Lundahl et al v. JP Morgan Chase Bank et al

Filing 122

ORDER granting in part 113 Motion to Vacate and 1915A Screening of Amended Complaint. Signed by U.S. District Judge Lawrence L. Piersol on 2/24/2020. (CLR)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

LOGAN LUNDAHL,HOLLILUNDAHL,

5:I7-CV-05069-LLP

Plaintiffs,

ORDER GRANTING IN PART THE

vs.

PLAINTIFFS' MOTION TO VACATE AND
I9I5A SCREENING OF AMENDED
JP MORGAN CHASE BANK, HSBC; MARY

CORPORON; OLD REPUBLIC INSURANCE

COMPLAINT

CO., MEL HOFFMAN, LOS ANGELES
HOMEOWNERS AID, LILIA CHAVARIN,
AMERICAN
MODERN
INSURANCE

GROUP,

FIRST

INSURANCE CO.,

AMERICAN

TITLE

DOES 1-10, SMITH

COUNTY, TX, LOIS MOSLEY, PAUL
KELLEY JR., ESTATE OF PAUL KELLEY

SR.,

SANDRA

COPELAND,

DAVID

GILBERTSON, NIEL LUND, CRAIG
PFEIFLE, IN THEIR ADMINISTRATIVE
CAPACITIES; AND
AMERICAN TITLE
INSURANCE CO.,
Defendants.

Plaintiffs, Logan Lundahl and Hoili Lundahl,filed an Amended Complaint on September

12, 2018. Doc. 27. On October 10, 2018,Plaintiffs filed a "Supplement to the First Amended
Complaint." Doc.47. Plaintiffs assert that this supplement is warranted by Federal Rules of Civil
Procedure 15(b), the Court is not persuaded by this argument. See Doc. 27 at 20. Tnal has not
commenced in this action, thus using Rule 15(b) to supplement a pleading is incorrect. Fed. R.

Civ. P.(Rule 15(b)(l-2)(This rule allows for amendments to be made dunng and after trial if the
amendment is based on an objection or based on issues tried by consent.). The "Supplement" that

Plaintiffs filed (Doc. 47)is an additional 225 pages and picks up where the First,Amended

Complaint ends. Document 47 is not apart of the First Amended Complaint; the First Amended
Complaint is Document 27.

On December 21, 2018,(Doc. 79)this Court ordered Plaintiffs to file a motion to amend

complaint within thirty days or this Court would screen the Plaintiffs' First Amended Complaint.
Doc. 27. The Plaintiffs untimely filed their motion on February 1, 2019. Doc. 88. Thus, this

1915A screening will be based on Doc. 27, the Plaintiffs' First Amended Complaint.
This Court entered judgment (Doc. 99) in favor of all defendants on August 12, 2019,

without realizing that the Court had not yet screened Plaintiffs' Amended Complaint (Doc. 27).
This Order will screen Plaintiffs' Amended Complaint and address Plaintiffs' most recent motion
to vacate(Doc. 113).
I.

Motion to Vacate

This Court denied Plaintiffs previous motion (Doc. 101) because a 59(e) motion cannot
be used to assert new evidence that could have been argued before the entry of judgment. See

United States v. Metropolitan St. Louis Sever Dist., 440 F.3d 930, 933 (8th Cir. 2006); Doc. 112.

Now, Plaintiffs assert this new motion is based on Federal Rule of Civil Procedure 60(b)(1).
Doc. 113. Plaintiffs argue that this Court based its order on "manifest errors of faet and law." Id
at 1. A district court's decision on a motion for reconsideration rests within its discretion.

Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir. 1988). "Motions for
reconsideration serve a limited function: to correct manifest errors of law or fact or to present

newly discovered evidence." Id. at 414. The Federal Rules provide the following regarding
grounds for relief from an order "[o]n motion and just terms, the court may relieve a party .. .
from a fmal judgment, order, or proceeding for the following reasons:(1) mistake, madvertence,
surprise, or excusable neglect[.] Fed. R. Civ. P. 60(b).

Plaintiffs argue that four defendants in the case conceded personal jurisdiction by (1)

making an illegal appearance through a non-attomey" (Plaintiffs assert this was done by
Defendants Hoffman and Los Angeles Homeowners Aid); (2) "illegally avoidmg service of

process" in which Plaintiffs assert this conduct was done by JP Morgan Chase Bank; and (3) that
Old Republic Insurance Company presented a false defense. Id. at 2.

The only defendants that have been served in this case are Old Republic Insurance

Company (Docket 21), American Modem Insurance Group (Docket 21), First Amencan Title
Insurance Company (Docket 21), and Lilia Chavarin (Docket 19). JP Morgan Chase Bank's
summons were returned unexecuted. See Docket 20. Each served defendant raised a personal

jurisdiction claim in their own motion to dismiss.' This Court dismissed the case because the only
defendants that were served, filed a motion to dismiss and each asserted lack of personal

jurisdiction. This Court found that Plaintiffs had not established minimum contacts but merely
stated that the defendants did "general business." See Docket 59; Docket 98.

Plaintiffs assert "this court sua sponte raised the 'general jurisdiction' defense in its final

judgment." Doc. 113 at 2. The Court had not screened Plaintiffs First Amended Complaint, thus,
the Court will submit an amended judgment that reflects the correct defendants bemg dismissed.
Plaintiffs' motion to vacate (Doc. 113) is granted in part, to change the defendants listed in the

judgment. This Court will submit an amended judgment to reflect the correct defendants' names.
II.

1915A Screening of Plaintiffs' Amended Complaint

'Old Republic Insurance Company asserted lack of personal jurisdiction in Doc. 35 at 7.
American Modem Insurance Group asserted lack of personal jurisdiction m Doc. 32 at 3. First
American Title Insurance Company asserted lack of personal jurisdiction in Doc. 37 at 5. Lilia
Chavarin asserted lack of personal jurisdiction in Doc. 42 at 6.
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Logan Lundahl and Holli Lundahl have already been granted leave to proceed in forma

pauperis status. See Docket 15. Under § 1915, the court must review the clauns in the complaint to
determine if they are (1) frivolous or malicious; (2) fail to state a claim on which relief may be

granted; or (3) seek monetary relief against a defendant who has immunity. See 28 U.S.C. §
1915(e)(2)(B).

A pro se complaint should be given liberal construction. Stone v. Harry, 364 F.3d 912,
915 (8th Cir. 2004). A pro se complaint, regardless of how inartfully pleaded, is held to less
stringent standards than pleadings drafted by lawyers and may only be dismissed for failure to
state a claim if it appears "beyond a doubt that the plaintiff can prove no set of facts in support of

[her] claim which would entitle [her] to relief." Hughes v. Rowe,449 U.S. 5,10 n.7(quoting
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). This policy of liberal construction, however,
"does not mandate that a Court sustain every pro se complaint even if it is incoherent, rambling,
and umeadable." Barsella v. U.S., 135 F.R.D. 64,66(S.D.N.Y. 1991). Rule 8 of the Federal

Rules of Civil Procedure requires that a complaint set forth "a short and plain statement of the

claim showing that [Plaintiff] is entitled to relief." Fed. R. Civ. P. 8(a)(2). This Rule also requires
that each claim be "simple, concise and direct." Fed. R. Civ. P. 9(e)(2). The purpose ofthis rule

is that a defendant be given fair notice of what the plaintiffs claim is and the grounds upon which
it rests. Romine v. Acxiom Corp., 296 F.3d 701,711 (8th Cir. 2002)citing Swierkiewcz v. Sorema
A.A,534U.S. 506(2002).

The Plaintiffs Amended Complaint adds multiple new defendants. Plaintiffs assert that this

action is being brought because the state of Nebraska dismissed these claims. Doc. 27 at 3.
Plaintiffs claim that five claims were dismissed in Nebraska for failure to show personal

jurisdiction over defendants. Id. Plaintiffs then list numerous claims that have been dismissed

within other courts starting in November of 2008 until May of 2015. Id. at 3-5. Plaintiffs assert

that the previous courts obstructed their rights "to seek any future relief by fraudulently
constructing orders that were patently false to impede Plaintiffs fair and just access to the courts to

try her claims." Id. at 7. Plaintiffs claim that they are entitled to equitable tolling and should be
allowed to present the same federal claims within this Court as they presented in the state courts.
Id. at 8. "Both courts [Nebraska state court] refused to analyze how RICO claims is to be treated
in a state court sufficient to create a uniform application of the RICO laws whether prosecuted m
federal or state court." Id. at 8. Plaintiffs assert that Rooker-Feldman does not bar this action
because the state court refused to reach the federal questions. Id.

In the "General Allegation" section of the Amended Complaint, Plaintiffs assert claims

against Los Angeles Homeowners Aid, Mel Hoffman, and First American Title Insurance

Company.

The Plaintiffs claim that IP Morgan Chase and the private party defendants sought

out criminal charges against HoHi Lundahl. Id. at 16. Only a bare conclusory allegation is made
against Mel Hoffinan and the claim against him does not pass initial review.

A. Lois Mosley,Paul Kelley, Jr., Estate of Paul Kelley, Sr., Sandra Copeland, Niel Luud,
David Gilbertson, American Title Insurance Company, Mary Corporon, and Craig
Pfeifle

Defendants Lois Mosley, Paul Kelley, Jr., Estate of Paul Kelley, Sr., Sandra Copeland,

Niel Lund, David Gilbertson, Does 1-10, Mary Corporon, American Title Insurance Company,

and Craig Pfeifle are named as defendants. Id. at 1. The complaint makes general statements such
as "All Defendants Except the Public Defendants Sued Herein, Brought About A Third

2 Claims against defendants who have already been dismissed due to lack of personal junsdiction
will not be addressed in this screening order. Defendants' motions to dismiss were based on this
Amended Complaint.

Prosecution Against Holli In The State of Idaho for Forgery of the Bank Notaries[.]" Id. at 16.

Again, the Plaintiffs assert that "the private party defendants . . . then procured another criminal
prosecution against HOLLI[.]"Id.

"[A] complaint, containing as it does both factual allegations and legal conclusions, is
frivolous where it lacks an arguable basis either in law or in fact. . . .[The] term 'frivolous,' when

applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful
factual allegation." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The claims against the above
defendants are general and conclusory. With such general allegations, defendants may not he

given fair notice about which grounds they need to address. See Romine, 296 F.3d at 711 (citing
Swierkiewcz, 534 U.S. at 506). Because Plaintiffs have not asserted a claim that shows they are

entitled to relief against these defendants Lois Mosley, Paul Kelley Jr., Estate of Paul Kelley Sr.,

Sandra Copeland, Niel Lxmd, David Gilbertson, Does 1-10, Mary Corporon, American Title
Insurance Company, and Craig Pfeifle are dismissed under 1915(e)(2)(B)(ii) and 28 U.S.C. §

1915A(b)(l). Further, American Title Insurance would only insure good title to the property, hut
not insure the title against subsequent actions of others that the plaintiffs alleged subsequently

divested plaintiffs of the title plaintiffs allegedly originally owned. One additional reason for
dismissal is David Gilbertson is the Chief Justice of the South Dakota Supreme Court and Craig
Pfiefle is a South Dakota Circuit Court Judge. Chief Justice Gilbertson and Judge Pfiefle were

only operating in their official capacity with no claim to the contrary.
B. HSBC

Next, Plaintiffs assert that defendant "HSBC aka HSBC MORTGATE SERVICES INC.
AKA BENEFICIAL WYOMING" does general business in the state and asserts that the Plaintiffs

have litigated claims against.HSBC before. See Doc. 27 at 2, 20. These hare assertions are not

enough to survive 1915A screening, thus the claims against HSBC are dismissed under
1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(l).
C. The Honorable Travis O'Gorman and the Honorable Derek Weimer

Plaintiffs assert claims against Travis O'Gorman and Derek Weimer in their

"administrative capacities." See Doc. 27 at 1. This Court had already noted in its first screening
order that Weimer and O'Gorman were state court judges for the State of Nebraska. Doc. 15 at 4.;

Docket 1-15; 1-19. These claims were against Weimer and O'Gorman in their official capacities
and were dismissed. See Doc. 15 at 4. Here, Plaintiffs sue these defendants in their "administrative

capacities." Doc. 27 at 1. Plaintiffs assert that they are "seeking the same federal claims they
presented to the state courts . . . plaintiffs motion to alter or amend judgment complaining about
the failure to address any contacts analysis concerning Plaintiffs federal RICO claims before
O'Gorman's court. . . [and] RICO claim presented before Derek Weimer's court . . . Both courts

refused to analyze how a RICO claim is to be treated in a state court sufficient to create a uniform
application of the RICO laws[.]"Id. at 8.
This Court does not address whether suing a defendant in his/her "administrative

capacity" has merit, but the claims against Wiemer and O'Gorman are barred by judicial

immunity."The necessary inquiry in determining whether a defendantjudge is immune from suit
is whether at the time he took the challenged action he had jurisdiction over the subject matter

before him." Stump v. Sparkman, 435 U.S. 349, 356(1978)."A judge will not be deprived of
immunity because the action he took was in error, was done maliciously, or was in excess of his

authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all
jurisdiction.'"M;(quoting Bradley v. Fisher, 80 U.S. 335, 351 (1872)). Judges are immune
from suit, with two narrow exceptions."'First, a judge is not immune from liability for

nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not
immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction,'"

Schottel V. Young,687 F.3d 370, 373 (8th Cir. 2012)(quoting Mireles v. Waco, 502 U.S. 9, 11-

12(1991)). These exceptions do not apply here. Plaintiffs assert they presented these claims in
the state court, thus having jurisdiction over the claims. Thus, Plaintiffs claims against
defendants Weimer and O'Gorman are dismissed under 28 U.S.C. §§ 1915(e)(B)(i-ii) and
1915A(b)(l).
D. Smith County, Texas

Plaintiffs list Smith County, Texas as a defendant and asserts that her (Holli Lundahl's) real

property in Texas was acquired at an auction. Doc. 27 at 16. Plaintiffs must establish the
prerequisite to governmental liability under § 1983 against Smith County, Texas. Plaintiffs must
allege that an official custom or policy brought about the alleged constitutional deprivation.
Hafer v. Melo,502 U.S. 21, 25(1991); Monell v. Dep't ofSoc. Servs. ofNY,436 U.S. 658,690-

91 (1978). Plaintiffs make no such allegation against Smith County, and thus fail to state a claim

upon which relief may be granted. There are no facts alleged in the complaint to reasonably
suggest that Plaintiffs have a viable claim against Smith County, Texas. Consequently, the

complaint against defendant Smith County, Texas is dismissed under 1915(e)(2)(B)(ii) and 28
U.S.C. § 1915A(b)(l).

E. Los Angeles Homeowners Aid and Mel Hoffman
No basis has been shown that this Court has personal jurisdiction over Los Angeles
Homeowners Aid or Mel Hoffinan, accordingly those claims will be dismissed without
prejudice.

F. JP Morgan Chase Bank

Plaintiffs assert many claims against JP Chase Morgan Bank in their First Amended

Complaint. See Doc. 27. At this juncture, the court cannot say the complaint against JP Morgan
Chase Bank is wholly without merit. Thus, the Court will direct service of JP Morgan Chase
Bank.

Accordingly, it is ORDERED:

1. Plaintiffs fail to state a claim against defendants Lois Mosley,Paul Kelley Jr., Estate

ofPaul Kelley Sr., Sandra Copeland, Niel Lund, David Gilbertson, Does 1-10, Smith

County, Texas, HSBC,American Title Insurance Company, Mary Corporon, Mel
Hof&nan, Los Angeles Homeowners Aid, and Craig Pfeifle. They are dismissed

under §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). Judgment will be entered against

plaintiffs and in favor of defendants Lois Mosley,Paul Kelly Jr., Estate of Paul
Kelley Sr., Sandra Copeland, Niel Lund, David Gilbertson, Does 1-10, Smith County,
Texas, HSBC, American Title Insurance Company, Mary Corporon, Mel Hoffman,
Los Angeles Homeowners Aid, and Craig Pfeifle.

2. Plaintiffs' motion to vacate(Doc. 113)is granted in part, to change the defendants

listed in the judgment. This Court will file an amended judgment to reflect that
judgment was entered in favor of defendants Old Republic Insurance Company,
American Modem Insurance Group, American Title Insurance Company, and Lilia

Chavarin pursuant to their motions to dismiss addressing the Plaintiffs Amended
Complaint. The remaining defendant in this lawsuit is JP Morgan Chase Bank.
3. Plaintiffs shall complete and send to the Clerk of Court a separate summons and
USM-285 form for the remaining defendant, JP Morgan Chase Bank. Upon receipt of
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the completed summons and USM-285 forms, the Clerk of Court will issue the
summons. If the completed summons and USM-285 forms are not submitted as

directed, the complaint may be dismissed.

4. The United States Marshal Service shall serve the completed summons,together with
a copy ofthe Amended Complaint(Doc. 27)and this order, upon the remaming
defendant, JP Morgan Chase Bank.

Dated this 24th day of February, 2020.
BY THE COURT:

idUvujuuuL
L^rence L. Piersol
United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK

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