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Motion To Dismiss Filed By Defendants Aiken And Acosta No. CV-12-5088-RJB

Motion To Dismiss Filed By Defendants Aiken And Acosta No. CV-12-5088-RJB

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Published by: BiloxiMarx on Apr 21, 2012
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UNITED
STATES
DISTRICT
COURTWESTERN
DISTRICT
OF
WASHINGTONATTACOMA
Hon.
Robert
J.
Bryan
NO.
CV12-5088-RJB
MOTION
TO DISMISS
FILED BY
DEFENDANTS
AIKEN
AND
ACOSTA
(Cowlitz
County SuperiorCourt
Cause
No.
I
2-2-00036-l)
Noted
for
Consideration:
March
2o
2012Roberta
Kelly,
Pro-Se,
Plaintiff,
v.
JPMORGANCHASE
&
CO.;
USBANCORP/US
BANK;
LEE
MITAU;
GENERALMORTGAGE GMAC;
MERSCORP; MERS;MORTGAGEELECTRONIC REGISTRATIONSYSTEMS; JOHNV.
ACOSTA; ANN
AIKEN; MATTHEW
CLEVERLEY;
C.
MARIE
ECKERT; TERESA
H.
PEARSON;JEANNE
KALLAGE
SINNOTT;
ET AL,
MOTION
TO
DISMISS
-
I
(cv
l2-5088-RJB)
Defendants.
COME NOW
the defendants,John
V.
Acosta
and
Ann
Aiken
(collectively,"Defendants"
or
"the
Government"),
in their
official
capacities
as
federal
judicial
officers
in
the
United
States
District
Court
for
the
District
of
Oregon,
by
and
through theirundersigned
counsel
of
record,
Jenny
A.
Durkan,
United
States
Attorney for
the Western
District of
Washington,
and Rebecca
S.
Cohen,
Assistant U.S.
Attorney
for
said
District,
and
hereby
respectfully
request the
Court to dismiss
all
claims
against
the Governmentpursuantto
Rules
12(b)(1) and 12(b)(6)
of
theFederal
Rules
of
Civil
Procedure
for
lack
of
subject matter
jurisdiction
and
failureto
statea
claim upon
which
relief
canbegranted.
UNITED
STATES ATTORNEY
700
Stcwafl
Street, Suile 5220
Seatle,
WssbiDgtoD 98
l0
I
-l
2?I
(206)
553-7970
 
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I.
BACKGROUND
On November
3,
2008,
Plaintiff
Roberta
Kelly filed
a
lawsuit
against
U.S.Bankin
the
Multnomah
County
Circuit
Court inOregon.
Kelly
v.
U.S.
Bank,
Case
No.
0811-15858
(Multnomah
County
Circuit
Ct.).
Plaintiff's
Complaint
sought toprevent
U.S.
Bank from
foreclosing
on real
property
she
owned
in Multnomah
County.
On
December
5,2008,
U.S. Bank removed
the
case
to
the
United
Stated
District
Court for
the
District
of
Oregon.
Kelly
v.
U.S.
Bank,CaseNo.08-CV-
1421
(D.Oregon)
(the
"2008
Litigation").
Magistrate
JudgeJohn
V.
Acosta
was
the
judge
assigned
to
preside
over
the 2008
Litigation.
After
lengthyproceedings,
onJuly
29,2010,
Judge
Acosta
issued
a
Findings
&
Recommendation
("F&R")
inwhich
he recommended
thatthe
Court
grantsummary
judgment
in
favor
of
U.S.
Bank.
Kelly
v.
U.S.
Bank,
Case
No. 08-CV-1421,
at
Dkt.
No.218
(D.Oregon),
On
October 15,2010,
District
Court
Judge
MichaelW.
Mosman
adopted Judge
Acosta's
F&R
as
his
own.
Id.
at
Dkt.No.
262.
Accordingly,
on
December
9,2010,
Judge
Mosman
issued
a
Judgment
dismissing
Plaintiff's
claims
with
prejudice
and
awarding
judgment
in
favor of
U.S.
Bank
on its counterclaim
in
the
amount
of
gI97,146.04,plus prejudgment
and
post-judgment
interest.
Id.
at
Dkt.No.
279.
During
the course
of
the
2008
Litigation,
Chief
Judge
Anne
L.Aiken
issued orders
rejecting
Plaintiff's
attempts
toremove
Judge
Acosta
from
presidingover
the
case.
Id.atDkt.
Numbers
144,
179.
Since
filing
the
2008
Litigation, Plaintiff
has
filed
no
less
than
five
additional
cases
in
the
District of
Oregon,
all
of which
have been
dismissed.'
See Case
Numbers
09-
CV-1 125,
I1
-CV-002
I
l,
1
I
-CV
-949,
1I-CV
-97
5,
1
I
-CV-
1
1
78
(D.Oregon).
Chief
Judge
Aiken
and
Judge
Acostawere
named
as
defendants
in
three
of
the cases.
SeeCase
Numbers
ll-CV-949,IL-CV-97
5,
11-CV-l178
(D.Oregon).
On November
2,2011,
'
Plaintiff
also
recently
filed
a
new
case
in
the
Multnomah
County
Circuit
Court,which
has
now
been
removed to
the
Districtof
Oregon.
See
Case
No. lz-CV
-
199
(D.
Oregon).
Thedefendants
include
Chief
Judge
Aiken,
Judge
Acosta,
Judge
Mosman,
and
Bankruptcy
Court
Judge
Randall Dunn.
MOTION
TO
DISMISS
-
2
(cv
l2-5088-RJB)
UNITED
STATESATTORNEY
700
Stevart
Streel, Suile 5220Seattle,
WashirgtoD
98 I
0l-l
27 I
(206\
553-7970
 
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28
Chief
Judge
Aiken
issued
a
Pre-Filing
Order
against
Plaintiff
Roberta
Kelly
that read
in
relevantpart
as
follows:
All
filings
fromROBERTA
KELLY
AND/OR
BRENTWEBSTER,
individually,
collectively,
or
in
alleged
connection
with
anyother
party,
SHALL
BE
REVIEWEDBY THIS
COURT
AND
ORDERED
FILED
ONLY
IFSUCH
FILINGS ARE
DEEMED
NOT FRIVOLOUS
OR
REPETITIVE.
In
re
Kelly,
Case
No.1I-MC-9266,
at
Dkt,
No.
1
(D.
Oregon).On January
lI,
2012,
Plaintiff filed
a
Complaint
in
the
Cowlitz
CountySuperior
Court
against
U.S. Bank,
Chief
Judge
Aiken,
Judge
Acosta,
and
approximately
ten
additional defendants.
Case
No. l2-2-AW6-1(Cowlitz
CountySuperior
Court).
Although
ambiguous,
the
Complaint
appears
to relate to
the
foreclosure
of
property
in
Castle
Rock,
Washington.
Plaintiff's
Complaint
has
been
filed
at
Docket
No.
3
to
this
action,
and
does
not
give
any
indication
as
to
why Chief
Judge
Aiken
and Judge
Acosta were
named
as
defendants.
Because
the allegations
in
the
Complaint
appear
to relateto
the facts at
issue
in
her
prior
cases
in
the
District of
Oregon,
the
Government
hasassumed that the
Complaint
asserts
claims
against
Chief
Judge
Aiken
and Judge
Acosta
in
their
official
capacities,
and thus
that
the
claims
are
actuallyclaims
againstthe
federal
Government.2
See, e.g.,
Kentuclqt
v.
Graham,473
U.S.
159,
I
65-66(1985)
(explaining
that
"official
capacity"
claims
against an
officer
of
the
government
are
"only
another
way
of
pleading
an
action
against an
entity of which
an
officer
is
an
agent").On February
I,2012,
the
Government
filed
a
Noticeof
Removal removing
the
Cowlitz
County
case
to this Court
pursuant
to
28
U.S.C.g
1442, because Defendants
"Acosta
and
Aiken
are
both
judicial
officers
of
the
courts
of
the
United
States
whowere
at
all
times relevant to this
lawsuit
acting under
color oftheir
office
and/or
in
the
performance
of their
duties
as
judicial
officersof
the
courts
of
the
United
States."2
It
should
be
noted that even
if
Plaintiff
intendedto
assert
claims
against
Chief
Judge
Aiken
andJudge
Acosta
intheir
individual
capacities, they
would
be
entitled to
absolute
immunity
because
"[]udges
are
absolutely
immune
from
civilliability
for
damages
for
their
judicial
acts."
Mullis
v.
U.^S.
Bankr.
Courtfor
Dist.of
Nevada,828 F.2d
1385,
1388
(9th
Cir.
1987);
see
alsoAshelman
v.
Pope,793
F.2d
1072,
1075
(9th
Cir.
1986).
The
doctrine"should
be
broadly
construedtoeffectuate
the
policiessupporting
ffudicial]
immunity."
Ashelman,793 F.2d at
1076.
MOTION
TO DISMISS -
3
(cv
l2-5088-RJB)
UNITED
STATES ATTORNEY
700
Slcwan Strrcl,
Suitc 5220Seattle,
Washirglon
981
0l.l
271
(206)ss3.1970

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