Roth v. Walters

1

ERIC L. ROTH, Plaintiff v. BOB WALTERS, MERS DOE, GALE HANDER, TITLE DOE, JULIE RISTY, FANNIE MAE DOE, AMY FOLSOM, 1-5 DOES, CHRIS LILLA, Defendants

No. 4:22-cv-4096

United States District Court, D. South Dakota, Southern Division

February 1, 2023

MEMORANDUM OPINION AND ORDER

Lawrence L. Piersol United States District Judge

Pending before the court is a motion to dismiss filed by Defendants Risty, Folsom, and Lilia. (Doc. 11). Plaintiffs pro se complaint alleges that Defendants engaged in a conspiracy against him prohibited by the Racketeer Influenced and Corrupt Organizations (RICO) Act, and also alleges acts that form the basis of his common law claims. (Doc. 1). In response to Defendants' motion to dismiss, Plaintiff filed a “verified motion to strike” the answers and motions to dismiss filed by all Defendants. (Doc. 17). Defendants responded. (Doc. 18). For the following reasons the Court grants Defendants' motion to dismiss, (Doc 11), and denies Plaintiffs motion to strike. (Doc. 17).

BACKGROUND

Plaintiff filed a lengthy Complaint with attachments (358 pages) against several Defendants, including employees of Minnehaha County, Wells Fargo Bank, Quicken Loans, and Doe Defendants. (Doc. 1). The Complaint is styled as a “Quiet Title Action.” (Id.). The first Cause of Action is captioned “Trespass on the case-Racketeer Influenced and Corrupt Organizations Law.” (Id., PgID 17). Count 2 is captioned “Trover-Negligence.” (Id., PgID 19). Count 3 is “Special Assumpsit-Breach of Contract.” (Id.). Count 4 is “Indebitatus Assumption- Vicarious Liability.” (Id., PgID 20). Plaintiffs claims arise from activity related to mortgages and other transactions in connection with his real property.

The basis of Plaintiff s allegations appears to be that the financial system in place in the United States is fraudulent and therefore, the actions of those involved in that system also were when they engaged in activities involving his real property. (Id., PgID 3). The named Defendants are alleged to have played different roles in the alleged conspiracy against him. Walters, the COO of Quicken Loans, headquartered in Michigan, is accused of fraud and many other transgressions. Hander, formerly employed by Wells Fargo Bank, played a role in obtaining a mortgage for Plaintiff (although Plaintiff did not sue Wells Fargo Bank in this lawsuit). Finally, three employees of Minnehaha County, South Dakota, were sued. Plaintiff filed many allegations of racketeering against them, (id., PgID 1719), as well claims relating to their positions as county officials described below.

Plaintiff's claim against Lilia, the Director of Equalization for Minnehaha County, is that Lilia unlawfully taxed Plaintiffs property. Plaintiff asserts he sent a notice to Lilia and that Lilia's having failed to rebut it means he “tacitly consented to all the facts and the claim.” (Doc. 1, PgID 12-13). The document Plaintiff sent to Lilia asserts the “2021 REAL ESTATE ASSESSMENT NOTICE, Document Proves, Constructive Fraud, Mail Fraud, Forgery, Extortion, Trespass, Identity Theft, Administering my Private Property without Right.” (Doc. 1-2, PgID 129-32). Plaintiff asserts “with my wet signature” that he has not received an “obligation [contract]” that Chris Lilia “has the right to do an assessment on my Private Property.” (Id., ¶ 12, PgID 130). He further alleges fraud and that he has received no document giving permission to Lilia to “Lower the status of my Private Property to REAL ESTATE.” (Id., ¶13, PgID 131). Several of Plaintiff s attached documents include a fingerprint with his signature. (Id., e.g., PgID 118, 134, 137, 138).

With respect to Risty and Folsom, Plaintiff alleges that Risty, the Register of Deeds for Minnehaha County, South Dakota, refused to file two documents Plaintiff submitted, including “Certification of Acceptance and Declaration of Land Patent. Land Patent #2261,” (id., PgID 133), and “Common Law Lien ‘Duly Noted' At Presentment Cease and Desist Order to Any Sale of Property.” (Id., PgID 161). Folsom, a Deputy States Attorney for Minnehaha County, South Dakota, wrote to Plaintiff and explained the documents were unrecordable, citing pertinent sections of the South Dakota Code. (Id., PgID 162, 164). Plaintiff then filed complaints with the South Dakota Bar against Folsom and States Attorney Dan Haggar, (id., PgID 168-69), and also responded with this lawsuit.

With respect to claims of conspiracy, Plaintiff alleges “the unlawful direct tax on my substantive right to own property was created by Wells Fargo conspiring with Julie Risty's agency and Chris Lilia's agency.” (Doc. 1, PgID 13). He adds, “I am sure that another Tax conspiracy happened again with Bob Walters agency Quicken Loans Inc. Twice with the same agency's.” (Id.). He asserts Risty and Folsom conspired to deprive him of “substantive rights through color of law.” (Id., PgID 14).

Plaintiff alleges many acts of racketeering, coercion, extortion and other misconduct. (Id., PgID 17-19). He demands “150,000.00 lawful dollars” each from Lilia, Risty, and Folsom, which apparently requires payment in gold and silver. (Id., PgID 4). He also demands costs and attorney's fees.

LEGAL STANDARD

1. Motion to Dismiss-Fed. R. Civ. P. 12(b)(6)

71 Defendants have alleged that all counts of the Complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6), failure to state a claim upon which relief can be granted. To avoid dismissal under Rule 12(b)(6), Ashcroft v. Iqbal requires that the plaintiff have included in the complaint “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). See Spagna v. Phi Kappa Psi, Inc., 30 F.4th 710, 715 (8th Cir. 2022) (dismissal proper where factual allegations failed to state a plausible claim for relief and amounted to only a possibility that relief was warranted); Faulk v. City of St. Louis, 30 F.4th 739, 744 (8th Cir. 2022) (quoting Iqbal standard and reversing denial of motion to dismiss).

As the court considers a motion to dismiss, it must assume all facts alleged in the complaint are true. Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994). See also Yankton Sioux Tribe v. U.S. Dept, of Health & Human Services, 496 F.Supp.2d 1044 (D.S.D. 2007); Broin and Associates, Inc. v. Genencor Intern., Inc., 232 F.R.D. 335, 338 (D.S.D. 2005). The complaint is to be viewed in the light most favorable to the non-moving party. Broin, 232 F.R.D. at 338 (citingFrey v. Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)). Although the court should grant the Motion to Dismiss only in the “unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief,” it is a requirement that the complaint “contain facts which state a claim as a matter of law and must not be conclusory.” Frey, 44 F.3d at 671. While conclusory statements are insufficient, well-pleaded factual allegations should be deemed true and the District Court should proceed to determine whether plaintiff is entitled to relief. Drobnakv. Andersen Corp., 561 F.3d 778 (8th Cir. 2009).

When the court considers a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), it examines the complaint and “‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;' without converting the motion into one for summary judgment.” Faloni and Associates, LLC v. Citibank N.A., 2020 WL 4698475, *2 (D.S.D. 2020) (quoting Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004))).

2. Motion to dismiss- Fed.R.Civ.P. 12(b)(1)

Defendants argue the Court lacks jurisdiction in this case. Pursuant to 28 U.S.C. § 1331, a federal district court has jurisdiction to hear “all civil actions arising under the Constitution, Laws, or treaties of the United States.” The Court also has jurisdiction where the matter in controversy exceeds $75,000 and is between “citizens of different states.” 28 U.S.C. § 1332. Plaintiff has styled his first cause of action as “Trespass on the case-Racketeer Influenced and Corrupt Organizations Law.” (Doc. 1, PgID 17). This is the sole federal claim in this lawsuit. The Court will address the requirements for pleading claims under the applicable sections of the Racketeer Influenced and Corrupt Organizations statute, 18 U.S.C. §§ 1962, 1964.

In Stonebridge Collection, Inc. v. Carmichael, the court emphasized that to state a claim under 18 U.S.C. § 1962(c), the plaintiff must plead “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” 791 F.3d 811, 82223 (8th Cir. 2015) (quoting Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 428 (8th Cir. 2002)). See also GSAA Home Equity Trust 2006-2 ex rel. LL Funds LLC v. Wells Fargo Bank, N.A., 133 F.Supp.3d 1203, 1225 (D.S.D. 2015). The Stonebridge court also explained the requirement of a pattern of racketeering, meaning at least two predicate acts that are related and pose a threat of continued criminal activity. 791 F.3d at 823. Whether a pattern of racketeering activity exists is a question of fact for the court. Id.

When a plaintiff relies on fraud as the RICO predicate act, the provisions of F.R.C.P. 9(b) apply, meaning the complaint must state with particularity the circumstances...