Joe of the family of Collins v. Grisom

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOE OF THE FAMILY OF COLLINS, Case No.: 21-CV-2136 JLS (DEB) 12 ORDER (1) GRANTING Plaintiff, DEFENDANT WERTHEIMER’S 13 v. MOTION TO DISMISS; (2) 14 DENYING AS MOOT REQUEST JEFF GRISOM; SAN DIEGO FOR JUDICIAL NOTICE; AND (3) 15 DEPARTMENT OF CHILD SUPPORT TO SHOW CAUSE REGARDING SERVICES; ADAM WORTHEMIRE; 16 SUBJECT MATTER JURISDICTION and JESUS SOTO, 17 (ECF Nos. 4, 6-1) Defendants. 18 19 20 21 Presently before the Court are Defendant Adam Wertheimer’s (erroneously sued as 22 “Adam Worthemire,” hereinafter “Defendant” or “Commissioner Wertheimer”) Motion to 23 Dismiss Plaintiff’s Complaint (“Mot.,” ECF No. 4) and Request for Judicial Notice 24 (“RJN,” ECF No. 6-1). Also before the Court are Plaintiff Joe of the Family of Collins’s 25 (“Plaintiff”) Opposition to the Motion (“Opp’n,” ECF No. 5), Defendant’s Reply in support 26 of the Motion (ECF No. 6), and Plaintiff’s Sur-Reply (“Sur-Reply,” ECF No. 9). Having 27 carefully reviewed Plaintiff’s Complaint (“Compl.,” ECF No. 1), the Parties’ arguments, 28 and the law, the Court GRANTS the Motion, DENIES AS MOOT the RJN, and 1 DISMISSES the Complaint as to Defendant. Based on the Court’s findings, the Court 2 further ORDERS Plaintiff to SHOW CAUSE why the remainder of this action should not 3 be dismissed for lack of subject matter jurisdiction. 4 BACKGROUND 5 Although not entirely clear in his Complaint, Plaintiff appears to allege that in 2017 6 his due process and civil rights were violated in relation to a child support and parentage 7 action in the San Diego Superior Court. See generally Compl. Defendant, the 8 Commissioner of the Superior Court of California, County of San Diego, presided over the 9 state court action. See id. Plaintiff contends that he attended a hearing before Defendant 10 by telephone on April 11, 2017, where Plaintiff allegedly “challenged the lack of service 11 of process, subject matter jurisdiction, [and the] constitutionality of the hearing” in state 12 court. Id. at 6. Plaintiff states that Defendant “set the hearing for continuation,” but 13 Plaintiff claims he was never notified of subsequent hearings that took place on or around 14 May 30, June 7, and September 5, 2017. See id. These hearings resulted in an allegedly 15 “fraudulent default” child support order, issued on October 24, 2017. See id. Plaintiff 16 contends he was not informed of the legal consequences of the child support order, such as 17 wage withholding, property liens, seizure and sale of property, seizure of tax refunds, and 18 adverse credit reporting. See id. 19 Plaintiff commenced this action on December 28, 2021, against Jeff Grisom, the 20 Acting Director of San Diego Child Support Services; the San Diego Department of Child 21 Support Services; the Honorable Adam Wertheimer, Commissioner of the Superior Court 22 of California, County of San Diego; and Jesus Soto, a Child Support Program attorney. 23 See generally Compl. Plaintiff appears to contend that the state court child support order 24 was fraudulent and violated his due process rights because (1) it was improper for a 25 commissioner rather than a judge to hear the case without his affirmative consent, (2) a 26 state court did not have jurisdiction to hear this type of action, (3) he was improperly 27 assigned an attorney to represent him without his consent or knowledge, and (4) he was 28 not informed of the legal consequences of the child support order. See id. at 6. Plaintiff 1 asserts a claim under 42 U.S.C. § 1983 for alleged violations of the “Fifth and Fourteenth 2 Amendments of the United States Constitution, 45 C.F.R. § 303.101(c)(2); 42 U.S.C. 3 § 666(a)(3)(A); and 42 U.S.C. § 666(a)(5)(C)(i).” Id. at 4. Plaintiff appears to be seeking 4 a judgment against Defendants for costs of this action, a letter of apology, and damages of 5 $3,000,000. See id. at 8. 6 Plaintiff filed an executed summons on February 4, 2022. ECF No. 4. 7 Commissioner Wertheimer is the only defendant who has appeared in this matter.1 See 8 generally Docket. Defendant’s Motion to Dismiss followed. 9 MOTION TO DISMISS 10 I. Legal Standard 11 Federal courts are courts of limited jurisdiction and, as such, have an obligation to 12 dismiss claims for which they lack subject matter jurisdiction. Demarest v. United States, 13 718 F.2d 964, 965 (9th Cir. 1983). Although “a document filed pro se is ‘to be liberally 14 construed,’ . . . and ‘a pro se complaint, however inartfully pleaded, must be held to less 15 stringent standards than formal pleadings drafted by lawyers,’” Erickson v. Pardus, 551 16 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), “[t]he party 17 asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a 18 motion to dismiss for lack of subject matter jurisdiction.” In re Dynamic Random Access 19 Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008). 20 Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for 21 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack is one where “the 22 challenger asserts that the allegations contained in a complaint are insufficient on their face 23 to invoke federal jurisdiction.” Id. In evaluating such a challenge, the court accepts the 24 factual allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 25 26 1 Commissioner Wertheimer claims he was not properly served in accordance with Federal Rule of Civil Procedure 4; however, he elected to voluntarily appear in this action by filing the present motion and 27 waived any defect in service. Mot. at 1 n.1; see also Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (“A general appearance or responsive pleading by a defendant that fails to dispute personal 28 1 (9th Cir. 2001). In contrast, where the defendant challenges the factual basis underlying 2 the allegations, the court need not accept the allegations as true and may instead make 3 factual determinations. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In ruling on 4 a challenge to subject matter jurisdiction, the district court is ordinarily free to hear 5 evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual 6 disputes where necessary.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 7 1983) (citing Thornhill Publ’g Co. v. Gen. Tel. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). 8 When making such a ruling, the district court may review evidence beyond the complaint 9 without converting the motion to dismiss into a motion for summary judgment. Savage v. 10 Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing White, 227 F.3d 11 at 1242). 12 II. Analysis 13 Defendant raises several arguments for why this Court should dismiss the claims 14 against him, including because the entire action is barred pursuant to the Rooker–Feldman 15 doctrine. Mot. at 5–6. 16 “Under Rooker–Feldman, a federal district court does not have subject matter 17 jurisdiction to hear a direct appeal from the final judgement of a state court.” See Noel v. 18 Hall, 341 F.3d 1148, 1154 (9th Cir. 2003); see also Rooker v. Fidelity Tr. Co., 263 U.S. 19 413 (1923); Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). Rooker– 20 Feldman precludes jurisdiction when federal court proceedings arise out of a final state 21 court determination that is “judicial in nature” and the issues raised are “inextricably 22 intertwined” with the state court proceedings, making the federal case a de facto appeal of 23 a state court decision. See Feldman, 460 U.S. at 476, 486; see also Pennzoil Co. v. Texaco, 24 Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring) (noting that a claim is inextricably 25 intertwined “if the federal claim succeeds only to the extent that the state court wrongly 26 decided the issues before it”). The Rooker–Feldman jurisdictional bar applies even if the 27 complaint raises federal constitutional issues. Feldman, 460 U.S. at 483 n.16, 486; 28 Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007). More specifically, the 1 bar applies if the challenge to the state court decision is brought as a § 1983 civil rights 2 action alleging violations of the Due Process Clause. See Branson v. Nott, 62 F.3d 287, 3 291 (9th Cir. 1995); Worldwide Church of God v. McNair, 805 F.2d 888, 893 n.4 (9th Cir. 4 1986). The district court lacks subject matter jurisdiction if the relief requested requires 5 “‘a mere revision of the errors and irregularities, or of the legality and correctness’ of the 6 state court judgment, not the ‘investigation of a new case arising upon new facts.’” 7 MacKay v. Pfeil, 827 F.2d 540, 545 (9th Cir. 1987) (quoting Barrow v. Hunton, 99 U.S. (9 8 Otto) 80, 82–83 (1878)). 9 Defendant argues that this Court lacks subject matter jurisdiction under Rooker– 10 Feldman because “a determination by this Court in favor of Plaintiff would unquestionably 11 undercut the decisions and judgments in the state court action.” Mot. at 6. Defendant 12 argues that the Court would have “to scrutinize both the rulings and application of various 13 state procedural rules to determine that Plaintiff was deprived of his civil rights.” Id. In 14 response, Plaintiff argues that his claim is outside Rooker–Feldman because his “legal 15 rights have been invaded and a federal statute provides for a general right to sue for such 16 invasion.” Opp’n at 6. Plaintiff claims that the state court “had neither personal nor subject 17 matter jurisdiction to adjudicate the matter, but they willingly ignored that.” Sur-Reply at 18 3. 19 The Court finds that the claim against Defendant is barred under Rooker–Feldman. 20 Although Plaintiff’s Complaint is not entirely clear as to which claims apply to which 21 defendant, Plaintiff calls upon this Court to review the legality of the San Diego County 22 Superior Court’s child support order. Plaintiff’s constitutional challenges to the San Diego 23 County Superior Court’s order require review of the state court’s decision and judgments 24 rather than an investigation of new factual issues. Plaintiff challenges the child support 25 order based on lack of jurisdiction, lack of service of process, and lack of notice of hearings. 26 See Compl. at 6. Additionally, Plaintiff claims it was improper for a commissioner instead 27 of a judge to preside over this type of case. See id. These types of claims, alleging that the 28 procedures and process were inadequate in a particular state court proceeding, fall squarely 1 under Rooker–Feldman. See, e.g., Mothershed v. Justices of Supreme Court, 410 F.3d 602, 2 607 (9th Cir. 2005) (noting that district court lacked subject matter jurisdiction pursuant to 3 Rooker–Feldman because plaintiff challenged a state court’s failure to hold a hearing 4 required by state rule). Thus, Plaintiff’s claims are “inextricably intertwined” with the state 5 court’s ruling. See Feldman 460 U.S. at 284–85; Dubinka v. Judges of Superior Ct. of 6 State of Cal. for Cnty. of L.A., 23 F.3d 218, 221 (9th Cir. 1994). Therefore, the case against 7 Defendant is barred under Rooker–Feldman. See, e.g., Nemcik v. Mills, No. 16-CV-00322- 8 BLF, 2016 WL 4364917, at *6 (N.D. Cal. Aug. 16, 2016) (“The law does not allow a 9 federal court to review the child support orders created by a state court.”); Rucker v. Cnty. 10 of Santa Clara, State of Cal., No. C02-5981 JSW, 2003 WL 21440151, at *2 (N.D. Cal. 11 June 17, 2003) (finding that under Rooker–Feldman, the court lacked subject matter 12 jurisdiction to declare a state court child support order garnishing disability benefit 13 payments void as a matter of law). 14 In sum, Rooker-Feldman applies to this case and bars Plaintiff’s claims against 15 Defendant.2 See Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) 16 (holding Rooker–Feldman applies in “cases brought by state-court losers complaining of 17 injuries caused by state-court judgements rendered before the district court proceedings 18 commenced and inviting district court review and rejection of those judgements”). 19 Accordingly, the Court GRANTS Defendant’s Motion.3 20 /// 21 22 2 Aside from the lack of subject matter jurisdiction over Plaintiff’s claims against Defendant, Plaintiff’s claims against Commissioner Wertheimer are barred by judicial immunity. Schucker v. Rockwood, 846 23 F.2d 1202, 1204 (9th Cir. 1988) (per curiam) (“Judges are absolutely immune from damages actions for judicial acts taken within the jurisdiction of their courts. . . . A judge loses absolute immunity only when 24 [the judge] acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature.”); 25 Franceschi v. Schwartz, 57 F.3d 828, 830 (9th Cir. 1995) (per curiam) (holding that judicial immunity extends to court commissioners performing judicial functions). 26 3 Defendant requests the Court take judicial notice of various superior court records related to Plaintiff’s 27 allegations in the present action. See generally RJN. As the Court has found it lacks subject matter jurisdiction based on Plaintiff’s Complaint, see supra, the Court declines to take judicial notice of these 28 1 ORDER TO SHOW CAUSE 2 Based on the foregoing, the Court is inclined to find Plaintiff’s entire case is barred 3 under the Rooker–Feldman doctrine. Rooker, 263 U.S. at 416; Feldman, 460 U.S. at 482. 4 Accordingly, this Court ORDERS Plaintiff TO SHOW CAUSE why the remainder of 5 this action should not be dismissed for lack of subject matter jurisdiction under Rooker– 6 Feldman. See Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94 (1998) (holding that 7 when a court determines that it lacks subject matter jurisdiction, its only remaining function 8 is to declare that fact and dismiss the action). Plaintiff SHALL FILE a response to this 9 Order not exceeding ten (10) pages on or before July 15, 2022. Plaintiff’s response 10 SHALL ADDRESS how his claims against the remaining defendants are not barred by 11 Rooker–Feldman such that federal subject matter jurisdiction exists over the instant action. 12 Should Plaintiff fail to timely respond to this Order, the Court will construe Plaintiff’s 13 non-response as agreement that federal subject matter jurisdiction is lacking and 14 dismissal of the remainder of this matter is appropriate. 15 CONCLUSION 16 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss 17 (ECF No. 4), DENIES AS MOOT Defendant’s Request for Judicial Notice (ECF No. 6- 18 1), and DISMISSES Plaintiff’s claims against Commissioner Wertheimer for lack of 19 subject matter jurisdiction. Given the jurisdictional deficiencies and Defendant’s judicial 20 immunity, the Court finds that amendment would be futile. Accordingly, Plaintiff’s 21 Complaint is dismissed as to Commissioner Wertheimer without leave to amend. Noll v. 22 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (holding while the court ordinarily would 23 permit a pro se plaintiff leave to amend, leave to amend should not be granted where it 24 appears amendment would be futile); Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 25 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is 26 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 27 (internal quotation marks omitted)). The Clerk of the Court SHALL TERMINATE 28 Defendant Adam Wertheimer from the docket. 1 Furthermore, the Court ORDERS Plaintiff to SHOW CAUSE why the remainder 2 ||of this action should not be dismissed for lack of subject matter jurisdiction. Plaintiff 3 || SHALL FILE a response to this Order not exceeding ten (10) pages on or before July 15, 4 2022. If Plaintiff fails to timely respond, the Court will dismiss this action both for lack of 5 subject matter jurisdiction and failure to comply with an order of this Court requiring a 6 || response. 7 IT IS SO ORDERED. 8 || Dated: June 15, 2022 . tt 9 pee Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28