Eliason et al v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, The et al

Filing 66

ORDER Overruling Objection and Adopting Report and Recommendation: Eliason's Objection is OVERRULED, and the Amended Complaint is dismissed without prejudice. This means Eliason may file a second amended complaint. If Eliason chooses to do so, the newly amended complaint must be filed within fourteen (14) days of the date of this Order. Otherwise, the court will dismiss the case with prejudice and close the case. Signed by Judge Robert J. Shelby on 8/12/20. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

BRETT L. ELIASON, KYLIE M.
ELIASON, BRITTNIE L. ELIASON, and
VERONIQUE ELIASON,

ORDER OVERRULING OBJECTION
AND ADOPTING REPORT AND
RECOMMENDATION

Plaintiffs,

Case No. 1:20-cv-24-RJS-DBP

v.

Chief Judge Robert J. Shelby

THE CORPORATION OF THE
PRESIDENT OF THE CHURCH OF
JESUS CHRIST OF LATTER-DAY
SAINTS, et al.,

Chief Magistrate Judge Dustin B. Pead

Defendants.
On June 30, 2020, Chief Magistrate Judge Dustin Pead entered a Report and
Recommendation recommending that the undersigned dismiss the claims brought by pro se
Plaintiffs Brett Eliason, Kylie Eliason, Brittnie Eliason, and Veronique Eliason (collectively,
Eliason). Eliason timely filed a Response and Objection (Objection) to the Report and
Recommendation.1 For the reasons explained below, the court overrules Eliason’s Objection and
dismisses the Amended Complaint without prejudice. But Plaintiffs may, if they choose, file a
second amended complaint within fourteen days of this Order. Otherwise, the court will dismiss
the Amended Complaint with prejudice and close the case.

1

Dkt. 55.

1

BACKGROUND
Eliason initiated this action on February 26, 2020,2 and filed an Amended Complaint two
days later.3 On March 6, 2020, the undersigned entered an order referring the case to Judge
Pead.4
Eliason asserts forty-five causes of action against over a hundred defendants and seeks
nearly $127 billion in damages.5 Although Eliason accuses Defendants of a host of crimes and
wrongdoing, most of his claims involve allegations related to the estate plan of Max and Joyce
Eliason, Plaintiff Brett Eliason’s parents.6 Specifically, Eliason alleges Defendant law firm
Kirton McConkie has improperly managed his parents’ estate, defrauding the Eliason family out
of millions of dollars.7
Since filing the Amended Complaint, Eliason has filed numerous motions for summary
judgment and motions to compel.8 Defendants filed two motions to dismiss—one by R. David
Bishop and one brought collectively by Dallin H. Oaks and the Corporation of The Church of
Jesus Christ of Latter-day Saints (the Church Defendants).9 The Church Defendants’ Motion
sought dismissal on three grounds, arguing: (1) the court lacks subject matter jurisdiction, (2)

2

Dkt. 1.

3

Dkt. 2.

4

Dkt. 8. The case was initially referred to Judge Pead under 28 U.S.C. § 636(b)(1)(A). On March 24, 2020, the
undersigned modified the referral to one under 28 U.S.C. § 363(b)(1)(B). Dkt. 10.
5

See Dkt. 2 at 1–2, 250–255.

6

See id. at 1–7. Joyce Eliason is deceased. Id. at 3.

7

See id. at 11–12.

8

Dkt. 9; Dkt. 23; Dkt. 34; Dkt. 38; Dkt. 40; Dkt. 42; Dkt. 43.

9

Dkt. 30; Dkt. 36.

2

Eliason’s claims are barred by the doctrine of res judicata, and (3) the Amended Complaint fails
to state a cause of action.10
On June 30, 2020, Judge Pead issued a Report and Recommendation (the Report)
agreeing with the Church Defendants that the court lacks subject matter jurisdiction.11
Specifically, the Report held that diversity jurisdiction was lacking, and there was no federal
question presented because the two federal causes of action Eliason advances fail to state a claim
for which relief can be granted.12 The Report also concluded that the Amended Complaint failed
to state a claim against Defendant R. David Bishop and that Eliason’s motions for summary
judgment were premature.13 Although the Report recommended dismissing the Amended
Complaint, it afforded Eliason fourteen days to file a second amended complaint.14
Eliason declined the invitation to amend and instead timely objected to the Report.15
Spanning fifty-four pages, Eliason’s Objection never explicitly engages the Report. Instead, the
Objection largely rehashes Eliason’s numerous grievances against Defendants. The remainder of
the Objection is a hodgepodge of criticisms of proceedings in a parallel case in the District of
Hawaii,16 personal pleas to the President of the Church of Jesus Christ of Latter-day Saints,17 and
recitations of several federal statutes.18

10

See generally Dkt. 36.

11

Dkt. 52 at 7–11.

12

Id.

13

Id. at 11–12. Judge Pead denied Eliason’s motions to compel in a separate Order. Dkt. 53.

14

Dkt. 52 at 13.

15

Dkt. 55.

16

Id. at 24–31.

17

Id. at 18–22.

18

See, e.g., id. at 25–27, 33–35.

3

ANALYSIS
The court begins by deciding which legal standard to apply in assessing Eliason’s
Objection—namely, whether the court should review the Report de novo or for clear error.
Concluding that at least one of Eliason’s objections is specific enough to warrant de novo
review, the court first addresses that objection and then reviews the remainder of the Report for
clear error.
I.

Appropriate Legal Standard
The applicable standard of review in considering a magistrate judge report and

recommendation depends on whether a party lodges objections to the recommendation.19 When
assessing unobjected to portions of the report and recommendation, the Supreme Court has
suggested no further review by the district court is required, but neither is it precluded.20 This
court generally reviews unobjected-to portions of a report and recommendation for clear error.21
However, Federal Rule of Civil Procedure 72(b)(2) allows parties to file “specific written
objections to the proposed findings and recommendations.” In those instances, “[t]he district
judge must determine de novo any part of the magistrate judge’s disposition that has been

See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”) (emphasis added).
19

See Thomas v. Arn, 474 U.S. 140, 149 (1985) (“The [Federal Magistrate’s Act] does not on its face require any
review at all, by either the district court or the court of appeals, of any issue that is not the subject of an objection.”);
id. at 154 (noting that “it is the district court, not the court of appeals, that must exercise supervision over the
magistrate,” so that “while the statute does not require the judge to review an issue de novo if no objections are filed,
it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or
any other standard”).
20

See, e.g., Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial
objection is made [to a magistrate judge’s report and recommendation], the district court judge reviews those
unobjected portions for clear error.”) (citations omitted); see also Fed. R. Civ. P. 72(b) advisory committee’s note to
1983 amendment (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.”) (citing Campbell v. U.S. Dist. Court for N. Dist. of
Cal., 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879).
21

4

properly objected to.”22 To qualify as a proper objection that triggers de novo review, the
objection must be both timely and specific.23 Indeed, “only an objection that is sufficiently
specific to focus the district court’s attention on the factual and legal issues that are truly in
dispute will advance the policies behind the Magistrate’s Act . . . .”24 Thus, de novo review is
not required where a party advances objections to a magistrate judge’s disposition that are either
indecipherable or overly general.25
Here, although the Objection was timely,26 the court concludes only one of Eliason’s
objections is sufficiently specific to warrant de novo review. Of the Objection’s fifty-four pages,
Eliason never refers explicitly to the Report. Most of the Objection is a stream of accusations
against a number of parties Eliason argues are guilty of serious wrongdoing. Usually, the failure
to identify specific errors in the magistrate’s disposition would warrant only clear error review.27
Nevertheless, the court recognizes pro se litigants are held to less stringent standards than
are parties formally represented by lawyers28 and that documents filed pro se are “to be liberally

Fed. R. Civ. P. 72(b)(3) (emphasis added); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“De
novo review is statutorily and constitutionally required when written objections to a magistrate’s report are timely
filed with the district court.”) (citations omitted).
22

United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[W]e hold that a party’s
objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an
issue for de novo review by the district court or for appellate review.”).
23

24

Id.

See id. (“Just as a complaint stating only ‘I complain’ states no claim, an objection stating only ‘I object’
preserves no issue for review.”) (citation omitted); see also Moore v. Astrue, 491 F. App’x 921, 922 (10th Cir. 2012)
(upholding district court’s clear error review of magistrate judge’s report and recommendation because Plaintiffs
objected only “generally to every finding” in the report).
25

Although the Objection was timely, Eliason filed several “Exhibits” ostensibly related to the Objection that were
untimely. See Dkt. 56 (filed outside the 14-day timeframe established under Rule 72(b)(2)). Thus, the court will not
consider them. In any event, having briefly reviewed the Exhibits, none of them would have affected any of the
court’s conclusions.
26

27

See supra notes 23–25.

28

See Haines v. Kerner, 404 U.S. 519, 520 (1972).

5

construed.”29 Accordingly, the court construes Eliason’s arguments about Defendants’ alleged
violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) to challenge the
Report’s conclusion that there is no federal question jurisdiction. The court reviews that issue de
novo. Because Eliason’s other objections cannot fairly be liberally construed as objecting to any
other portion of the Report, the court reviews the remainder of the Report for clear error.
II.

Federal Question Jurisdiction
Because diversity jurisdiction is lacking, Eliason’s action may remain in federal court

only if federal question jurisdiction exists. “A case arises under federal law if its well-pleaded
complaint establishes either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal law.”30 Although
the Amended Complaint does not assert a civil RICO claim, Eliason argued in other filings that
Defendants are liable under the civil RICO statute.31 Even construing these filings liberally, they
fail to plead adequately a cognizable civil RICO claim.
To state a claim for civil RICO, Eliason must allege four elements as they relate to
Defendants: “(1) investment in, control of, or conduct of (2) an enterprise (3) through a pattern
(4) of racketeering activity.”32 “Racketeering activity is defined as any ‘act which is indictable’
under federal law.”33

29

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

30

Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir. 2003) (internal quotation marks and citations
omitted).
See, e.g., Dkt. 17 at 1 (asserting in the case caption that the listed defendants are guilty “under the RICO Act of
1970”); Dkt. 38 at 8 (“It is not a coincidence that the largest group of corrupt Defendants in the history of mankind
are proven guilty of Racketeering and Organized Crimes . . . .”). Liberally construing Eliason’s filings, the Report
incorporated these allegations into the Amended Complaint. Dkt. 52 at 7–8.
31

32

Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir. 2006).

33

Id. (quoting 18 U.S.C. § 1961(1)(B)).

6

Eliason fails to allege these four elements in any of his filings and thus fails to state a
civil RICO claim. To be sure, Eliason accuses Kirton McConkie and the Corporation of the
President of the Church of Jesus Christ of Latter-day Saints of serious wrongdoing, but this alone
is insufficient. Eliason must allege both the specific enterprise and the pattern of racketeering
activity in which the enterprise is engaged.34
In the Objection, Eliason asserts “[t]he victim/plaintiff has over 3,500 pages of
supporting evidence and has completed an approximate 300 page complaint with over 50 felony
crimes which qualify under the RICO Act of 1970.”35 But the racketeering activity must be acts
indictable under federal law.36 All the causes of action listed in the Amended Complaint either
arise under state law37 or do not appear grounded in state or federal law.38 And while Eliason
lists in his Objection alleged federal crimes that could qualify as racketeering activity, these
allegations are insufficient for two reasons. First, the allegations must appear in Eliason’s
pleading, not an objection to a report and recommendation.39 Second, each description of the
alleged crimes amounts to “naked assertions devoid of further factual enhancement” that are
insufficient to state a claim for relief.40 For example, Eliason lists wire fraud as one of
Defendants’ alleged crimes but asserts only that “[f]unds were stolen from Eliason Eight and
wired to the IRS for taxes.”41 Without more, this amounts to “an unadorned, the-defendant-

34

Additionally, Eliason must allege an enterprise that is distinct from the individual Defendants themselves. See
Dkt. 52 at 10 (citing Dopp v. Loring, 54 F. App’x 296, 297–98 (10th Cir. 2002)).
35

Dkt. 55 at 37.

36

See Tal, 453 F.3d at 1261.

37

See Dkt. 2, counts 1, 2, 4, 11, 15.

38

See id., counts 9, 25, 37, 45.

See Nicodemus, 318 F.3d at 1235 (noting the federal cause of action must be established in the plaintiff’s “wellpleaded complaint”).
39

40

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

41

Dkt. 55 at 36.

7

unlawfully-harmed-me accusation” that courts routinely reject.42 Accordingly, Eliason has failed
to state a claim under the civil RICO statute. Because neither the Amended Complaint nor
Eliason’s other filings assert other federal causes of action, there is no federal question
jurisdiction here. And without either diversity or federal question jurisdiction, the court lacks
subject matter jurisdiction.43
Nevertheless, Eliason may attempt to replead his claims. In so doing, the court reminds
Eliason that Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain
statement” of the grounds for the court’s jurisdiction and to show that Plaintiffs have a claim for
which they are entitled to relief. Though perhaps counterintuitive, Eliason is more likely to find
success complying with Rule 8 by focusing a revised complaint only on the allegations essential
to Plaintiffs’ claims.
The court further reminds Eliason that Defendants asserted other grounds for dismissal,
including that “[t]he claims asserted here could have or should have been brought in the State
Court action and are therefore barred by res judicata” and that the claims suffered from pleading
deficiencies.44 Although the Report did not address those alternative grounds, it concluded that
they “appear[] . . . equally valid.”45 Given this preliminary assessment, the court cautions
Eliason to consider those alternative bases for dismissal when drafting an amended complaint.

42

Iqbal, 556 U.S. at 678.

The court declines to exercise supplemental jurisdiction over Eliason’s remaining state law claims. See Koch v.
City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (quoting Smith v. City of Enid ex rel. Enid City Comm’n, 149
F.3d 1151, 1156 (10th Cir. 1998)) (“When all federal claims have been dismissed, the court may, and usually
should, decline to exercise jurisdiction over any remaining state claims.”).
43

44

Dkt. 52 at 11.

45

Id.

8

III.

The Remainder of the Report
Having reviewed the remainder of the Report, the court finds no clear error in any of

Judge Pead’s conclusions. Accordingly, the court adopts the Report in its entirety.
IV.

Communications with Chambers
Before concluding, it is necessary to comment on Plaintiffs’ communications with

chambers. Since the filing of this case, Plaintiff Brett Eliason has regularly emailed chambers
for one or both of the presiding judges, along with many others. The body of many of these
emails is often not directed to the undersigned, but to various attorneys or Eliason’s family.
Judges ordinarily may not engage in ex parte communications with parties or lawyers
about cases before the court. It is inappropriate for any party or any lawyer for a party to attempt
to communicate with a judge about the substance of a case except through court filings placed on
the public docket. This is an important rule of practice the court enforces in all cases.
Eliason is directed to immediately cease email communications with chambers. All
matters requiring the court’s attention should be included in motions or other appropriate filings
and will be addressed in the normal course. And the court has not considered these emails or
anything in them (that is not also filed on the docket) in evaluating the sufficiency of Eliason’s
Amended Complaint.
Separate from the fact of the communications, the substance of most of the emails to
chambers (and others) is inappropriate from any litigant. Plaintiffs are availing themselves of the
United States courts, seeking relief for injuries they claim they have suffered. All litigants who
come to court seeking redress must adhere to basic rules of decorum, decency, and fair play.
Making explicit or implicit threats to others, utilizing insulting or inflammatory hyperbole, or
engaging in otherwise abusive conduct is inappropriate and cannot be permitted from any party.

9

Plaintiffs must refrain from such conduct moving forward or risk sanctions that could, at some
point, include dismissal of Plaintiffs’ claims.
CONCLUSION
For the reasons explained above, Eliason’s Objection is OVERRULED, and the
Amended Complaint is dismissed without prejudice.46 This means Eliason may file a second
amended complaint. If Eliason chooses to do so, the newly amended complaint must be filed
within fourteen (14) days of the date of this Order. Otherwise, the court will dismiss the case
with prejudice and close the case.
SO ORDERED this 12th day of August 2020.
BY THE COURT:

ROBERT J. SHELBY
United States Chief District Judge

46

Dkt. 55.

10