Boon et al v. Gray & Associates LLP et al

Filing 73

DECISION AND ORDER Granting Motions to Dismiss 11 37 39 43 57 and Dismissing Case. (cc: all counsel; via US Mail to Plaintiffs) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NELSON BOON,
SUSAN BOON,
Plaintiffs,
v.

Case No. 12-C-909

GRAY & ASSOCIATES, LLP,
CHRISTOPHER C. DROUT,
DAVID M. SAMSON, MARK A. CLAUSS,
AMY KIEFFER, QUARLES & BRADY, LLP,
DAVID P. MUTH, JOHN REMINGTON,
BLANK ROME, LLP, MICHAEL J. MEEHAN,
CHARLES H. CONSTANTINE, JUDGE
GERALD P. PTACEK, JUDGE
BANK OF AMERICA, N.A., BRIAN T. MOYNIHAN, CEO,
BRUCE R. THOMPSON, CFO,
BAC HOME LOANS SERVICING, LP
a/k/a Countrywide Home Loans Servicing LP,
RACINE COUNTY, TYSON FETTES,
CHRISTOPHER SCHMALING,
JOHN DOE (1-30), JANE DOE (1-30),
Defendant.
DECISION AND ORDER GRANTING MOTIONS TO DISMISS (DOCS. 11, 37,
39, 43, 57) AND DISMISSING CASE
Nelson Boon and Susan Boon1 filed this lawsuit against a host of defendants.
Allegedly, each defendant is somehow related to the foreclosure action involving property
at 4501 96th Street, Franksville, Racine County, Wisconsin.

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Although the Com plaint is captioned with the nam es “Nelson & Susan Boon,” the Boons signed the
Com plaint with signatures of “Nelson E. Boon Jr. ®2011" and “Susan Bernice Boon ®2011.” It is unclear what
they intend by the registered tradem ark sym bol. In an “Affidavit of Non Corporate Status” each of the plaintiffs
identifies him self or herself as “Nelson-Edward Jr. :Boon aka Nelson Edward Jr. Fam ily Boon aka Nelson
Edward Boon Jr.” and “Susan Bernice (Sm ith) :Boon aka Susan Bernice Fam ily Boon aka Susan Bernice
Boon.” (Doc. 49 (“Request to Take Judicial Notice”) attach. 1, attach. 2.) Again, it is unclear what they intend
by the various form s of identification. In the affidavits, they state that they each are “one of the People of
these united [sic] States of Am erica, being a creation of God, born of a W om an and Man, being a child of the
MOST HIGH (YAHW EY), YHW H; and heir of the King, Yahshua” and “a living, breathing, sentient being on
the land, a Natural Individual,” and they refer to each plaintiff’s “body/vessel.” (Id.) To clarify, the court will
address the plaintiffs as “Nelson Boon” and “Susan Boon” or “the Boons,” but such reference encom passes
all capacities they invoke, any alter egos they have or believe they have created, and all versions of their
identification and existence.

According to the Complaint and the attachments thereto, BAC Home Loans Service,
LP (f/k/a Countrywide Home Loans Service, LP), sued The Susan B. Boon Revocable
Trust and other defendants, including “John Doe Boon and Jane Doe Boon and such other
unknown trustee and/or beneficiaries of the Susan B. Boon Revocable Trust” in Racine
County Circuit Court, seeking judgment of foreclosure on the property. (Doc. 1 Ex. A.) The
case was given the number 11CV1812.

An attorney at Gray & Associates, LLP,

Christopher Drout, signed the Racine County complaint for BAC. (Id.) Other Gray &
Associates attorneys, David Samson, Mark Clauss, and Amy Kieffer, played some part in
prosecuting the case. For instance, Kieffer appeared at the sale confirmation hearing on
August 9, 2012. (Id. Ex. D.)
It appears that Bank of America, N.A., succeeded to the rights of BAC following a
merger. BofA’s attorneys were from Quarles & Brady, and included David Muth and John
Remington. Muth filed motions and briefs in the foreclosure case (Id. Exs. B, C) and
Remington appeared at the confirmation hearing (Id. Ex. D). According to documents
attached to the Boons’ Complaint, Judge Charles Constantine granted judgment of
foreclosure relating to the property and Judge Gerald Ptacek confirmed the sheriff’s sale.
(Id. Ex. D.)
The Boons now sue both judges, BAC, BofA, the two law firms and their various
attorneys, the law firm Blank Rome LLP and Michael Meehan from that firm, BofA’s Chief
Executive Officer and Chief Financial Officer, Racine County, the Racine County Sheriff
and Register of Deeds, as well as sixty John and Jane Does. Through various motions
and joinder in those motions, all named defendants now move for dismissal. The law firm
defendants, attorney defendants, Bank of America, NA (on its own behalf and as
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successor to BAC Home Loans Servicing, LP, and the Racine County defendants move
to dismiss based on (1) failure to state a claim under Fed. R. Civ. P. 12(b)(6); (2) claim
preclusion; and (3) abstention under the Rooker-Feldman doctrine. The Racine County
defendants argue failure to state a claim, claim preclusion, Rooker-Feldman, quasi-judicial
immunity, and lack of a policy or custom for municipal liability. The judges argue claim
preclusion, Rooker-Feldman abstention, plus Eleventh Amendment immunity and judicial
immunity.
(1)

Failure to State a Claim
A Fed. R. Civ. P. 12(b)(6) motion to dismiss challenges the sufficiency of the

complaint to state a claim upon which relief may be granted. The complaint must contain
a short and plain statement showing that the pleader is entitled to relief. Fed. R. Civ. P.
8(a)(2). However, enough facts must be set forth to state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); St.
John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007). In
other words, Rule 12(b)(6) requires a plaintiff to clear two hurdles. EEOC v. Concentra
Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). First, the complaint must describe
the claim in sufficient detail to give a defendant fair notice of the claim and the grounds on
which it rests. Id. “[A]t some point the factual detail in a complaint may be so sketchy that
the complaint does not provide the type of notice of the claim to which the defendant is
entitled under Rule 8.” Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d
663, 667 (7th Cir. 2007). Second, the “allegations must plausibly suggest that the plaintiff
has a right to relief, raising that possibility above a ‘speculative level’; if they do not, the

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plaintiff pleads itself out of court.” Concentra Health Servs., 496 F.3d at 776 (citing Bell Atl.
Corp., 550 U.S. at 555-56, 569 n.14).
When considering a Rule 12(b)(6) motion, the court must construe the complaint in
the light most favorable to the plaintiff, accepting as true all well-pleaded facts and drawing
all possible inferences in the plaintiff’s favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008).

The court does not accept legal conclusions couched as factual

allegations; more than labels and conclusions is required. Bell Atl. Corp., 550 U.S. at 555.
Here, the Complaint is long on invocations of law, argument, and conclusory
charges of wrongdoing. But it is extremely short on facts. The facts alleged include that
a case was filed in Racine County Circuit Court by BAC Home Loans Service, LP, by Drout
of Gray and Associates, against the Trust of Susan Boon. The Boons were not named as
defendants and were never served with the complaint in that case. Muth filed briefs that
pointed out that Nelson Boon is not an attorney, whereas Remington appeared at a hearing
and noted that Boon is neither a party to the action nor a lawyer. (Doc. 1 at 4-5, 13.)
The Boons submit that they signed an unconscionable contract to purchase property
at 4501 96th Street in Franksville, Wisconsin, and there was no exchange of money for a
loan. (Id. at 5-6.) Additionally, they assert the named defendants participated in the
Racine Circuit Court case, which was a foreclosure case resulting in a sheriff’s sale on
July 17, 2012. (Id. at 7.)
Alone, these contentions appear to be insufficient to assert plausible claims under
the Bell Atlantic standard. However, the plaintiffs proceed pro se, and pro se filings are
given a liberal construction.

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Moreover, attachments to the Complaint fill in some gaps. Attached to the pending
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Complaint here are the Racine County complaint, which shows the foreclosure claims
against the Susan B. Boon Revocable Trust and others; copies of the note and mortgage
signed by the Boons and promising to pay $220,400 to Countrywide Bank, FSB and
securing the property at 4501 96th Street; briefs filed by Bank of America, N.A. as
successor to BAC Home Loans Servicing, L.P. (formerly known as Countrywide Home
Loans Servicing, LP) in the foreclosure case; and, most helpfully, the order by Judge
Constantine granting default judgment against the Susan B. Boon Revocable Trust and a
transcript from the confirmation-of-sale hearing before Judge Ptacek. These attachments
make the Boons’ complaints of wrongdoing more apparent; it is relatively clear that the
Boons are claiming the defendants (here) harmed them during the prosecution of and as
a result of the state foreclosure case. The Complaint and its attachments set forth enough
for the court to determine that other problems exist, requiring dismissal on other grounds
than insufficient pleading.
(2)

Rooker-Feldman Doctrine
Plaintiffs must clear two independent hurdles to proceed with this action: Rooker-

Feldman2 and claim preclusion. As subject matter jurisdiction is a threshold question, the
Rooker-Feldman issue must be addressed first. Dookeran v. County of Cook, Ill., No. 113197, ___ F.3d ___, ___, 2013 WL 1846536, at *3 (7th Cir. May 3, 2013).
Under the Rooker-Feldman doctrine, lower federal courts cannot review state court
decisions; only the Supreme Court has appellate jurisdiction to reverse or modify a state
court judgment. Holt v. Lake Cnty. Bd. of Comm’rs, 408 F.3d 335, 336 (7th Cir. 2005).

2

The Rooker-Feldman doctrine com es from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

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Lower federal courts simply lack subject matter jurisdiction over actions seeking review of
state-court judgments. Dookeran, ___ F.3d at ___, 2013 WL 1846536, at *3.
The doctrine precludes lower federal courts from exercising jurisdiction “when, after
state proceedings have ended, a losing party in state court files suit in federal court
complaining of an injury caused by the state-court judgment and seeking review and
rejection of that judgment.” Holt, 408 F.3d at 336; accord Dookeran, ___ F.3d at ___, 2013
WL 1846536, at *3. “Stated differently, Rooker-Feldman is only concerned with ‘situations
in which the state court’s decision is the source of the harm that the federal suit is designed
to redress.’” Dookeran, ___ F.3d at ___, 2013 WL 1846536, at *3 (quoting Simmons v.
Gillespie, 712 F.3d 1041, 1043 (7th Cir. 2013)).
Notwithstanding that the Boons were not named defendants in the Racine County
foreclosure action, they were in essence the losing parties there. The docket in the present
case reflects that the Boons’ address is 4501 96th Street, Franksville, Wisconsin, meaning
that they are living in the house that was foreclosed upon (even after the confirmation
hearing). Further, in filings before this court the Boons suggest that the Trust deeded the
property back to the Boons around the time of the sheriff’s sale and the confirmation
hearing, so the Boons’ interest in the property is affected by the state-court judgment
against the Trust regarding the property. (See Doc. 64 at 5 (“The deed was transferred
[from the Boons] to The Susan B. Boon Revocable Trust on January 15, 2009, and
transferred back to Nelson and Susan Boon on June 27, 2012, which would make the
Sheriff’s sale ineffectual and having no legal force or binding effect . . . .”).)
In addition, the Boons seek this court’s review of the state-court case, and they
claim that the foreclosure case is the source of all of the harms they now assert. They
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complain here that they were not named or served as defendants in the state-court case
and were not allowed to present their (or the Trust’s) case because they were not
attorneys, resulting in numerous constitutional and federal-law violations by the
defendants. A judgment in the Boons’ favor in the present case—such as a finding that
their due process rights were violated by the judges—would draw into question the validity
of the state-court judgment. And notwithstanding that the Boons seek monetary damages
and punitive damages, they also seek “such other relief deemed to be just and equitable”
(e.g., Doc. 1 at 8), suggesting that they may also like the state-court judgment to be
invalidated, which this court cannot do.
In opposition to the motions to dismiss the Boons admit that “[t]he immediate case
arises from a Foreclosure procedure, Case No. 11CV1812.” (Doc. 52 at 3.) They discuss
the failure of service upon them in the foreclosure case, and they add that they attempted
to satisfy the outstanding balance of the loan through an electronic funds transfer using
what looks like a personal check from a Melvin Anthony Jr. for $246,000 marked “EFT Only
For Discharge of Debt,” but BofA and BAC did not accept it. (Doc. 52 Ex. B.) Information
on any such payment attempts is immaterial unless the Boons are attacking the foreclosure
judgment. Then the Boons invoke the maxim that a judgment is void if the court that
rendered the judgment lacked jurisdiction or acted in a manner inconsistent with due
process. (Doc. 52 at 6.) They assert that by refusing to accept the electronic funds
transfer BofA made any contract void and destroyed the court’s jurisdiction. (Id. at 7.) In
an additional opposition brief, the Boons conclude that the defendants here “have
conspired and fraudulently transferred the property” (Doc. 64 at 9), but the foreclosure
judgment provides otherwise.
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In sum, the Boons are attacking the state-court foreclosure judgment, and this court
cannot review that judgment. Thus, the entire case must be dismissed for lack of subject
matter jurisdiction.3
(3)

Claim Preclusion
In the event this court is incorrect that the Rooker-Feldman doctrine applies to the

present case, an alternate basis mandates dismissal of the claims against all defendants
except Amy Kieffer and the John and Jane Does: claim preclusion.
This court applies the preclusion rules of the state in which the prior judgment was
entered; therefore, it gives a Wisconsin state-court judgment the same preclusive effect
it would have in Wisconsin courts. See Dookeran, ___ F.3d at ___, 2013 WL 1846536 at
*4. Under Wisconsin law, “a final judgment on the merits bars parties from relitigating any
claim that arises out of the same relevant facts, transactions or occurrences.” Sopha v.
Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 233 (1999). A subsequent action is
barred under the doctrine of claim preclusion if (1) identity exists between the parties or
their privies in the prior and present lawsuits; (2) the prior litigation resulted in a final
judgment on the merits by a court with jurisdiction; and (3) identity exists between the
causes of action in the two cases. Id. at 233-24.
Element (1) is met. On August 8, 2012, Nelson E. Boon and Susan B. Boon, with
the address of 4501 96th Street in Franksville, Wisconsin, sued all of the defendants in the
present case except Amy Kieffer and the John and Jane Does. The case was filed in
Racine County Circuit Court and given the number 12CV2076. The Quarles & Brady

3

The Rooker-Feldman problem applies to any claim s against Doe defendants as well.

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defendants included a copy of the complaint from that case with their motion to dismiss
(Doc. 12 Ex. G), and this court takes judicial notice of it. Regardless of which version of
their names the Boons used, the court finds that they are the same individuals (or vessels,
bodies or entities) who brought case number 12CV2076.4
Element (2) is met. On October 23, 2012, Racine County Circuit Judge John S.
Jude granted motions to dismiss case number 12CV2076.

One order granted the

defendants’ motions to dismiss and provided that the “lawsuit [was] dismissed on the
merits and with prejudice.” (Doc. 56 Ex. 1 at 1.) Another order dismissed the action
against Judges Constantine and Ptacek on alternate grounds, one of which was absolute
judicial immunity. (Id. at 4.) Claims against Gray & Associates, Drout, Samson, and
Clauss were dismissed with prejudice. (Id. at 2.) At the end of one of the orders
dismissing various claims he wrote: “This is the final order for purposes of an Appeal.”
(Id.) At the end of the order dismissing the claims against the judges, Judge Jude wrote
that the document was “a final order for purposes of an appeal.” (Id. at 4.) A review of the
Wisconsin Circuit Court Case Access System indicates that notices of the entry of the final
order issued on November 2 and November 5, 2012. Thus, Racine County case number
12CV2076 was adjudicated on the merits to final judgment.
The Boons argue that the judges in the foreclosure case had no jurisdiction, but the
court has not found an argument that Judge Jude did not have jurisdiction. In any event,
Racine County Circuit Court judges appear to have jurisdiction over civil actions filed by

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In addition, in June 2011, Nelson Boon filed another case against Drout, Gray & Associates, and
BAC, in this court, seeking this court’s intervention in the foreclosure case and an injunction against the
foreclosure taking place. Boon v. Drout, Case No. 11C634 (E.D. W is. filed June 29, 2011). As Racine County
case num ber 12CV2076 provides a basis for claim preclusion against alm ost all defendants, the court has
not addressed the preclusive effect of this prior federal case.

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Racine County residents in state circuit court. In response to defendants’ motion the
Boons provide nothing persuasive that Judge Jude lacked authority to dismiss the case.
Finally, element (3) is met. A review of the complaint in Racine County case number
12CV2076 establishes that the cases arise out of the same facts and transaction, and the
cause of action is identical. Substantial portions of the Complaint in this case are verbatim
replicas of portions of the case number 12CV2076, unique phrases included. The Boons
asserted in Racine County case number 12CV2076 that they were not served in the
foreclosure case filed by Christopher Drout of Gray and Associates (Doc. 12 Ex. G at 3);
the Boons signed an unconscionable contract to purchase the property at 4501 96th Street
in Franksville, Wisconsin (id. at 4); there was no exchange of money for a loan (id.); and
all of the named defendants participated in the Racine County foreclosure case, resulting
in a sheriff’s sale on July 17, 2012 (see id. at 6). All of the factual assertions relate to the
same transaction alleged in the present case, i.e., the proceedings in the earlier
foreclosure case, 11CV1812. And identical to the present case, the Boons alleged and
argued violations of 42 U.S.C. §§ 1983 and 1985, conspiracy, malicious abuse of process,
conspiracy under 18 U.S.C. §§ 241 and 242, intentional and infliction of emotional distress.
(Compare Doc. 1 with Doc. 12 Ex. G.) Although the Complaint in the present case adds
claims of unjust enrichment and theft, the Boons could have brought those claims in case
12CV2076.
(4)

Immunity and Municipal Liability
Because at least two grounds for dismissal of the claims against the judges and

Racine County defendants already exist, the court need not address the Boons’s additional
arguments regarding immunity and municipal liability.
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Based on the foregoing,
IT IS ORDERED that the motions to dismiss filed and joined by all named
defendants (Docs. 11, 37, 39, 43, 57) are granted and this case is dismissed.
Dated at Milwaukee, Wisconsin, this 22nd day of May, 2013.
BY THE COURT

/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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