Rote v. Comm. on Judicial Conduct & Disability of the Judicial Conference of the U.S.

• Citation: 577 F.Supp.3d 1106
• Decision Date: 30 December 2021
• Docket Number: Case No. 3:19-cv-1988-SI
• Parties: Timothy C. ROTE, Plaintiff, v. COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY OF the JUDICIAL CONFERENCE OF the UNITED STATES, United States Judicial Department of Justice, Oregon State Bar and Professional Liability Fund, Oregon Judicial Department, Colorado Judicial Department, the Hon. Robert Kugler, the Hon. Michael Mosman, the Hon. Marco Hernández, the Hon. Paul Papak, the Hon. Elizabeth Weishaupl, the Hon. Robert Herndon, the Hon. James Egan, the Hon. Kathie Steele, Billy Williams, Carol Bernick, Nancy Walker, and John Does 1-5, Defendants.
• Court: U.S. District Court — District of Oregon

577 F.Supp.3d 1106

Timothy C. ROTE, Plaintiff,

v.COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY OF the JUDICIAL CONFERENCE OF the UNITED STATES, United States Judicial Department of Justice, Oregon State Bar and Professional Liability Fund, Oregon Judicial Department, Colorado Judicial Department, the Hon. Robert Kugler, the Hon. Michael Mosman, the Hon. Marco Hernández, the Hon. Paul Papak, the Hon. Elizabeth Weishaupl, the Hon. Robert Herndon, the Hon. James Egan, the Hon. Kathie Steele, Billy Williams, Carol Bernick, Nancy Walker, and John Does 1-5, Defendants.

Case No. 3:19-cv-1988-SI

United States District Court, D. Oregon.

Signed December 30, 2021

Timothy C. Rote, pro se.

Scott Erik Asphaug, Acting United States Attorney, and Jared D. Hager, Assistant United States Attorney, U.S. Attorney's Office for the District of Oregon, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, United States Department of Justice, Hon. Robert Kugler, Hon. Paul Papak, Hon. Marco Hernández, Hon. Michael Mosman, Nancy Walker, and Billy Williams.

Ellen F. Rosenblum, Attorney General, and Nathaniel Aggrey, Assistant Attorney General, Oregon Department of Justice, 1162 Court Street NE, Salem, OR 97301. Of Attorneys for Defendants Oregon Judicial Department, Hon. Robert Herndon, Hon. James Egan, and Hon. Kathie F. Steele.

Joseph Arellano and Matthew J. Yium, Foster Garvey pc, 121 SW Morrison Street, Portland, OR 97204. Of Attorneys for Defendants Professional Liability Fund, Carol Bernick, and Oregon State Bar.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Timothy Rote, representing himself, brings this lawsuit against several state and federal judges, several state and federal agencies, a court reporter, and others. Plaintiff alleges that Defendants have engaged in a conspiracy to retaliate against him and deprive him of his constitutional and civil rights. Plaintiff's claims arise from events relating to a series of lawsuits spanning more than 20 years. Plaintiff alleges that many of the individual defendants used their positions of authority to carry out personal vendettas against him.

Now before the Court are three motions to dismiss filed by three sets of Defendants: (1) the Oregon Judicial Department, Judge Robert Herndon, Judge James Egan, and Judge Kathie Steele (collectively, the State Defendants); (2) the Professional Liability Fund (PLF), Carol Bernick (the previous executive director of the PLF), and the Oregon State Bar; and (3) the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (the Federal Judicial Conduct Committee), the United States Department of Justice, U.S. District Judge Robert Kugler, U.S. Magistrate Judge Paul Papak, Chief U.S. District Judge Marco A. Hernández, U.S. District Judge Michael W. Mosman, former U.S. Attorney Billy Williams, and retired court reporter Nancy Walker (collectively, the Federal Defendants).¹ At oral argument, Plaintiff stated that he did not object to the dismissal of the following four Defendants: the Oregon State Bar, the Federal Judicial Conduct Committee, the U.S. Department of Justice, and Billy Williams. Accordingly, the Court dismisses these four Defendants. For the reasons stated below, the Court grants all pending motions to dismiss and dismisses all claims asserted against all remaining Defendants other than the two Colorado Defendants.

STANDARDS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Gunn v. Minton , 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013). Thus, a court is to presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); see also Robinson v. United States , 586 F.3d 683, 685 (9th Cir. 2009) ; Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of "subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton , 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party or by the court on its own initiative at any time. Arbaugh v. Y&H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; Fed. R. Civ. P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3) ; see also Pistor v. Garcia , 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either "facial" or "factual." See Safe Air for Everyone , 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations in the complaint are insufficient to invoke federal jurisdiction. Id. "A jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.’ " Pride v. Correa , 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone , 373 F.3d at 1039 ). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq , 694 F.3d 1122, 1131 (9th Cir. 2012) ; Robinson , 586 F.3d at 685 ; Safe Air for Everyone , 373 F.3d at 1039. A factual challenge "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency." Dreier v. United States , 106 F.3d 844, 847 (9th Cir. 1996) (citation and quotation marks omitted).

B. Motion to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1140 (9th Cir. 2012) ; Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Off. Sol. , 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr , 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epsten Grinnell & Howell , 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

A court must liberally construe the filings of a self-represented, or pro se , plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010). Further, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Florer v. Congregation Pidyon Shevuyim, N.A. , 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quotation marks omitted). "Unless it is absolutely clear that no amendment can cure the defect, ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Garity v. APWU Nat'l Lab. Org. , 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corr. , 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, however, every complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This standard "does not require ‘detailed factual allegations’ " but does demand "more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action...