Cogan et al v. Trabucco
ORDER denying as moot 8 Motion for Summary Judgment; ORDER granting defendant Trabucco's 25 Motion to Dismiss. Signed by Judge Cristina D. Silva on 11/18/2022.; Case terminated. (Copies have been distributed pursuant to the NEF - HAM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
5 Jeffrey A. Cogan,
Case No. 2:21-cv-02087-CDS-EJY
8 Arnaldo Trabucco,
Order Granting Defendant’s Motion to
Dismiss, Denying Plaintiff’s Motion for
Judgment as Moot, and Closing Case
[ECF Nos. 8, 25]
Plaintiff Jeffrey Cogan, a Nevada lawyer (Bar No. 4569) representing himself pro se, seeks
12 declaratory relief from this Court stating that an Arizona state trial court lacks subject matter
13 jurisdiction to enter judgment against Cogan based on Cogan’s involvement in a bankruptcy
14 case before the U.S. Bankruptcy Court for the District of Nevada. Specifically, Cogan seeks a
15 declaration stating that “any judgment or order relating to” the Trabucco v. Cogan case in Mohave
16 County “is not valid and not enforceable against Cogan as being void ab initio as  lacking subject
17 matter jurisdiction,” Compl., ECF No. 1 at 6. Cogan also filed a motion for summary judgment.
18 ECF No. 8.
Defendant Dr. Arnaldo Trabucco filed a motion to dismiss this case wherein he argues:
20 (1) Cogan failed to allege with specificity his claim for declaratory relief; (2) under the doctrine
21 of issue preclusion, the Arizona Supreme Court’s decision denying Cogan’s motion to dismiss for
22 lack of subject matter jurisdiction prevents this Court from hearing the same issue; and (3)
23 under the Rooker-Feldman doctrine, a district court may not exercise subject matter jurisdiction
24 over a suit that essentially appeals a separate state court judgment. See generally ECF No. 26.
I held a hearing on the competing motions on October 5, 2022. Hr’g Tr., ECF No. 42.
2 Having considered the applicable law, the moving papers, and the arguments of the parties made
3 during hearing, I hereby GRANT Trabucco’s motion to dismiss (ECF No. 26) and DENY
4 Cogan’s motion for summary judgment (ECF No. 8) as moot.
Relevant Procedural History
The procedural history leading up to this action is prolonged and multifaceted. It starts
7 back in November 2012 when Trabucco filed a Chapter 7 bankruptcy petition in the United
8 States Bankruptcy Court for the District of Nevada. ECF No. 1 at ¶13. 1
Approximately 5 months later, in March 2013, Cogan (on behalf of his clients, Helen
10 Scharf, Karen Bright, and Randall Scharf (hereinafter collectively the “Scharfs”)) sued Trabucco
11 in an Arizona state trial court (Mohave County Superior Court), alleging that Trabucco
12 negligently performed a surgery on Gerald Scharf, who ended up passing away shortly
13 thereafter. ECF No. 8 at 1–2; ECF No. 8-1 at 3–4. Trabucco moved to dismiss that case for failure
14 to prosecute. The case was ultimately dismissed with prejudice by stipulation of the parties in
15 June 2014. ECF No. 8-1 at 16, ¶12.
While the 2013 medical malpractice case was not pursued, during the pendency of that
17 case, Cogan filed an adversary complaint 2 on behalf of the Scharfs in United States Bankruptcy
18 Court for the District of Nevada asserting the same wrongful death claims as he alleged in the
19 2013 Mohave County case against Trabucco. See generally ECF No. 8-1. That complaint alleged
20 Trabucco had “committed willful and malicious actions upon Mr. Scharf, eventually resulting in
21 Mr. Scharf’s death,” and Trabucco’s actions constituted “extreme and outrageous behavior.” ECF
The court takes judicial notice of Case No. BK-S-12-22475-MKN. Fed. R. Evid. 201(b)(2); see also Hayes v.
23 Woodford, 444 F. Supp. 2d 1127, 1136–37 (S.D. Cal. 2006) (courts may take judicial notice of their own
records and other court proceedings if they directly relate to matters before the court); Montantes v.
24 Inventure Foods, 2014 WL 3305578, at *2 C.D. Cal. July 2, 2014 (stating that courts “take judicial notice of
proceedings in other courts ... if those proceedings have a direct relation to matters at issue”) (internal
25 quotation marks omitted).
This bankruptcy complaint alleged medical malpractice that caused or contributed to the death of Mr.
1 No. 8-1 at 15, ¶6. The adversarial complaint was filed to prevent Trabucco from discharging debt
2 that could eventually be used to repay the alleged victims. 3 The adversarial complaint was
3 ultimately dismissed with prejudice pursuant to a stipulation on February 11, 2014. ECF No. 1 at
Just shy of two weeks later, Trabucco filed a complaint Superior Court for the State of
6 Arizona in and for the County of Mohave alleging abuse of process and malicious prosecution
7 against Cogan and the Scharfs. ECF No. 8-1 at 30–36. Trabucco’s complaint alleged that Cogan
8 and the Scharfs lodged baseless accusations and made material misrepresentations to the
9 bankruptcy court. Id.
In April 2014, Trabucco obtained dismissal of the March 2013 state court lawsuit
11 brought by the Scharfs, filed by Cogan, after they failed to prosecute the case or respond to the
12 motion to dismiss that had been filed. ECF No. 26 at 3. Then, in July 2014, the bankruptcy court
13 discharged Trabucco without holding him liable for debts associated with the Scharfs’ claims. Id.
Thus, by the summer of 2014, the only remaining suit was Trabucco’s against Cogan and
15 the Scharfs for abuse of process and malicious prosecution. Cogan filed a counterclaim alleging
16 negligence which failed to survive summary judgment. Trabucco also won partial summary
17 judgment as to Cogan’s liability on the abuse of process claims. ECF No. 1, ¶20.
In August 2018, jury trial was held on the question of damages. The jury found for the
19 Scharfs but against Cogan, awarding Trabucco a verdict of $6,232,000 in general damages,
20 $1,768,000 in punitive damages, costs of $3,529.76 and jury costs of $3,694.28. ECF No. 1, ¶21.
21 Cogan is solely liable for the total verdict.
Cogan appealed to the Arizona Court of Appeals, who vacated the judgment in part and
23 remanded. ECF No. 8-1 at 12–28. The Arizona Supreme Court denied to review Cogan’s appeal,
24 which included a challenge to subject matter jurisdiction, and remanded the case to Mohave
25 County. ECF No. 8-1 at 39. Upon remand, the Mohave County court decided to retry the case in
Case No. 13-01085-MKN. I also take judicial notice of this case.
1 December 2021. However, Cogan and Trabucco entered a stipulated settlement agreement to
2 delay that trial pending this Court’s adjudication of this case.
Now, Cogan seeks a declaration from this Court stating that “any judgment or order
4 relating to” the Trabucco v. Cogan case in Mohave County “is not valid and not enforceable against
5 Cogan as being void ab initio as  lacking subject matter jurisdiction.” ECF No. 1 at 6. Cogan also
6 moves for summary judgment, arguing that the Mohave County court lacked subject matter
7 jurisdiction over him and seeking a declaration from our court for that proposition. 4 ECF No. 8.
8 Trabucco seeks to dismiss 5 the suit. ECF No. 26.
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon
11 which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
12 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which
13 it rests, and although a court must take all factual allegations as true, legal conclusions couched
14 as factual allegations are insufficient. Twombly, 550 U.S. at 555. “To survive a motion to dismiss, a
15 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
16 is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
17 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
18 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
The parties disagree as to whether defendant’s motion is properly filed as a motion to dismiss or should
have been filed as a motion for summary judgment. Because the proceedings in the bankruptcy court and
Mohave County court bear on the issues raised by Cogan in his complaint and are also at the heart of the
subject in Cogan’s request for declaratory relief, those proceedings have a direct relation to the matters at
issue before this Court. Defendant’s motion is thus properly characterized as a motion to dismiss. See, e.g.,
Goodwin v. Exec. Tr. Servs., LLC, 680 F. Supp. 2d 1250 (D. Nev. 2010) (stating that a court may consider
matters of judicial notice without converting a motion to dismiss into a motion for summary judgment);
U.S. ex. rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (stating that a
court may take judicial notice of proceedings in other courts, both within and outside of the federal
judicial system, if those proceedings have a direct relation to matters at issue).
At the hearing on the pending motions in this case, Cogan offered to withdraw his motion for summary
judgment. I neither granted nor denied the offer. Because I am granting defendant’s motion to dismiss, I
21 deny Cogan’s offer as moot.
1 Id. This standard “asks for more than a sheer possibility that the defendant has acted
2 unlawfully.” Id.
“Generally, a district court may not consider any material beyond the pleadings in ruling
4 on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19
5 (9th Cir. 1990). “However, material which is properly submitted as part of a complaint may be
6 considered.” Id. Similarly, “documents whose contents are alleged in a complaint and whose
7 authenticity no party questions, but which are not physically attached to the pleading, may be
8 considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion into
9 one for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to
10 dismiss, a court may also take judicial notice of “matters of public record.” Mack v. S. Bay Beer
11 Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).
Cogan contends federal law preempts Trabucco’s abuse of process claims against him in
14 the Arizona state court system, which deprives the state of Arizona subject matter jurisdiction
15 and renders the judgment against him void ab initio. See generally ECF No. 1. He seeks declaratory
16 relief stating that “any judgment or order relating to” the Trabucco v. Cogan case in Mohave
17 County “is not valid and not enforceable against” him. Id.
Defendant moves to dismiss this action arguing that Cogan does not assert a viable claim
19 for declaratory relief, that issue preclusion bars Cogan from asserting his arguments, and that I
20 lack subject matter jurisdiction over the entire controversy based on application the Rooker21 Feldman doctrine.
I find that the Rooker-Feldman doctrine precludes me from granting Cogan relief and
23 divests me of jurisdiction from further action in this matter. 6 The Rooker-Feldman doctrine is
24 derived from two Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C.
I do not reach a decision, nor address, defendant’s arguments related to failure to state a claim and issue
preclusion because I find the Rooker-Feldman doctrine precludes this action.
1 Court of Appeals v. Feldman, 460 U.S. 462 (1983). “It stands for the relatively straightforward
2 principle that federal district courts do not have jurisdiction to hear de facto appeals from state3 court judgments.” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010), cert. denied, 562 U.S.
4 1219 (2011) (citing Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003)). A lawsuit constitutes a
5 forbidden de facto appeal when “a federal plaintiff asserts as a legal wrong an allegedly
6 erroneous decision by a state court, and then seeks relief from a state court judgment based on
7 that decision.” Id. (internal quotations and citation omitted). Stated otherwise, “[i]f claims
8 raised in the federal court action are ‘inextricably intertwined’ with the state court’s decision
9 such that the adjudication of the federal claims would undercut the state ruling or require the
10 district court to interpret the application of state laws or procedural rules, then the federal
11 complaint must be dismissed for lack of subject matter jurisdiction.” Bianchi v. Rylaarsdam, 334
12 F.3d 895, 898 (9th Cir. 2003).
The instant lawsuit constitutes the type of de facto appeal that Rooker-Feldman prohibits.
14 The Mohave County case and judgment against Cogan arise out of the bankruptcy action filed in
15 this district in 2012. Cogan argues that the Mohave County court does not have subject matter
16 jurisdiction over him. However, Cogan has already brought the same challenge and lost in the
17 Arizona Supreme Court. ECF No. 8-1 at 39. Thus, issues in the instant case are inextricably
18 intertwined with the Mohave Case that resulted in the judgment against Cogan, as well as the
19 Arizona Supreme Court’s decision denying Cogan’s motion to dismiss for lack of subject matter
Furthermore, the declaratory relief sought by Cogan in this action serves to undermine
22 the judgment of the Arizona Supreme Court. “[U]nder Rooker-Feldman, ‘[courts] must pay close
23 attention to the relief sought by the federal-court plaintiff.’” Bianchi, 334 F.3d at 900 (quoting
24 Kenmen Eng’g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002)). Here, Cogan seeks a declaration
25 compelling the Arizona court to void its judgment rendered against Cogan. Rooker-Feldman
26 precludes adjudication of Cogan’s claim because the only redress Cogan seeks is “an ‘undoing’ of
1 the prior state-court judgment—‘a particularized challenge to an adjudication against him in
2 state court[.]’” Id. (quoting Kenmen, 314 F.3d at 477). Because I cannot grant the relief Cogan
3 seeks without “undoing” the decision of the state court, “it is immaterial that the state courts
4 did not specify the grounds on which they denied” Cogan’s claims. Id. The one-sentence
5 disposition of the Arizona court does not indicate that it failed to consider Cogan’s claims
6 presented to them. Id. “Rooker-Feldman bars any suit that seeks to disrupt or undo a prior state7 court judgment, regardless of whether the state-court proceeding afforded the federal-court
8 plaintiff a full and fair opportunity to litigate [his] claims.” Id. at 901 (internal quotation marks
As a result, the Rooker-Feldman doctrine thus applies to bar Cogan’s lawsuit. Cogan’s suit
11 seeking declaratory relief pursuant to 28 U.S.C. §2201(a) is improper. The proper avenue for
12 appeal from an Arizona Supreme Court decision would be the United States Supreme Court, not
13 a federal district court. See 28 U.S.C. § 1257(a).
For the reasons set forth in this order,
IT IS THEREFORE ORDERED that defendant Trabucco’s motion to dismiss (ECF No.
17 26) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment (ECF No. 8)
19 as DENIED AS MOOT.
The Clerk of Court is instructed to CLOSE THIS CASE.
DATED: November 18, 2022
Cristina D. Silva
United States District Judge
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