United States District Court, D. Hawaii
ESTELITA T. TERRADO, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, Defendant.
ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS
THE FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND, AND (2)
RULING ON PLAINTIFF'S MOTIONS TO STRIKE
DEIRICK K. WATSON UNITED STATES DISTRICT JUDGE
17, 2018, Plaintiff Estelita T. Terrado, proceeding pro se,
filed a First Amended Complaint (FAC) against Defendant U.S.
Bank National Association (“U.S. Bank”), alleging
that U.S. Bank had fraudulently and maliciously deprived her
of her real and personal property and willfully caused her
aunt to fall. Terrado sought the return of her real property,
compensatory and punitive damages, and injunctive relief. On
December 27, 2018, U.S. Bank moved to dismiss the FAC on
various grounds, including the applicability of the
Rooker-Feldman doctrine and res judicata. Because
the claims and relief sought in the FAC are either barred by
the Rooker-Feldman doctrine or because Terrado lacks
standing with respect to her aunt's fall, the Motion to
Dismiss is GRANTED, and the FAC is DISMISSED for lack of
subject matter jurisdiction. Because amendment would be
futile, Terrado is not entitled to leave to amend.
Terrado's motions to strike are denied or denied as moot.
filed the FAC on July 17, 2018. Dkt. No. 16. Therein, Terrado
alleged three causes of action. First, the loss of real and
personal property in violation of Article I, Section 10 of
the U.S. Constitution and the Fifth Amendment. Second,
willful conduct causing her aunt to fall after the removal of
Terrado's furniture from her home. Third, interference
with a contract between her and the original bank that held a
mortgage on her real property. Liberally, construing the FAC,
apart from the claims brought under the Constitution, it
appears that Terrado's claims sound in fraud, negligence,
and tortious interference with contract. Among other things,
Terrado seeks the return of her real property, compensation
for any damages caused to the same and her personal property,
nullification of U.S. Bank's ownership of the real
property, and $7 million in punitive damages.
was issued the same day as the filing of the FAC. Dkt. No.
17. On August 30, 2018, Terrado moved for entry of default.
Dkt. No. 19. Soon thereafter, the U.S. Magistrate Judge
assigned to this proceeding denied Terrado's request for
entry of default, explaining that Terrado had failed to
follow the requirements for service by certified mail. Dkt.
No. 21. A week later, Terrado filed a second
request for entry of default, Dkt. No. 22, which the U.S.
Magistrate Judge denied for the same reasons set forth in his
earlier order, Dkt. No. 23. On October 2, 2018, Terrado again
moved for entry of default, Dkt. No. 24, which the Magistrate
Judge, again, denied for the reasons already on the record,
Dkt. No. 25. On October 15, 2018, Terrado moved for entry of
default for a fourth time. Dkt. No. 26. Soon thereafter, the
Magistrate Judge denied this request for entry of default,
explaining, inter alia, that the proof Terrado
submitted showed that certified mail had been sent to U.S.
Bank prior to the Magistrate Judge authorizing such service.
Dkt. No. 27. On October 31, 2018, Terrado filed a motion in
which she stated that she was attempting to obtain relief for
U.S. Bank's failure to answer or defend itself and
appeared to attach a receipt showing that certified mail was
sent to U.S. Bank on October 27, 2018. Dkt. No. 28. The
Magistrate Judge denied that motion for the reasons in the
record. Dkt. No. 29. On November 14, 2018, Terrado filed a
motion in which she appeared to ask the Magistrate Judge to
review a Federal Rule of Civil Procedure and a State
statutory provision relevant to service. Dkt. No. 30. The
Magistrate Judge denied that motion, construing it as a
request for reconsideration of the Magistrate Judge's
prior orders. Dkt. No. 31.
little over a month later, the Magistrate Judge vacated a
scheduling conference because U.S. Bank had not appeared in
this action, and instructed Terrado to file an appropriate
request for entry of default, noting, inter alia,
that Terrado's prior motion did not include a return
receipt from U.S. Bank. Dkt. No. 32. A day later, on December
27, 2018, U.S. Bank appeared in this action by filing the
Motion to Dismiss. Dkt. No. 33. A hearing was then set on the
Motion to Dismiss for February 22, 2019 (“the Motion
Hearing”). Dkt. No. 34. On January 29, 2019, Terrado
filed a “Motion to Strike Defendant['s] Answer in
the Alternative Enter Default Judgment” (“the
First Motion to Strike”). Dkt. No. 38. Other than the
First Motion to Strike, Terrado did not file a response to
the Motion to Dismiss. U.S. Bank was ordered to respond to
the First Motion to Strike by February 13, 2019, Dkt. No. 39,
and, on February 14, 2019, U.S. Bank filed a response in
opposition, Dkt. No. 40. As scheduled, the Motion Hearing took
place on February 22, 2019. Dkt. No. 42. While counsel for
U.S. Bank attended the Motion Hearing, Terrado did not
appear, despite the Court attempting to reach her at the
telephone number listed on CM/ECF for her. Id.
Finally, on February 25, 2019, Terrado filed a “Motion
to Strike” U.S. Bank's response in opposition to
the First Motion to Strike (“the Second Motion to
Strike”). Dkt. No. 43.
Subject Matter Jurisdiction
U.S. Bank argues that the Rooker-Feldman doctrine
prevents Terrado from bringing some or all of her claims.
“The Rooker-Feldman doctrine recognizes that
federal district courts generally lack subject matter
jurisdiction to review state court judgments.”
Fontana Empire Ctr., LLC v. City of Fontana, 307
F.3d 987, 992 (9th Cir. 2002) (citing Dist. of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923)). The
Court, therefore, construes this argument as one challenging
the Court's subject matter jurisdiction, which is
properly brought under Federal Rule of Civil Procedure
12(b)(1). See Fed. R.Civ.P. 12(b)(1) (concerning
lack of subject matter jurisdiction); see also Murray v.
Dep't of Consumer & Bus. Services, 2010 WL
3604657, at *9 n.4 (D.Or. Aug. 12, 2010) (applying Rule
12(b)(1) principles to a Rooker-Feldman argument).
presented with an argument under Rule 12(b)(1), “the
district court is ordinarily free to hear evidence regarding
jurisdiction and to rule on that issue prior to trial,
resolving factual disputes where necessary.”
Augustine v. United States, 704 F.2d 1074, 1077 (9th
Cir. 1983). Where the court considers evidence outside the
pleadings for this purpose, “[n]o presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Id.
Pro Se Status
Terrado is proceeding pro se, the Court liberally construes
her filings. Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 1987). With that in mind, “[u]nless it is
absolutely clear that no amendment can cure the defect . . .
a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
court, however, may deny leave to amend where, inter
alia, further amendment would be futile. E.g.,
Gardner v. Martino, 563 F.3d 981, 990 (9th Cir.
2009); Leadsinger, Inc. v. BMG Music Publ'g, 512
F.3d 522, 532 (9th Cir. 2008).
Bank moves for dismissal of all causes of action asserted in
the FAC with prejudice. It does so, in part, relying on the
Rooker-Feldman doctrine. The Court addresses this
issue first because it is jurisdictional. The Court ...