 878 F.2d 351, 353-54 (10th Cir. 1989)).
Regarding the first factor, Plaintiff's numerous attempts to challenge Defendant Chase's foreclosure on her Jefferson County property have included: (1) the initial foreclosure action, 13CV32183 (Colo. Dist. Ct., Jefferson Cnty.); (2) a direct appeal to the Colorado Court of Appeals, 15CA111; (3) a separate and simultaneous state court action against the Colorado Supreme Court, 15CV708 (Colo. Dist. Ct., Denver Cnty.); (4) a state court action that Defendant Chase removed to federal court, No. 12-cv-02586-WJM-MEH (D. Colo.); (5) a direct appeal to the Tenth Circuit, 644 Fed.Appx. 806 (10th Cir. 2016); (6) a second federal lawsuit, No. 13-cv-01647-WJM-MEH (D. Colo.); (7) a claim in bankruptcy court, No. 19-01136 (Bankr. D. Colo.); (8) a direct appeal to the Bankruptcy Appellate Panel, 2020 WL 1651619 (B.A.P. 10th Cir. Apr. 3, 2020); (9) a direct appeal to the Tenth Circuit, 850 Fed.Appx. 634 (10th Cir. 2021); (10) a third federal lawsuit, No. 1:19-cv-00172-DDD-NYW (D. Colo.); (11) a direct appeal to the Tenth Circuit, 827 Fed.Appx. 812 (10th Cir. 2020); (12) a request for a writ of certiorari, cert. denied, 141 S.Ct. 2660 (2021); (13) a fourth federal lawsuit, No. 20-cv-03559-CNS-SKC (D. Colo.); and (14) the current, fifth federal lawsuit, No. 23-cv-01765-CNS-KAS (D. Colo.). See generally Prefiling Restrictions Motion [#46] at 4-15. In total, Plaintiff has filed at least 14 actions regarding the same Jefferson County foreclosure.
As previously discussed, Plaintiff's Second Amended Complaint [#31] raises the same claims that were dismissed in her most recent federal lawsuit, MacIntyre v. Supreme Court of Colorado, No. 20-cv-03559-CNS-SKC, 2023 WL 4230603 (D. Colo. June 28, 2023). There too, Plaintiff argued that the Colorado Supreme Court had erred in declining to adopt the Munsingwear rule; that the differential treatment of monetary and non-monetary appeals violates the Equal Protection Clause; that Van Schaack Holdings is unconstitutional; and that Defendant Chase is a “state actor” due to a “symbiotic relationship” with the Colorado Supreme Court. Compare, e.g., Second Amended Complaint in No. 20-cv-03559-CNS-SKC, at ¶¶ 61-71, 89, 106, 115, with Second Am. Compl. [#31] at ¶¶ 61-72, 89, 111, 115-16 (raising the exact same points).
Additionally, Plaintiff seems eager to drag these proceedings on interminably, threatening further action if she does not get her way. Second Am. Compl. [#31], ¶ 93 (suggesting that any finding by this Court that “the mooted foreclosure judgment is entitled to preclusive effect . . . will constitute a new, independent injury . . . and will inaugurate a new, two-year period for adjudication”). The Court takes Plaintiff at her word that, unless she is enjoined from further litigating this matter, she will not stop, no matter how many times her identical arguments are rejected.
Plaintiff argues that she has not conducted herself abusively, Response [#56] at 7, but even if this is true, repeated and meritless filings are themselves an abuse of process. See In re Sindram, 498 U.S. 177, 179-80 (1991) (“The goal of fairly dispensing justice, however, is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests.”). A litigant's abusive conduct may be “shown by, for example, a history of repetitive and meritless claims[.]” Lundahl v. Halabi, 600 Fed.Appx. 596, 609 (10th Cir. 2014) (quoting Okon v. Comm'r of Internal Revenue, 26 F.3d 1025, 1027 (10th Cir. 1994)).
The Court finds a Tenth Circuit case, In re Winslow, instructive. In re Winslow, 17 F.3d 314, 315 (10th Cir. 1994). There, as here, the pro se debtors engaged in repetitive and frivolous litigation to stop the sale of their real property. Id. at 315. The debtors raised “the same allegations . . . in ever-increasing numbers over the last ten years” and “in each one, the [debtors] have accused this court, the district court, and the bankruptcy court of victimizing themselves in pursuit of some larger conspiracy aimed at preventing them from obtaining a fair hearing on their grievances.” Id. The Tenth Circuit found that the debtors had been given all the privileges and leniency due to pro se litigants but “[t]hey have abused these privileges.” Id. The Tenth Circuit further stated,
It may be that lurking within one of these matters was, or is, a viable argument. Rather than advancing any substantive argument, however, the [debtors] consistently turn to the same allegations of fraud, criminal conduct, and conspiracy . . . This abuse of the judicial process must cease.Id. The Tenth Circuit affirmed the imposition of filing restrictions because the debtors' “abusive and repetitive filings have strained the resources of this court.” Id. (citing In re McDonald, 489 U.S. 180, 184 (1989)). This is all very familiar, and the Court has already discussed Plaintiff's lengthy and abusive history of litigation over her foreclosure, which satisfies the first Tripati factor. Ysais, 603 F.3d at 1180. By Plaintiff's own admission, she has litigated the foreclosure, in one forum or another, for ten years. Second Am. Compl. [#31], ¶ 2.
Regarding the second factor, the Court recommends that the following conditions be imposed: Plaintiff should be enjoined from proceeding, in this District, on any claim relating to the January 2016 foreclosure of her property or the Jefferson County foreclosure judgment, without the representation of a licensed attorney admitted to practice in this court unless she is given leave to proceed pro se. See, e.g., In re Winslow, 17 F.3d at 316. Before filing any such action, Plaintiff should be required to file a petition with the clerk of court requesting leave to file a pro se action, which includes as exhibits:
Because this proposed injunction is limited to matters filed in this Court, Plaintiff would still be able to appeal any issues that arise. See, e.g., Sieverding v. Colo. Bar Ass'n, 469 F.3d 1340, 1344 (10th Cir. 2006) (finding the lower court “unreasonable” in its “attempt to limit access to [the Tenth Circuit] or any other court of appeal” because the Tenth Circuit was “capable of deciding if filing restrictions are appropriate in this court”). The Court also notes, as it did in a prior Minute Order [#55], that this recommended pre-filing restriction would not prevent or penalize Plaintiff for further filings in this case-it would only apply to future cases filed in this District. See Minute Order [#55] at 2. The Court acknowledges that Defendant Chase requests broader geographical restrictions, prohibiting Plaintiff from filing actions “in any United States District Court,” but the Court reads Sieverding as disapproving of such broad prohibitions. Pre-filing Restrictions Motion [#46] at 22-23; Sieverding, 469 F.3d at 1344-45.
(i) A copy of this Order;
(ii) A copy of her proposed complaint;
(iii) A list of all lawsuits currently pending or filed previously with this court, including the name, number, and citation, if applicable, of those cases, and a statement indicating the nature of Plaintiff's involvement in the matter and current status or disposition of the proceeding; and
(iv) A statement, made under penalty of perjury, representing that the claims in the tendered complaint are, to the best of Plaintiff's knowledge, formed after an inquiry reasonable under the circumstances, not frivolous or taken in bad faith, are well-grounded in fact and law, are not interposed for any improper
purpose, and have not been raised by her and adjudicated in any prior federal or state action.
The Court has synthesized this list of conditions from two other cases in which prefiling restrictions were imposed on an abusive pro se litigant. See Miller v. Bennett, Case No. 12-cv-02063-MSK-CBS, 2013 WL 4835353, at *1-*2 (D. Colo. Sept. 10, 2013); In re Winslow, 17 F.3d at 316. These limitations would deter Plaintiff from any future filings in this District that rehash her already raised arguments, and they would advise the future court exactly where to find Plaintiff's prior filed cases, as well as their disposition. This would allow a future court to quickly identify any issues or claims which are subject to res judicata or collateral estoppel. The Court's proposed guidelines address the second Tripati factor. See Ysais, 603 F.3d at 1180.
Finally, the Court reminds Plaintiff that she may file any objections to this Recommendation within 14 days of service. Id. (requiring “notice and an opportunity to oppose the court's order before it is instituted”) (quoting Tripati, 878 F.2d at 353-54). For the foregoing reasons, the Court recommends that the pre-filing restrictions described herein be imposed on Plaintiff.
IV. Conclusion
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Pre-filing Restrictions Motion [#46] be GRANTED. The Court recommends that Plaintiff be enjoined from filing further proceedings, in this District, related to the January 2016 foreclosure of her property or the underlying Jefferson County foreclosure judgment, without the representation of a licensed attorney admitted to practice in this court, unless she first obtains permission to proceed pro se following the procedures set forth in this Recommendation.
IT IS FURTHER RECOMMENDED that Defendant Chase's Motion to Dismiss [#38] be GRANTED and that Plaintiff's claims against Defendant Chase be DISMISSED WITH PREJUDICE.
See, e.g., Dunham v. Saratoga Springs City, No. 2:19-cv-00641-RJS-DBP, 2023 WL 5804345, at *7-*8 (D. Utah Sept. 7, 2023) (at the summary judgment stage, dismissing collaterally estopped claims with prejudice because “further litigation of this issue is barred”).
IT IS FURTHER RECOMMENDED that the State Judicial Defendants' Rule 12(b)(1) and 12(b)(6) Motion to Dismiss the Second Amended Complaint [#40] be GRANTED and that Plaintiff's claims against the Colorado Supreme Court be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
See, e.g., Martinez v. Martinez, 62 Fed.Appx. 309, 314-15 (10th Cir. 2003) (stating that “dismissal for lack of subject matter jurisdiction is not an adjudication on the merits; therefore, the dismissal should have been without prejudice”); Boulter v. Noble Energy, Inc., No. 23-1118, 2024 WL 1526289, at *2, *5 (10th Cir. Apr. 9, 2024) (holding that issue preclusion applies to previously adjudicated jurisdictional issues, but that a dismissal for lack of subject matter jurisdiction-even when based on issue preclusion-must be without prejudice).
IT IS FURTHER ORDERED that any party may file objections within 14 days of service of this Recommendation. In relevant part, Fed.R.Civ.P. 72(b)(2) provides that, “within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy.” “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” Id. “[A] party who fails to make a timely objection to the magistrate judge's findings and recommendations waives appellate review of both factual and legal questions.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).