Barragan, et al v. Morales
Filing
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ORDER (1) REOPENING CASE; (2) GRANTING 32 PLAINTIFF'S MOTION FOR RELIEF FROM THIS COURT'S ORDER OF DISMISSAL AND JUDGMENT OF DISMISSAL; (3) REASSIGNING CASE; (4) REPORT AND RECOMMENDATIONS. Objections due by 8/24/2012. Signed by Magistrate Judge Howard R. Lloyd on 8/10/2012. (hrllc1, COURT STAFF) (Filed on 8/10/2012)
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** E-filed August 10, 2012 **
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
NOT FOR CITATION
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United States District Court
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SAN JOSE DIVISION
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MARIA RIVERA BARRAGAN,
Plaintiff,
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v.
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JOSEFINA MORALES; ET AL.,
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Defendants.
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No. C11-05463 HRL
ORDER (1) REOPENING CASE; (2)
GRANTING PLAINTIFF’S MOTION
FOR RELIEF FROM THIS COURT’S
ORDER OF DISMISSAL AND
JUDGMENT OF DISMISSAL; AND (3)
REASSIGNING THE CASE TO A
DISTRICT COURT JUDGE
REPORT AND
RECOMMENDATIONS
____________________________________/
[Re: Docket No. 32]
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Maria Rivera Barragan filed this action against Juan and Josefina Morales, and their
attorney, Peter Brazil, alleging forgery, fraud, misrepresentation, and conspiracy in connection with
the transfer of real property that both Barragan and the Moraleses claim to own. The defendants
were served but failed to appear in this action. Barragan sought default judgment against the
defendants, but, determining that no subject matter jurisdiction existed, this court dismissed
Barragan’s complaint. Dkt. No. 27. Barragan then moved for reconsideration, arguing that her
factual assertions supported her claims, which this court denied as failing to raise a valid basis for
reconsideration. Dkt. No. 31. Now, Barragan files what is essentially another request for
reconsideration, styled a “Motion for De Novo Determination of Dispositive Matter Assigned to
Magistrate Judge; Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge.” Dkt.
No. 32. In addition, she filed a “FRCP 41, FRCP 52 Request for Advisory/Panel Review of the
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Order Dismissing Case with Prejudice.” Dkt. No. 33. Finally, she has filed a new application for
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entry of default judgment against the defendants. Dkt. No. 34. Although serial reconsideration
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motions are typically disfavored, Barragan’s most recent filings inadvertently raised an issue of
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consent to proceed before a magistrate judge that this court previously overlooked and must
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consider now.
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I.
Plaintiff’s Renewed Motion for Reconsideration
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Plaintiff has submitted two filings, inartfully captioned, that the court will construe as a
procedurally deficient and untimely. See Dkt. No. 31 (setting forth the procedural and substantive
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For the Northern District of California
renewed request for reconsideration. As with her earlier reconsideration motion, this one is
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United States District Court
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deficiencies of plaintiff’s first motion for reconsideration). It rehashes plaintiff’s argument that the
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court ignored her evidence of defendants’ fraud. Also, citing 28 U.S.C. § 631 (via a Wikipedia page
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discussing the statute), the motion says that a magistrate judge may only make nondispositive
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orders, and obviously, the order dismissing the complaint was dispositive.
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For present purposes, the only point that need be considered is plaintiff’s last one—that of
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the authority of a magistrate judge to issue dispositive orders. Plaintiff apparently failed to realize
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that 28 U.S.C. § 636(c) does authorize magistrate judges to enter dispositive orders upon consent of
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the parties. Since plaintiff herself did consent to magistrate jurisdiction, her argument based on
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636(c) is wrong. But, the argument did prompt the court to reexamine the subject of consent and to
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recognize what it had failed to recognize until now. The defendants, who were served, never
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consented to magistrate judge jurisdiction. See Dkt. Nos. 6-8 (Requests for Clerk to Enter Default,
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which contain improperly filed proofs of service on the defendants). Naturally, the served but non-
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appearing defendants would never object to this court dismissing the action against them. But, the
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court does not know of any authority that makes exception to the general rule that consent of “all
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parties” is required to confer authority on a magistrate judge to make a case dispositive ruling, even
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where the dispositive ruling would be in favor of the non-consenting party or parties. See, e.g.,
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Wilhelm v. Rotman, 680 F.3d 1113, 1120-1121 (9th Cir. 2012) (finding that express consent is
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always required of all parties, except that where the record as a whole illustrates that a party knew
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he had the right not to consent, and voluntarily proceeded before the magistrate, consent may be
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implied). Accordingly, the Order sua sponte dismissing plaintiff’s complaint was issued without
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authority and must be set aside. The motion for reconsideration is GRANTED. The Order and the
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Judgment of Dismissal are hereby VACATED and the case is REOPENED.
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II.
Order of Reassignment and Report and Recommendation Re: Subject Matter
Jurisdiction
As this court’s Order dismissing the case for lack of subject matter jurisdiction is now
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vacated, it becomes necessary to consider again whether subject matter jurisdiction exists over this
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action. But, because the undersigned lacks consent from all parties, the court ORDERS that this case
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be reassigned to a district judge. Further, the court RECOMMENDS that the newly assigned judge
For the Northern District of California
United States District Court
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dismiss the action for lack of subject matter jurisdiction, on the basis set forth below.
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A. Legal Standard
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Even if no party challenges subject matter jurisdiction, the court has a duty to raise the issue
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sua sponte whenever it is perceived. Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 132 n.1,
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116 S. Ct. 494, 133 L. Ed. 2d 461 (1995) (Ginsburg, J., concurring) (“[o]f course, every federal
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court, whether trial or appellate, is obliged to notice want of subject matter jurisdiction on its own
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motion”). If the court determines that it does not have subject-matter jurisdiction, it must dismiss the
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claim. FED. R. CIV. P. 12(h)(3). A lack of jurisdiction is presumed unless the party asserting
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jurisdiction establishes that it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
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(1994). Because plaintiff is proceeding pro se, the court liberally construes her complaint. Id.
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Federal courts have original jurisdiction over civil actions “arising under the Constitution,
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laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim “arises under” federal law if,
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based on the “well-pleaded complaint rule,” the plaintiff alleges a federal cause of action. Vaden v.
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Discovery Bank, 129 S. Ct. 1262, 1272 (2009). The federal district courts have no jurisdiction to
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review state-court judgments rendered before district court proceedings commenced. This is known
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as the Rooker-Feldman doctrine. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291
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(2005); see also Noel v. Hall, 341 F.3d 1148, 1163 (9th Cir. 2003). “If a federal plaintiff asserts as a
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legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court
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judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district
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court.” Noel, 341 F.3d at 1164. The court must consider the relief sought by the federal court
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plaintiff—a claim that seeks the “undoing” of a prior state court judgment is “clearly barred” by the
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doctrine. Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003).
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B. Discussion
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Barragan makes only one allegation in her complaint that can be construed as attempting to
County Superior Court deprived plaintiff of the constitutional rights to a fair hearing . . . when the
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defendants Morales and their attorney acquired a default judgment under false pretenses.”
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Complaint at 3. Barragan later filed a document entitled “Request for the court to review the consent
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For the Northern District of California
state a claim arising under federal law. In relevant part, the complaint states that “the Monterey
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United States District Court
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to proceed before a United States Magistrate Judge,” in which she requests that the court “issue[] an
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immediate order to the Monterey County of Recorders and the Monterey County Superior Court . . .
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to remove all the illegally or misrepresented [liens] for recordations [sic] by the defendants.” Dkt.
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No. 25, p.2.
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This court has not had the opportunity to review the pleadings filed in the state court action.
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However, from Barragan’s federal complaint and the few state-court orders she had provided, this
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court concludes that the state-court plaintiffs, the Moraleses, represented by Brazil, sought
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reformation of a deed of trust on the subject property and an equitable lien on that property. See
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Complaint, Exh. 11. Barragan failed to timely appear in the state court action and the Moraleses
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obtained a default judgment. Complaint, Exh. 15. Barragan now seeks to have this court order the
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state court to remove the lien imposed by the default judgment. This attempt to obtain federal court
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review and reversal of an unfavorable state court judgment squarely fits the Rooker-Feldman
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doctrine. See Exxon Mobil Corp., 544 U.S. at 283-284.
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Additionally, Barragan’s purported federal claim is aimed at the Monterey County Superior
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Court, not against any of the defendants named in this suit. Even if the claim were one this court had
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the power to adjudicate, the entity at whom it is directed is not a party to this action.
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This court also lacks jurisdiction based on diversity. Federal subject-matter jurisdiction
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based on diversity requires complete diversity of citizenship and an amount in controversy in excess
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of $75,000. 28 U.S.C. § 1332(a). Here, plaintiff does seek damages in excess of $75,000, but, as
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best the court can discern from the complaint, all parties are California citizens. Therefore, as there
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is no diversity of citizenship, subject matter jurisdiction founded on diversity is also lacking.
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Plaintiff also attempts to state claims for relief under state law. As this court lacks jurisdiction to
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hear her only federal claim, it declines to consider the state law claims.
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Accordingly, the court recommends dismissal of the complaint for lack of subject matter
doctrine, the court finds that she would be unable to establish subject matter jurisdiction even if she
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were given the opportunity to amend the complaint. Although Federal Rule of Civil Procedure 15(a)
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requires that leave to amend be freely given when justice so requires, if it is clear the court lacks
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For the Northern District of California
jurisdiction. Because Barragan’s only attempt at a federal claim runs afoul of the Rooker-Feldman
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United States District Court
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subject matter jurisdiction and amendment could not cure the problem, the court must dismiss the
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case in its entirety. Carvalho v. Equifax Info. Servs., L.L.C., 629 F.3d 876, 892-93 (9th Cir. 2010).
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Amendment here would be futile, because Barragan’s complaint states no claim that, if amended,
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could provide this court with subject matter jurisdiction and would not be barred under the Rooker-
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Feldman doctrine. Therefore, the court RECOMMENDS that the newly assigned judge dismiss the
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complaint without leave to amend.
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Based on this court’s recommendation that the case be dismissed for lack of subject matter
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jurisdiction, it further RECOMMENDS that the pending renewed motion for entry of default
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judgment against the defendants be denied.
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CONCLUSION
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Based on the foregoing, IT IS ORDERED THAT:
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1. Plaintiff’s motion for reconsideration is GRANTED, and, upon reconsideration, the court
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hereby VACATES its Order Dismissing the Complaint and Judgment of Dismissal (Dkt.
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Nos. 27 and 28);
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2. This case shall be REASSIGNED to a district judge; and
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3. The court RECOMMENDS that this action be dismissed for lack of subject matter
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jurisdiction and that all pending motions be denied.
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Dated: August 10, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE
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For the Northern District of California
United States District Court
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C11-05463 HRL Notice will be mailed to:
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Maria Rivera Barragan
Post Office Box 6006
Salinas, CA 93912
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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.
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For the Northern District of California
United States District Court
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