Hon. Robert J.

Bryan

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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Roberta Kelly, Pro-Se,

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Plaintiff,
v.

NO. CV12-5088-RJB
MOTION TO DISMISS FILED BY DEFENDANTS AIKEN AND ACOSTA (Cowlitz County Superior Court Cause No. I 2-2-00036-l)
Noted for Consideration: March 2012
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JPMORGAN CHASE & CO.; USBANCORP/US BANK; LEE MITAU; GENERAL MORTGAGE GMAC; MERSCORP; MERS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; JOHN V. ACOSTA; ANN AIKEN; MATTHEW CLEVERLEY; C. MARIE ECKERT; TERESA H. PEARSON; JEANNE KALLAGE SINNOTT; ET AL,
Defendants.

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COME NOW the defendants, John V. Acosta and Ann Aiken (collectively, "Defendants" or "the Government"), in their official capacities as federal judicial officers

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in the United States District Court for the District of Oregon, by and through their
undersigned counsel of record, Jenny A. Durkan, United States Attorney for the Western

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District of Washington, and Rebecca S. Cohen, Assistant U.S. Attorney for said District,
and hereby respectfully request the Court to dismiss all claims against the Government

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack
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of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

MOTION TO DISMISS - I

UNITED STATES ATTORNEY

700 Stcwafl Street, Suile 5220 Seatle, W ssbiDgtoD 98 l0 I -l 2? I (206) 553-7970

(cv l2-5088-RJB)

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I.

BACKGROUND

On November 3, 2008, Plaintiff Roberta Kelly filed a lawsuit against U.S. Bank in
the Multnomah County Circuit Court in Oregon. Kelly v. U.S. Bank, Case No. 081115858 (Multnomah County Circuit Ct.). Plaintiff's Complaint sought to prevent U.S.

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Bank from foreclosing on real property she owned in Multnomah County. On December 5,2008, U.S. Bank removed the case to the United Stated District Court for the District of Oregon. Kelly v. U.S. Bank,Case No. 08-CV- 1421 (D.Oregon) (the "2008 Litigation").
Magistrate Judge John V. Acosta was the judge assigned to preside over the 2008

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Litigation. After lengthyproceedings, on July 29,2010, Judge Acosta issued

a Findings

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& Recommendation ("F&R") in which he recommended that the Court grant summary
judgment in favor of U.S. Bank. Kelly v. U.S. Bank, Case No. 08-CV-1421, at Dkt. No.
218 (D. Oregon), On October 15,2010, District Court Judge Michael W. Mosman
adopted Judge Acosta's F&R as his own. Id. at Dkt. No.

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262. Accordingly, on December

9,2010, Judge Mosman issued a Judgment dismissing Plaintiff's claims with prejudice
and awarding judgment in favor of U.S. Bank on its counterclaim in the amount

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of

gI97 ,146.04, plus prejudgment and post-judgment interest. Id. at Dkt. No. 279. During
the course of the 2008 Litigation, Chief Judge Anne L. Aiken issued orders rejecting

Plaintiff's attempts to remove Judge Acosta from presiding over the case. Id. atDkt.
Numbers 144, 179.
Since filing the 2008 Litigation, Plaintiff has filed no less than five additional
cases

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in the District of Oregon, all of which have been dismissed.' See Case Numbers 09-

CV-1 125, I1 -CV-002 I

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I -CV -949, 1I-CV -97 5,

-CV-

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78 (D. Oregon). Chief

Judge Aiken and Judge Acosta were named as defendants in three of the cases. See Case

Numbers ll-CV-949,IL-CV-97 5, 11-CV-l178 (D. Oregon). On November 2,2011,

' Plaintiff also recently filed a new case in the Multnomah County Circuit Court, which has now been removed to the District of Oregon. See Case No. lz-CV - 199 (D. Oregon). The defendants include Chief Judge Aiken, Judge Acosta, Judge Mosman, and Bankruptcy Court Judge Randall Dunn.
MOTION TO DISMISS - 2
UNITED STATES ATTORNEY
700 Stevart Streel, Suile 5220 Seattle, WashirgtoD 98 I 0l -l 27 I (206\ 553-7970

(cv l2-5088-RJB)

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Chief Judge Aiken issued a Pre-Filing Order against Plaintiff Roberta Kelly that read in
relevant part as follows:

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WEBSTER, individually, collectively, or in alleged connection with any other party, SHALL BE REVIEWED BY THIS COURT AND ORDERED FILED ONLY IF SUCH FILINGS ARE DEEMED NOT FRIVOLOUS OR REPETITIVE.

All filings from ROBERTA KELLY AND/OR BRENT

In re Kelly,
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Case

No. 1I-MC-9266, at Dkt, No.

(D. Oregon).

On January
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2012, Plaintiff filed a Complaint in the Cowlitz County Superior

Court against U.S. Bank, Chief Judge Aiken, Judge Acosta, and approximately ten additional defendants. Case No. l2-2-AW6-1 (Cowlitz County Superior Court). Although
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ambiguous, the Complaint appears to relate to the foreclosure of property in Castle Rock,
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Washington. Plaintiff's Complaint has been filed at Docket No. 3 to this action, and does
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not give any indication as to why Chief Judge Aiken and Judge Acosta were named

as

defendants. Because the allegations in the Complaint appear to relate to the facts at issue
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in her prior cases in the District of Oregon, the Government has assumed that the
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Complaint asserts claims against Chief Judge Aiken and Judge Acosta in their official
capacities, and thus that the claims are actually claims against the federal Government.2

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See, e.g., Kentuclqt v. Graham, 473 U.S. 159, I 65-66 (1985) (explaining that

"official
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capacity" claims against an officer of the government are "only another way of pleading
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action against an entity of which an officer is an agent").

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On February I,2012, the Government filed a Notice of Removal removing the

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Cowlitz County case to this Court pursuant to 28 U.S.C. g 1442, because Defendants
"Acosta and Aiken are both judicial officers of the courts of the United States who were at

all times relevant to this lawsuit acting under color of their office and/or in the
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performance of their duties

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as

judicial officers of the courts of the United States."

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2 It should be noted that even if Plaintiff intended to assert claims against Chief Judge Aiken and Judge Acosta in their individual capacities, they would be entitled to absolute immunity because "[]udges are absolutely immune from civil liability for damages for their judicial acts." Mullis v. U.^S. Bankr. Courtfor Dist. of Nevada,828 F.2d 1385, 1388 (9th Cir. 1987); see also Ashelman v. Pope,793 F.2d 1072, 1075 (9th Cir. 1986). The doctrine "should be broadly construed to effectuate the policies supporting ffudicial] immunity." Ashelman,793 F.2d at 1076.
MOTION TO DISMISS - 3
UNITED STATES ATTORNEY
700 Slcwan Strrcl, Suitc 5220 Seattle, Washirglon 981 0l.l 271

(cv l2-5088-RJB)

(206) ss3.1970

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Dkt. No. 1; 28 U.S.C . $ Va2@)(3). Defendants now respectfully move the Court f,or an
order dismissing all claims against the Government.

II.
claims

ANALYSIS AND ARGUMENT

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Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of

if

the court lacks subject matter jurisdiction. Jurisdiction is a threshold issue that

should be addressed before considering the merits. Steel Co. v. Citizens for a Better Env't,
523 U.S. 83,g4-96 (1998); Retail FlooringDealers of Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146,1148 (9th Cir. 2003). "Defects in subject matter jurisdiction may be raised

at any time, by the parties or by the court on its own motion, and may never be waived."
Cripps

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v.Lfe Ins. Co. of N. Am.,980 F.2d 1261,1264 (gth Cir. 1992). The burden of
jurisdiction." Thontpson
v. McCombe, 99 F.3d 352,353 (9th

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proving subject matter jurisdiction in this case rests upon the plaintiff, the "party invoking
the federal court's

Cir.

1996).

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If the court finds that it lacks subject matter jurisdiction, then it "must dismiss the action."
Fed. R. Civ. P. 12(hX3).

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The United States, as sovereign, is immune from suit unless it consents to be sued.

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u.s. v. Mitchell,445 u.s. 535, 538, 100 S.Cr. 1349 (198A); Cato v. U.5.,70 F.3d 1103,
I 107 (9th

Cir. 1995). Any waiver of that immunity must be strictly construed in favor of

theUnitedStates. U.S.v.NordicVillage, lnc.,503U.S.30,33-34(1992);Jervesv.(J.5.,

966 F .2d 517 , 521 (9th Cir, 1 992).

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It a claim does not fall squarely within the strict

Cir.

terms

of

waiver of sovereign immunity, a district court is without subject matter jurisdiction.

1993).

See, e.g., Mundy v. U.5., 983 F.2d 950,952 (9th

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Likewise, a complaint should be dismissed for failure to state a claim upon which

relief can be granted if it appears beyond a doubt that the plaintiff can prove no set of facts
in support of the claim that would entitle him to relief. Fed. R. Civ. P. 12(bX6). While
detailed factual allegations are not generally required, the facts alleged must state a claim

for relief that is plausible on its face and "must be enough to raise a right to relief above
the speculative level. . .

."

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570-72 (2007).

A claim has facial plausibility when a plaintiff pleads factual content that allows the court
MOTION TO DISMISS - 4
UNITED STATES ATTORNEY
700 SlewBn SEeer, Suire 5220 Scattlc, W aslriDgloD 98 I 0 l -l 271 (206\ 553-7970

(cv 12-5088-RJB)

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to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.; see also Ashcroft v. Iqbal, et al., 129 S. Ct. 1937,1949 (2009). "Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not

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suffice." Iqbal,l29

S.

Ct. al1949-1950. Factual allegations of the complaint are

generally taken as true in motions to dismiss, however, the Court is "not bound to accept
as true a legal conclusion couched as a factual

allegation." Id. And, althoughpro

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pleadings are held to less rigid standards than those drafted by attorneys, they still "must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept. of the Navy,66 F.3d 193,199 (9th Cir.
1995); see also GJR Invs., Inc. v. County of Escambia,

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Fla.,

132

F.3d 1359, 1369 (11th

Cir. 1998) (leniency afforded pro

se litigants does not permit coufi to serve as "de facto

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counsel" and "rewrite an otherwise deficient pleading in order to sustain an action").

In the present case, Plaintiff's Complaint fails to identify any waiver of sovereign immunity that would allow her to pursue claims against federal judicial officers in their

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official capacities, and the claims against the Government must therefore be dismissed for
lack of subject matter jurisdiction. Nor does Plaintiff's Complaint articulate any specific
cause

of action against the Government. In fact, other than including their names in the

caption and in the Certificate of Service, the onlymention of Chief Judge Aiken and Judge Acosta in the Complaint is language stating that all of the defendants were direct participants in what Plaintiff describes as a "Sail Fail" that allegedly caused harm to property in Portland, Oregon. Dkt. No. 3, at page to raise a right to relief above the speculative

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2. This language is simply not "enough

level. . ," as required by Twombly, as the

Complaint makes no attempt to describe the "Sail Fail" or how it allegedly harmed

Plaintiff, to explain how Chief Judge Aiken or Judge Acosta were any way involved, or to
assert a specific cause

of action against the Government. Under these circumstances, the

claims against the Government must be dismissed due to Plaintiff's failure to state a claim.

MOTION TO DISMISS - 5

(cv r 2-5088-RJB)

UNITED STATES ATTORNEY 700 Slevafr Steet, Srite 5220 Seanlc, Washington 9E l0l-12? I
(206) 553-7970

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III.

CONCLUSION

For the foregoing reasons, the Government respectfully requests the Court to grants

its Motion and dismiss all claims against Defendants Aiken and Acosta. A proposed form

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of order is submitted herewith for the Court's consideration. DATED this 8th day of February, 2012.

Respectfully submitted,
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JENNY A. DURKAN United States Attorney

s/ Rebecca S. Cohen

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Assistant United States Attorney United States Attorney's Office 700 Stewart Street, Suite 5220 Seattle, Washington 98 1 0 I -127 I Phone: 206-553-7970 Fax: 206-553-4073 E-mail: rebecca.cohen@usdoj.gov

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MOTION TO DISMISS - 6

UNITED STATES ATTORNEY

700 Slewsn Strccl, Suite 5220 Sestlle, WssbingloD 98 I 0 I -l 27 I {206) 553-7970

(cv l2-s088-RJB)

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that she is an employee in the United States Attorney

Office for the Western District of Washington and is a person of such age and discretion
be competent to serve papers;

as to

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That on February 8,2012, she caused copies of the Notice of Removal of Civil Action to be served upon the individual(s) hereinafter named by first class mail, addressed as follows: Roberta Kelly 200 Coyote Lane Castle Rock, WA 98611 Roberta Kelly 5109 NE Ainsworth Street Portland, OR 97218

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Jeff C. Duncan Brecht Sussman Shank LLP 1000 SW Broadway, Ste. 1400 Portland, OR 97205-3089 (GMAC) Matthew Cleverley Fidelity National Title Group I20A - 6th Ave., Ste. 620
Seattle, WA 98101-3 125 Stephen M. Cutler, Esq. & Co. 270 Park Ave., Fl. 48 New York, NY 10017-2014
JP Morgan Chase

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C. Marie Eckert Miller Nash LLP 118 SW 5th Ave., Ste. 3400 Portland, OF.97204 (US Bank)

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Michael J. McMahon Etter McMahon Lamberson Clary & Oreskovich PC 618 W. Riverside Ave., Ste. 210 Spokane, WA 99201-0602 (JP Morgan Chase)
Lee Mitau
U

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SBANCORP/US BANK/GMAC/MERS BC MN-H231 Minneapolis, MN 55462

800 Nicollet Mall,

MOTION TO DISMISS - 7

(cv 12-5088-RJB)

UNITED STATES ATTORNEY 700 Slevan Stccl, Suite 5220

Seattle, WashitrgloD 9t l0I -l 27 I {206) 553-?970

)
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Teresa H. Pearson Miller Nash LLP 111 SW 5th Ave,, Ste. 3400 Portland, OR 97204 (US Bank)
Jeanne Kallage Sinnott

Miller Nash LLP 111 SW 5th Ave., Ste. 3400

Portland, OR 97204 (US Bank)

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David A. Weibel Bishop White Marshall & Weibel 720 Olive Way, Ste. 1201
Seattle, WA 98101- I 878

PS

AKA Homecomings Financial

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GMAC P. O. Box 200 Detroit, M[48265

MERS c/o GMAC 3451 Hammond Ave. Mail Code 507-345-186 Waterloo, IA 50702

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DATED this 9th day of February, 2012.

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s/Sharon P. Gore

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Legal Assistant United States Attorney's Office 700 Stewart Street, Suite 5220 Seattle, Washington 98 1 0 l -127 I Phone: 206-553-7970 FAX: 206-553-4073 E-mail: sharon. gore@usdoi. gov

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MOTION TO DISMISS -

UNITED STATES ATTORNEY

700 Stewsn Srrecl, Suite 5220 Seanle, WasbitrgtoD 9E I 0l-1271 (206) 553-79?0

(cv 12-5088-RJB)

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Honorable Robert J. Bryan

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Roberta Kelly,

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Plaintiff,
V.

NO. CVl2-5088-RJB

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JPMORGAN CHASE & CO.; USBANCORP/US BANK; LEE MITAU; GENERAL MORTGAGE GMAC; MERSCORP; MERS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; JOHN V. ACOSTA; ANN AIKEN; MATTHEW CLEVERLEY; C. MARIE ECKERT; TERESA H. PEARSON; JEANNE KALLAGE SINNOTT; ET AL,
Defendants.

IPROPOSEDI ORDER

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This matter came before the Court on the Motion to Dismiss frled by Defendants Ann

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Aiken and John V. Acosta ("the Government"). The Court having read and considered the
Government's Motion, any documents filed in opposition, and the Government's reply, the Court finds itself fully advised and hereby ORDERS:

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ORDER GRANTING MOTION TO DISMISS -

UNITED STATES ATTORNEY

700 Stwan Sreer, Suile 5220 Soattle, WashiEgtoD 981 0 l -127 I
(206'^)

(cv l2-5088-RIB)

s53-7970

WAWD CM/ECF Version 4.2

Page 1

of

Motions
3:12-cv-05088-RJB Kelly v. JPMorqan Chase & Co. et al
U.S. District

Court
.

United States District Court for the Western District of Washington

Notice of Electronic Filing

The following transaction was entered by Cohen, Rebecca on2l8l2012at 10:53 AM PST and

filed on2l8l20L2

Name: Number: Filer:

Case Case

Kelly v. JPMorgan Chase & Co. et al

3:12-cv-05088-RJB

Ann Aiken John V Acosta Document Number:6 Docket Text: MOTION to Dismiss by Defendants John V Acosta, Ann Aiken. {Attachments: # (1} Proposed

Order) Noting Date 31212012, (Gohen, Rebecca)

3:12-cv-05088-RJB Notice has been electronically mailed to:

JeffD Brecht jeffb@sussmanshank.com

Michael J McMahon mjml3@ettermcmahon.com

Cohen rebecca.cohen@usdoj.gov, amy.hanson@usdoj.gov, ECFCiv.USAWAW@usdoj.gov, shannon.connery@usdoj.gov, sharon.gore@usdoj.gov, tracy.ung@usdoj.gov

Rebecca Shapiro

3:12-cv-05088-RJB Notice will not be electronically mailed to:

Roberta Kelly 200 Coyote Lane Castle Rock, WA 98611 The following document(s) are associated with this transaction:

Document description:Main Document 0riginal filename:n/a Electronic document Stamp: ISTAMP dcecfStam p_ID: I 03 5 9 2927 1 lDate:Z I 8 I 20 1 2] [F i leNumber:4 I 3 0 8 79-0] [8b658f0 1 63d8f99cd5fd035Iz2lb\daa88ac5ad82e04dl927a998c35d4d43b727423 I 0 I fd9f5 f6aefbb688 I d48d7dd3beea3 l0de5 46e7 33 43 44bt9bae75d6eb4ll Document description:Proposed Order Original filename:n/a Electronic document Stamp: ISTAMP dcecfStamp_ID: I 0 3 5 9 2927 I lDate:Z I 8 I 20 I 2] [F i leNumber:4 I 3 0 879- I ] [65 1 I bf99e22336f695a96aadfa13568b861 1d9fcbe490b6eb4c907A6150b72654305 1 2 I 8 3 d d 8 4 6 Z0 1 I 27 3 I 5 a7 4 c 1 2883 6 d c 9 3 d 1 5 d I eb} c e 67 9 67 e ca7 9 a5 f9 82 5ll

https ://ecf.wawd.uscourts. gov/cgi-binlDispatch.pl? 1092903 50 899546

2/812012