ELLIS v. CAPITALSOURCE BANK FBO AEON FINANCIAL, LLC et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on February 20, 2013. (lcegs2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RAYMOND V. ELLIS, SR.
Plaintiff,
v.
CAPITALSOURCE BANK FBO AEON
FINANCIAL, LLC, et al.,
Defendants.

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) Civil Action No. 12-1102(EGS)
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MEMORANDUM OPINION
Plaintiff Raymond V. Ellis, proceeding pro se, brings this
action seeking damages for various causes of action.
have filed five motions to dismiss.

Defendants

Upon consideration of the

motion, the entire record herein, and for the reasons explained
below, the motion to dismiss will be GRANTED.
I.

BACKGROUND
Plaintiff brings this action on behalf of himself and a

purported trust alleging violations of various federal laws and
seeks damages of $900 Million dollars.

In the complaint,

plaintiff makes broad and vague allegations of wrongdoing by
various government officials that appear to relate to a tax case
in which plaintiff was involved in Superior Court.

From what

the Court has been able to determine from reading other
documents filed in this case, it appears that plaintiff’s claims
relate to a tax foreclosure proceeding brought against

plaintiff’s property in the District of Columbia pursuant to
D.C. Code § 47-1330.

See, e.g., Defendant CapitalSource Bank

and Malik J. Tuma’s Motion to Dismiss, ECF No. 14, at 1.
Plaintiff alleges that in that case, the Judges were biased
against him and sought to harm him.

Plaintiff alleges that the

“tax court [is] nothing more than a program of terrorism or a
party, or a group of Hoodlums, using the law to fulfill its
legal action.”

Compl. ¶ 14.

He alleges, for example, that

Magistrate Judge Joseph Beshouri was prejudiced against
plaintiff because of plaintiff’s race.

Id. ¶ 12.

Plaintiff

also lodges various allegations of wrongdoing against the
attorneys and corporations involved in that prior action.
On July 25, 2012, defendants Stephen Harker and HMTR1, LLC
(“HMTR1”) moved to dismiss.

ECF No. 2.

On July 26, 2012, the

Court issued a so-called Fox/Neal Order informing plaintiff of
his obligation to respond to the motion to dismiss and directing
plaintiff to respond by no later than August 31, 2012.

On July

27, 2012, a second motion to dismiss was filed by Magistrate
Judge Joseph Beshouri, Judge Stephanie Duncan-Peters, Judge
Melvin R. Wright, the Mayor of the District of Columbia, and the
Office of the Attorney General for the District of Columbia.
ECF No. 5.

The Court incorporated its Fox/Neal Order by

reference and directed plaintiff to respond to the July 27, 2012
motion by August 31, 2012.

On August 27, 2012, defendants Vivek
2

V. Gupta and Wiper Corporation moved for leave to file a motion
to dismiss, which the Court granted.

ECF Nos. 7, 9.

The Court

incorporated its original Fox/Neal Order by reference and
directed plaintiff to respond to the third motion to dismiss by
no later than September 28, 2012.

On August 30, 2012, defendant

Vladimir Jadrijevic filed a motion to dismiss for insufficient
service of process.

ECF No. 10.

The Court incorporated its

original Fox/Neal Order and directed plaintiff to respond to the
fourth motion to dismiss by no later than October 1, 2012.

On

August 31, 2012, defendants CapitalSource Bank FBO Aeon
Financial, LLC (“CapitalSource Bank”) and Malik J. Tuma filed a
motion for extension of time to respond to the complaint, which
the Court granted.

On September 4, 2012, defendants

CapitalSource Bank and Malik J. Tuma filed a motion to dismiss.
ECF No. 14.

The Court incorporated its original Fox/Neal Order

and directed plaintiff to respond to the fifth motion to dismiss
by no later than October 1, 2012.

On September 11, 2012,

plaintiff moved for a Judgment of Default against defendants
Malik J. Tuma, CapitalSource Bank, Vivek V. Gupta, and Wiper
Corporation for their alleged failure to respond to the
complaint.

ECF No. 17.

motion to change venue.

On October 2, 2012, plaintiff filed a
ECF No. 22.

for the Court’s decision.

3

These motions are now ripe

II.

STANDARD OF REVIEW

An action will be dismissed where the complaint fails to
state a claim upon which relief can be granted.

Fed. R. Civ. P.

12(b)(6); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002).

To avoid dismissal, a complaint must contain “a short

and plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
of what the claim is and the grounds upon which it rests.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted).

Although detailed

factual allegations are not required, a plaintiff must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. 544, 555-57).

“Only a complaint

that states a plausible claim for relief survives a motion to
dismiss.”

Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at

556); see also Voinche v. Obama, 744 F. Supp. 2d 165, 170–71
(D.D.C. 2010).
A pro se plaintiff's complaint will be held to “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); see also Koch v. Schapiro, 699
F. Supp. 2d 3, 7 (D.D.C. 2010).

But even a pro se complaint

“must plead factual matter that permits the court to infer more
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than the mere possibility of misconduct.”

Jones v. Horne, 634

F.3d 588, 596 (D.C. Cir. 2011) (internal citations and quotation
marks omitted).

Moreover, “[a] pro se complaint, like any

other, must present a claim upon which relief can be granted.”
Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981).

Even

with the liberality afforded pro se complaints, the district
court “need not accept inferences unsupported by the facts
alleged in the complaint or legal conclusions cast in the form
of factual allegations.”

Kaemmerling v. Lappin, 553 F.3d 669,

677 (D.C. Cir. 2008) (quotation marks omitted).
III. DISCUSSION
A. Motion to Dismiss Claims Against Harker and HMTR1
The claims against defendants Stephem Harker and HMTR1
appear to allege only that HTMR1 filed an action to foreclose a
right of redemption on a tax lien certificate.

Plaintiff

alleges that the tax lien certificate was mailed to the wrong
address.

Plaintiff further contends that the certificate of

sale is void because it omitted plaintiff’s name.

Plaintiff

argues that Harker and HMTR1 have thus committed mail fraud in
violation of 18 U.S.C. § 1341, and “other fraud offenses.”
Compl. ¶ 104.
On July 25, 2012, Harker and HTMR1 moved to dismiss.
No. 2.

ECF

Harker and HMTR1 argue that the complaint fails to state

a claim because plaintiff has asserted no cognizable cause of
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action against Harker and HMTR1.

Defendants also allege that,

to the extent plaintiff seeks to bring claims under the federal
mail fraud statutes, those statutes provide no private right of
action.

ECF No. 2 at 3 (citing Ivey v. Nat’l Treasury Employees

Union, 2007 U.S. Dist. LEXIS 21794 (D.D.C. Mar. 27, 2007)).
Harker and HTMR1 further argue that to the extent that plaintiff
alleges “other fraud,” he has failed to allege it with the
requisite particularity required by Federal Rule of Civil
Procedure 9(b).

Finally, defendants argue that to the extent

plaintiff appears to allege that a notice of foreclosure was
sent to the wrong address in his prior action, he received
actual notice as indicated in the Superior Court action.
Defendants further argue that plaintiff’s efforts to seek
redress against defendants for errors in a tax certificate are
misplaced because the District of Columbia issues tax
certificates and defendants were in no way involved in its
creation or issuance.

ECF No. 2 at 5 (citing D.C. Code § 47-

1348).
In response, plaintiff alleges that the certificate of sale
was fraudulent, without providing further detail.

Plaintiff

further alleges that because defendants Harker and HMTR1 have
alleged that plaintiff has no private right of action, Harker
and HTMR1 have conceded that the committed wrongdoing.

Finally,

plaintiff alleges that Harker and HMTR1 filed legal papers in an
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effort to embezzle money from plaintiff and that they tried to
collect over three thousand dollars from plaintiff.
The Court agrees with defendants Harker and HMTR1 that
plaintiff has failed to state a claim against them.

Even

construing plaintiff’s pro se complaint liberally, as the Court
is required to do, the Court finds that plaintiff’s allegations
establish nothing more than defendants’ involvement in a prior
lawsuit.

Accordingly, the Court finds that the fail to state a

plausible claim for relief.

See Iqbal, 556 U.S. at 679.

Furthermore, plaintiff cannot bring a private right of action
against defendants for any violations of the mail fraud
statutes, even if those claims had been properly pled.

See

Hunter v. District of Columbia, 384 F. Supp. 2d 257, 260 n.1
(D.D.C. 2005) (holding that criminal statutes create no private
right of action); Rockefeller v. U.S. Court of Appeals Office
for Tenth Circuit Judges, 248 F. Supp. 2d 17, 23 (D.D.C. 2003)
(plaintiff precluded from asserting claims under criminal
statutes because they did not convey a private right of action).
Accordingly, the Court will DISMISS all claims against Harker
and HMTR1 for failure to state a claim under Rule 12(b)(6).
B. Motion to Dismiss Claims against Attorney General of
District of Columbia, Mayor of District of Columbia, and
Superior Court Judges
On July 27, 2012, a second motion to dismiss was filed by
Magistrate Judge Joseph Beshouri, Judge Stephanie Duncan-Peters,
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Judge Melvin R. Wright (the “Judicial Defendants”), the Mayor of
the District of Columbia, and the Office of the Attorney General
for the District of Columbia.

ECF No. 5.

The claims against

these defendants fall into three general categories.

Plaintiff

alleges that the Judicial Defendants, who were involved at
various stages of his tax proceeding, were biased against him
and harmed him.

He does not allege any wrongdoing that is

outside of the Judicial Defendants’ roles as judges.

For

example, plaintiff alleges that Magistrate Judge Beshouri
“continues to assist Wiper Corporation not only to the extend
the time of these hearings but to drag these hearings [sic],
trying to help Wiper Corporation throughout these hearings . .
.”

Compl. ¶ 19.

Plaintiff further alleges that Magistrate

Judge Beshouri and Judge Duncan-Peters “willfully” mailed out
false orders.

Compl. ¶ 37.

Finally, plaintiff alleges that

Judge Wright ignored plaintiff’s arguments.

Compl. ¶ 39.

With respect to the Office of the Mayor, plaintiff alleges
that “the past two mayors—Williams and Fenty have led this City
through the Office of Tax and Revenue with no accountability.”
Compl. ¶ 108.

He further alleges that the Mayor and the City

council “have formed a terror group to terrorize the City of the
District of Columbia” and has committed fraud by filing “false
documents and used their office to steal from citizens of the
District of Columbia.”

Compl. ¶¶ 111-12.
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With respect to the Office of the Attorney General,
plaintiff makes very few allegations.

Plaintiff appears to

allege that the Office of the Attorney General took part in a
conspiracy with the Judicial Defendants and counsel for
CapitalSource Bank to defraud plaintiff.

Compl. ¶ 36.

No

specific allegations regarding this conspiracy are made in the
complaint.
In the motion to dismiss, the Office of the Attorney
General argues that it cannot be sued as a separate entity and
that plaintiff has set forth no statutory authority suggesting
otherwise.

ECF No. 5 at 5 (citing Braxton v. National Capitol

Housing Auth., 396 A.2d 215, 216 (D.C. 1978)).

The Mayor of the

District of Columbia alleges that plaintiff has failed to state
a claim against him because plaintiff has only alleged the
mayor’s involvement in an undefined conspiracy.

Id. at 5.

Finally, the Judicial Defendants argue that they are entitled to
absolute judicial immunity.

Id. at 6 (citing Stump v. Sparkman,

435 U.S. 349, 356 (1978)).
In response, plaintiff only disputes the defense of
judicial immunity by arguing that the defendants’ grounds for
dismissal are “only based on their job titles.”
2.

ECF No. 16 at

Plaintiff does not respond to any other specific argument

made by defendants in their motion to dismiss.

Specifically,

plaintiff does not address the Mayor of the District of
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Columbia’s argument that plaintiff has failed to state a claim
with respect to allegations against him.

Accordingly, the Court

will dismiss as conceded plaintiff’s claims against the Mayor.
See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284
F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raise by
the defendant, a court may treat those arguments that the
plaintiff failed to address as conceded.”) (citing FDIC v.
Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1987)).
The Court also finds that the claims against the Office of
the Attorney General and the Judicial Defendants should be
dismissed.

Plaintiff has failed to materially dispute

defendants’ arguments that the Office of the Attorney General
cannot be sued and that the Judicial Defendants have judicial
immunity.

Accordingly, the arguments can be deemed conceded.

See Hopkins, 284 F. Supp. 2d at 25.

Moreover, the Court finds

that defendants are correct on both points.

See Braxton, 396

A.2d 215, 216 (“[B]odies within the District of Columbia
government are not suable as separate entities.”); Pierson v.
Ray, 386 U.S. 547, 553-54 (1967) (stating that few doctrines
were more solidly established at common law than the “immunity
of judges from liability for damages for acts committed within
their judicial discretion”).

Plaintiff has offered no argument
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to challenge the arguments made by the Office of the Attorney
General or the Judicial Defendants on these points.
Accordingly, plaintiff’s claims against the Office of the
Attorney General, the Judicial Defendants, and the Mayor of the
District of Columbia shall be DISMISSED.
C. Motion to Dismiss Claims Against defendants Gupta and Wiper
Corporation
Plaintiff appears to make several allegations against
defendants Vivek V. Gupta and Wiper Corporation.

Plaintiff

alleges that Wiper Corporation filed a complaint for a tax lien
against plaintiff in 2009 and that notice was not properly
served in that case.

Plaintiff alleges other alleged violations

of procedural rules by Wiper Corporation.

With respect to the

improperly served documents, plaintiff contends that Wiper
Corporation has committed perjury by claiming that the documents
were properly served.

Plaintiff also alleges that Gupta, Wiper

Corporation’s CEO, mailed documents relating to that case to
plaintiff without properly addressing them to plaintiff.
Plaintiff’s allegations against Wiper Corporation and Gupta
relate in their entirety to the tax proceeding in Superior
Court.
On August 27, 2012, defendants Gupta and Wiper Corporation
moved for leave to file a motion to dismiss, which the Court
granted.

ECF Nos. 7, 9.

Defendants Gupta and Wiper Corporation

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argue that plaintiff has failed to state a cognizable cause of
action against them, that there is no private right of action
under the mail fraud statutes or for perjury, and that
plaintiff’s other fraud claims have not been pled with
particularity.
In response to Gupta and Wiper Corporation’s motion to
dismiss, plaintiff contends that the Court should disregard the
motion it was not timely filed and plaintiff filed a motion for
default judgment.

The Court, however, granted Gupta and Wiper

Corporation additional time to file their motion, and thus the
argument fails. 1

Plaintiff’s only other response to defendants’

arguments is to contend that they have admitted that they
committed perjury and mail fraud but that defendants fall back
on the excuse that there is no private right of action for
either claim.

Plaintiff is incorrect, of course, that

defendants have made any such admissions in arguing that there
is no private right of action.

Furthermore, for the reasons

stated above, the Court finds that plaintiff’s claim regarding
mail fraud against Gupta and Wiper Corporation fail because no
private right of action exists for violations of criminal
statutes.

The Court also finds that plaintiff’s other

allegations of general wrongdoing have also failed to state a

1

Accordingly, the Court will also DENY plaintiff’s September 11,
2012 motion for default judgment.
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claim plausible claim for relief against either Wiper
Corporation or Gupta.

See Iqbal, 556 U.S. at 679.

Accordingly, the Court will DISMISS all claims against those
defendants.
D. Motion to Dismiss Claims Against Defendant Vladimir
Jadrijevic
On August 30, 2012, defendant Vladimir Jadrijevic filed a
motion to dismiss for insufficient service of process.
10.

ECF No.

Jadrijevic alleges that the affidavit of service filed by

plaintiff that indicates Jadrijevic was served on July 12, 2012
is incorrect.

Specifically, Jadrijevic argues that plaintiff

incorrectly attempted to serve him by certified mail, but that
the accompanying “green card” indicates that the complaint was
not signed by anyone at Jadrijevic’s business address.

He

argues, therefore, that plaintiff cannot establish that the
complaint was received by defendant or someone authorized to
accept service on his behalf, as required by Federal Rule of
Civil Procedure 4(e) or its counterpart in the District of
Columbia Superior Court Rules.
Although plaintiff was notified of his obligation to
respond to Jadrijevic’s motion to dismiss, plaintiff failed to
do so.

Accordingly, the Court finds that plaintiff has conceded

Jadrijevic’s arguments regarding service of process, see

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Hopkins, 284 F. Supp. 2d at 25, and all claims against
Jadrijevic are hereby DISMISSED.
E. Motion to Dismiss Claims Against Defendants CapitalSource
Bank and Tuma
On September 4, 2012, defendants CapitalSource Bank and
Malik J. Tuma filed a motion to dismiss.

ECF No. 14.

Defendants CapitalSource and Tuma allege that plaintiff has
failed to state a claim against them.

Specifically, defendants

argue that plaintiff has made only vague allegations of a
conspiracy with no factual basis.

Defendants also argue that

plaintiff cannot state a private cause of action for perjury or
other alleged criminal acts. 2
For the reasons stated above, the Court agrees that
plaintiff cannot bring a private right of action for perjury or
other criminal acts.

The Court also finds that plaintiff has

failed to state a claim against either defendant.

Plaintiff’s

allegations seem to stem entirely from his dissatisfaction with
the sale of his property as a result of the District of Columbia
tax statute.

His allegations against the defendants merely

allege their participation in those proceedings and do not state
a cause of action.

For example, plaintiff alleges that

CapitalSource Bank and Tuma were in a conspiracy with the
2

Defendant CapitalSource Bank also moved with partial consent
from everyone except the plaintiff to change its name in the
caption to Aeon Bank. Because the claims against CapitalSource
Bank are being dismissed, however, the request is moot.
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Judicial Defendants and the District of Columbia to harm
plaintiff and “commit a crime.”

Compl. ¶ 36.

Plaintiff also

alleges that “CapitalSource Bank, through its attorney Malik J.
Tuma, willfully lied” in the tax proceeding regarding its
service of certain documents on plaintiff.

Compl. ¶ 123.

Although plaintiff claims he was harmed by those actions, his
allegations with respect to each specific defendant are the
“unadorned defendant-harmed-me” type of allegations that are
insufficient to withstand a motion to dismiss.
U.S. at 678.

See Iqbal, 556

Accordingly, the Court will grant CapitalSource

Bank and Tuma’s motion to dismiss.

Plaintiff’s claims against

those defendants are hereby DISMISSED.
IV.

CONCLUSION

For all of the foregoing reasons, defendants’ motions to
dismiss are hereby GRANTED. 3

An appropriate Order accompanies

this Memorandum Opinion.
Signed:

Emmet G. Sullivan
United States District Judge
February 20, 2013

3

Because this Memorandum Opinion and accompanying Order dismiss
plaintiff’s case, plaintiff’s October 2, 2012 motion to change
venue will be DENIED as moot.
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