Silva v. US Bank, National Assoc. et al

Filing 110

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 2/14/2018. The Court respectfully RECOMMENDS that Defendants Motions [# 57 , # 59 , # 61 , # 62 , # 80 ] be GRANTED, and that the Second Amended Complaint [# 47 ] be DISMISSED (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01529-WJM-KLM
MARGARET A. SILVA,
Plaintiff,
v.
US BANK, NATIONAL ASSOC., as Trustee under the Pooling and Service Agreement
dated as of February 1, 2007, GSAMP trust 2007-NCI,
MORTGAGE PASS-THROUGH CERTIFICATES, series 207, NCI,
PAUL KING, District Court Judge, in his individual capacity,
DAVID J. STEVENS, District Court Judge, in his individual capacity,
18TH JUDICIAL DISTRICT, Court of Colo. Arapahoe County,
RICHARD B. CASCHETTE, District Court Judge, in his individual capacity,
CHRISTINE DUFFY, Douglas County Public Trustee, in her individual capacity,
LAWRENCE E. CASTLE, in his corporate capacity,
ROBERT J. HOPP, in his individual and corporate capacity,
MERS INC., a division of MERSCORP INC., and
Does 1-10,
Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the following motions: (1) Defendant Christine
Duffy’s Motion to Dismiss the Second Amended Complaint [#57]1 (“Duffy’s Motion”), (2)
Defendant Robert J. Hopp’s Motion to Dismiss the Second Amended Complaint
Pursuant to Fed. R. 12(b)(1) and Fed. R. 12(b)(6) [#59] (“Hopp’s Motion”), (3) Defendants
Judge Paul King, Judge David J. Stevens, Judge Richard B. Caschette, and the 18th

1

“[#57]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.

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Judicial District Court of Colorado Arapahoe County’s Motion to Dismiss [#61] (the
“Judicial Defendants’ Motion”), (4) Defendants US Bank and MERS’ Motion to Dismiss
Second Amended Complaint [#62] (“US Bank and MERS’ Motion”), and (5) Defendant
Lawrence E. Castle’s Motion to Dismiss Plaintiff’s Second Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) [#80] (“Castle’s Motion”). Plaintiff filed Responses
[#65, #66, #75, #84] to Defendants US Bank and MERS, Duffy, the Judicial Defendants,
and Castle’s Motions, respectively.2 Defendant US Bank and MERS, Duffy, the Judicial
Defendants, and Castle filed Replies [#77, #76, #79, #88, respectively]. No Response or
Reply was filed with respect to Hopp’s Motion [#59].
Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motions
have been referred to the undersigned for recommendation. See [#58, #60, #63, #64, #81].
Having reviewed all motions and related briefing, the entire case file, the relevant law, and
being sufficiently advised in the premises, the Court respectfully RECOMMENDS that all
Defendants’ Motions [#57, #59, #61, #62, #80] be GRANTED.
I. Background
Plaintiff challenges the foreclosure of her residential property (the “Property”).
Plaintiff previously filed a lawsuit in this Court (13-cv-02289-MSK-CBS), in which a
settlement agreement was reached between Plaintiff and Ocwen Loan Servicing. Plaintiff
later disputed the settlement agreement and the case was ultimately administratively closed
on September 15, 2014, in order for the parties to discuss alternative resolutions to the
litigation. See Order [#101]. To date, the 2013 matter has not been reopened.
2

Plaintiff improperly and untimely filed a second Response [#92] to Castle’s Motion, which
has been stricken from the record. See Minute Order [#109].

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Plaintiff, who is proceeding pro se,3 filed a Complaint [#1] initiating the present
lawsuit on June 23, 2017. Plaintiff filed a series of motions for injunctive relief seeking to
enjoin the state court from proceeding with a Forcible Entry and Detainer proceeding. The
Court recommended denying the earlier motions due to procedural deficiencies, and most
recently recommended denying Plaintiff’s request for injunctive relief because the Court
found that Plaintiff had failed to show a likelihood of success on the merits.

See

Recommendation [#56]. The District Judge adopted the Recommendation. Order [#67].
Meanwhile, Plaintiff successfully amended her pleadings, the operative pleading now being
the Second Amended Complaint [#47].
Plaintiff raises eight enumerated claims for relief in the Second Amended Complaint
[#47]: (1) due process and equal protection violations of the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983, (2) conspiracy pursuant to § 1983, (3) fraud by
misrepresentation and non-disclosure, (4) unjust enrichment, (5) a request for injunctive
relief pursuant to Ex Parte Young, and (6) misfeasance in public office.4 Second Am.
Compl. [#47] at 1-2. Plaintiff alleges that § 38–38–101 of the Colorado Revised Statutes
as amended by HB–1387, which provide the basis for Colorado’s foreclosure procedures
under Rule 120, violate the Fourteenth Amendment. Plaintiff brings these claims against
3

The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [their] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
4

There is a misnumbered section titled “Second Cause of Action” asserting a § 1985 claim
that appears to be mistakenly included, but will be addressed briefly below nonetheless. See
Second Am. Compl. [#47] at 30-32.

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the following Defendants: (1) the assignee and assignor of the deed of trust on her
residence (Defendants US Bank and MERS), (2) three State Court District Judges who
presided over her state court proceedings (Defendant Judges Caschette, Stevens, and
King) and the District where the proceedings took place (Defendant 18th Judicial District),
(3) a Public Trustee (Defendant Duffy), and (4) two private attorneys (Defendants Castle
and Hopp).5
As relief, Plaintiff seeks an order voiding the foreclosure and setting aside any
foreclosure sale, a declaration that the amendments to Colorado’s foreclosure statute are
unconstitutional, a declaration that Rule 120 is procedurally defective, $1,000,000 in
damages each from Defendants Castle and Hopp, and other related relief. See Second
Am. Compl. [#47] at 39-41.
On October 20, 2017, Defendants US Bank and MERS filed a Suggestion of
Bankruptcy, and Notice of Relief from Stay [#83] stating that Plaintiff has filed for Chapter
7 Bankruptcy protection (Case No. 17-17973-EEB), but that the United States Bankruptcy
Court for the District of Colorado granted a relief from stay “to proceed with litigation
pending” in the present matter. See [#83].
II. Legal Standards
A.

Federal Rule of Civil Procedure 12(b)(1)
The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the

Court has jurisdiction to properly hear the case before it. Because “federal courts are
courts of limited jurisdiction,” the Court must have a statutory basis to exercise its

5

Plaintiff also listed “Does 1-10” as Defendants. The Does will be addressed separately
in this Recommendation.

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jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed. R. Civ. P. 12(b)(1).
Statutes conferring subject-matter jurisdiction on federal courts are to be strictly construed.
F & S Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of
establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Id. (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: facial attack or
factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing
a facial attack on a complaint, the Court accepts the allegations of the complaint as true.
Id. By contrast, when reviewing a factual attack on a complaint, the Court “may not
presume the truthfulness of the complaint’s factual allegations.” Id. at 1003. With a factual
attack, the moving party challenges the facts upon which subject-matter jurisdiction
depends. Id. The Court therefore must make its own findings of fact. Id. In order to make
its findings regarding disputed jurisdictional facts, the Court “has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing.” Id. (citing Ohio Nat’l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman, 825 F.2d
257, 259 n.5 (10th Cir. 1987)). The Court’s reliance on “evidence outside the pleadings”
to make findings concerning purely jurisdictional facts does not convert a motion to dismiss
pursuant to Rule 12(b)(1) into a motion for summary judgment pursuant to Rule 56. Id.
B.

Federal Rule of Civil Procedure 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the

sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ.
P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
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which relief can be granted”). “The court’s function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible
on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla.,
510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as
true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the
plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do. Nor does a complaint suffice if
it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in
original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.” Christy
Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” a factual allegation has been stated, “but it has not show[n][ ]that the pleader
is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 552 U.S. at 679 (second
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brackets added; citation and internal quotation marks omitted).
III. Analysis
A.

Claims against Defendant Hopp
As an initial matter, Defendant Hopp advises the Court that he filed for Chapter 7

bankruptcy protection on June 25, 2013 (Case No. 13-20838-SBB).

His case was

discharged on February 10, 2014, and then closed on March 19, 2014. A permanent
injunction and stay was issued under 11 U.S.C. § 727. Defendant asserts that all claims
against him should be dismissed because the allegations against Defendant Hopp occurred
prior to June 25, 2013, and Plaintiff did not file an adversary action in Defendant Hopp’s
bankruptcy case. See Second Am. Compl. [#47] at 4 (alleging that Defendant Hopp was
referred to the Public Trustee Association to streamline the foreclosure process between
2002-2006). It should be noted that Defendant Hopp does not cite to any legal authority
in support of his position.
A Chapter 7 bankruptcy discharges the debtor from debts arising before the date of
discharge. 11 U.S.C. § 727. “Debt” means “liability on a claim,” and “claim” means the
“right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured.” 11 U.S.C. § 101(12), (5). However, debt may only be discharged
with respect to creditors who received actual, timely notice of the bankruptcy proceedings.
11 U.S.C. § 523(a)(3); see also In re Green, 876 F.2d 854, 856 (10th Cir. 1989); Reliable
Elec. Co. v. Olson Constr. Co., 726 F.2d 620, 622 (10th Cir. 1984) (due process requires
adequate notice to a creditor before its rights can be adversely affected). Here, Defendant

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Hopp has not indicated whether Plaintiff received actual, timely notice of the Chapter 7
proceedings. See 11 U.S.C. § 523(a)(3). Accordingly, the Court considers Plaintiff’s claims
against him in section D.3.b. below.
B.

Prior Settlement Agreement with Defendant US Bank
Defendant US Bank argues that Plaintiff is barred from bringing all stated claims

against it due to the Settlement Agreement that was executed at the end of her 2013 case.
US Bank and MERS’ Motion [#62] at 9-10. The Settlement Agreement, which Plaintiff
attached to her First Amended Complaint [#16],6 provides:
Borrowers [Plaintiff] . . . hereby unconditionally, irrevocably, forever and fully
releases, acquits, and forever discharges U.S. Bank . . . [and] Ocwen . . . of
and from any and all claims, demands, actions, causes of action, suits, liens,
debts, obligations, promises, agreements, costs, damages, liabilities, and
judgments of any kind . . . whether known or unknown . . . which were or
could have been raised in, arise out of, relate to, or in any way, directly or
indirectly, involve the [2013] Action, the Property, the Note, the Deed of
Trust, or the Loan . . . .
Settlement Agreement [#16] at 85-92.
Colorado law holds that a court may “summarily enforce a settlement agreement if

6

When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must usually
disregard facts supported by documents other than the complaint unless the Court first converts
the motion to dismiss into a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260,
1261 (10th Cir. 1991). The Court may consider documents outside of the complaint on a motion
to dismiss in certain instances, however. For instance, a court may consider, in addition to the
allegations in the complaint: “(1) documents that the complaint incorporates by reference, (2)
‘documents referred to in the complaint if the documents are central to the plaintiff’s claim and the
parties do not dispute the documents’ authenticity,’ and (3) ‘matters of which a court may take
judicial notice.’” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The Court considers the
Settlement Agreement here because its contents are referred to in the Second Amended
Complaint, it was attached to the First Amended Complaint, and the parties do not dispute the
document’s authenticity. See Second Am. Compl. [#47] at 6-7; First Am. Compl. [#16] at 85-92.

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it is undisputed that a settlement exists.”7 DiFrancesco v. Particle Interconnect Corp., 39
P.3d 1243, 1247 (Colo. App. 2001) (citing Goltl v. Cummings, 380 P.2d 556 (Colo. 1963)).
However, here Plaintiff alleges that Defendant US Bank did not negotiate in good faith, and
asserts that US Bank failed to comply with its obligation to modify the loan so that Plaintiff
could remain on the Property. Second Amended Complaint [#47] at 7. Giving Plaintiff’s
allegations the broad deference afforded to pro se litigants’ filings, Plaintiff sufficiently
alleges a material breach of contract that may have released her from waiving the right to
assert these claims. See Carfield & Sons, Inc. v. Cowling, 616 P.2d 1008, 1010 (Colo.
App. 1980) (stating that major breaches may terminate the non-breaching party’s
obligations under the contract).8 Accordingly, the Court considers the claims asserted
against Defendant US Bank below.
C.

Claims Against State Court Judicial District and Individual Judges
Plaintiff alleges that Defendant Caschette, a State Court District Judge, “denied

plaintiff due process in a procedurally defective Rule 120 [proceeding].” See Second Am.
Compl. [#47] ¶¶ 98-101, 108-113. The allegations underlying this statement appear to be
that Defendant Judge Caschette denied Plaintiff’s motion to vacate the Rule 120 complaint
and entered an Order of Sale without a hearing. Id. Defendants Stevens and King are the
State Court District Judges who presided over the Forcible Entry and Detainer proceeding,
7

Although the parties have not directly addressed the choice-of-law question with respect
to enforcement of settlement agreements, Defendants cite solely to Colorado law and Plaintiff
apparently does not dispute its application. Additionally, in Boulware v. Baldwin, the Tenth Circuit
Court of Appeals noted that the Circuit “appear[s] to follow the majority rule that state law governs
the enforcement and interpretation of private settlement agreements even if they settle federal
claims . . . .” 545 F. App’x 725, 728 (10th Cir. 2013) (citing United States v. McCall, 235 F.3d 1211,
1215 (10th Cir.2000)). Thus, the Court applies Colorado law here.
8

Plaintiff does not assert a breach of contract claim in this action.

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which Plaintiff asserts violates the Fourteenth Amendment because the proceeding
reinforced the unlawful Rule 120 proceeding. Id. ¶¶ 103, 177. Plaintiff’s claims are brought
against the three judges in their individual capacities only.
Pursuant to the Eleventh Amendment, the Court lacks subject matter jurisdiction to
adjudicate an action brought by a citizen of a state against the state itself, its agencies, or
its officials in their official capacities. See Johns v. Stewart, 57 F.3d 1544, 1552 (10th
Cir.1995). “It is well established that absent an unmistakable waiver by the state of its
Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by
Congress, the amendment provides absolute immunity from suit in federal courts for states
and their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th
Cir. 1994), overruled on other grounds by Ellis v. University of Kansas Med. Ctr., 163 F.3d
1186 (10th Cir. 1998). Here, Plaintiff concedes that Defendant 18th Judicial District is an
arm of the state. Second Am. Compl. [#47] at 37. Indeed, judicial districts are considered
state courts under Article VI of the Colorado Constitution, which also provides the
jurisdictional limitations, parameters for the creation of judicial districts, term limits for
district judges, and other such rules.

See Judicial Defendants’ Motion [#61] at 5.

Additionally, at least one other case in this District has held that judicial districts are entitled
to Eleventh Amendment immunity. See Fey v. Washington, No. 16-CV-03103-WJM-MEH,
2017 WL 1344451, at *5 (D. Colo. Apr. 12, 2017). Thus, the Court finds that Defendant
18th Judicial District is an arm of the state for immunity purposes.
Contrary to Plaintiff’s arguments in the Response [#75], the State of Colorado has
not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d 1042,
1044-45 (10th Cir. 1988), and congressional enactment of § 1983 did not abrogate
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Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The
Eleventh Amendment applies to all suits against the state and its agencies, regardless of
the relief sought. See Higganbotham v. Okla. Transp. Comm’n, 328 F.3d 638, 644 (10th
Cir. 2003).

Therefore, the Court respectfully recommends that the claims against

Defendant 18th Judicial District be dismissed without prejudice for lack of subject matter
jurisdiction on the basis of Eleventh Amendment immunity. See Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“[W]here the district court dismisses an action
for lack of jurisdiction, . . . the dismissal must be without prejudice.” (citations omitted)).
Next, the Court turns to the claims against the individual judicial defendants.
“[A]bsolute immunity is necessary so that judges can perform their functions without
harassment or intimidation.” Van Sickle v. Holloway, 791 F.2d 1431, 1435 (10th Cir. 1986).
A judge will lose judicial immunity only for (1) “nonjudicial actions, i.e., actions not taken in
the judge’s judicial capacity” or (2) judicial actions “taken in the complete absence of all
jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991). “[T]he factors determining
whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether
it is a function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S.
349, 362 (1978).
Here, Plaintiff has challenged the propriety of the individual judges’ (Caschette,
King, and Stevens) actions in connection with the Rule 120 and eviction proceedings over
which they presided. Second Am. Compl. [#47] at 5, 37. These actions are indisputably
judicial in nature. See Brackhahn v. Eder, No. 13-cv-00141-CMA-KMT, 2013 WL 2394980,

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at *5 (D. Colo. May 31, 2013) (allegations arising out of a judge’s official duties in handling
a foreclosure action and authorizing a sale constitute judicial acts normally performed by
a judge). Plaintiff’s remaining arguments that judicial immunity does not extend to state
court district judges and that Rule 120 proceedings are non-judicial are plainly incorrect.
See Response [#75] at 13-14. Additionally, “the doctrine of judicial immunity now extends
to suits against judges where a plaintiff seeks not only monetary relief, but injunctive relief
as well[,]” except where “a declaratory decree was violated or declaratory relief was
unavailable.”

Lawrence v. Kuenhold, 271 F. App’x 763, 766 n.6 (10th Cir. 2008);

Brackhahn, 2013 WL 2394980, at *4. Plaintiff does not allege, nor does it otherwise
appear, that a declaratory decree was violated or that declaratory relief was unavailable to
Plaintiff. Therefore, the Court respectfully recommends that the individual-capacity claims
against Defendant Judges Caschette, King, and Stevens be dismissed with prejudice on
the basis of judicial immunity. See Flanders v. Snyder Bromley, No. 09-cv-01623-CMAKMT, 2010 WL 2650025, at *6 (D. Colo. Apr. 9, 2010) (stating that judicial immunity applies
to both monetary and injunctive relief sought against a judicial officer); Brereton, 434 F.3d
at 1219 (“A dismissal with prejudice is appropriate where a complaint fails to state a claim
under Rule 12(b)(6) and granting leave to amend would be futile.”).
D.

§ 1983 Claims
To state a claim under § 1983, Plaintiff must allege deprivation of a right secured by

the Constitution or laws of the United States and that the deprivation was committed “under
color of state law.” See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125,
1143 (10th Cir. 2014) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)).

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Plaintiff brings § 1983 claims against Defendants individually, as well as collectively as part
of a § 1983 conspiracy.
Plaintiff alleges that Defendants violated her Fourteenth Amendment procedural due
process rights.

Although Plaintiff has provided a plethora of allegations and legal

arguments in the 42-page Second Amended Complaint, it is difficult to decipher the basis
of Plaintiff’s claims. The Court’s best understanding of Plaintiff’s allegations is that, in
essence, the 2006 legislation amending Colorado’s foreclosure laws lowered creditors’
standard of proof in order to obtain an advantage over homeowners in the foreclosure
process. Second Am. Compl. [#47] at 12-14. Plaintiff asserts that the legislative changes
violate her due process rights because such foreclosure proceedings (specifically, Rule 120
hearings) are procedurally defective under the Fourteenth Amendment.9 Id.
1.

Rooker-Feldman Doctrine

Various Defendants argue that Plaintiff’s claims are barred by the Rooker-Feldman
doctrine. See Hopp’s Motion [#59] at 5-8; Judicial Defendants’ Motion [#61] at 5-7; US
Bank and MERS’ Motion [#62] at 8-9; Castle’s Motion [#80] at 5 n.4. The Rooker-Feldman
doctrine prevents “state-court losers” from seeking review and rejection of a state-court
judgment “rendered before the district court proceedings commenced.” Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Miller v. Deutsche Bank
Nat’l Trust Co., 666 F.3d 1255, 1261 (10th Cir. 2012). “Rooker-Feldman precludes federal
district courts from effectively exercising appellate jurisdiction over claims ‘actually decided

9

“Rule 120 governs the very specialized civil proceeding in which an interested person may
file a verified motion in court seeking the order authorizing sale under the power of sale contained
in the recorded instrument.” Plymouth Capital Co. v. Dist. Ct., 955 P.2d 1014, 1015 (Colo.1998)
(citations omitted).

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by a state court’ and claims ‘inextricably intertwined’ with a prior state-court judgment.”
Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1233 (10th Cir. 2006) (citations omitted).
Such prohibited review of state court judgments “includ[es] those that authorize and confirm
the sale of property.” Yokomizo v. Deutsche Bank Securities, Inc., No. 11-cv-01630-CMAKLM, 2011 WL 5024899, at *5 (D. Colo. Oct. 21, 2011).
Appropriate application of the Rooker-Feldman doctrine to a Rule 120 foreclosure
proceeding is dependent on a few variables, including when the federal case was initiated
and what relief is sought by the plaintiff. The Tenth Circuit has applied the Rooker-Feldman
doctrine to a plaintiff’s claim arising out of a Rule 120 proceeding, where the plaintiff was
“attempting to completely undo the foreclosure and eviction proceedings, which were both
final before she ever initiated [the lawsuit].” Dillard v. Bank of New York, 476 F. App’x 690,
692 n.3 (10th Cir. 2012). Here, the Property was sold to Defendant US Bank at a
foreclosure sale, and a Public Trustee’s Confirmation Deed was recorded in Douglas
County on September 12, 2013. See Public Trustee’s Confirmation Deed [#62-1].10 Similar
to the plaintiff in Dillard, Plaintiff is seeking a declaratory judgment that the foreclosure of
her property was void ab initio, and “[t]o vacate and set aside any foreclosure sale that may
occur . . . .” Second Am. Compl. [#47] at 39-40. Thus, Plaintiff is attempting to completely
undo the foreclosure proceeding, which was final years before this litigation was initiated.
Additionally, on August 15, 2017, the state court entered a Judgment for Possession finding

10

The Court may properly consider the Public Trustee’s Confirmation Deed [#62-1] because
it is a public document subject to judicial notice and is also a document pertinent to ruling on
whether the Court has subject matter jurisdiction with respect to this Claim. See Gee, 627 F.3d at
1186; Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000) (stating that courts may
consider outside documents pertinent to ruling on a motion to dismiss pursuant to Rule 12(b)(1)).

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that US Bank is the lawful owner of the property and that Plaintiff was guilty of unlawful
detention of the Property at the time of the hearing. Order of Judgment for Possession
[#62-2].
Thus, the Rooker-Feldman doctrine precludes this Court’s subject matter jurisdiction
over review of the Rule 120 proceeding in dispute because the foreclosure and eviction
proceedings have fully concluded, and because the relief that Plaintiff seeks, i.e., declaring
the foreclosure void and vacating the foreclosure sale, would completely undo the
foreclosure proceeding conducted in state court. See Lewis v. Wells Fargo Bank NA, No.
11-CV-03387-CMA-KLM, 2012 WL 4097709, at *6-7 (D. Colo. Aug. 21, 2012) (finding that
Rooker-Feldman applied where order authorizing foreclosure sale entered after initiation
of federal court case because “entire foreclosure process” had concluded), report and
recommendation adopted, No. 11-CV-03387-CMA-KLM, 2012 WL 4097739 (D. Colo. Sept.
17, 2012). To challenge such proceedings, “the more appropriate remedy is to pursue an
independent action in state court that challenges the [state court’s] order authorizing
foreclosure and the sale of the property.” See Yokomizo, 2011 WL 2912691, at *2 (citing
Beeler Props. LLC v. Lowe Enters. Residential Investors, LLC, No. 07-cv-00149-MSKMJW, 2007 WL 1346591, at *3 (D. Colo. May 7, 2007)).
Lastly, Plaintiff contends that Rule 120 proceedings are not subject to the RookerFeldman doctrine because they are not final judgments subject to appellate review.
Response to US Bank’s Motion [#65] at 8-9. The Court is unpersuaded by Plaintiff’s
argument because the state court has gone beyond simply authorizing the sale and has
approved it, which renders the judgment final for Rooker-Feldman purposes. Compare
McDonald v. OneWest Bank, F.S.B., 680 F.3d 1264, 1266 (10th Cir. 2012) (“[W]e recently
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decided that Rooker-Feldman did not apply to determinations in Colorado Rule 120
proceedings, at least insofar as preventing a foreclosure sale where proceedings are
pending.” (emphasis added)).
Accordingly, the Court respectfully recommends that Claim One, to the extent that
Plaintiff seeks to undo her foreclosure proceeding, be dismissed without prejudice
pursuant to the Rooker-Feldman doctrine. See, e.g., Driskell v. Thompson, 971 F. Supp.
2d 1050, 1063 (D. Colo. 2013).
With respect to Plaintiff’s other claims, Rooker-Feldman does not generally bar the
review of a plaintiff’s facial challenge to the constitutionality of a state law. See Kenman
Engineering v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002). Plaintiff’s claims that Rule
120 and the amendment to Colorado’s foreclosure laws violate the Fourteenth Amendment
“seek[ ] relief independent from [the] nullification” of the foreclosure proceeding, and
therefore are not barred by Rooker-Feldman. See Allen v. District Court Magistrate Judge
Dupree, No. 04CV2055, 2005 WL 2372837, at *6 (D. Colo. Sept. 27, 2005). Thus, those
claims will be considered next.
2.

Constitutionality of Rule 120

Plaintiff alleges that Rule 120 foreclosure proceedings violate due process because
they do not include a full and fair hearing, appellate review, or give homeowners the right
to raise every available defense under the due process clause of the Fourteenth
Amendment. See Second Am. Compl. [#47] at 8. However, “precedent makes clear that
a judicial proceeding brought pursuant to Rule 120 which follows the dictates of that law
does not violate an individual’s due process rights under the Fifth and Fourteenth

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Amendments.”

Lewis

v.

JP

Morgan

Chase

Bank,

National

Assoc.,

No.

13-cv-1375-PAB-KLM, 2014 WL 1217948, at *10 n.5 (D. Colo. Mar. 24, 2014) (internal
citations omitted); see also Mbaku v. Bank of Am., Nat. Ass’n, 628 F. App’x 968, 973 (10th
Cir. 2015) (finding that plaintiff’s due process concerns were satisfied because Rule 120
allows a mortgagor to assert defenses by disputing the moving party’s entitlement to the
order authorizing sale).

Thus, Plaintiff’s contention that Rule 120’s procedures are

unconstitutional based entirely on the procedures themselves, and not on any alleged
violation of those procedures in this particular case,11 fails as a matter of law. See Second
Am. Compl. [#47] at 8.

Accordingly, to the extent that Plaintiff challenges the

constitutionality of Rule 120, the Court respectfully recommends that this aspect of Claim
One be dismissed with prejudice. See Brereton, 434 F.3d at 1219.
3.

Claims against Individual Defendants

Although likely not necessary, for the sake of completeness, the Court considers the
individual Defendants’ arguments regarding the insufficiency of Plaintiff’s § 1983 claims.
In addition to these claims failing as a matter of law, Plaintiff has not sufficiently alleged that
Defendants US Bank, MERS, Castle, and Hopp were state actors, nor has she made
specific allegations regarding wrongful conduct on the part of Defendant Duffy. The Court

11

Plaintiff states that she is bringing an “as-applied” challenge to the constitutionality of
Rule 120. See, e.g., Second Am. Compl. [#47] at 11. However, her general statements that Rule
120 is unconstitutional are insufficient to allege how the Rule 120 proceedings were unconstitutional
as specifically applied to her circumstances. See Mbaku v. Carrington Mortg. Servs., LLC, No.
17-CV-00462-LTB-STV, 2017 WL 1632507, at *7 (D. Colo. May 2, 2017) (dismissing with prejudice
plaintiff’s as-applied constitutional claim for failure to sufficiently allege how public trustee
foreclosure process violated due process as applied to plaintiff’s case). Furthermore, Plaintiff’s
statement that she “allowed the Order Authorizing Sale to be issued” at the February 20, 2013
hearing does not indicate that she lacked an opportunity to raise a defense. Second Am. Compl.
[#47] at 7.

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considers each set of Defendants in turn.
a. Defendants US Bank and MERS
The allegations regarding Defendant US Bank are that it was a party to the February
20, 2013 hearing, “exercised the Order Authorizing Sale and foreclosed on [Plaintiff’s]
property,” did not negotiate in good faith to modify the loan, and has only shown that it is
a “holder” and not a “holder in due course” and therefore is possibly a thief. Second Am.
Compl. [#47] at 6-10. Plaintiff alleges that Defendant MERS committed a “legal wrong”
when it transferred the deed of trust to US Bank. Id. at 10. Plaintiff further states that
Defendant US Bank acted under color of state law because it “knowingly subjected plaintiff
to a procedurally defective Rule 120 [process] under the 14th Amendment which was
conducted in a manner inconsistent with due process.” Id. at 12. Plaintiff asserts that
these “acts were done under color of state law with the aid of a public trustee, an agent of
the state[,] as well as legislators, and judges who are state officials.” Id. Defendants argue
that Plaintiff has failed to allege facts that would satisfy the “color of law” element of a §
1983 action. US Bank and MERS’ Motion [#62] at 11-12.
Section 1983 establishes liability based on the actions of the government and its
agents. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1446-47 (10th Cir. 1995).
To support the assertion that a private citizen is a state actor, the conduct allegedly causing
the deprivation of a federal right must be “fairly attributable to the state.” Id. at 1447. In
order for conduct to be “fairly attributable to the state,”
[f]irst, the “deprivation must be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the State
or by a person for whom the state is responsible.” Second, the private party
must have “acted together with or . . . obtained significant aid from state
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officials or engaged in conduct ‘otherwise attributable to the State.’”
Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir.1996) (citations omitted). The Tenth Circuit
has held that banks generally do not operate under color of state law, and therefore, cannot
be held liable pursuant to § 1983. See Ramsey v. Citibank, N.A., No. 10-cv-02653-WYDCBS, 2011 WL 4485922, at *9-10 (D. Colo. July 28, 2011), report and recommendation
adopted, No. 10-CV-02653-WYD-CBS, 2011 WL 4485918 (D. Colo. Sept. 28, 2011), aff’d,
475 F. App’x 711 (10th Cir. 2012) (finding that plaintiff’s challenge to legal merits of
defendant banks’ eviction efforts was insufficient to transform banks into state actors); Elliot
v. May, 122 F. App’x 944, 946 (10th Cir. 2004) (finding that plaintiff failed to show that
defendants, including a bank, “who are private entities, were acting under ‘color of state
law’”).
Even construed in the light most favorable to Plaintiff, the Second Amended
Complaint appears to merely allege that Defendants US Bank and MERS utilized the legal
processes available in order to carry out the foreclosure proceedings. “A private party
invoking a state legal procedure does not transform itself into a state actor.” See Lewis v.
JP Morgan Chase Bank, Nat’l Ass’n, No. 13-CV-01375-PAB-KLM, 2014 WL 1217948, at
*3 (D. Colo. Mar. 24, 2014), aff’d, 606 F. App’x 896 (10th Cir. 2015); see also Scott v. Hern,
216 F.3d 897, 906-07 (10th Cir. 2000) (private individual does not engage in state action
simply by availing itself of a state procedure); Hoai v. Vo, 935 F.2d 308, 313 (D.C. Cir.
1991) (“It is well established that mere recourse to state or local court procedures does not
by itself constitute ‘joint activity’ with the state sufficient to subject a private party to liability
under section 1983.”). Furthermore, Plaintiff’s statement that Defendants’ actions were
“done under color of state law with the aid of a public trustee” is insufficient because such
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joint conduct does not bring the relevant actions within the meaning of § 1983. See Second
Am. Compl. [#47] at 12; Lewis, 2014 WL 1217948, at *3 (finding that alleged joint conduct
between the public trustee and foreclosing defendants was merely the use of state legal
procedures) (citing Read v. Klein, 1 F. App’x 866, 871 (10th Cir. 2001)).
Furthermore, relief under § 1983 cannot be premised solely on an argument that a
private actor misused available state procedures, particularly in the absence of overt and
significant assistance from state officials. Cobb v. Saturn Land Company, Inc ., 966 F.2d
1334, 1336-37 (10th Cir.1992). As explained previously, Plaintiff appears to allege that her
due process rights were violated because Defendants followed Rule 120 procedures. See
Second Am. Compl. [#47] at 6-10. Even if Plaintiff’s assertion that Defendant US Bank did
not negotiate regarding loan modification “in good faith” somehow constituted a misuse of
procedures, that allegation still does not implicate state action. See Cobb, 966 F.2d at
1336-37. Thus, Plaintiff has not sufficiently alleged facts indicating that these Defendants
misused Rule 120 procedures, nor has she sufficiently alleged that state officials overtly
and significantly assisted in any misuse.
Accordingly, the Court respectfully recommends that this aspect of Claim One as
to Defendants US Bank and MERS be dismissed with prejudice. See Brereton, 434 F.3d
at 1219.
b. Defendants Castle and Hopp
With respect to Defendants Castle and Hopp, Plaintiff alleges that they “became
state actors and ‘de facto’ staff attorneys of the legislature when they involved themselves
in the legislative process by drafting the legislation which amended the foreclosure statute,”

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which Plaintiff alleges violates due process. Second Am. Compl. [#47] at 13. She further
asserts that these Defendants “usurped and corrupted official legislative power” and
engaged in a “conspiracy to deprive homeowners of due process” in order “to foreclose for
their clients, and increase[ ] their revenues, and perpetuate[ ] an ongoing civil conspiracy.”
Id. at 14.
The Second Amended Complaint does not contain any factual allegations to show
that Defendants Castle and Hopp are state actors. As discussed above, to the extent that
Plaintiff challenges Defendants’ alleged perpetration of a foreclosure scheme via exercising
statutory rights and utilizing court proceedings, this alleged joint conduct does not bring the
relevant actions within the meaning of § 1983. See Lewis, 2014 WL 1217948, at *3 (finding
that alleged joint conduct between the public trustee and foreclosing defendants was
merely the use of state legal procedures) (citing Read, 1 F. App’x at 871).
The Court also rejects Plaintiff’s allegation that, by virtue of participating in the
legislative process that led to the enactment of Colorado’s nonjudicial foreclosure scheme,
Defendants Castle and Hopp are state actors. The Court is aware of no authority that
supports Plaintiff’s position that private parties are transformed into state actors because
of their efforts to influence legislation. See, e.g., Chapel Farm Estates, Inc. v. Moerdler,
No. 01 Civ. 3601(MBM), 2003 WL 21998964, at *6 (S.D.N.Y. Aug. 22, 2003) (finding that
homeowners association was not state actor by virtue of its efforts to lobby city council).
Accordingly, the Court respectfully recommends that this aspect of Claim One be
dismissed with prejudice as to Defendants Castle and Hopp. See Brereton, 434 F.3d at
1219.

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c. Defendant Duffy12
Defendant Duffy is a Public Trustee. In Claim One, Plaintiff alleges that “each of the
defendants was the agent and employee of each of the remaining defendants and was at
all times acting within the purpose and scope of such agency and employment and that the
acts were done under color of state law with the aid of a public trustee, an agent of the
state[.]” See Second Am. Compl. [#47] at 12. Plaintiff also alleges that Defendant Duffy
“committed a ‘legal wrong’ when she held a public auction of Plaintiff Silva’s property
thereby further enforcing a Rule 120 Order Authorizing Sale in a proceeding alleged to be
unconstitutional and conducted in a manner inconsistent with due process.” Id. at 22. The
Second Amended Complaint contains no allegations specifying Defendant Duffy’s acts
beyond those general assertions.
Plaintiff’s allegation that the other Defendants acted “with the aid of a public trustee”
is conclusory and amounts to nothing more than a formulaic recitation of elements.
Therefore, that allegation is insufficient. See Ashcroft, 556 U.S. at 681 (citation omitted);
Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo.1991) (holding that “[m]erely stating
that [a plaintiff’s] due process and equal protection rights have been violated does not
entitle a pro se pleader to a day in court, regardless of how liberally [the court] construe[s]
such pleadings”). Further, as discussed above, the “mere acquiescence of a state official
in the actions of a private party is not sufficient” to state a § 1983 claim. See Gallagher, 49

12

Plaintiff clearly states in the caption of the Second Amended Complaint [#47] that she is
suing Defendant Duffy in her individual capacity. Thus, the Court considers Defendant Duffy in that
capacity. To the extent that Plaintiff asserts in the Response [#66] to Duffy’s Motion that she is
bringing claims against Defendant Duffy in any other capacity, Plaintiff has not amended her
pleadings accordingly and the Court therefore will not consider those contentions.

-22-

F.3d at 1453.
Accordingly, the Court respectfully recommends that this aspect of Claim One be
dismissed with prejudice as to Defendant Duffy. See Brereton, 434 F.3d at 1219.
4.

§ 1983 Conspiracy

In Claim Two, Plaintiff alleges that Defendants conspired to deprive her of her
property by amending Colorado’s foreclosure laws and using its foreclosure procedures to
advance their financial interests, which violated Plaintiff’s Fourteenth Amendment rights.
Second Am. Compl. [#47] at 4. The Tenth Circuit has stated that “a conspiracy to deprive
a plaintiff of a constitutional or federally protected right under the color of state law” is
actionable. Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990). In order to establish the
existence of a conspiracy, a plaintiff seeking redress must show that there was a “single
plan, the essential nature and general scope of which [was] known to each person who is
to be held responsible for its consequences.” Id. at 701-02. Conclusory allegations provide
insufficient factual support for such a claim. See Sooner Prods. Co. v. McBride, 708 F.2d
510, 512 (10th Cir. 1983) (“When a plaintiff in a § 1983 action attempts to assert the
necessary ‘state action’ by implicating state officials or judges in a conspiracy with private
defendants, mere conclusory allegations with no supporting factual averments are
insufficient; the pleadings must specifically present facts tending to show agreement and
concerted action.”).
Here, there are no factual allegations to support a reasonable inference that the
Defendants shared a specific goal to violate Plaintiff’s constitutional rights by engaging in
a particular course of action involving state actors. The closest Plaintiff comes to alleging

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a conspiracy is her statement that “US Bank and other lenders and their respective
attorneys had constructive or actual knowledge through [a newsletter] of the efforts of
Lawrence E. Castle, Robert J. Hopp, and the Public Trustee Associations efforts [sic] to
make foreclosures easier.” See Second Am. Compl. [#47] at 19-20. However, the fact that
Defendant US Bank discovered through a newsletter that other Defendants were
attempting to make the foreclosure process easier does not show a concerted action or
agreement among them. See Sooner Prods., 708 F.2d at 512. Plaintiff alleges that
Defendants “shared this common [financial] motive,” that Plaintiff “is informed and believes
and thereon alleges that, at all times herein mentioned, each of the defendants sued herein
was the agent and employee of each of the remaining defendants,” and that Defendants’
actions were taken under color of state law. See Second Am. Compl. [#47] at 16-17.
These allegations are conclusory. See Sooner Prods., 708 F.2d at 512. Additionally, as
explained above, Plaintiff has not sufficiently alleged that Defendants US Bank, MERS,
Castle, or Hopp engaged in any joint conduct with state actors. For these reasons, the
Court respectfully recommends that Claim Two be dismissed with prejudice. See
Brereton, 434 F.3d at 1219.13
5.

§ 1985(3) Conspiracy Claim

Between the Third and Fourth Causes of Action in the Second Amended Complaint
[#47], Plaintiff inserts a repeat “Second Cause of Action” for a conspiracy pursuant to §

13

Plaintiff’s Fifth Cause of Action is titled “Exparte [sic] Young Injunction” and solely
consists of requests for injunctive relief. Am. Compl. [#26] at 28. If the Court’s recommendation
to dismiss all claims is accepted, Plaintiff’s requested relief may not be granted. See Frank v. Wells
Fargo Bank, N.A., No. 15-cv-02646-RBJ, 2016 WL 6212524, at *9 (D. Colo. Oct. 11, 2016) (stating
that a claim for injunctive relief must be supported by a cause of action).

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1985(3) that is essentially a shortened replication of the earlier § 1983 conspiracy claim.14
See Second Am. Compl. [#47] at 30-32. It appears that the assertion of this claim may
have been in error because the claim is not included in the “Causes of Action” listed at the
beginning of the Second Amended Complaint [#47], the claim numbering is out of order and
repeats the allegations contained in an earlier cause of action, and Plaintiff does not defend
any § 1985 conspiracy claim in her Responses. Even if the claim were properly asserted,
as discussed above, Plaintiff has not sufficiently alleged any agreement or concerted action
among the Defendants. See Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1988)
(stating that plaintiff “must allege specific facts showing agreement and concerted action
among the defendants” to sufficiently allege a § 1985(3) conspiracy claim).
Accordingly, to the extent that Plaintiff asserts a § 1985(3) conspiracy claim, the
Court respectfully recommends that it be dismissed with prejudice. See Brereton, 434
F.3d at 1219.
E.

State Law Claims
Plaintiff also asserts state law claims of (1) fraud by misrepresentation and non-

disclosure, (2) unjust enrichment, and (3) misfeasance in public office. See Second Am.
Compl. [#47]. These are claims which “[f]ederal law neither created . . . nor is federal law
a necessary element of it. [They are] purely . . . state-law claim[s].” See Tinner v. Farmers
Ins. Co., 504 Fed. App’x 710, 714 (10th Cir. 2012) (citation omitted). Here, subject matter

14

The Court notes that the section titled “Third Cause of Action” is also repeated from
earlier in the Second Amended Complaint. See Second Am. Compl. [#47] at 33-36.

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jurisdiction is based on federal question jurisdiction.15 See Second Am. Compl. [#47] at 2.
As a result, as Plaintiff acknowledges, consideration of the remaining claims would require
that the Court exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367. The
exercise of supplemental jurisdiction “is within a district court’s discretion.” Wittner v.
Banner Health, 720 F.3d 770, 781 (10th Cir. 2013). Pursuant to 28 U.S.C. § 1367(c)(3),
“[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if the
district court has dismissed all claims over which it has original jurisdiction.” See Lancaster
v. Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir. 1998) (stating that once “the
bases for federal subject matter jurisdiction have been extinguished . . . the district court
may decline to exercise continuing pendant or supplemental jurisdiction over plaintiff’s state
claims”). Thus, having recommended dismissal of Plaintiff’s federal claims, the Court
further recommends that the Court decline to exercise supplemental jurisdiction over
Plaintiff’s remaining state law claims and that such claims (Claim Three, Claim Four, and
Claim Six) be dismissed without prejudice. See Bauchman v. W. High Sch., 132 F.3d
542, 549 (10th Cir. 1997) (holding that where federal claims are dismissed before trial,
federal courts should decline to exercise supplemental jurisdiction over state law claims by
dismissing the claim without prejudice).
F.

“Doe” Defendants
“[P]ursuant to Fed. R. Civ. P. 10(a), a caption to a complaint must include the names

of all parties.” Culp v. Williams, No. 10-cv-00886-CMA-CBS, 2011 WL 1597686, at *3 (D.
Colo. Apr. 27, 2011) (“Culp I”), aff’d, 456 F. App’x 718 (10th Cir. 2012) (“Culp II”). The

15

Plaintiff does not assert that the Court has diversity jurisdiction pursuant to 28 U.S.C. §

1332.

-26-

“Federal Rules of Civil Procedure do not explicitly allow the naming of fictitious or
anonymous parties in a lawsuit [therefore,] ‘an action may be dismissed if the defendant
is not sufficiently identified to permit service of process.’” Culp I, 2011 WL 1597686, at *3
(quoting Stratton v. City of Boston, 731 F. Supp. 42, 45 (D. Mass. 1989)).
Plaintiff included “Does 1-10” as Defendants in the caption of the lawsuit. However,
Plaintiff does not provide any allegations related to the Does anywhere in the Second
Amended Complaint [#47]. Additionally, the Court has recommended dismissal of all
claims against all named Defendants. Thus, the Court respectfully recommends that
Plaintiff’s claims against Does 1-10 be dismissed without prejudice. See Culp II, 456 F.
App’x at 720 (affirming dismissal of claims against John Doe defendants).
IV. Conclusion
For the reasons stated above,
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants’
Motions [#57, #59, #61, #62, #80] be GRANTED, and that the Second Amended Complaint
[#47] be DISMISSED as outlined below.
If this Recommendation is accepted, the following claims will be dismissed with
prejudice:
(1) Individual-capacity claims against Defendants Caschette, King, and Stevens, on
the basis of judicial immunity;
(2) Claim One;
(4) Claim Two; and
(5) Any conspiracy claim arising pursuant to § 1985(3).

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If this Recommendation is accepted, the following claims will be dismissed without
prejudice:
(1) All claims against Defendant 18th Judicial District, on the basis of Eleventh
Amendment immunity;
(2) All claims to the extent that Plaintiff seeks to undo her foreclosure proceedings,
pursuant to the Rooker-Feldman doctrine;
(3) Claims Three, Four, and Six brought pursuant to state law; and
(4) Any claims made against Does 1-10.
The Court further RECOMMENDS that Plaintiff’s request for injunctive relief as
stated in Claim Five be DENIED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).

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Dated: February 14, 2018

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