Guild Mortgage Company v. Davenport et al
ORDER GRANTING GUILD MORTGAGE COMPANY'S MOTION TO DISMISS 10 . Signed by JUDGE HELEN GILLMOR on 4/18/2011. ~ Guild Mortgage's 10 Motion to Dismiss the Complaint/Merged Notice of Removal is GRANTED. The Complaint/Merged Notice of Removal 1 is DISMISSED WITH PREJUDICE. The Clerk of the Court shall close this case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on 4/19/2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
David K. Davenport; Barbara
Davenport; Jeffrey M. Taylor; )
John DOES 1-10; Jane DOES 1)
10; DOE Partnerships 1-10; DOE )
Corporations 1-10; DOE
Entities 1-10; and DOE
Governmental Units 1-10,
Civ. No. 10-00314 HG-KSC
Guild Mortgage Company,
ORDER GRANTING GUILD MORTGAGE COMPANY’S
MOTION TO DISMISS
On June 2, 2010, David K. Davenport, appearing pro se, filed
a document two inches thick with a title that takes up three pages
and begins: “MERGED NOTICE OF REMOVAL; THE MERGED REMOVAL ACTION OF
CIVIL NO. 08-1-1268-06; . . . .”
The caption contains ten other
proceeding numbers, some state court cases and some which appear to
be administrative actions.
The caption names the parties as Guild
Davenport, Jeffrey M. Taylor and various DOE entities as the
They appear to try to allege various consumer
rights connected to a foreclosure action which reached a final
allegations various complaints he has about employment actions he
was engaged in starting back in at least 1994.
The remainder of
the two inch thick filing contains attachments of various aspects
of the multiple proceedings he wishes to incorporate here without
While the word removal is mentioned in the three page caption,
there is no resemblance to a removal action.
At best, the
complaint can be characterized as a failed attempt to bring a new
action in federal court summarizing the disparate proceedings Mr.
Davenport has been involved in over the last two decades.
Guild Mortgage Company MOVES TO DISMISS for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim under Federal Rule of Civil
The Motion is GRANTED.
On June 2, 2010, David K. Davenport filed a Complaint/”Merged
Notice of Removal.”
On December 1, 2010, Guild Mortgage Company filed a Motion to
Dismiss. (Doc. 10).
On December 20, 2010, Davenport filed an Opposition. (Doc.
On February 18, 2011, Guild Mortgage Company filed a Reply.
Pursuant to Local Rule of Civil Procedure 7.2(d), the Court
elected to decide the Motion without a hearing. (Doc. 14).
Mr. Davenport’s Complaint is difficult to decipher and largely
wrongdoing, many of which relate to a mortgage loan that Mr.
Davenport obtained from Guild Mortgage Company (“Guild Mortgage”).
The Complaint refers to a “malicious foreclosure,” to “truth in
lending” violations, and to abuses of the Fair Debt Collection and
Procedure Act. (Complaint at 3-4 (Doc. 1)).
Among numerous other
allegations of wrongdoing, the Complaint references “disability
insurance claims for incapacitation from work as decided by the
Hawaii Supreme Court.” (Id.) (emphasis in original).
to asserting various claims for relief, the Complaint is an attempt
to remove and consolidate multiple state court actions.
Mr. Davenport attached copies of various filings from state
court proceedings to his Complaint.
The filings include an action
that appears to have been initiated by Mr. Davenport with a
worker’s compensation claim submitted to the State of Hawaii
Compensation Division on April 8, 1996. (See Exhibit A to Complaint
The action apparently proceeded before the State of
Hawaii Labor and Industrial Relations Appeal Board as David K.
Davenport v. City and County of Honolulu, Honolulu Fire Department,
Case No. AB 96-727, and eventually reached the Hawaii Supreme
Court. (See Id.).
Guild Mortgage is not a party to Mr. Davenport’s worker’s
Guild mortgage points out that it has no
connection to the various court filings that are attached to the
Complaint. (Memorandum in Support of Motion to Dismiss at 1 (Doc.
Guild Mortgage states that it previously brought a
foreclosure action against Mr. Davenport in the First Circuit of
the State of Hawaii: Guild Mortgage Company v. David Davenport, et
al., Civ. 06-1-0537. (Id. at 2).
Final judgment was entered in
that action in January of 2010.1 (Id.).
STANDARD OF REVIEW
Guild Mortgage moves to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
and for failure to state a claim pursuant to Federal Rule of Civil
Subject Matter Jurisdiction
A case is properly dismissed for lack of subject matter
Guild Mortgage attached a copy of the docket from the state
foreclosure action, which shows that a final judgment was entered
in January 2010. Mr. Davenport does not dispute that a final
judgment was entered in that month. Pursuant to Federal Rule of
Evidence 201, the Court takes judicial notice of the status of
this state court proceeding.
jurisdiction under Fed. R. Civ. P. 12(b)(1) when the court lacks
the constitutional or statutory power to adjudicate the case.
challenge to the Court’s subject matter jurisdiction may be “facial
or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004).
In a facial attack, the “challenger asserts that
the allegations contained in a complaint are insufficient on their
face to invoke federal jurisdiction.” Id. In a factual attack, the
themselves, would otherwise invoke federal jurisdiction.” Id.
When the motion to dismiss is a factual attack on subject
matter jurisdiction, no presumptive truthfulness attaches to the
plaintiff's allegations. White v. Lee, 227 F.3d 1214, 1242 (9th
The party seeking to invoke the jurisdiction of the
Court has the burden of establishing that jurisdiction exists.
Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).
moving party has converted the motion to dismiss into a factual
motion by presenting affidavits or other evidence properly brought
before the court, the party opposing the motion must furnish
affidavits or other evidence to satisfy its burden of establishing
subject matter jurisdiction. Savage v. Glendale Union High School,
343 F.3d 1036, 1039 n. 2 (9th Cir. 2003).
Failure to State a Claim
The Court may dismiss a complaint as a matter of law pursuant
to Rule 12(b)(6) where it fails “to state a claim upon which relief
can be granted.” Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
a Rule 12(b)(6) motion to dismiss, the Court must presume all
allegations of material fact to be true and draw all reasonable
inferences in favor of the non-moving party. Pareto v. F.D.I.C.,
139 F.3d 696, 699 (9th Cir. 1998).
Conclusory allegations of law
and unwarranted inferences are insufficient to defeat a motion to
dismiss. Id. at 699. The Court need not accept as true allegations
that contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
In Bell Atl. Corp. v. Twombly, the United States Supreme Court
addressed the pleading standards under the Federal Rules of Civil
Procedure in the anti-trust context. 550 U.S. 544 (2007).
Supreme Court stated that Rule 8 of the Federal Rules of Civil
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. at 555.
clarified that the principles announced in Twombly are applicable
in all civil cases. 129 S.Ct. 1937 (2009).
The Court stated that
“the pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me-accusation.” Id. at 1949 (citing
Twombly, 550 U.S. at 555).
To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face. Id.
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. Id. (citing Twombly, 550 U.S. at
The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Id. (quoting Twombly, 550 U.S. at
Where a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id.
(quoting Twombly, 550 U.S. at 557).
Guild Mortgage moves to dismiss for lack of subject matter
jurisdiction, and for failure to state a claim.
argues that: (1) insofar as the Complaint is an attempt at removal,
it does not comply with the requirements of 28 U.S.C. § 1446 and is
improper; (2) Mr. Davenport’s claims were already adjudicated in
state court and review is barred by res judicata; (3) the Court
lacks subject-matter jurisdiction to review the state court actions
under the Rooker-Feldman doctrine; and (4) the Complaint fails to
state a claim for relief that is plausible on its face.
arguments are considered in turn.
Removal Is Improper
To the extent the Complaint seeks to remove and combine state
court actions, the removal is plainly improper.
statute does not authorize the removal and “merger” of multiple
state court actions. See 28 U.S.C. §§ 1441, 1446.
notice of removal also fails to meet the procedural requirements of
28 U.S.C. § 1446.
A defendant seeking to remove a civil action
from state court must file a notice of removal containing a “short
and plain statement of the grounds for removal, together with a
copy of all process, pleadings, and orders served upon such
defendant or defendants in such action.” 28 U.S.C. § 1446(a).
“Merged Notice of Removal” does not contain a statement of the
grounds for removal.
The Notice contains 25 pages of allegations
of wrongdoing and claims for relief; as discussed, the document is
a Complaint rather than a notice of removal.
The voluminous documents attached to the Complaint appear to
relate to a worker’s compensation claim in which Mr. Davenport was
the Claimant/Appellant, and not a defendant. (See Exhibits to
Complaint (Docs. 1-1 to 1-17)).
The right to remove a state court
case to federal court is limited to defendants. American Intern.
Underwriters (Philippines, Inc. v. Continental Ins. Co., 843 F.2d
1253, 1261 (9th Cir. 1988); 28 U.S.C. § 1441(a) (“Except as
otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States . .
. .” (emphasis added).
Putting aside the many jurisdictional and
statute of limitations issues present, it is clear Mr. Davenport
was not a defendant in his worker’s compensation action, and cannot
remove it to state court.
foreclosure action brought by Guild Mortgage Co., Guild Mortgage
Company v. David Davenport, et al., Civ. 06-1-0537, the removal of
that action similarly fails to meet the procedural requirements.
Mr. Davenport did not provide a short and plain statement of the
grounds for removing the action, and did not attach copies of the
filings from that case to the notice of removal.
The removal of the foreclosure action also fails because a
final judgment was issued and the time period for an appeal
expired.2 See Resolution Trust Corp. v. Bayside Developers, 43 F.3d
Guild Mortgage also argues that any attempt at removal is
untimely. A defendant seeking to remove a state court action
must file a notice of removal within thirty days of receiving a
1230, 1237 (9th Cir. 1994) (holding that removal was appropriate
because appellate proceedings had not yet been exhausted); accord
(Higginbotham, J., concurring in part and dissenting in part) (“It
is of course plain that no case may be removed once the state
appellate process has been exhausted.”).
According to Guild
Mortgage, the foreclosure action was filed on March 29, 2006, Mr.
Davenport filed an answer to it on July 28, 2006, and a final
judgment in the case was issued on January 12, 2010.
Guild Mortgage attached a declaration from its attorney, Mary
Martin, and a copy of the docket from the state court foreclosure
action. (Declaration of Mary Martin (Doc. 10-2)); (Copy of Guild
Mortgage Co. v. David Davenport, et al., Civ. 06-1-0537 Docket
Ms. Martin avers that Doc. 10-3 is a copy of the
docket sheet from the foreclosure action. (Declaration of Mary
Martin at 2 (Doc. 10-2)).
She avers that Guild Mortgage was
copy of the initial pleading or, if the initial pleading is not
removable, within thirty days of receipt of a paper from which it
may first be ascertained that the case is removable. 28 U.S.C. §
1446(b); Destfino v. Reiswig, 630 F.3d 952, 955, 956 (9th Cir.
2011). Guild Mortgage submitted evidence, which Mr. Davenport
does not dispute, that Mr. Davenport was served with the state
court complaint on July 11, 2006. Mr. Davenport’s right to
remove the foreclosure action (assuming a jurisdictional basis
for removal existed) expired on August 11, 2006.
to a removal on timeliness grounds, however, must be made within
30 days after the filing of the notice of removal. 28 U.S.C. §
1447(c). The notice of removal was filed on June 2, 2010. Mr.
Davenport submitted evidence that he served the notice on Guild
Mortgage on June 2, 2010. (Doc. 1-18).
granted summary judgment against all defendants in the action on
March 17, 2008, and the foreclosure was completed in January 2010.
The docket shows that Mr. Davenport was served with a copy
of the complaint on July 11, 2006, and that he filed an answer to
it on July 28, 2006. (Doc. 10-3 at 1).
It shows that Guild
Mortgage was granted summary judgment and a decree of foreclosure
on March 17, 2008, and that a “Judgment On Order Approving Report
Of Commissioner Confirming Commissioner’s Sale Of Property At
Public Auction” was entered on January 12, 2010. (Id. at 3). Under
the Hawaii Rules of Appellate Procedure, a notice of appeal must be
filed within 30 days after entry of the judgment or appealable
Haw. R. App. P. 4(a)(1).
Mr. Davenport did not appeal the
First Circuit Court’s entry of judgment within 30 days.
Mr. Davenport does not dispute the accuracy of these dates.
jurisdictional basis for removal existed) ended after his time for
an appeal expired on February 11, 2010.
The removing defendant
bears the burden of establishing, by a preponderance of the
evidence, that removal is proper.
Geographic Expeditions, Inc. v.
Estate of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106-1107 (9th Cir.
2010); Provincial Gov't of Marinduque v. Placer Dome, Inc., 582
F.3d 1083, 1087 (9th Cir. 2009). There is a strong presumption
against removal jurisdiction and federal courts sitting in the
See Geographic Expeditions, Inc., 599 F.3d
Under 28 U.S.C. § 1446(c)(4), “[i]f it clearly appears on the
face of the notice and any exhibits annexed thereto that removal
should not be permitted, the court shall make an order for summary
It is clear on the face of the filing that begins its
three page title with “Merged Notice of Removal” that a removal
action is not before this Court.
Because Mr. Davenport is pro se,
however, the Court construes his filing liberally. Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
As discussed above, Mr.
Davenport’s “Merged Notice of Removal” can be construed as a
complaint, the Court does not remand the action to state court.
Instead, the Court will address whether there is subject-matter
jurisdiction and, if so, whether the Complaint states a claim.
Res Judicata, Timeliness, and The Rooker/Feldman Doctrine
Guild Mortgage argues that Mr. Davenport’s foreclosure related
claims are barred by res judicata because the foreclosure was
already adjudicated in state court.
the claims are moot because the foreclosure was completed and Mr.
Davenport’s time period to appeal the final judgment upholding the
foreclosure expired. Guild Mortgage also argues that review of the
doctrine, which precludes federal district courts from exercising
jurisdiction over claims that are “inextricably intertwined” with
a state court’s decision in a particular case. District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983).
To the extent Mr. Davenport is challenging the foreclosure,
his claims are likely barred by all three grounds identified by
Mr. Davenport’s claims, however, are by no means
Because the Complaint is largely incomprehensible,
Court does not reach the question of the extent to which Mr.
Davenport’s “claims” are barred by the state court foreclosure
III. Subject Matter Jurisdiction
In connection with its various arguments for dismissal, Guild
Mortgage argues that the Court lacks subject matter jurisdiction.
Mr. Davenport failed to assert a basis for the Court’s subjectmatter jurisdiction in his Complaint.
Once a party has moved to
dismiss for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), the party opposing the motion has the
burden of establishing that the Court has jurisdiction. See St.
Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
In his Opposition to the Motion to Dismiss, Mr. Davenport
states that the Court has diversity jurisdiction under 28 U.S.C. §
In its Reply, Guild Mortgage does not dispute that the
parties are diverse and that the amount in controversy is more than
Mr. Davenport also states that there is federal question
jurisdiction because he has asserted civil rights claims under 42
U.S.C. § 1983.
While Mr. Davenport’s actual allegations are
largely incomprehensible, his characterization of his allegations
in his Opposition would state a plausible basis for the Court’s
Failure To State A Claim
Finally, Guild Mortgage argues that the Complaint fails to
state a claim that is plausible on its face.
The Court may dismiss
a complaint as a matter of law pursuant to Federal Rule of Civil
Procedure 12(b)(6) where it fails “to state a claim upon which
relief can be granted.” Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Mr. Davenport’s Complaint does not contain a short and plain
statement of his claims for relief.
As the Court has pointed out,
Mr. Davenport’s Complaint is largely incomprehensible, fashioned
from a collection of past proceedings.
The Complaint fails to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). Id. (quoting Twombly, 550 U.S. at
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.
Id. (citing Twombly, 550 U.S. at 556). The factual allegations and
claims in Mr. Davenport’s Complaint cannot be deciphered, and the
The Complaint fails to state a claim.
Guild Mortgage’s Motion to Dismiss the Complaint is GRANTED.
Because the Complaint is deficient on multiple grounds (including
being improper to the extent it attempts to be treated as a removal
action), and the Court finds that leave to amend would be futile,
Guild Mortgage’s Motion to Dismiss the Complaint/”Merged
Notice of Removal” (Doc. 10) is GRANTED.
The Complaint/”Merged Notice of Removal” (Doc. 1) is DISMISSED
The Clerk of the Court shall close this case.
IT IS SO ORDERED.
DATED: April 18, 2011, Honolulu, Hawaii.
/S/ Helen Gillmor
United States District Judge
Guild Mortgage Company v. David K. Davenport, et al.; Civil No. 1000314 HG-KSC; ORDER GRANTING GUILD MORTGAGE COMPANY’S MOTION TO
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