Goodwin v. Bruggeman Hatch et al

Filing 97

ORDER Adopting the 93 December 11, 2017 Recommendation of United States Magistrate Judge. Claims 12, 13, 15, 16, 18, 19, and 20 of Plaintiff's Second Amended Complaint (Doc. # 83 ) are DISMISSED WITH PREJUDICE. Claims 1-10, 11, 14, 17, and 23 of Plaintiff's Second Amended Complaint (Doc. # 83 ) are DISMISSED WITH PREJUDICE as indicated in the attached Order. Claims 21, 22, 24, and 25 of Plaintiff's Second Amended Complaint (Doc. # 83 ) are DISMISSED WITHOUT PREJUDIC E. The following claims in Plaintiff's Second Amended Complaint (Doc. # 83 ) remain: Claims 1, 3, 6, 7, and 8 against the Doe Defendants; Claims 2, 4, 5, 9, 10, 11, 14, 17, and 23 against the Doe Defendants, VLG Investments LLC, VLG Investments 2006 LLC, VLG Investments 2007 LLC, VLG Investments 2008 LLC, HEWM Investors LLC, HEWM Investors II LLC, and HEWM/VLG Investments LLC; Claim 26 against Defendants. By Judge Christine M. Arguello on 01/12/2018. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 16-cv-00751-CMA-KLM
JON A. GOODWIN,
Plaintiff,
v.
MARCIA ANN BRUGGEMAN HATCH,
SEAMUS JOHN PAUL HATCH,
MICHAEL DOUGLAS BOCK,
GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP,
ROBERT V. GUNDERSON, JR.,
SCOTT CHARLES DETTMER,
THOMAS F. VILLENEUVE,
DANIEL JURG NIEHANS,
DANIEL E. O’CONNOR,
KENNETH ROBERT McVAY,
IVAN ALEXANDER GAVIRIA,
DANIEL E. O’CONNOR,
KENNETH ROBERT McVAY,
JOHNSON & JOHNSON LLP,
NEVILLE LAWRENCE JOHNSON
DOUGLAS LOWELL JOHNSON,
JONATHAN MARTIN TURCO,
LAN PHONG VU,
DIANA BIAFORA SPARAGNA,
TINA LOUISE SCATUORCHIO-GOODWIN,
BARRY STEVEN LEVIN,
MATHEW LLOYD LARRABEE,
ROBERT A. ESPEN,
DAVID MARK JARGIELLO,
RAMSEY & EHRLICH LLP,
MILES FREDRICK EHRLICH,
ISMAIL JOMO RAMSEY
FOLGER LEVIN KAHN, LLP,
MICHAEL ALEXNDER KAHN,
JOHN DANIEL SHARP,
DENELLE MARIE DIXON-THAYER,
LEWIS ROCA ROTHGERBER CHRISTIE, LLP,

FREDRICK JAMES BAUMANN,
ALEX C. MYERS,
HELLER EHRMAN (CALIFORNIA),
VLG INVESTMENTS LLC,
VLG INVESTMENTS 2006 LLC,
VLG INVESTMENTS 2007 LLC,
VLG INVESTMENTS 2008, LLC,
HEWM INVESTORS, LLC,
HEWM INVESTORS II, LLC,
HEWM/VLG INVESTMENTS, LLC,
DOES 1 – 100,
Defendants.
ORDER ADOPTING THE DECEMBER 11, 2017 RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
This matter is before the Court upon the December 11, 2017, Recommendation
by United States Magistrate Judge Kristen L. Mix that various claims be dismissed.
(Doc. # 93.) Plaintiff timely objected to the portions of the Recommendation that
recommended dismissal of certain claims. (Doc. # 94.) For the reasons described
herein, Plaintiff’s Objection is overruled. The Court affirms and adopts the
Recommendation.
I.

BACKGROUND

This suit is the second lawsuit Plaintiff has filed in the Court as to the disbanding
of his “merchant banking firm,” Barra Partners LLP (“Barra Partners”), in 2003.
A.

THE 2013 CASE
In late 2013, Plaintiff filed a lawsuit in this Court, Goodwin v. Bruggeman-Hatch,

13-cv-02973-REB-MEH (the “2013 Case”), alleging 22 claims against 65 named

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defendants and 1,000 named defendants. (2013 Case, Doc. # 1.) The 2013 Case
arose out of Plaintiff’s belief that the defendants conspired to steal money and business
opportunities from him and Barra Partners and to breakup Barra Partners. (Id.)
Eventually, all claims in the 2013 Case were dismissed. (2013 Case, Doc. # 388). The
Tenth Circuit subsequently dismissed Plaintiff’s appeal for failure to prosecute. (2013
Case, Doc. # 404.)
B.

PROCEDURAL HISTORY
Plaintiff filed the instant action on March 31, 2016, approximately 16 months after

the Tenth Circuit denied Plaintiff’s appeal of the 2013 Case. See (Doc. # 1.) In his 404page Second Amended Complaint, Plaintiff alleges a criminal enterprise and conspiracy
against him and asserts claims for, among other things, racketeering, breaches of
fiduciary duties, breaches of contract, and fraud. (Doc. # 83.) Thirty Defendants in this
action were also defendants in the 2013 Case, see (2013 Case, Doc. # 1); this action
also has eleven new named Defendants and one hundred Doe Defendants as
compared to the 2013 Case, see (Doc. # 83). As Magistrate Judge Mix detailed,
Plaintiff’s claims implicate three prior state court judgments involving the parties:
The first state court judgment is a 2007 order from the California Superior Court
in San Francisco County (the “San Francisco court”) granting an injunction
against Plaintiff prohibiting him from publishing defamatory statements online.
The second state court judgment is a 2011 order from the California Superior
Court in Los Angeles County (the “Los Angeles court”) granting an injunction
against Plaintiff relating to defamatory statements and barring him from republishing any of them on the internet or on any other medium. The third state
court judgment is an order from the Denver District court, later affirmed by the
Colorado Court of Appeals, which domesticated the permanent injunction from
the Los Angeles court.
(Doc. # 93 at 3) (internal citations omitted.)
3

Several Defendants (“Moving Defendants”) filed a Motion for Order to Show
Cause on September 19, 2016. 1 (Doc. # 84.) Describing Plaintiff’s claims as “chiefly
the same” as those in the 2013 Case, Moving Defendants argued that Plaintiff’s claims
are barred by claim preclusion, issue preclusion, and the Rooker-Feldman doctrine. (Id.
at 3–4.) Moving Defendants also asked the Court to impose filing limitations on Plaintiff,
asserting that “this action makes clear that [Plaintiff] habitually ignores the preclusive
effect of adverse judgments.” (Id. at 7.) Plaintiff responded in opposition to Moving
Defendants’ Motion for Order to Show Cause on October 19, 2016. (Doc. # 88.)
Plaintiff argued that there are material distinctions between his claims in this action and
those he asserted in the 2013 Case. (Id. at 15.)
Magistrate Judge Mix issued the Order to Show Cause on November 4, 2016.
(Doc. # 90.) Her order required Plaintiff to show cause in writing “(1) why this case is
not barred by claim preclusion, issue preclusion, and/or the Rooker Feldman doctrine
and therefore legally frivolous, and (2) why [the Court] should not enjoin [Plaintiff] from
filing any future pro se actions in this Court.” (Id. at 5–6.) On November 30, 2016,
Plaintiff responded to the Order to Show Cause, arguing Moving Defendants’ “defenses
of claim and issue preclusion and the Rooker-Feldman doctrine . . . are without
evidence and merit.” (Doc. # 92 at 25.)
1

Defendants who jointly filed the Motion for Order to Show Cause (Doc. # 84) are Marcia Hatch,
Seamus Hatch, Aran Strategic Finance, Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP, Robert Gunderson, Scott Dettmer, Thomas Villeneuve, Daniel O’Connor,
Kenneth McVay, Ivan Gaviria, Daniel Niehans, Frederick Baumann, Alex Myers, Lewis Roca
Rothgerber Christie LLP, Folger Levin & Kahn LLP, Michael Alexander Kahn, John Daniel
Sharp, Denelle Marie Dixon-Thayer, Ramsey & Ehrlich, LLP, Miles Frederick Ehrlich, Ismail
Jomo Ramsey, David Jargiello, Matthew Larrabee, Barry Levin, Johnson & Johnson LLP,
Neville Johnson, Douglas Johnson, Jonathon Turco, Lan Vu, Michael Bock and Tina
Scatuorchio-Goodwin.
4

C.

THE MAGISTRATE JUDGE’S RECOMMENDATION
Magistrate Judge Mix issued her Recommendation on December 11, 2017.

(Doc. # 93.) Magistrate Judge Mix first applied the Rooker-Feldman doctrine to
Plaintiff’s claims and then considered whether claim preclusion and issue preclusion
barred any of Plaintiff’s claims. (Id. at 4–33.) She recommended that certain claims be
dismissed with prejudice and others dismissed without prejudice. (Id. at 33–34.) Under
her Recommendation, fifteen claims against certain Defendants would remain. (Id. at
34.) Plaintiff timely objected to the Recommendation on December 26, 2017. (Doc.
# 94.) Moving Defendants responded to Plaintiff’s Objection on January 9, 2018. (Doc.
# 96.)
II.
A.

STANDARDS OF REVIEW

REVIEW OF A RECOMMENDATION
When a magistrate judge issues a recommendation on a dispositive matter,

Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
to.” An objection is properly made if it is both timely and specific. United States v. One
Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th
Cir.1996). In conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

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B.

PRO SE PLAINTIFF
Plaintiff proceeds pro se. The Court, therefore, reviews his pleading “liberally

and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell
v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a
pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts
that have not been alleged, or that a defendant has violated laws in ways that a plaintiff
has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170,
1173–74 (10th Cir. 1997) (a court may not “supply additional factual allegations to round
out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.
1991) (a court may not “construct arguments or theories for the plaintiff in the absence
of any discussion of those issues”). Nor does pro se status entitle a litigant to an
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
III.
A.

ANALYSIS

THE ROOKER-FELDMAN DOCTRINE
Magistrate Judge Mix recommended that Plaintiff’s Claims 24, 25, 21, and 22 be

dismissed without prejudice for lack of subject matter jurisdiction, pursuant to the
Rooker-Feldman doctrine. (Doc. # 93 at 8, 12.)
First, Magistrate Judge explained that Plaintiff’s Claims 24 and 25 allege that
various Defendants defrauded the San Francisco and Los Angeles courts in 2007 and
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2011. (Id. at 6–7.) She then concluded that these claims are “inextricably intertwined”
with the San Francisco and Los Angeles courts’ judgments and thus barred by the
Rooker-Feldman doctrine. (Id.) Magistrate Judge Mix rejected Plaintiff’s attempt to
carve out an “extrinsic fraud” exception to the Rooker-Feldman doctrine, citing two
unpublished Tenth Circuit cases. 2 (Id. at 7–8.)
Second, Magistrate Judge Mix analyzed whether Plaintiff’s Claims 21 and 22 fell
into the two categories of constitutional claims not barred by the Rooker-Feldman
doctrine. (Id. at 9, 11–12.) After detailing the claims, Magistrate Judge Mix determined
that neither Claim 21 nor Claim 22 fell into the relevant categories of constitutional
claims “because Plaintiff is not challenging a state law, or state procedures for
enforcement of a judgment; rather, he is challenging the effects of the state-court
judgments and the litigation process itself.” (Id. at 11.) Magistrate Judge Mix concluded
Plaintiff’s Claims 21 and 22 are barred by the Rooker-Feldman doctrine. (Id. at 12.)
Plaintiff objects to Magistrate Judge Mix’s rejection of his extrinsic fraud
exception because she relied on two unpublished cases, which Plaintiff characterizes as
“non-precedential with regard to Rooker-Feldman.” (Doc. # 94 at 12–13.) The Federal
Rules of Appellate Procedure flatly disprove this objection. See Fed. R. App. P.
32.1(a)(i) (“A court may not prohibit or restrict the citation of federal judicial opinions . . .
that have been . . . designated as ‘unpublished’.”)
Plaintiff also again attempts to carve out an extrinsic fraud exception to the
Rooker-Feldman doctrine. (Doc. # 94 at 11–12.) The Court is not persuaded. First, the
2

Magistrate Judge Mix cited Myers v. Wells Fargo Bank, N.A., 685 F. App’x 679, 681 (10th Cir.
2017), and Bradshaw v. Gatterman, 658 F. App’x 359, 362 (10th Cir. 2016). (Doc. # 93 at 8.)
7

Court agrees with Magistrate Judge’s Mix statement that the Tenth Circuit does not
recognize such an exception. See (Doc. # 93 at 8.) Second, Plaintiff’s characterization
of his arguments being about “extrinsic fraud,” rather than about legal errors or
mistakes, is contradicted by his allegations and the relief he seeks. See (Doc. # 83.) In
Claims 21 and 22, Plaintiff alleges that the state courts’ actions in 2007 and 2011
deprived him of his First Amendment rights. (Id. at 349–51.) In Claims 24 and 25,
Plaintiff seeks injunctions prohibiting enforcement of the state court judgments. (Id. at
353–56.) The Court agrees with Moving Defendants, see (Doc. # 96 at 12), that
Plaintiff’s claims are precisely the kind the Rooker-Feldman doctrine bars: a “state-court
lose[r] 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.” See Exxon-Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005). 3
For these reasons, the Court overrules Plaintiff’s objections to Magistrate Judge
Mix’s application of the Rooker-Feldman doctrine to bar Plaintiff’s Claims 24, 25, 21,
and 22. The Court affirms and adopts Magistrate Judge Mix’s analysis and conclusion.
B.

CLAIM PRECLUSION
Magistrate Judge Mix agreed with Moving Defendants’ argument, see (Doc. # 84

at 7), that claim preclusion bars all of Plaintiff’s claims against eight specific Defendants
(“Eight Defendants”) because Plaintiff seeks to relitigate issues that were or could have

3

Plaintiff purportedly quotes Exxon Mobile, 544 U.S. at 293, in his Objection. (Doc. # 94 at 11–
12.) The Court observes that Plaintiff’s “quote” from the case does not appear anywhere in
Exxon Mobile.
8

been brought in the 2013 Case. 4 (Doc. # 93 at 28.) She accurately summarized the
law on claim preclusion and then applied each of the three elements and the one
exception to Plaintiff’s claims against Eight Defendants. (Id. at 12, 13–28.) First, she
found that there was final adjudication on the merits in the 2013 Case regarding Eight
Defendants because “[a]ll of Plaintiff’s claims . . . against the eight Defendants were
dismissed with prejudice in the 2013 Case.” (Id. at 13–14.) Second, Magistrate Judge
Mix found that there was identity of parties, as all Eight Defendants were parties to the
2013 Case. (Id. at 14.) Third, she found that there was identity of the causes of action
between this case and the 2013 Case. (Id. at 15–26.) Magistrate Judge Mix applied
the Tenth Circuit’s transactional approach to each of Plaintiff’s claims against Eight
Defendants to reach that finding. (Id. at 15–26.) Finally, Magistrate Judge Mix
considered the exception to the application of claim preclusion—the absence of a full
and fair opportunity to litigate 5—and found that Plaintiff was not deprived of such an
opportunity. (Id. at 26–28.) Accordingly, Magistrate Judge Mix recommended that
Plaintiff’s claims against Eight Defendants be dismissed with prejudice. (Id. at 28.)
Plaintiff objects to Magistrate Judge Mix’s claim preclusion analysis for several
reasons. (Doc. # 94 at 3–10.) Plaintiff first argues that claim preclusion does not bar
his claims because there is no identity of causes of action, as he makes allegations
about “new economic injuries to his business and property since the entry of the 2013
4

The Eight Defendants are Marcia Hatch, Seamus Hatch, Michael Bock, Aran Strategic
Finance, Tina Louise Scatuorchio-Goodwin, Jonathon Turco, Diana Sparagna, and Gunderson
Dettmer Stough Villeneuve Franklin & Hachigian. (Doc. # 84 at 8.)
5
“[T]he absence of a full and fair opportunity to litigate should be treated as an exception to the
application of claim preclusion when the three referenced requirements are otherwise present.”
Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999).
9

Case final order.”6 (Id. at 3–4.) These alleged injuries are not independent from the
claims at issue in the 2013 Case, however. See Hatch v. Boulder Town Council, 471
F.3d 1142, 1150 (10th Cir. 2006) (“Under the transactional test, a new action will be
permitted only where it raises new and independent claims, not part of the previous
transaction, based on the new facts”). Rather, the alleged injuries are, as Magistrate
Judge Mix found, “simply additional instances arising out of the same course of
conduct” Plaintiff alleged in the 2013 Case. See (Doc. # 93 at 19.) Under the
transactional approach, claims about “separate instances of the very same course of
conduct” are barred by claim preclusion. See Hernandez v. Asset Acceptance, LLC,
970 F. Supp. 2d 1194, 1203 (D. Colo. Sept. 10, 2013.) Plaintiff’s first argument fails.
Second, Plaintiff asserts that Magistrate Judge Mix misapplied the transactional
test in her analysis of the third element, the identity of causes of action. (Doc. # 94 at
5–8.) Plaintiff argues that Hatch and Hernandez, to which Magistrate Judge Mix cited,
see (Doc. # 93 at 14–18), are inapplicable because the cases “[did] not include or
consider allegations of fraudulent concealment of injuries or ongoing unlawful conduct
by defendants.” (Doc. # 94 at 6.) He asserts that Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321 (1971), and McCarty v. First of Georgia Insurance Co.,
713 F.2d 609 (10th Cir. 1983), are the proper authorities because Zenith and McCarty
“address defendants’ fraudulent concealment and on-going unlawful activities.” (Doc.
# 94 at 7.) However, these cases do not support Plaintiff’s assertion. Zenith, 401 U.S.
at 338, nowhere includes the language Plaintiff purportedly quotes (“a cause of action

6

Plaintiff identifies these injuries in his Complaint. See (Doc. # 83 at 226–31.)
10

accrues each time plaintiff is injured,” see (Doc. # 94 at 6)); it states instead that
“[g]enerally, a cause of action accrues and the statute begins to run when a defendant
commits an act that injuries a plaintiff’s business,” Zenith, 401 U.S. at 338. McCarty is
also inapposite, as it is based on Oklahoma law. 713 F.2d at 612–13. Plaintiff thus fails
to cite any cases that support his assertion that the transactional approach does not
apply when fraud is alleged. Magistrate Judge Mix properly applied the law of this
Circuit in her analysis of identity of cause of action.
Plaintiff next argues that claim preclusion does not bar his claims against Eight
Defendants because he was denied a full and fair opportunity to litigate his claims in the
2013 Case. (Doc. # 94 at 8.) According to Plaintiff, he was denied oral arguments on
dispositive motions, was unable to conduct discovery, and was not permitted to
supplement his complaint. (Id.) The determination of whether a party had a full and fair
opportunity to litigate an issue focuses on “whether there were significant procedural
limitations, whether the party had the incentive to litigate fully the issue, or whether
effective litigation was limited by the nature or relationship of the parties,” as Magistrate
Judge Mix accurately stated. Salguero v. City of Clovis, 366 F.3d 1168, 1174 (10th Cir.
2004); see (Doc. # 93 at 26.) Plaintiff has not identified any procedural limitations in the
2013 Case. As to the Court’s denial of Plaintiff’s requests for argument on dispositive
motions, a court has discretion to decide a motion without oral argument.
D.C.COLO.LCiv.R.7.1(h). Parties’ “right to be heard may be fulfilled by the court’s
review of the briefs and supporting affidavits and materials submitted to the court.”
Geear v. Boulder Cmty. Hosp., 844 F.2d 764, 766 (10th Cir. 1988). With regard to
11

discovery, “discovery is not necessary to resolve a motion to dismiss.” Sheldon v.
Kahnal, 502 F. App’x 765, 773 (10th Cir. 2012). Finally, as to supplementing the
complaint, “[t]he decision whether to grant a motion to amend is left to the sound
discretion of the district court.” Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1460
(D. Colo. 1995), aff’d, 107 F.3d 880 (10th Cir. 1997). The Court therefore finds that
Plaintiff has not identified any significant procedural limitations. Plaintiff does not raise
any arguments as to his incentives to fully litigate the 2013 Case or as to the
relationship of the parties in the 2013 Case. Magistrate Judge Mix correctly determined
that Plaintiff has not shown that he was denied the opportunity to fully and fairly litigate
his claims in the 2013 Case. See (Doc. # 93 at 27.)
For the foregoing reasons, Plaintiff’s objections to Magistrate Judge Mix’s claim
preclusion analysis fail to persuade the Court. The Court affirms and adopts Magistrate
Judge Mix’s conclusion that claim preclusions bars Plaintiff’s claims against Eight
Defendants.
C.

ISSUE PRECLUSION
Magistrate Judge Mix also agreed with Moving Defendants argument, see (Doc.

# 84 at 12), that issue preclusion bars all of Plaintiff’s claims asserted against 22
Defendants (“Twenty-Two Defendants”) who were dismissed without prejudice for lack
of personal jurisdiction in the 2013 Case. 7 (Doc. # 93 at 31.) Correctly noting that

7

In the 2013 Case, the following twenty-two Defendants in the case now before the Court were
dismissed for lack of personal jurisdiction: David Jargiello, Ramsey & Ehrlich, LLP, Miles
Ehrlich, Folger Levin & Kahn LLP, Michael Kahn, John Sharp, Denelle Dixon-Thayer, Robert
Gunderson, Scott Dettmer, Daniel O’Connor, Kenneth McVay, Ivan Gaviria, Daniel Niehans,
Thomas Villeneuve, Johnson & Johnson, LLP, Neville Johnson, Douglas Johnson, Lan Vu,
12

where a case is dismissed for want of jurisdiction, issue preclusion prevents a party
from relitigating issues determined in ruling on the jurisdiction question, see Park Lake
Resources Ltd. Liability v. United States Dep’t of Agric., 378 F.3d 1132, 1136 (10th Cir.
2004), Magistrate Judge Mix analyzed “whether the personal jurisdiction issue decided
by the Court in the 2013 Case is the same one currently before the Court.” (Doc. # 93
at 29–30.) After rejecting Plaintiff’s three arguments as to why the Court now has
jurisdiction over Twenty-Two Defendants, she concluded that the personal jurisdiction
question is the same in this case as it was in the 2013 Case. (Id. at 30–31.) Magistrate
Judge Mix therefore recommended that issue preclusion bars Plaintiff from relitigating
his claims against Twenty-Two Defendants. (Id. at 31.)
Plaintiff asserts that Magistrate Judge Mix “clearly ignored” his arguments about
why the question of jurisdiction differs in this case, but he fails to persuade the Court.
See (Doc. # 94 at 10–11.) First, he argues that the Court has jurisdiction over TwentyTwo Defendants because these out-of-state defendants “have purposefully directed
tortious acts at [him] in [Colorado], thereby creating a substantial connection to this
District.” (Id.) However, when Plaintiff made the same argument in 2013, the Court
thoroughly conducted a minimum contacts analysis as to each of the Twenty-Two
Defendants and concluded that the Twenty-Two Defendants did not have sufficient
contacts with this forum to give rise to personal jurisdiction. (2013 Case, Doc. # 336, 7–
12.)

Heller Ehrman, A Professional Corporation, Matthew Larrabee, Barry Levin, and Robert Epsen.
(2013 Case, Doc. ## 336, 357.)
13

Plaintiff next argues that the Court now has personal jurisdiction over TwentyTwo Defendants because two Defendants, Marcia Hatch and Seamus Hatch, relocated
from California to Michigan, which purportedly changes the nationwide service of
process analysis because their move increased the number of federal judicial districts in
which parties reside from five to six. (Doc. # 94 at 11.) The Court agrees with Moving
Defendants, see (Doc. # 96 at 11), that this argument grossly misconstrues principles of
personal jurisdiction.
Finally, Plaintiff asserts—without any explanation or authority—that Magistrate
Judge Mix erred in her issue preclusion analysis because “the ends of justice in this
action require nationwide service of process because of [its] geographic dispersion” and
this Court “can also apply the conspiracy theory of jurisdiction to assert jurisdiction.”
(Doc. # 94 at 11.) Plaintiff raised these arguments in 2013, and the Court appropriately
concluded that “the RICO statute does not authorized nationwide jurisdiction in this
case.” (2013 Case, Doc. # 336 at 16–18.) This analysis has not changed in the years
since the 2013 Case.
The Court accordingly overrules Plaintiff’s objections to and affirms and adopts
Magistrate Judge Mix’s conclusion that issue preclusion bars Plaintiff from relitigating
claims against Twenty-Two Defendants.
D.

2013 DENIAL OF LEAVE TO AMEND
Magistrate Judge Mix also concluded that Plaintiff is barred from relitigating

claims against Ismail Ramsey, Lewis Roca Rothberger Christie LLP, Federick
Baumann, and Alex Meyers. (Doc. # 93 at 31.) In the 2013 case, Plaintiff moved to
14

supplement his complaint to join these four defendants. (2013 Case, Doc. # 381.) The
Court in 2013 denied this motion as being “entirely futile,” among other reasons. (2013
Case, Doc. # 384 at 9.) Magistrate Judge Mix reasoned that because joinder was
denied as futile in the 2013 Case and because Plaintiff’s current claims against these
Defendants arose from the same transaction or occurrence as the 2013 claims, Plaintiff
is barred from asserting claims against these four Defendants now. (Doc. # 93 at 31)
(citing Parkins v. Patterson, 215 F.3d 1337 (10th Cir. 2000) (Table)).
Plaintiff restates his argument that the Court did not have personal jurisdiction
over any defendant or proposed defendant in the 2013 Case and therefore acted “ultra
vires” in denying his motion to supplement his complaint. (Doc. # 94 at 13.) Plaintiff
does not assert why the Court lacked personal jurisdiction over defendants in the 2013
case. The Court has no reason to accept Plaintiff’s nonsensical argument. The Court
therefore affirms and adopts Magistrate Judge Mix’s recommendation as to these four
Defendants.
E.

PLAINTIFF’S DUE PROCESS RIGHTS
Plaintiff’s final objection to the Recommendation is that it is “so one-sided in favor

of Defendants, it raises the appearance of judicial bias” and, if adopted, will deprive
Plaintiff of his Due Process rights. (Id. at 14.) Plaintiff does not offer any evidence of
such bias, nor does the Court, after an exhaustive de novo review of the
Recommendation, see any such bias. The Court therefore overrules this objection.

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F.

CLAIM 26 REMAINS
In Claim 26, Plaintiff seeks an accounting to facilitate the calculation of damages,

should he prevail on any of his claims. (Doc. # 83 at 356.) Magistrate Judge Mix
concluded that this claim remains because “Moving Defendants do not specifically
challenge this claim as barred by any of the doctrines discussed” and it did not appear
to her that the claim would be barred. (Doc. # 93 at 33.)
No objections to this portion of the Recommendation have been filed. “[T]he
district court is accorded considerable discretion with respect to the treatment of
unchallenged magistrate reports. In the absence of timely objection, the district court
may review a magistrate [judge’ s] report under any standard it deems appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
After reviewing the Recommendation of Magistrate Judge Mix, in addition to
applicable portions of the record and relevant legal authority, the Court is satisfied that
the Recommendation is sound and not clearly erroneous or contrary to law as to
Plaintiff’s Twenty-Sixth Claim. See Fed. R. Civ. P. 72(a).
IV.

CONCLUSION

For the foregoing reasons, the Court ORDERS that Magistrate Judge Mix’s
Report and Recommendation (Doc. # 93) is AFFIRMED and ADOPTED as an Order of
this Court. Accordingly, it is
FURTHER ORDERED that Claims 12, 13, 15, 16, 18, 19, and 20 of Plaintiff’s
Second Amended Complaint (Doc. # 83) are DISMISSED WITH PREJUDICE. It is

16

FURTHER ORDERED that Claims 1–10, 11, 14, 17, and 23 of Plaintiff’s Second
Amended Complaint (Doc. # 83) are DISMISSED WITH PREJUDICE as to Defendants
Marcia Hatch, Seamus Hatch, Michael Bock, Aran Strategic Finance, Tina Louise
Scatuorchio-Goodwin, Jonathon Turco, Diana Sparagna, Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, David Jargiello, Ramsey & Ehrlich, LLP, Miles Ehrlich,
Folger Levin & Kahn LLP, Michael Kahn, John Sharp, Denelle Dixon-Thayer, Robert
Gunderson, Scott Dettmer, Daniel O’Connor, Kenneth McVay, Ivan Gaviria, Daniel
Niehans, Thomas Villeneuve, Johnson & Johnson, LLP, Neville Johnson, Douglas
Johnson, Lan Vu, Heller Ehrman, A Professional Corporation, Matthew Larrabee, Barry
Levin, Robert Epsen, Ismail Ramsey, Lewis Roca Rothberger Christie LLP, Federick
Baumann, and Alex Meyers. It is
FURTHER ORDERED that Claims 21, 22, 24, and 25 of Plaintiff’s Second
Amended Complaint (Doc. # 83) are DISMISSED WITHOUT PREJUDICE. It is
FURTHER ORDERED that the following claims in Plaintiff’s Second Amended
Complaint (Doc. # 83) remain:
1. Claims 1, 3, 6, 7, and 8 against the Doe Defendants;
2. Claims 2, 4, 5, 9, 10, 11, 14, 17, and 23 against the Doe Defendants, VLG
Investments LLC, VLG Investments 2006 LLC, VLG Investments 2007
LLC, VLG Investments 2008 LLC, HEWM Investors LLC, HEWM Investors
II LLC, and HEWM/VLG Investments LLC;
3. Claim 26 against Defendants.

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DATED: January 12, 2018

BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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