Tso v. Murray
| Decision Date | 18 February 2020 |
| Docket Number | Civil Action No. 19-cv-00293-PAB-STV |
| Parties | GILBERT T. TSO, Plaintiff, v. REBECCA MURRAY, a/k/a Tso, TANYA AKINS, SHERR PUTTMANN AKINS LAMB PC, JEANNIE RIDINGS, KILILIS RIDINGS & VANAU PC, RUSSELL MURRAY, DENA MURRAY, JOANNE JENSEN, RICHARD F. SPIEGLE, ELIZABETH A. STARRS, CHARLES D. JOHNSON, ROSS B.H. BUCHANAN, DAVID H. GOLDBERG, MONICA JACKSON, LARA DELKA, CHRISTIAN MADDY, and JENNIFER ADELMANN, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Plaintiff's Emergency Motion for Order to Show Cause—Temporary Restraining Order and Injunction [#78] (the "Motion"), which was referred to this Court [#79]. This Court has carefully considered the Motion and the related briefing, the case file, and the applicable case law, and has determined that neither oral argument nor an evidentiary hearing would materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be DENIED.
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant." Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).
Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders. Pursuant to D.C.COLO.LCivR 65.1(a) the party seeking a temporary restraining order must certify that she has made efforts to provide notice to the adverse party. Here, Plaintiff Gilbert T. Tso certifies that he conferred with counsel for Defendants before filing the Motion and Defendants were served with a copy of the Motion and supporting documents via CM/ECF when Mr. Tso filed the Motion. [#78 at 5-6] "Where the opposing party has notice, the procedure and standards for issuance of a temporary restraining order mirror those for a preliminary injunction." Emmis Commc'ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Wyo. Jan. 23, 2001).
In order to obtain a preliminary injunction, the moving party must prove: "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). "As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Schrier v. Univ. Of Co., 427 F.3d 1253, 1258 (10th Cir. 2005) (internal quotation denied).
"The Rooker-Feldman doctrine establishes, as a matter of subject-matter jurisdiction, that only the United States Supreme Court has appellate authority to review a state-court decision."1 Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074-75 (10th Cir. 2004) (footnote omitted). "The Rooker-Feldman doctrine precludes a losing party in state court who complains of injury caused by the state-court judgment from bringing a case seeking review and rejection of that judgment in federal court." Miller v. Deutsche Bank Nat'l Trust Co. (In re Miller), 666 F.3d 1255, 1261 (10th Cir. 2012). The doctrine is "confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The Tenth Circuit has "concluded that 'the type of judicial action barred by Rooker-Feldman [] consists of a review of the proceedings already conducted by the "lower" tribunal to determine whether it reached its result in accordance with law.'" PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1193 (10th Cir. 2010) (quoting Bolden v. City of Topeka, 441 F.3d 1129, 1143 (10th Cir. 2006)). "Rooker-Feldman does not bar federal-court claims that would be identical even had there been no state-court judgment; that is, claims that do not rest on any allegation concerning the state-court proceedings or judgment." Id. (quoting Bolden, 441 F.3d at 1145). Tenth Circuit jurisprudence has emphasized the relief sought by the plaintiffs. See id. The court has applied the Rooker-Feldman doctrine where the relief sought required the federal court to review and reject the state court judgment. See id. (citing Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007)). On the other hand, the court has refused to apply the doctrine when the federal suit would not reverse or otherwise undo the state court judgment. See id. (citing Mo's Express, LLC v. Sopkin, 441 F.3d 1229, 1238 (10th Cir. 2006)).
This litigation arises out of a child support order issued by an Illinois state court and subsequently entered and enforced through the Colorado state court. Mr. Tso's attempts to avoid that order have resulted in an extensive and repetitive litigation history in the Illinois and Colorado state courts and this federal Court. This is the fourth lawsuit Mr. Tso has filed in this District seeking to invalidate the support order and its enforcement. See, e.g., Tso v. Murray, No. 15-cv-02398-REB-STV (the "15-2398 Case"); Tso v. Murray, No. 16-cv-02480-WJM-STV (the "16-2480 Case"); Tso v. Murray, No. 17-cv-02523-PAB-STV (the "17-2523 Case"); Tso v. Murray, No. 19-cv-00293-PAB-STV (the "19-293 Case"). The background facts and procedural history have been extensively set forth in prior orders [see, e.g., #73] and the Court thus summarizes only briefly the facts and procedural history relevant to the instant Motion.2
On November 9, 2012, Illinois State Court Judge Brodsky of the Illinois 19th Judicial District entered Judgment for Dissolution of Marriage, granting joint-custody to Mr. Tso and his ex-wife, Defendant Rebecca Murray, but designating Mr. Tso as the "non-primary caregiver" and Ms. Murray as the "primary caregiver." [17-2523 Case, #96 at 142] The Judgement further "assigned a 'Duty of Support'" obligating Mr. Tso to pay "100% of the child support burden, despite joint-custody," but did not include a "support order." [Id. at ¶¶ 70, 142] By June 2013, Mr. Tso, Ms. Murray, and their minor child had all established residence in Colorado and, by August 2013, the entire record of the proceedings in the Illinois case were docketed in Colorado state court. [Id. at ¶¶ 71-72]
In or around mid-October 2013, Mr. Tso filed his first motion in the Denver District Court seeking to establish a support order. [Id. at ¶ 74] In December 2013, Defendant Colorado State Court Judge Starrs issued a minute order refusing to exercise jurisdiction over the determination of child support, stating that the Illinois 19th Judicial Circuit "retain[ed] jurisdiction over the matter of child support determination." [Id. at ¶¶ 76, 106] On or around February 18, 2014, Judge Johnson, allegedly following consultation with Judge Starrs and without lawful jurisdiction, issued, ex parte, a "Uniform [child] Support Order" (the "Support Order"). [Id. at ¶¶ 77, 148]
On September 28, 2015, Defendant Colorado State Court Judge Goldberg granted Ms. Murray's request to register the Illinois Support Order. [Id. at ¶ 82] On October 22, 2015, Judge Goldberg denied Mr. Tso's request for a hearing to contest the registration and enforcement of the Support Order. [Id. at ¶ 83] On October 31, 2015, Colorado's Family Support Registry, under the control of the Colorado Department of Human Services, issued an Obligor IV-D New FSR Account Notice to Mr. Tso and assigned enforcement of the child support obligation to the Denver Department of Human Services ("Denver DHS") and Denver DHS employees, Defendants Delka, Jackson, Adelmann, and Maddy. [Id. at ¶ 84]
On October 28, 2015, Mr. Tso filed the 15-2398 Case, purporting to remove to the District of Colorado two cases that he had originally filed in Colorado state court against many of the same defendants named in the instant lawsuit. [15-2398 Case, #1] On February 10, 2016, the Court issued an order remanding the cases back to Colorado state court, because, pursuant to 28 U.S.C. § 1443, "only a defendant in a state court action may remove a case from state court to federal court." [15-2398 Case, #81 at 2]
On October 3, 2016, Mr. Tso filed the 16-2480 Case against many of the same defendants named in the instant lawsuit. [16-2480 Case, #1] Mr. Tso's Second Amended Complaint in the 16-2480 Case asserted the following five causes of action arising out of the domestic proceedings in Illinois and Colorado: (1) violation of Mr. Tso's Fifth Amendment rights; (2) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; (3) a conspiracy to violate RICO; (4) violations of Mr. Tso's Fourteenth Amendment rights; and (5) the unconstitutionality of Colorado Revised Statute § 14-10-124. [16-2480 Case, #120]
On July 21, 2017, the Court denied Mr. Tso's motion for a TRO preventing the defendants from garnishing his wages or suspending his driver's license based upon his failure to comply with the Support...
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