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Terrado v. U.S. Bank National Association

United States District Court, D. Hawaii

March 8, 2019




         On July 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.


         Terrado 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.

         Summons 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.[1] 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.

         A 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.[2] 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.


         I. Subject Matter Jurisdiction

         Here, 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).

         When 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.

         II. Pro Se Status

         Because 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).

         A 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).


         U.S. 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 ...

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