Thomason v. Moeller et al

Filing 100

MEMORANDUM DECISION AND ORDER - IT IS ORDERED that: 1. Plaintiffs Motion and Objections, which the Court has construed as a Motion for Reconsideration (Dkt. 84 ) is DENIED. 2. Plaintiffs request for recusal, made within the Motion and Objections, (D kt. 84 ) is also DENIED. 3. Plaintiffs Complaint is dismissed, in its entirety, with prejudice. The Court will enter judgment separately. 4. Plaintiffs Motions for Sanctions (Dkts. 88 , 89 ) are DENIED AS MOOT. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MARILYNN THOMASON,
Case No. 4:16-cv-141-BLW
Plaintiff,
v.
GREGORY W. MOELLER (an
individual in his personal capacity),
DARREN B. SIMPSON (an individual in
his personal capacity), JIM JONES (an
individual in his personal capacity),
ROGER S. BURDICK (an individual in
his personal capacity), DANIEL T.
EISMAN (an individual in his personal
capacity), JOEL D. HORTON (an
individual in his personal capacity),
WARREN E. JONES (an individual in
his personal capacity), KAREN L.
LANSING (an individual in her personal
capacity), DAVID W. GRATTON (an
individual in his personal capacity),
SERGIO A. GUTIERRAZ (an individual
in his personal capacity), PITE
DUNCAN, LLP (a California, USA
Limited Liability Partnership) aka
ALDRIDGE PITE, LLP (a Georgia, USA
Limited Liability Partnership), aka
ALDRIDGE CONNORS, LLP., aka
BENEFICIAL FINANCIAL I INC),
ELISA S. MAGUNSON (as an
individual), PETER J. SALMON (as an
individual), CASPER J. RANKIN, (as an
individual), WILLIAM FORSBERG, JR.
(as an individual), ESTATE OF
COLLEEN FORSBERG, JR.,
MADISON REAL PROPERTY, LLC.,

MEMORANDUM DECISION AND ORDER - 1

MEMORANDUM DECISION AND
ORDER

(as an Idaho USA Limited Liability
Corporation), THOMAS LUTHY (as an
individual), LAURA LUTHY (as an
individual), ABUNDANT LAND
HOLDINGS, LLC (as an Idaho USA
Limited Liability Corporation), LANCE
SCHUSTER (as an individual), BEARD
ST. CLAIR GAFFNEY PA, (as an Idaho
USA Partnership), JOHN K. BAGLEY
(as an individual and a married man),
LUELLA BAGLEY (as an individual and
a married woman), TERRENCE
BAGLEY (as an individual and a married
man), ELIZABETH BAGLEY (a married
woman and as an individual), BAGLEY
ENTERPRISE (John Bagley, Luella
Bagley, Elizabeth Bagley and Terrence
Bagley dba in Idaho) RIVER BOTTOM,
LLP (an Idaho Limited partnership),
SHERRY ARNOLD (as an individual in
her personal capacity), TROY EVANS
(as an individual in his personal
capacity), WASHINGTON FEDERAL
SAVINGS (aka Washington Federal
savings and Loan) (as a Washington State
USA corporation), SUZANNE BAGLEY
(as an individual in her personal
capacity), LIBERTY PARK
IRRIGATION, INC. (an Idaho USA
Corporation), RIGBY ANDRUS RIGBY,
CHTD (aka RIGBY ANDRUS
MOELLER, CHTD (Chartered under
Idaho, USA), DOES 1 THROUGH 20
INCLUSIVE,
Defendants.

INTRODUCTION
Pending before the Court is Plaintiff Marilynn Thomason’s “Motion and

MEMORANDUM DECISION AND ORDER - 2

Objections,” (Dkt. 84), which the Court will construe as a motion to reconsider. For the
reasons explained below, the Court will deny this motion.
BACKGROUND
In January of this year, the Court dismissed plaintiff’s complaint in its entirety.
See Jan. 19, 2017 Mem. Decision & Order, Dkt. 83. The Court allowed plaintiff a
chance to amend some of her claims, but the dismissal order expressly informed plaintiff
that if she failed to file an amended complaint within 30 days, her entire complaint would
be dismissed with prejudice. See Jan. 19, 2017 Order, Dkt. 83, at 47.
Plaintiff did not file an amended complaint. Instead, she filed the pending motion,
asking the Court to set aside the January 2017 decision in its entirety. Within this
motion, plaintiff also asks the undersigned judge to recuse himself “based upon bias and
errors in facts, errors in law and fabrication of facts within the MEMO [i.e., the January
2017 decision at Dkt. 83], under 28 USC 455(a) and (b)(1).” Motion, Dkt. 84, at 3.
DISCUSSION
The Court will address each request in turn, beginning with the motion for
reconsideration.
A.

Motion for Reconsideration
The Federal Rules of Civil Procedure do not expressly authorize a motion for

reconsideration, but a “district court has the inherent power to reconsider and modify its
interlocutory orders prior to entry of judgment . . . .” Smith v. Massachusetts, 543 U.S.
462, 475 (2005) (internal quotations omitted). Nevertheless, reconsideration is “an

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extraordinary remedy, to be used sparingly.” Absent highly unusual circumstances, a
motion for reconsideration will not be granted “unless the district court is presented with
newly discovered evidence, committed clear error, or if there is an intervening change in
controlling law.” Kona Enters., Inc v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000).
Plaintiff has not satisfied this standard. Instead, her request for reconsideration
mainly restates arguments addressed in the Court’s earlier decision. The Court will not
rehash those arguments here, as its earlier, 49-page opinion explains in detail why those
arguments fail.
The Court also notes that at times, plaintiff does not necessarily restate arguments,
but instead offers the classic ipse dixit argument: “The Court is wrong because I say it is
wrong.” For example, in taking issue with the Court’s conclusion that plaintiff’s
complaint does not satisfy basic pleading standards, plaintiff makes the following
assertion:
The Complaint is not filled with legal conclusions or lack[] factual
allegation, the complaint does not fail to state a claim, the complaint
does not lack sufficient factual content to permit the court to
reasonabl[y] infer that defendants are liable for any of the civil rights
or RICO violation asserted, seeing there are no arguments,
references and/or authorities cited in the MEMO to support its
assertion and/or statement; . . .
Motion Mem., Dkt. 84, at 43.
These sorts of arguments, which are repeated throughout the motion, are not
persuasive. The Court has carefully reviewed its earlier decision, as well as the

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arguments plaintiff puts forward in her pending motion. After having done so, the Court
is not convinced that it should reconsider any portion of its earlier decision. Accordingly,
the Court will deny the motion to reconsider.
B.

Request for Recusal
The Court will also deny plaintiff’s motion to disqualify the undersigned judge.

The Court begins with the proposition that, “in the absence of a legitimate reason to
recuse himself, ‘a judge should participate in cases assigned.’” United States v. Holland,
519 F.3d 909, 912 (9th Cir. 2008) (citations omitted). Without this general proposition in
place, judges “could recuse [themselves] for any reason or no reason at all; [they] could
pick and choose our cases, abandoning those that [they] find difficult, distasteful,
inconvenient, or just plain boring.” Id.
Given the judge’s obligation to participate in and resolve cases to which they’ve
been assigned, plaintiff shoulders the burden of demonstrating that recusal is required.
Plaintiff invokes two separate subsections of 28 U.S.C. § 455 in her recusal motion:
subsections (a) and (b)(1). See Motion, Dkt. 84, at 3. Subsection (a) sets forth a single,
broad ground for disqualification: that judges recuse themselves in any proceeding in
which their “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
Subsection (b)(1) deals with “personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding; . . . .” 28 U.S.C.
§ 455(b)(1).
Plaintiff has not satisfied either standard. Instead, it appears plaintiff believes the

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judge is biased against her based solely on the content of the January 2017 Memorandum
Decision. (Plaintiff refers to this decision as “the MEMO.”) For example, plaintiff
makes arguments such as this: “[T]he MEMO’s intent is to fraudulent force [sic] plaintiff
to amend the complaint stripping out the necessary facts to show cause, block refiling of
the complaint by attempting to run the statutes of limitation so to further deny plaintiff
equal protection and to have a fair and just opportunity to defendant plaintiff’s actions
against defendants, as evidenced by Twombly ruling, . . . .” Motion Mem., Dkt. 84-1, at
16. Plaintiff repeats similar speculative statements throughout her motion. See e.g., id. at
17 (“The MEMO’s deliberate illegal errors of facts, laws and acts are bias and prejudice
to the plaintiff where plaintiff’s complaint and filing . . . are fully sufficient to prevent the
MEMO’s errors in facts and law, which the court deliberately omitted and ignored in its
compilation of all the MEMO’s illegals errors of facts, laws and acts within the
MEMO . . . .”).
The Court is not persuaded by any of these arguments and will therefore deny the
recusal motion.
ORDER
IT IS ORDERED that:
1.

Plaintiff’s “Motion and Objections,” which the Court has construed as a
Motion for Reconsideration (Dkt. 84) is DENIED.

2.

Plaintiff’s request for recusal, made within the “Motion and Objections,”
(Dkt. 84) is also DENIED.

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3.

Plaintiffs’ Complaint is dismissed, in its entirety, with prejudice. The Court
will enter judgment separately.

4.

Plaintiff’s Motions for Sanctions (Dkts. 88, 89) are DENIED AS MOOT.
DATED: August 29, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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