Cross v. Deutsche Bank Trust Company Americas
OPINION AND ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 15 Report and Recommendations, granting 19 Motion to Consolidate Cases, denying 19 Motion to Intervene, finding as moot 19 Motion to Preserve the Record U nder Rule 42(a) FRCP, finding as moot 13 Motion to Strike, Motion for Summary Judgment, Motion for Hearing, finding as moot 6 Motion to Vacate, Motion for Hearing. The consolidated action is dismissed without prejudice for lack of subject matter jurisdiction. Signed by Honorable Cameron McGowan Currie on 7/19/2011. (ssam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Janice Marie Cross,
Deutsche Bank Trust Company Americas )
as Trustee for RALI2007QS8,
John David Cross,
C/A NO. 3:11-1010-CMC-PJG
Janice Marie Cross,
C/A NO. 3:11-1118-CMC-PJG
Deutsche Bank Trust Company Americas )
as Trustee for RALI2007QS8,
John David Cross,
OPINION AND ORDER
AND DISMISSING FOR LACK OF
SUBJECT MATTER JURISDICTION
Plaintiff’s claims in these two related actions arise out of a single state-court proceeding.
Specifically, Plaintiff challenges various decisions and actions of the Master-in-Equity for Lexington
County, South Carolina. Those decisions and actions related to foreclosure proceedings on
Plaintiff’s home. Plaintiff argues that the resulting state-court judgment, documents relied on in that
proceeding, and other related transfers are “ipso facto void.” See, e.g., C.A. No. 11-cv-1010-CMC
(“Cross I”), Dkt. No. 20 at 4, 5, 10; C.A. No. 11-cv-1118-CMC (“Cross II”), Dkt. No. 20 at 4, 5, 10.
These matters are now before the court for review of Reports and Recommendations
(“Reports”) entered separately in the two related cases. See Cross I, Dkt. No. 14 (entered June 20,
2011); Cross II, Dkt. No. 15 (entered July 1, 2011). Both Reports recommend that the cases be
dismissed without prejudice and without issuance and service of process due to an absence of subject
matter jurisdiction. The Report in Cross II also recommends that various other motions be denied.
Plaintiff has filed two distinct documents (both filed contemporaneously in both cases),
which the court has fully considered as objections to the Reports in both cases. Cross I, Dkt. Nos.
18, 20; Cross II, Dkt. Nos. 19, 20.1 The first of these documents was filed after the Report in Cross
I and directly addresses that Report. It also includes a motion for consolidation of the two actions.
In this document, Plaintiff argues, among other things, that the court has subject matter jurisdiction
because her challenges to the state-court judgment (and its resulting effects) are based on violations
of federal law. Plaintiff also includes a “Petition for Intervention,” asking that “her husband John
David Cross, real party in interest,” be allowed to intervene “to assist her in prosecuting this case.”
Id. at 7-8.
The later-filed document, titled “Plaintiff’s Motion in Opposition to Magistrate’s ‘Report and
Recommendation,’” was filed on July 15, 2011, after entry of the Report in Cross II. In this
document, Plaintiff makes additional, though similar, arguments to those contained in the document
Both of these documents were filed on July 1, 2011. The court, therefore, assumes Plaintiff
was not in receipt of the Report in Cross II at the time she prepared this document. The
subsequently filed document (Dkt. No. 20 in both actions) was, however, filed well after filing of
the Report in Cross II and addresses the same.
filed on July 1, 2011. Cross I, Dkt. No. 20; Cross II, Dkt. No. 20. The court has, in any event,
considered all arguments in both sets of documents in its review of the Report.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination
of those portions of the Report to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
to her with instructions. 28 U.S.C. § 636(b)(1).
Cross I. The verified complaint in Cross I was filed on April 28, 2011. Through Cross I,
Plaintiff sought a temporary restraining order (“TRO”) and other injunctive relief barring a planned
May 2, 2011 eviction. See Cross I, Dkt. No. 1 at 2, 24. In support of the requested relief, Plaintiff
alleged that the underlying foreclosure was defective or void for a variety of reasons including
federal constitutional and statutory violations.
E.g., id. at 17-22 (summarizing state court
proceedings); id. at 24 (conclusion).2 She asserts that jurisdiction exists because “a federal question
or questions are involved” and relies expressly on Federal Rules of Civil Procedure 65(b)(1)(A)
(injunctive “relief for irreparable harm”), 60(b)(3) (“relief from a judgment or order where there is
In her conclusion, Plaintiff summarizes her position by stating: (1) absent injunctive relief,
she will suffer irreparable harm “by the forcible expulsion . . . from my personal residence”; (2) the
state Master-in-Equity “has arbitrarily and capriciously denied me my Constitutional rights to due
process of law thereby affording me no adequate remedy or recourse under the laws of [South
Carolina]”; and (3) the state Master-in-Equity “has capriciously and willfully issued and deliverd
an unlawful ‘master’s deed’ to a purported purchaser of my residential property.” Id. at 24.
fraud in-fact”), 60(b)(4) (“relief from a judgment when the judgment is void”). Id. at 22-23
Cross II. Cross II was filed on May 9, 2011, and sought relief from the same state-court
judgment pursuant to various subparts of Rule 60 of the Federal Rules of Civil Procedure. Cross
II, Dkt. No. 1 at 1. Although this document was captioned as a “Motion to vacate a void
judgment[,]” it was filed as a new complaint.3 Again, Plaintiff asserted that the foreclosure
proceeding was void due to various violations of Plaintiff’s federal constitutional and statutory rights
and sought to vacate the state-court judgment.
Id. at 2-4 (stating claim as “Wrongful
foreclosure–fraud–fraud on the court– perjured testimony–counterfeit documents” followed by a list
of federal statutes, rules and references to various amendments to the United States Constitution);
id. at 5 (listing relief sought as including “Vacate a void judgment” and asking court to “schedule
a fair hearing–it will be the first fair hearing in this matter . . . sanction the parties [and] review for
possible judicial misconduct”).
State Court Proceeding. The underlying state court foreclosure proceeding became final
in February 2011, when the time to appeal the judgment of foreclosure expired. As explained in this
court’s order denying Plaintiff’s motion for a TRO in Cross I:
On November 16, 2009, Defendant initiated a foreclosure action in the Lexington
County Court of Common Pleas against Plaintiff. The case was referred to the
Lexington County, South Carolina Master-in-Equity for resolution. A review of the
In addition to the caption, various statements in the Cross II Complaint suggest it was
intended as a second motion in Cross I. See id. (responding to inquiry whether Plaintiff had filed
other lawsuits dealing with the same facts as follows: “No – although I filed a TRO (C/A No. 3:111010-CMC-PJG) but not a lawsuit in my understanding.”). On inquiry from the undersigned, the
case manager stated that Plaintiff was offered the opportunity to file what became Cross II within
her original action but declined the opportunity to do so. In any event, Plaintiff’s decision to file
two actions has no impact on the decision here.
public records index reveals that this matter was closed on January 21, 2011, by a
judgment of foreclosure. The last filing posted in the public records index is a
“Master’s Statement of Receipts & Disbursements,” filed April 14, 2011.
Cross I, Dkt. No. 7 at 2 (also noting that information was obtained from the state court’s public
records as it was not provided by Plaintiff).4 Thus, the state-court judgment became final no later
than February 22, 2011, when the time to appeal that judgment ran without Plaintiff having filed a
notice of appeal. See S.C. Rule App. Proc. 203(b)(1), (4) (setting thirty-day deadline for filing
notice of appeal).
Consolidation. Before addressing the Reports, the court considers Plaintiff’s motion to
consolidate the two actions. Not only do these two actions relate to the same underlying state-court
action, but it appears Plaintiff may, despite filing Cross II as a second action, have intended both to
serve as different motions in the same action. Supra n.3. The motion to consolidate is, therefore,
Intervention. The court declines Plaintiff’s request to allow her husband to intervene as
Plaintiff has failed to establish that her husband is a real party in interest in this action.5
Hearing. In one or more of her submissions, Plaintiff has requested a hearing. The court
denies this request. For reasons explained below, it is clear from Plaintiff’s written submissions that
Plaintiff has not challenged any aspect of this statement of facts.
Plaintiff argues that her husband should be allowed to intervene as “[t]hey are one in the
eyes of the true God, and they are also one in the eyes of this state, and should not be ‘put asunder’
by this Honorable Court[.]” Cross II, Dkt. No. 19 at 7. She also argues that her husband resides
with her and “has real sweat equity in the home.” Id. None of these arguments persuades the court
that Plaintiff’s husband has a legal interest which supports joining him as a party in this action.
Even if Mr. Cross were joined in the action, it would be to no avail as the matter is dismissed
without prejudice for reasons addressed below.
this court lacks subject matter jurisdiction over these actions, whether the actions are viewed
individually or in their consolidated form. It follows that a hearing would not aid the court in
reaching a decision.
Jurisdiction. In light of Plaintiff’s objections to the Reports, the court has conducted a de
novo review of both Reports with respect to the recommendation that the actions (now a single
consolidated action) be dismissed for lack of subject matter jurisdiction. Having done so, the court
concludes that both the rationale and recommendations in the Reports are correct.
Contrary to Plaintiff’s suggestion, under the circumstances of this case (these cases), it does
not matter whether the parties are diverse or whether Plaintiff’s challenges are founded on alleged
violations of federal law. This is because the finding that the court lacks subject matter jurisdiction
is based on the Rooker-Feldman doctrine which precludes this court from reviewing state court
decisions and actions such as those challenged here. See D.C. Court of Appeals v. Feldman, 460
U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).6
In a unanimous decision issued in 2005, the Court summarized Rooker as follows:
In [Rooker], the parties defeated in state court turned to a Federal District Court for
relief. Alleging that the adverse state-court judgment was rendered in contravention
of the Constitution, they asked the federal court to declare it “null and void.” . . .
This Court noted preliminarily that the state court had acted within its jurisdiction.
. . . If the state-court decision was wrong, the Court explained, “that did not make the
judgment void, but merely left it open to reversal or modification in an appropriate
and timely appellate proceeding.” . . . Federal district courts, the Rooker Court
recognized, lacked the requisite appellate authority, for their jurisdiction was
“strictly original.” . . . Among federal courts, the Rooker Court clarified, Congress
had empowered only this Court to exercise appellate authority “to reverse or modify”
As explained in this court’s order denying Plaintiff’s motion for a temporary restraining
order, the relief sought would also be precluded if the state court action was not final, albeit for a
different reason. See Cross I, Dkt. No. 7 at 2-3 (addressing Anti-Injunction Act, 28 U.S.C. § 2283).
a state-court judgment. . . . Accordingly, the Court affirmed a decree dismissing the
suit for lack of jurisdiction.
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284-85 (2005) (internal citations
As the Fourth Circuit more recently explained in a similar case:
[Plaintiff’s] complaint asks that lower federal courts in effect exercise appellate
review over numerous state administrative and judicial decisions, and under our
system of federalism, the lower federal courts lack jurisdiction to sit as appellate
tribunals over state administrative and judicial decisionmakers, absent explicit
statutory authorization. See Rooker, 263 U.S. 413; Feldman, 460 U.S. 462; Exxon
Mobil, [544 U.S. at 284] (holding that lower federal courts lack jurisdiction to hear
“cases brought by state-court losers complaining of injuries caused by state-court
In her later-filed objection (Dkt. No 20), Plaintiff relies on a single sentence from Exxon
Mobil to argue that Rooker-Feldman does not bar jurisdiction in this action. See Dkt. No. 20 at 15
(quoting the following statement “Since Feldman, this Court has never applied Rooker-Feldman
to dismiss an action for want of jurisdiction.”). While the statement is quoted correctly, it is out-ofcontext a it is merely predicate to addressing a “conflict among the Courts of Appeals over the scope
of the Rooker-Feldman doctrine.” Exxon Mobil, 544 U.S. at 287, 291. That doctrine was
summarized by the Court as follows:
Rooker and Feldman exhibit the limited circumstances in which this Court's
appellate jurisdiction over state-court judgments, 28 U.S.C. § 1257, precludes a
United States district court from exercising subject-matter jurisdiction in an action
it would otherwise be empowered to adjudicate under a congressional grant of
authority . . . In both cases, the losing party in state court filed suit in federal court
after the state proceedings ended, complaining of an injury caused by the state-court
judgment and seeking review and rejection of that judgment. Plaintiffs in both cases,
alleging federal-question jurisdiction, called upon the District Court to overturn an
injurious state-court judgment. Because § 1257, as long interpreted, vests authority
to review a state court’s judgment solely in this Court, . . . the District Courts in
Rooker and Feldman lacked subject-matter jurisdiction.
Id. at 291-92 (internal citations omitted) (emphasis added). Ultimately, the Court held that the
Rooker-Feldman doctrine did not bar jurisdiction in Exxon Mobil because the federal action was
initiated while the state-court action was still pending. Id. at 292. The court, therefore, analyzed
the matter under preclusion doctrines, distinguishing Rooker-Feldman because the plaintiff “ha[d]
not repaired to federal court to undo the [state-court] judgment.” Id. at 293 (noting “Preclusion, of
course, is not a jurisdictional matter.”).
judgments rendered before the district court proceedings commenced and inviting
district court review and rejection of those judgments”). Parties aggrieved by state
administrative and judicial decisions must pursue review in state appellate tribunals,
with the ultimate opportunity to petition the Supreme Court of the United States for
review. See Exxon Mobil Corp., 544 U.S. at 291–92.
Rousseau v. Howard County, Md., No. 10-1016, 2011 WL 1542556 (4th Cir. Apr. 21, 2011).
As explained in Exxon Mobil and more recent decisions, the Rooker-Feldman doctrine
“applies only when the following conditions are met: (1) the federal court plaintiff lost in state court;
(2) the plaintiff complains of ‘injuries caused by state-court judgments;’ (3) the state-court judgment
became final before the proceedings in federal court commenced; and (4) the federal plaintiff
‘invit[es] district court review and rejection of those judgments.’” Willner v. Frey, 243 F. App. 744,
746 (4th Cir. 2007) (summarizing and quoting Exxon Mobil, 544 U.S. at 284).8
Each of these requirements is clearly satisfied in this action: (1) Plaintiff received an adverse
decision on the state-court foreclosure; (2) the injuries of which she complains flow from this
adverse judgment; (3) the foreclosure proceeding became final in February 2011, prior to when this
action was commenced; and (4) Plaintiff’s allegations seek review of the state court’s actions and
In Willner, the Fourth Circuit found each of these requirements satisfied with respect to
a foreclosure proceeding. The court rejected the Willners’ argument that their claim against the
clerk of the county court was not barred because it was “‘based on a violation of their constitutional
rights . . . and the consequence of the state court judgment-not the state court judgment itself.’” Id.
(quoting appellant’s brief).
rejection of its ultimate decision.9 The court, therefore, finds that it lacks subject matter jurisdiction
over these matters under the Rooker-Feldman doctrine.
To the extent Plaintiff relies on Rule 60 of the Federal Rules of Civil Procedure her claims
are also ill founded.10 Rule 60 of the Federal Rules of Civil Procedure, like Rule 60 of the South
Carolina Rules of Civil Procedure, provides various grounds on which the respective court may
modify its own judgments. Nothing in either the state or federal version of the rule vests one court
(even within the same system) with authority to review another court’s decisions. Thus, nothing in
either the state or federal version of Rule 60 authorizes a federal court to review a state-court
Through her most recent filings, Plaintiff concedes she is “not now actively pursuing
injunctive relief.” Cross I, Dkt. No. 18 at 3; Dkt. No. 20 at 10 (stating “she no longer actively seeks
injunctive relief”). Thus, her only remaining challenge is to the state court judgment and earlier
related actions by the state’s judicial decisionmaker (Master-in-Equity). As expressed in her most
recent filing, Plaintiff is “ask[ing] this court to vacate a judgment that was ipso facto void when it
was made.” Dkt. No. 20 in both actions (emphasis in original).
The “complaint” in Cross I seeks injunctive relief including a temporary restraining order.
As noted above, however, Plaintiff has now abandoned pursuit of such relief. This leaves Plaintiff
with the relief sought through Cross II, which expressly seeks relief under various subsections of
Fed. R. Civ. P. 60.
In her July 1, 2011 memorandum, Plaintiff asserts that “Federal Rule 60 and state Rule
60 are not diverse, but are the same[.]” Cross I, Dkt. No. 18 at 3. She then argues that various
subparts of Rule 60 empower this court to “set aside and to vacate the void judgment” of the state
court. This argument, in turn, rests on a misapplication of Rooker, which Plaintiff argues establishes
that the state court “lacked jurisdiction ab initio of the subject matter” causing the state court
judgment to be “ipso facto void.” Id. at 5. Contrary to Plaintiff’s argument, nothing in Rooker
imposes any limitations on a state court’s jurisdiction. Neither does Rule 60 of the Federal Rules
of Civil Procedure authorize federal interference with a state-court judgment.
For the reasons set forth above, Plaintiff’s motion to intervene is denied, her motion to
consolidate is granted, and the consolidated action is dismissed without prejudice for lack of subject
matter jurisdiction. As to the dismissal, the court adopts and incorporates the reasoning in the
Report and Recommendations as supplemented above. All other pending motions are mooted by
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
July 19, 2011
In Cross II, Plaintiff filed a “Motion to Strike a ‘Motion to Dismiss’ under Rule 12f of the
Federal Rules of Civil Procedure [and] in the Alternative a Motion for Summary Judgment.” Cross
II, Dkt. No. 13 (“Motion to Strike”). The Motion to Strike refers to a motion to dismiss which was
apparently served on Plaintiff and, at one point, was mailed to the court, but was never properly filed
by or on behalf of Defendant. Thus, the referenced motion to dismiss is not in the record leaving
the court with nothing to strike. Neither has the content of the mailed-in motion been considered.
In any event, the court’s sua sponte dismissal of the now-consolidated action under the RookerFeldman doctrine renders all other motions moot.
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