Liptak v. Ally Bank et al

Filing 19

ORDER Denying 5 Plaintiff's Motion to Recuse. IT IS FURTHER ORDERED that 2 Plaintiff's Motion for Temporary Restraining Order is DENIED. IT IS FURTHER ORDERED that 14 Defendant Ally Bank's Motion to Dismiss is GRANTED. Signed by Judge Kent J. Dawson on 9/19/2012. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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V.F. LIPTAK,

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Plaintiff,

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v.

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Case No. 2:12-CV-00882-KJD-GWF

ALLY BANK, et al.,

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ORDER

Defendants.

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Presently before the Court is Plaintiff’s Motion to Recuse (#5). Also before the Court is

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Plaintiff’s Motion for Temporary Restraining Order (#2). Finally before the Court is Defendant Ally

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Bank’s Motion to Dismiss (#14). Though the time for doing so has passed, Plaintiff has failed to file

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a response in opposition to the motion to dismiss.

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I. Motion to Recuse and Motion for Preliminary Injunctive Relief

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It appears, construing liberally from Plaintiff’s pro se motion, that Plaintiff is moving to have

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the current judge recuse himself under 28 U.S.C. § 455(a) which requires a judge to recuse himself in

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any proceedings in which his or her impartiality might reasonably be questioned. Essentially,

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Plaintiff asserts that the court must be biased, because it did not act immediately to deny Plaintiff’s

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meritless motion for a temporary restraining order. Plaintiff asserts that the court must have acted

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out of bias because he contends that the court withheld ruling because he did not file a certificate of

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interested parties as required by Federal Rule of Civil Procedure 7.1 and Local Rule 7-1. The only

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basis for this argument that the court can find in the record is the Clerk of the Court’s notation in the

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Notice of Electronic Filing (#1) associated with the filing of Plaintiff’s complaint which states that

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certificates of interested parties were due by June 3, 2012. Plaintiff, not being a corporation, was

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free to disregard the requirement.

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The Court did not immediately grant Plaintiff a hearing because it was clear from his

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pleadings that he did not make a clear showing of likely success on the merits. Temporary

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restraining orders are governed by the same standard applicable to preliminary injunctions. See

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Dumas v. Gommerman, 865 F.2d 1093, 1095 (9th Cir. 1989). To qualify for injunctive relief, a

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plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable

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harm; (3) the balance of hardships favors plaintiff; and (4) an injunction is in the public interest. See

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Winter v. Natural Res. Def. Council, 555 U.S. 7, 120 (2008); eBay Inc. v. MercExchange, L.L.C.,

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547 U.S. 388 (2006).

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However, “[a] preliminary injunction is an extraordinary remedy, one that should not be

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granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

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Armstrong, 520 U.S. 968, 972 (1997). Here, Plaintiff has failed to make a clear showing of

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likelihood of success on the merits. Particularly, it is clear from the pleadings that Plaintiff’s claims

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are barred by the Rooker-Feldman doctrine as Plaintiff seeks to have this court declare four prior

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judgments from state and federal courts in Texas invalid. Therefore, the Court denies Plaintiff’s

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motion for a temporary restraining order.

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Finally, Plaintiff’s motion to recuse must be denied, because he has failed to establish that the

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Court’s impartiality might be reasonably questioned. See Toth v. Trans World Airlines, 862 F.2d

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1381, 1387-88 (9th Cir. 1988)(bias or prejudice justifying recusal must arise from an extrajudicial

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source and not from conduct or rulings made during the course of the proceeding). Plaintiff has not

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demonstrated any extrajudicial source of bias or prejudice. Therefore, the Court denies his motion to

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recuse.
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II. Unopposed Motion to Dismiss

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Local Rule 7-2(d) allows the Court to consider failure to file points and authorities in

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opposition to a motion as consent to the motion being granted. Therefore, in accordance with Local

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Rule 7-2(d) and having considered the motion on the merits, the Court grants Defendant Ally Bank’s

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motion to dismiss. First, Plaintiff’s claims are clearly precluded by both the Rooker-Feldman

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doctrine and issue and claim preclusion. See Henrichs v. Valley View Development, 474 F.3d 609,

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613-14 (9th Cir. 2007). The Rooker-Feldman doctrine provides that federal district courts lack

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jurisdiction to exercise appellate review over final state court judgments. Rooker v. Fidelity Trust

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Co., 263 U.S. 413, 415-16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

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482-86, (1983); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005).

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Essentially, the doctrine bars “state-court losers complaining of injuries caused by state-court

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judgments rendered before the district court proceedings commenced” from asking district courts to

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review and reject those judgments. Id. at 284. Absent express statutory authorization, only the

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Supreme Court has jurisdiction to reverse or modify a state court judgment. See Henrichs, 474 F.3d

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at 614. The clearest case for dismissal based on the Rooker-Feldman doctrine occurs when “a

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federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks

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relief from a state court judgment based on that decision....” Noel v. Hall, 341 F.3d 1148, 1164 (9th

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Cir. 2003).

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Rooker-Feldman does not override or supplant issue and claim preclusion doctrines. Exxon

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Mobil, 544 U.S. at 284. The doctrine applies when the federal plaintiff's claim arises from the state

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court judgment, not simply when a party fails to obtain relief in state court. Noel, 341 F.3d at 1164-

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65 (citing GASH Assocs. v. Village of Rosemont, 995 F.2d 726, 729 (7th Cir. 1993)). Preclusion,

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not Rooker-Feldman, applies when “ ‘a federal plaintiff complains of an injury that was not caused

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by the state court, but which the state court has previously failed to rectify.’ ” Noel, 341 F.3d at 1165

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(quoting Jensen v. Foley, 295 F.3d 745, 747-48 (7th Cir. 2002)). In Liptak’s present action, he

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makes both kinds of complaints. Therefore, Liptak’s claims against Ally Bank are dismissed.
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Furthermore, the Court would normally allow Plaintiff to amend his complaint. However,

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doing so would be futile, because the Court would otherwise dismiss the complaint under Rule

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12(b)(3). Plaintiff has made no showing that the District of Nevada is the proper venue for this

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action arising based on facts that entirely occurred in the State of Texas. Finally, Plaintiff has failed

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to state a claim upon which relief may be granted against Defendant Ally under the Fair Debt

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Collection Practices Act (“FDCPA”). Plaintiff’s complaint alleges no facts that even if taken as true

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would allow the Court to find that Defendant Ally is a “debt collector” falling under the FDCPA.

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Plaintiff also fails to allege facts that Ally threatened to take action that is not intended or could not

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legally be taken. Therefore, the Court grants the motion to dismiss without leave to amend.

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Recuse (#5) is DENIED;

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Temporary Restraining Order (#2) is

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DENIED;
IT IS FURTHER ORDERED that Defendant Ally Bank’s Motion to Dismiss (#14) is
GRANTED.
DATED this 19th day of September 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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