Davidson v. Bank of America, N.A. et al

Filing 33

OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 10 Motion to Dismiss Case for Failure to State a Claim, denying 11 Motion to Dismiss Case for Failure to State a Claim, and granting 14 Motion to Remand to State Court. This case is hereby remanded to the District Court of LeFlore County, Oklahoma. (adw, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JERRY D. DAVIDSON, JR.,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
and KIVELL, RAYMENT &
FRANCIS, P.C.,
Defendants.

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Case No. CIV-18-178-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant Bank of
America’s Motion to Dismiss the Complaint of Plaintiff Jerry D.
Davidson, Jr. and Brief in Support (Docket Entry #10), Defendant
Kivell, Rayment & Francis, P.C.’s Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(6) (Docket Entry #11), and Plaintiff’s Motion
to Remand (Docket Entry #14).
On October 14, 2015, Bank of America, N.A. (“BANA”), through
its counsel Kivell, Rayment & Francis, P.C. (“KRF”), filed a
Petition for Foreclosure of Mortgage in LeFlore County District
Court in Case No. CJ-2015-180 (the “2015 Foreclosure Action”).1 On
February 3, 2016, the state court entered the Final Journal Entry
of Judgment (“foreclosure judgment”) against Plaintiff Jerry D.

1
The Court takes judicial notice of the public filings in the
2015 Foreclosure Action, because they are part of the public record.
See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).

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Davidson, Jr., in the 2015 Foreclosure Action. The state court
made findings that (1) Mr. Davidson was personally served with
summons as required by law, failed to answer or otherwise plead or
appear, and was therefore in default, (2) Mr. Davidson had executed
and delivered the note and mortgage sued upon by BANA, and BANA
was the holder thereof, and (3) Mr. Davidson defaulted on the terms
and

conditions

of

the

note

and

mortgage,

entitling

BANA

to

foreclosure of the mortgage. The state court entered judgment
against Mr. Davidson in favor of BANA in the amount of $117,560.54,
plus interest, an attorney fee of $1,750.00, and costs associated
with the action. It ordered that a Special Execution and Order of
Sale be issued by the district court clerk and directed the sheriff
to advertise and sell the subject property. Petition, pp. 26-31
(Docket Entry #2-2, Exhibit A).
Plaintiff did not appeal the foreclosure judgment, but he
instead filed a separate Petition in Case No. CJ-2018-102 on May
18, 2018, pursuant to Okla. Stat. tit. 12, §§ 1031(4), 1033,
requesting

that

the

state

court

vacate

and

set

aside

the

foreclosure judgment. Petition, p.3, ¶ 9 (Docket Entry #2-2). He
alleges it was BANA who obtained the foreclosure judgment against
him and it was KRF who filed the foreclosure action and obtained

2

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the foreclosure judgment from the state court on BANA’s behalf.
Id., p. 2, ¶¶ 3,5. Plaintiff further asserts claims against
Defendants BANA and KRF for malicious use of process/fraud on the
court,

fraud

distress,

and

civil

deceit,

intentional

conspiracy,

and

infliction

violations

of

of
the

emotional
federal

Racketeer Influenced and Corrupt Organizations Act (“RICO”). Id.,
pp. 3-24.
On June 8, 2018, BANA removed the action to this Court under
28 U.S.C. § 1331, based upon federal question jurisdiction over
Plaintiff’s RICO claim, and under 28 U.S.C. § 1367(a), based upon
supplemental jurisdiction over Plaintiff’s state law claims.

The

Notice of Removal states that KRF consented to the removal.
Following the removal of the action, BANA and KRF filed their
Motions to Dismiss. BANA seeks dismissal of Plaintiff’s claims for
failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 12(b)(6).

BANA argues Plaintiff failed to meet

the pleading standard required under Fed. R. Civ. P. 8, the
pleading with particularity requirement for fraud under Fed. R.
Civ. P. 9, and arguments of collateral estoppel. Although KRF also
filed a Motion to Dismiss, it wholly adopted the arguments made by
BANA in support of its Motion to Dismiss.

3

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Shortly after Defendants filed their Motions to Dismiss,
Plaintiff timely filed his Motion to Remand. Plaintiff seeks remand
of the case to state court arguing that his state law claims are
separate and independent from his federal RICO claim. Plaintiff
also argues that the entire case, including his RICO claim, should
be remanded because the federal RICO claim is “factually tethered”
to his state law claims. Although Plaintiff does not specifically
raise

the

argument

that

this

Court

lacks

subject

matter

jurisdiction over the claims raised in his Petition, the Plaintiff
does argue that the case should be remanded because the state court
is the only court with the authority to vacate the foreclosure
judgment.
A question of subject matter jurisdiction may be raised at
any time, by either a party or sua sponte by the Court. 1mage
Software, Inc. v. Reynolds and Reynolds Co., 459 F.3d 1044, 1048
(10th Cir. 2006) (“Federal courts ‘have an independent obligation
to determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party,’ and thus a court may
sua sponte raise the question of whether there is subject matter
jurisdiction ‘at any stage in the litigation.’”), quoting Arbaugh
v. Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1240, 163 L. Ed. 2d

4

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1097 (2006). Although no party explicitly raises the issue of this
Court’s subject matter jurisdiction over Plaintiff’s claims raised
in

the

Petition,

the

Court

raises

the

issue

sua

sponte,

specifically, whether the Rooker-Feldman doctrine precludes this
Court from exercising subject matter jurisdiction in this case.
The Court must first consider the question of subject matter
jurisdiction before addressing the merits of Defendants’ Motions
to Dismiss. See Brereton v. Bountiful City Corp., 434 F.3d 1213,
1218

(10th

Cir.

authority

to

2006)

rule

on

(noting
the

that

merits

a
of

district

court

a

if

claim

has

it

no

lacks

jurisdiction). If the Rooker-Feldman doctrine applies, this Court
is precluded from even considering the applicability of defenses,
including

res

judicata

and

collateral

estoppel.

See

Long

v.

Shorebank Development Corp., 182 F.3d 548, 554-55 (7th Cir. 1999)
(“The Rooker-Feldman doctrine is jurisdictional in nature; its
applicability must be determined before any other affirmative
defense.”).
The Rooker-Feldman doctrine “is a jurisdictional prohibition
on lower federal courts exercising appellate jurisdiction over
state-court judgments.” Campbell v. City of Spencer, 682 F.3d 1278,
1281 (10th Cir. 2012). “Under the Rooker-Feldman doctrine, lower

5

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federal courts lack jurisdiction to hear claims that are either
(1) actually decided by a state court, Rooker v. Fidelity Trust
Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), or
(2) ‘inextricably intertwined’ with a prior state court judgment,
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
482 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).” Dickerson v.
Bates, 104 Fed. Appx. 699, 700 (10th Cir. 2004); see also PJ ex.
rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010).
In Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir.
2012), the Tenth Circuit Court of Appeals determined that “trying
to

untangle

the

meaning

of

inextricably

intertwined”

was

unnecessary because “[t]he essential point is that barred claims
are

those

‘complaining

of

injuries

caused

by

state-court

judgments.’ In other words, an element of the claim must be that
the state court wrongfully entered its judgment.” Id. at 1283,
quoting Exxon-Mobil Corp. v. Saudi Basic Industrial Corp., 544
U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005); see also
Taylor v. Federal Nat. Mortg. Ass’n, 374 F.3d 529, 533 (7th Cir.
2004)(“While ‘inextricably intertwined’ is a somewhat metaphysical
concept, the ‘crucial point is whether the district court is in
essence being called upon to review the state-court decision.’”),

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quoting Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993), quoting
Feldman, 460 U.S. at 483-84 n.16 (1983); and PJ ex rel. Jensen,
603 F.3d at 1194 (finding that Rooker-Feldman applies if success
on the claims alleged in federal court would require the federal
court to review and reject the state court’s judgment).
As an initial matter, in order for the Rooker-Feldman doctrine
to apply, the challenged order or judgment must be final. See D.A.
Osguthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d 1223,
1230 n.7 (10th Cir. 2013). Here, the foreclosure judgment was
appealable, and it became final when Plaintiff failed to appeal
it. See Federal Deposit Ins. Corp. v. Tidwell, 820 P.2d 1338, 1341
(Okla. 1991) (noting that the judgment in a foreclosure proceeding
“is the order determining the amount due and ordering the sale to
satisfy the mortgage lien[,]” that “in order to appeal errors in
a judgment of foreclosure it was necessary to appeal from that
judgment[,]” and that “a judgment of foreclosure could not be
attacked in the context of a motion to confirm a sale but that the
parties remaining remedy in attacking the judgment at that point
in the proceedings was by vacating the judgment.”) (citations
omitted). The foreclosure judgment entered on February 3, 2016,
determined the amount due on the mortgage, determined that BANA

7

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was entitled to foreclose on the mortgage, and ordered the sale of
Plaintiff’s property. See Petition, pp. 26-32 (Docket Entry # 22, Exhibit A).
Under Oklahoma law, a district court has the power to vacate
or modify its judgments or orders . . . “[4] [f]or fraud, practiced
by the successful party, in obtaining a judgment or order[.]” Okla.
Stat. tit. 12, § 1031(4). Because more than thirty days passed
after the filing of the foreclosure judgment, see Okla. Stat. tit.
12,

§

1031.1(B),

Plaintiff

was

required

to

adhere

to

the

requirements of Section 1033, see Okla. Stat. tit. 12, § 1031.1(C),
and he filed a Petition, which commenced a new civil action, Case
No. CJ-2018-102. See Okla. Stat. tit. 12, § 1033 (“If more than
(30) days after judgment . . . has been filed, proceedings to
vacate or modify the judgment . . ., on the grounds mentioned in
paragraph[] . . . 4 . . . of section 1031 of this title, shall be
by petition, verified by affidavit, setting forth the judgment .
. ., the grounds to vacate or modify it, and the defense to the
action, if the party applying was defendant. On this petition, a
summons shall issue and be served in the commencement of a civil
action.”). Plaintiff attempted to attack the foreclosure judgment
by the only means available, by seeking to vacate the foreclosure

8

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judgment on the basis of fraud, pursuant to Sections 1031(4) and
1033 of the Oklahoma Statutes. Thus, for purposes of determining
the applicability of the Rooker-Feldman doctrine to Plaintiff’s
claims, the Court finds the foreclosure judgment is final.2
Applying the principles of the Rooker-Feldman doctrine to
Plaintiff’s

claims

before

this

Court,

the

allegations

of

Plaintiff’s Petition appear to satisfy both prongs under RookerFeldman. First, it is clear from Plaintiff’s Petition that his
intent

is

to

directly

attack

the

state

court’s

foreclosure

judgment. In the Petition, Plaintiff specifically seeks for the
state court to “vacate and set aside a foreclosure judgment for
fraud on the court, and for malicious abuse of process, fraud and
deceit, and the intentional infliction of emotional distress, RICO
and civil conspiracy[.]” Petition, p. 1 (Docket Entry #2-2). 3
Plaintiff also asserts that it is the foreclosure judgment and
sheriff’s sale of his property that is the subject of his “Petition

2

Although Section 1038 provides time provisions for when such
actions shall be filed when pursuing vacation or modification of a
judgment or order on the basis of fraud, see Okla. Stat. tit. 12, §
1038, as discussed herein, because this Court determines that it lacks
subject matter jurisdiction over the action, the Court will not decide
whether Plaintiff’s Petition is timely under Section 1038.
3

In the Motion to Remand, Plaintiff clarifies that he has alleged
a cause of action for civil conspiracy under Oklahoma law.

9

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to Vacate for Fraud on the Court.” Id., pp. 1-2, ¶ 1. He seeks
vacation of the foreclosure judgment and sheriff’s sale of the
property to BANA pursuant to Okla. Stat. tit. 12, §§ 1031, 1033.
Id., p. 3, ¶ 9.
Moreover,

at

the

heart

of

Plaintiff’s

Petition

are

allegations that Defendant BANA and KRF committed fraud on the
state court and the allegation that BANA was not the proper holder
of the note and was therefore unable to properly foreclose on the
property at issue. Specifically, Plaintiff alleged the following:
10. [BANA] falsely claimed in the foreclosure petition
that it filed in Case CJ 2015-180 that the non-negotiable
promissory note that is the subject of the February 3,
2016 Final Journal Entry of Foreclosure entered in that
action was assigned to [BANA].
*

*

*

19. Defendant [BANA] knew at the time that it filed the
Petition with this court in Case CJ 2015-180 that the
Bank’s claim that it held the promissory note was false
and the Bank knew when it attached the MERS assignment
to its petition that MERS had no interest in the
promissory note and that the MERS assignment did not
assign or otherwise transfer the promissory note to the
Bank.
*

*

*

29. [BANA] and [KRF] joined in a special combination of
effort and cooperation and investment to practice fraud
on the court in Case CJ 2015-180 which resulted in the
court entering the February 3, 2016 foreclosure in
[BANA’s] favor.

10

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*

*

*

35. The filing of the fraudulent MERS assignment and
the allegation that [BANA] was the holder of the
promissory note in Case CJ 2015-180 constitute illegal
and malicious use of process.
36. The court is hereby requested to vacate the
February 3, 2016 foreclosure judgment because the
judgment was obtained by [BANA] as a direct result of
the fraud that the Bank and the Law Firm practiced on
the court.
37. [BANA] and [KRF]’s fraud on the court practiced
through the filing of a false claim that the Bank was a
holder of the promissory note based on the void MERS
assignment attached to the petition that the Bank filed
in Case CJ 2015-180 permeated the entire 2015
foreclosure proceeding and subverted the integrity of
the action for an illegal and unworthy purpose.
38. [BANA] and [KRF]’s
legal process described
judgment is a substantial
of the February 3, 2016
court.

abuse of the Oklahoma civil
in this petition to vacate
basis justifying the vacation
foreclosure judgment by this

39. The vacation and setting aside of the February 3,
2016 Journal Entry of Judgment and dismissal of the 2015
foreclosure action filed by [BANA] with prejudice is
warranted and essential to promote the ends of justice
and to sanction the Bank for its fraud on the court.
*

*

*

41. Plaintiff
Davidson
is
directly
harmed
and
exceptionally prejudiced by the fraud on the court
practiced by [BANA] and [KRF] in Case CJ 2015-180 which
fraud resulted in the entry of the February 3, 2016
foreclosure judgment.
42. This court has jurisdiction to grant this petition
to vacate the February 3, 2016 foreclosure judgment as
being void for fraud on the court and to deny
11

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confirmation of and to vacate the sheriff’s sale of the
subject property scheduled for confirmation hearing on
June 6, 2018.
*

*

*

44. Plaintiff Jerry Davidson owns and resides in the
residential property that is subject to the note and
mortgage that is foreclosed by the February 3, 2016
foreclosure judgment and he is the named Defendant in
Case CJ 2015-180.
Petition, pp. 3-10 (Docket Entry #2-2).
The case law is clear that “allegations of fraud in the state
court proceeding do not prevent application of the Rooker-Feldman
doctrine to bar those fraud claims.” Jester v. Wells Fargo Bank
N.A., 297 F.Supp.3d 1233, 1242 (E.D. Okla. 2018), citing Tal v.
Hogan, 453 F.3d 1244, 1256-57 (10th Cir. 2006). Rooker-Feldman
applies when a federal court is asked to declare a state court
judgment void or to vacate the judgment based upon fraudulent
conduct in the state court matter. Id. at 1245 (“[T]he RookerFeldman doctrine prohibits a federal court from reviewing fraud
allegedly committed in a state court. Accordingly, Rooker-Feldman
prohibits this Court from voiding the 2012 Foreclosure judgment
and relitigating issues that were decided or should have been
raised in the state court proceedings, even if fraud on the court
is alleged.”); see also Farris v. Burton, 686 Fed. Appx. 590, 593
(10th Cir. 2017) (“We agree with the district court’s conclusion
12

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that as long as the state-court judgment stands—collateral attacks
based on a party corrupting the state judicial process are properly
brought only in state court.”) (quotation omitted), citing West v.
Evergreen Highlands Ass’n, 213 Fed. Appx. 670, 674 n.3 (10th Cir.
2007) (“This circuit has not held that Rooker-Feldman may be
circumvented by a collateral attack of the sort suggested in the
cases discussed above. There is good reason to balk at such a step.
State

rules

of

procedure

provide

various

means

to

attack

a

wrongfully obtained judgment. Construing Rooker-Feldman to permit
federal reconsideration and nullification of state judgments on
grounds that could have been pursued in state court arguably allows
under the rubric of collateral attack just another mechanism for
lower federal court review unauthorized under [28 U.S.C.] § 1257.”)
(internal citation omitted).
Plaintiff’s

allegations

are

contrary

to

the

foreclosure

judgment in the 2015 Foreclosure Action. The foreclosure judgment
explicitly

states

that

“[t]he

Court

further

finds

that

the

Defendant, Jerry D. Davidson, Jr., made, executed and delivered
the Note and Mortgage sued upon by Plaintiff [BANA]; and that said
Plaintiff [BANA] is the holder thereof [and . . . ] Plaintiff
[BANA] is entitled to the foreclosure of the [m]ortgage sued upon

13

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in this cause[.]” Petition, pp. 27-28 (Docket Entry #2-2, Exhibit
A). Thus, for this Court to grant the relief requested by Plaintiff
Davidson, a review and rejection of the foreclosure judgment would
be unavoidable. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir.
1991)

(holding

that

a

plaintiff’s

federal

action

seeking

to

“vacate” a state court judgment was a de facto appeal and therefore
barred under Rooker-Feldman); see also Taylor, 374 F.3d at 533
(“[T]he relief granted when a claim of fraud on the court succeeds
is that the party claiming fraud is relieved from the judgment,
i.e., the judgment is set aside.”). This Court is precluded from
doing so under the Rooker-Feldman doctrine.
Second,

the

Rooker-Feldman

doctrine

also

applies

to

Plaintiff’s RICO claim because it is “inextricably intertwined”
with the state court’s foreclosure judgment.4 Numerous allegations
in the Petition demonstrate the degree to which the claim is

4

Because Plaintiff’s federal RICO claim was the basis for
BANA’s removal of the action under 28 U.S.C. § 1441(a), the Court’s focus
is on whether it has subject matter jurisdiction over that claim. A
district court may exercise supplemental jurisdiction to consider statelaw claims only if it has subject matter jurisdiction over the federallaw claims. See 1mage, 459 F.3d at 1048 n.6 (“1mage also asserted a
trade-secrets claim, but it did so under Colorado law. The district court
would have had supplemental jurisdiction to consider this Colorado law
claim, only if it had subject matter jurisdiction in the first place. .
. . So the question of whether the district court had subject matter
jurisdiction to consider 1mage’s action turns solely on 1mage’s claim
asserted under the federal Copyright Act.”) (internal citation omitted).

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“inextricably intertwined” with the state court’s foreclosure
judgment:

69. Defendants initiate and file fraudulent documents
in foreclosures, and did so against this Plaintiff in
Case 2015-180 in order to obtain a foreclosure judgment
without legal authority or right.
70. Defendant Law firm acts in support of [BANA] taking
the role of a Plaintiff in foreclosures and in the filing
of false documents in furtherance of their scheme to
perpetrate a fraud on the court and to defraud the
Plaintiff.
*

*

*

73. Defendants conspired together to perpetrate a fraud
on Plaintiff and the court to convert Plaintiff’s
property through an ill-gotten judgment of foreclosure
and sheriff’s sale.
74. The object of the Scheme of the enterprise was to
conceal, cover-up and adulterate documents that concern
[BANA]’s lack of enforceable interest in or ownership of
the note in Case CJ 2015-180 and the Bank’s lack of right
to foreclose the mortgage secured by the Plaintiff’s
property.
75. The object of the scheme of the associated-in-fact
enterprise was to file a fraudulent assignment to
conform to the requirements of Oklahoma law in order to
obtain February 3, 2016 foreclosure judgment by artifice
and deceit on the court and on the Plaintiff.
*

*

*

80.
But for the filing of the fraudulent documents,
[BANA] could not substantiate its right to enforce the
note or to foreclose the mortgage secured by the
Plaintiff’s home, which rights Defendants had to
establish in order to obtain the foreclosure of the
mortgage secured by the Plaintiff’s property in
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accordance with the
described herein.

goals

*

of

*

the

illegal

Scheme

*

86.
Defendants, individually and through their joint
venture have committed fraud on the court and other
illegal conduct and acts which have placed a cloud and
has slandered the Plaintiff’s title to his home.
87.
Plaintiff is forced to incur legal expenses for
costs and attorneys’ fees in order to institute and
prosecute this action to remove the associated-in-fact
Enterprise’s illegally acquired foreclosure judgment and
to restore Plaintiff’s ownership of his home free of any
claim of [BANA].
*

*

*

93. As a direct and proximate result of the conspiracy,
the overt acts taken in furtherance of that conspiracy,
and violations of 18 U.S.C. § 1962(d), the Plaintiff
sustained financial damage that includes the loss of his
property through a sheriff’s sale. Plaintiff also is
suffering as a result of the fraudulently procured
foreclosure judgment which judgment was premised
entirely on the fraudulent submissions of the Defendants
to the foreclosure court. The Plaintiff’s injuries were
sustained ‘by reason of’ the Defendants’ RICO violations
complained of herein.
*

*

*

101. Defendants conduct involves large-scale crimes and
fraud including the following predicate acts:
a.
submitting false evidence in the subject
foreclosure action in violation of Okla. Stat.
Ann. tit. 21, § 451;
b.
suborning the filing of false documents in
violation of Okla. Stat. Ann. tit. 21, § 504;

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6:18-cv-00178-KEW Document 33 Filed in ED/OK on 05/29/20 Page 17 of 23

c.
inducing the filing of false documents in
violation of Okla. Stat. Ann. tit. 21, § 496;
d.
aiding and abetting the use of false
instruments concerning real property, in violation
of Okla. Stat. Ann. tit. 21, § 1500;
e.
aiding and abetting each other and the
joint venture in the malicious use of process
against this Plaintiff;
f.
preparing and submitting false documents in
the subject foreclosure to the court and the
transmission of same through the mails; and
g.
committing, facilitating
fraud on the court.
*

*

and

practicing

*

107. Defendants joined together and committed fraud on
the court and deceived the judicial system to acquire
the sale and ownership of the Plaintiff’s home.
108. Defendants’ crimes harmed this Plaintiff, as their
victim; he has had to retain counsel and he has incurred
pecuniary losses intertwined with the injury to his
property interest which damages are recoverable against
the Defendants under § 1964(c). Defendants’ crimes also
have a larger effect on society beyond that of the normal
criminal offense.
Petition, pp. 15-21 (Docket Entry #2-2).
The Tenth Circuit Court of Appeals has considered RICO claims
in the context of the Rooker-Feldman doctrine. In Dickerson v.
Bates, 104 Fed. Appx. 699 (10th Cir. 2004), the Tenth Circuit
addressed a RICO claim associated with a landlord-tenant dispute.
The plaintiff brought suit in federal court alleging violation of

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RICO

based

upon

the

defendants

allegedly

defrauding

him

by

obtaining and collecting various judgments against him in the
state-court

dispute.

Specifically,

he

claimed

the

defendants

caused his injuries, not the state-court judgment, because they
“defrauded him and engaged in criminal acts in obtaining and
enforcing the judgments[.]” Id. at 701. However, the court rejected
the plaintiff’s argument and found that “[a]lthough he asks us to
believe otherwise, he is, in fact, asking a federal district court
to undo state-court judgments and restore him to the position he
was in before these judgments.” The court determined it lacked
jurisdiction over the plaintiff’s RICO claim under the RookerFeldman doctrine because the claim was “inextricably intertwined”
with the state court judgment. Id.; see also Bradshaw v. Gatterman,
658 Fed. Appx. 359, 362-63 (10th Cir. 2016) (addressing violations
of RICO, RICO conspiracy, violations of Sections 1981 and 1983,
abuse of process, and tortious interference and finding that “[t]he
requested relief plainly strikes at the state court’s judgment,
or, at the very least, are inextricably intertwined with it.”).
Moreover, in Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006),
the Tenth Circuit determined that the Rooker-Feldman doctrine
precluded the plaintiff’s RICO claims based upon allegations that

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the defendants engaged in a conspiracy to condemn the plaintiff’s
property through fraud in a state condemnation proceeding. Id. at
1255-56. The court noted that the appropriate forum to challenge
an error in a state court judgment was the state court. Id. at
1256 n. 11, citing Rooker, 263 U.S. at 415. The Tenth Circuit also
discussed that to survive application of Rooker-Feldman to their
RICO claim, the plaintiffs could not rely on the alleged fraudulent
condemnation as the predicate act. Id. at 1262 n.19. The court
found that “[w]e cannot consider the condemnation as a possible
predicate act without calling into question the validity of the
state

court

judgment.”

Id.

It

determined

that

“Tal,

Inc.’s

allegation that the condemnation was fraudulent and constituted a
predicate act for RICO purposes is inextricably intertwined with
the state court judgment and precluded by Rooker-Feldman.” Id.
Further, in the case of Tso v. Murray, 760 Fed. Appx. 564
(10th Cir. 2019), the Tenth Circuit again addressed application of
the

Rooker-Feldman

doctrine to a RICO claim. Relying on its

decision in Campbell, the court determined:
“Tso’s Complaint seeks relief from alleged harms flowing
from ‘acts of the state court.’ That is, ‘the allegedly
wrongful act that caused damage was the state-court
order itself,’ and his claims ‘required a determination
of the bona fides of the prior state-court judgment[.]’
Though he complains of various acts taken by the
defendants, whether through a RICO ‘conspiracy’ or
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6:18-cv-00178-KEW Document 33 Filed in ED/OK on 05/29/20 Page 20 of 23

denial of just compensation, the only harms alleged
involved deprivations that resulted from the state
courts’ orders.
His claims are therefore barred by
Rooker-Feldman.”
Id. at 567-68, quoting Campbell, 682 F.3d at 1283-85.
As

demonstrated

by

Plaintiff’s

allegations

of

RICO

violations, including fraud and conspiracy, his RICO claim is
“inextricably

intertwined”

with

the

foreclosure

judgment.

Moreover, the predicate acts alleged by Plaintiff in support of
his RICO claim all call into doubt the validity of the foreclosure
judgment. See Petition, pp. 19-20, ¶ 101 (Docket Entry #2-2).
Thus, regardless of Plaintiff’s allegations that Defendants caused
his injury, there is no way for this Court to find a RICO violation
by Defendants without finding that the foreclosure judgment was
wrongfully entered. Accordingly, Plaintiff’s RICO claim is barred
by the Rooker-Feldman doctrine on this basis as well.
Although not for the reasons asserted by Plaintiff in his
Motion to Remand, the Court has determined that it lacks subject
matter jurisdiction under the Rooker-Feldman doctrine and that
remand to state court is required. Section 1447(c) states in
pertinent part,
(c) [a] motion to remand the case on the basis of
any
defect
other
than
lack
of
subject
matter
jurisdiction must be made within 30 days after the filing
of the notice of removal under section 1446(a). If at
any time before final judgment it appears that the
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6:18-cv-00178-KEW Document 33 Filed in ED/OK on 05/29/20 Page 21 of 23

district court lacks subject matter jurisdiction, the
case shall be remanded.
28 U.S.C. § 1447(c). Section 1447(c) does not give the Court
discretion to dismiss a case over which it lacks subject matter
jurisdiction. See Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir. 2005),
citing Brown v. Francis, 75 F.3d 860, 866 (3d Cir. 1996) (stating
that a court may not “exercise authority over a case for which it
does not have subject matter jurisdiction”); Fent v. Okla. Water
Res. Bd., 235 F.3d 553, 557-58 (10th Cir. 2000) (stating that Ҥ
1447(c) gives no discretion to dismiss rather than remand an action
removed from state court over which the court lacks subject-matter
jurisdiction”). See also Mills v. Harmon Law Offices, P.C., 344
F.3d 42, 46 (1st Cir. 2003) (“The existence of any subject matter
jurisdiction defect divests the court of authority to dismiss a
removed

case

on

its

merits,

regardless

of

whether

the

jurisdictional flaw results from an improper removal or arises
from some other source, such as the Rooker-Feldman doctrine.”)
(footnotes omitted).
This Court therefore finds that the state court’s judgment
includes the finding that BANA was the holder of the note and was
entitled to a foreclosure of its mortgage sued upon in the case.
This Court could not enter judgment in favor of Plaintiff and
against BANA and/or KRF, without reviewing and rejecting the
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6:18-cv-00178-KEW Document 33 Filed in ED/OK on 05/29/20 Page 22 of 23

foreclosure judgment entered by the District Court of LeFlore
County. Moreover, the Court finds that Plaintiff’s RICO claim
against BANA and KRF is “inextricably intertwined” with the state
court’s foreclosure judgment, and it is therefore barred by RookerFeldman and the Court cannot exercise jurisdiction over the claim.
Because the Court lacks subject matter jurisdiction over the
federal claim, which was the basis for the removal, the Court
likewise cannot consider the merits of Plaintiff’s state law
claims.
IT IS THEREFORE ORDERED that Defendant Bank of America’s
Motion to Dismiss the Complaint of Plaintiff Jerry D. Davidson,
Jr. and Brief in Support (Docket Entry #10) and Defendant Kivell,
Rayment & Francis, P.C.’s Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(6) (Docket Entry #11) are hereby DENIED, as both
seek dismissal of Plaintiff’s claims on the merits.

Plaintiff’s

Motion to Remand (Docket Entry #14) is hereby GRANTED solely for
the reasons discussed herein.

This case is hereby REMANDED to the

District Court of LeFlore County, Oklahoma, for lack of subject
matter jurisdiction pursuant to the Rooker-Feldman doctrine.

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6:18-cv-00178-KEW Document 33 Filed in ED/OK on 05/29/20 Page 23 of 23

IT IS SO ORDERED this 29th day of May, 2020.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

23