Sipple v. Zevita
| Docket Number | 5:23-cv-4038-HLT |
| Decision Date | 24 July 2023 |
| Parties | GARY SIPPLE AND ANNETTE JETER-SIPPLE, Plaintiffs, v. MICHAEL ZEVITA, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This case arises out of a foreclosure action in state court. Plaintiffs Gary Sipple and Annette Jeter-Sipple bring this federal case pro se[1] and deny it is about the foreclosure of their property. Doc. 31 at 1. They espouse theories and arguments akin to those of the sovereign-citizen movement. Plaintiffs' tactics have complicated resolution of this case.
Plaintiffs have sued judges, attorneys, and the Shawnee County Clerk. They title their complaint “42 U.S.C. 1983 Complaint.” But the text of the complaint only briefly mentions § 1983 and other federal statutes. It explicitly identifies six state-law claims.
Defendants move to dismiss, addressing this Court's jurisdiction and the merits of each of Plaintiffs' claims.[2] Docs. 7, 15 & 17. Attorneys Michael Zevitz and William H. Meyer filed one motion. Cyndi Beck filed another. And Judges Teresa L Watson and Mary Christopher filed the third. Plaintiffs responded but failed to directly address Defendants' arguments. This leaves the motions essentially uncontested. But the Court is mindful of Plaintiffs' pro se status and the Tenth Circuit's direction that a district court may not grant a dispositive motion solely because it is uncontested. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). The Court therefore fully addresses Defendants' motions but first briefly describes Plaintiffs' responsive approach and why it does not warrant further consideration. The Court dismisses Plaintiffs' claims for lack of subject matter jurisdiction.
MidFirst Bank filed a residential foreclosure petition in state court in March 2022. The petition alleges Plaintiffs stopped making payments on the property known as 2508 SW Stutley Court, Topeka, Kansas 66614. A process server (who is not a defendant here) posted summons and a petition to foreclose mortgage on what Plaintiffs term the “private trust property” in May 2022. The process server posted the documents on the door of 2508 SW Stutley Court. Plaintiffs allege the process server acted without permission. They claim Defendants used the documents “to perfect a forged title and theft by deception of Private Trust Property.” Id. at 3.
The state court entered a Journal Entry of Judgment of Foreclosure on January 12, 2023. This document states that Plaintiffs failed to make payments since December 1, 2019. The state court entered summary judgment against Plaintiffs. Plaintiffs then removed the state court foreclosure case to federal court. That case was assigned to Judge Melgren as case No. 23-cv-4013-EFM. Judge Melgren held that removal was improper and remanded the case to state court. Plaintiffs later initiated this suit in federal court.
Defendants move to dismiss Plaintiffs' case both for lack of subject matter jurisdiction and for failure to state a claim. The Court sets forth only the standard for subject matter jurisdiction because it does not reach the merits of Plaintiffs' claims.
Motions to dismiss for lack of jurisdiction under Rule 12(b)(1) can generally take two forms: a facial attack or a factual attack. “[A] facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995), abrogated on other grounds by Cent. Green Co. v. United States, 531 U.S. 425, 437 (2001). In that situation, the allegations in the complaint are accepted as true. Id. A factual attack looks beyond the operative complaint to the facts on which subject matter jurisdiction depends. Id. at 1003. Defendants bring a facial attack because they challenge the sufficiency of Plaintiffs' complaint. The Court therefore accepts the allegations in the complaint as true and considers whether those allegations establish subject matter jurisdiction. Id. at 1002.
Defendants' motions raise a host of overlapping issues. The Court reaches only one issue: its jurisdiction over the case. Plaintiffs directly responded to even fewer of the issues.
Plaintiffs filed a response brief to the attorney-defendants' motion to dismiss on June 30, 2023. Doc. 23. Plaintiffs ignore most of the arguments. Instead, they cite the standards for summary judgment and the use of hearsay testimony. They argue that an “Unauthorized Attorney” filed the motion to dismiss and that the “Unauthorized Attorney” cannot defend Plaintiffs' claims because he is “an agent and not a competent witness.”[3] Doc. 23 at 2. And Plaintiffs make irrelevant arguments about affidavits and expert testimony. Finally, Plaintiffs discuss their standing to bring claims. None of these arguments merit further attention or discussion.
Plaintiffs later filed another document titled “Plaintiffs' Motion to Strike and Dismiss.” Doc. 30. This document purports to relate to the motion to dismiss filed June 26, 2023 by the judge defendants. But it refers to both the attorney defendants and the judge defendants.[4] To the extent Plaintiffs want the Court to strike either or both motions to dismiss, the Court denies the request. Rule 12(f) only authorizes courts to strike pleadings. Motions are not pleadings. Plaintiffs have offered no valid basis to strike either motion.
This second response and motion makes little sense. Plaintiffs again discuss the “Unauthorized Attorney.” They then begin incorporating an unintelligible variation of sovereigncitizen-like jargon, including the following:
Title 8 U.S.C. 1481 states: once an oath of office is taken citizenship is relinquished, thus you become a foreign entity, agency, or state. Every public official is a foreign state, including all political subdivisions (i.e. every single court and that courts personnel is considered a separate foreign entity)....Any prosecution done in law, equity, contract law, treaties or claims by the State against the people now constitutes Putative Fraud and Dishonest Service due to the salary contract that the public official has with the people his or her duties. Plaintiffs now place a 14th Amendment, Section 4 bounty against Defendants and against the public debt and demand[] $150 million dollars for any such contractual violations against the public debt. The Plaintiffs will remind “hearing officer of a sanction for such violation under administrative Procedure, Title 5, U.S.C., section 551 which includes repaying the public debt under 14th Amendment bounty by removal from office defendants and other parties involved, loss of benefits, loss of performance bonds and any other bond to that position to pay the public debt, as well as paying back all wages collected when carrying out judicial fraud, and “LOSS” of the defendants property, such as homes, vehicles, bank accounts, stock shares in all court cases due to illegal gain of such items by way of fraud perpetrated on the Plaintiffs. As a minor/ infant there was a trust created and administered without Plaintiffs consent as well. See doc 1. But as a minor/ infant status the attorney (defendants, Shari Ashner, William Meyer, and Michael Zevitz), administrative duties were to make sure the wards, or minor/ infants were the beneficiaries of this resulting trust as explain in Plaintiffs Bill of Complaint in Equity and Jurisdiction, which results in a breach of trust duties.
Doc. 31 at 5-6. The Court cannot discern a valid position supporting Plaintiffs' claims from this confusing verbiage.
Plaintiffs also filed a document titled “Bill of Complaint in Equity Presentment to Void Proceedings and Jurisdiction.” Doc. 22. This document is nonsensical and pays the most overt homage to the sovereign-citizen movement. Defendants responded to it. Docs. 32, 34, & 35. Plaintiffs filed a reply. Doc. 33. Their reply states that Zevitz and Meyer “mistakenly call Plaintiff[s'] filings sovereign citizen styled documents.” Id. at 1 (emphasis added).
Plaintiffs may seek to distance themselves from the sovereign-citizen movement. But the rhetoric speaks for itself. At a minimum, it suggests a reliance on beliefs and arguments like those espoused by the movement. Judge Melgren made a similar finding when remanding their prior federal case to state court. MidFirst Bank v. Jeter-Sipple, 2023 WL 3002443, at *3 (D. Kan. 2023) (). And several of Plaintiffs' actions in this case bear hallmarks of sovereign citizenship. They have imprinted their fingerprints by their signatures on documents. See Stenberg v. Cafferty, 2022 WL 16574164, at *2 (D. Idaho 2022); Saito v. Collier Cnty. Mun. Corp., 2022 WL 19073913, at *1 (M.D. Fla. 2022); Nation v. United States, 2021 WL 6013559, at *2 n.1 (Fed. Cl. 2021). They refer to themselves as “living man” and “living woman.” See United States v. Nissen, 555 F.Supp.3d 1174, 1201 (N. N.M. 2021); Lebron v. BMW Fin. Servs., 2021 WL 9594003, at *2 (M.D. Fla. 2021). They place brackets around their zip code. See Nation, 2021 WL 6013559, at *2 n.1. They include documents marked as “The Sipple Court.” See Saito, 2022 WL 19073913, at *1. And they specify “NO RUBBER STAMPS.” See id. Plaintiffs may not acknowledge that their filings partly model those of sovereign citizens. But their denial rings hollow.
Courts show no hesitation in rejecting as frivolous arguments based on the theory of sovereign citizenship. United States v Sellors, 572 Fed.Appx. 628, 632 (10th Cir. 2014); see, e.g., United States v. Palmer, 699 Fed.Appx. 836, 838 (...
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