United States District Court, D. Oregon, Portland Division
ORDER ON DEFENDANTS' MOTION TO DISMISS
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants Erick J. Haynie,
Gabrielle D. Richards, Jeffrey M. Peterson, and Perkins Coie
LLP's (“Defendant attorneys and law firm”)
Motion to Dismiss. Dkt. 16. The Court has reviewed the
pleadings filed regarding the motion, the remaining file, and
is fully advised.
on October 18, 2017, the Civil Rights Complaint in this case
asserted 42 U.S.C. § 1983 and fraud claims against two
U.S. District Court Judges, Michael Mosman and Marco
Hernandez, who presided over cases involving the pro
se Plaintiff, Robynne Fauley, and the three attorneys
and law firm, who filed the judicial foreclosure case,
LNV Corp. v. Fauley, U.S. District Court for the
District of Oregon case number 3:15-cv-01422-HZ, against Ms.
Fauley for LNV Corp. Dkt. 1. On November 3, 2017, all claims
asserted against Defendant Judges Mosman and Hernandez were
dismissed with prejudice. Dkt. 13.
Defendant attorneys and law firm now move for dismissal of
the claims asserted against them and for an award of
attorneys' fees and costs. Dkt. 13. For the reasons
provided herein, all claims asserted against the Defendant
attorneys and law firm should be dismissed, and
attorneys' fees and costs awarded.
FACTS AND PROCEDURAL HISTORY
related to Judge Mosman, Ms. Fauley's Complaint
referenced Fauley v. Washington Mutual Bank FA, et
al., U.S. District Court for the District of Oregon case
number 3:13-cv-00581-MO (“Washington Mutual
case”). Dkt. 1, at 2-9. Judge Mosman was the district
court judge assigned to the case, with a temporary referral
to a magistrate judge. Id. The case arose from Ms.
Fauley's dispute with various loan servicers related to a
mortgage on property commonly known as 12125 SE Laughing
Water Road, Sandy, OR 97055 (“subject property”).
Washington Mutual case, Dkts. 1 and 33. After appointment of
counsel for the limited purpose of helping her file a
proposed amended complaint, on November 4, 2014, Judge Mosman
granted the Defendants' motions to dismiss, and the case
was dismissed with prejudice for failure to state a claim and
without leave for further amendment. Washington Mutual case,
Dkt. 73. The case was closed. Id. Ms. Fauley's
motion for relief from the judgment was denied on August 4,
2015. Washington Mutual case, Dkt. 91. Ms. Fauley did not
file an appeal.
Complaint in this case also discussed Judge Mosman's
decisions in Subramaniam v. Beal, U.S. District
Court for the District of Oregon case number 3:12-cv-01681-MO
(a case between Denise Subramaniam and various loan
servicers) and LNV Corporation v. Subramaniam, U.S.
District Court for the District of Oregon case number
3:14-cv-01836-MO (a judicial foreclosure case that did not
involve Ms. Fauley).
related to the claims against Judge Hernandez, the Complaint
referenced a judicial foreclosure case over which Judge
Hernandez presided, LNV Corporation v. Fauley, U.S.
District Court for the District of Oregon case number
3:15-cv-01422-HZ (“LNV case”), against Ms.
Fauley. Dkt. 1. On April 18, 2016, summary judgment was
granted in the lender's (LNV Corporation) favor and
against Ms. Fauley. LNV case, Dkt. 52. After Ms. Fauley filed
for Chapter 13 bankruptcy relief and then voluntarily
dismissed her bankruptcy petition, judgment was entered
against her on July 18, 2016. LNV case, Dkts. 54, 58-1, 58-2,
and 65. On July 25, 2016, Ms. Fauley appealed the summary
judgment decision and judgment to the Ninth Circuit Court of
Appeals. LNV case, Dkt. 71.
October 6, 2017, the Ninth Circuit Court of Appeals issued a
Memorandum Opinion, affirming the district court's
summary judgment decision and the judgment against Ms.
Fauley. LNV Corporation v. Fauley, Ninth Circuit
Court of Appeals case number 16-35593, Dkt. 58. The mandate
has not yet issued.
ALLEGATIONS IN THE COMPLAINT
Complaint, Ms. Fauley asserts that she is the rightful owner
of the subject property. Dkt. 1, at 4. She maintains that
Judges Mosman and Hernandez are “not being sued in
[their] capacity as a judge[s] but as a private
citizen[s].” Dkt. 1, at 2. Ms. Fauley claims that she
and Ms. Subramaniam are “members of a class;” and
“represent members of that class but because they are
pro se litigants they are treated differently than litigants
represented by counsel.” Id., at 3. In a
pleading that appears to be, at least in part, a duplicate of
one Ms. Subramaniam filed in Subramaniam v.
Richards, U.S. District Court for the District of Oregon
case number 3:17-cv-1627-RJB, Ms. Fauley maintains that
Judges Mosman and Hernandez “deprived [her] of her
constitutional rights to due process of law and equal
protection of law by acting in opposition to their
constitutionally mandated oaths of office specific to their
summary decisions.” Id. She asserts that the
“summary decisions were not based on the Constitution
and laws of the United States but on their personal biases
against [Ms. Fauley] and Ms. Subramaniam as members of a
class of homeowners defending their property rights against
the false claims of wealthy politically powerful corporate
litigants.” Id. Ms. Fauley maintains that the
summary decisions are “null and void.”
Fauley further asserts that the lawyers in the judicial
foreclosure case of the subject property (LNV Corp. v.
Fauley, U.S. District Court for the District of Oregon
case number 3:15-cv-01422-HZ) Defendants Richards, Haynie,
and Peterson, all filed false documents and “the
perjured declaration of MGC employee and Texas attorney Grant
Adam Hamilton, ” which was “false in all
respects.” Dkt. 1, at 9. She asserts that these
lawyers' “intent for the material
misrepresentations in this declaration was to win summary
judgment by fraud; which they did.” Id.
Fauley makes a claims for damages against under §1983
“for the deprivation of her constitutional rights,
privileges, and immunities secured by the Constitution and
laws of the United States” and for fraud. Id.,
at 10. She asserts that all Defendants conspired together.
PROCEDURAL HISTORY AND PENDING MOTION
undersigned was assigned to this case on October 26, 2017.
their motion to dismiss, the Defendant attorneys and law firm
assert that Plaintiff has failed to allege sufficient facts
to support a § 1983 claim against them because they did
not deprive her of a constitutional right and are not state
actors. Dkt. 16. To the extent that Plaintiff asserts a fraud
claim against them, Defendants maintain that they are immune
from liability under Oregon law and that, in any event,
Plaintiff failed to plead fraud with particularity and so the
claim should be dismissed. Id. Further, Defendants
assert that Plaintiff's fraud claim is a
“SLAPP” suit, which, under Oregon law, O.R.S.
31.150, should be dismissed and the Defendants should be
awarded reasonable attorneys' fees and costs, in accord
with their “special motion to strike.”
Court issued a warning to Plaintiff regarding the motion to
dismiss. Dkt. 17.
filed a response to the motion to dismiss. Dkt. 23. In her
response, Plaintiff maintains that the Court erred in
dismissing her claims against Judges Mosman and Hernandez
because she has asked the U.S. Supreme Court whether
Fed.R.Civ.P. 12 (b)(6) and Rule 56 are unconstitutional.
Id. She again asserts that the judges used those
rules to deprive her of a trial by jury. Id.
Plaintiff argues that “judicial immunity is not
absolute, ” because they acted outside the function of
a judge when they improperly granted the motions.
Id. Plaintiff again asserts that the note and other
documents used in both cases (in the Washington Mutual case
and LNV case) were “false documents.”
Id. Plaintiff references several other cases
involving LNV Corporation, other banks, and mortgage
companies, and asserts that all these cases are related to
her case because they involved homeowners (who were often
pro se), mortgages, fraudulent documents, and/or the
use of motions to dismiss (Rule 12) or summary judgement
motions (Rule 56) to dispose of the cases. Id.
Plaintiff also points to a civil action brought by several
attorneys general against various banks regarding their
lending practices and, points to a criminal proceeding
against Loraine Brown in an attempt to show that the
documents used in Plaintiff's foreclosure case (the LNV
case) were fraudulent. Id. (Plaintiff's motions
for judicial notice regarding these cases and other matters
were stricken as irrelevant on January 29, 2018. Dkt. 49.)
Plaintiff asserts that the Defendant lawyers and law firm
knew or should have known that the documents offered were not
genuine mortgage instruments (in part because of the other
nationwide litigation), and so committed fraud. Id.
Plaintiff maintains that the attorneys are not entitled to
any privilege, and then discusses the crime-fraud exception
to the attorney client privilege. Id. Plaintiff also
argues that her fraud claim is not a “SLAPP”
suit, and even if it was, she asserts the statute may not be
constitutional. Id. Plaintiff also filed her
“Declaration of Robynne Fauley in Support of
Plaintiff's Response in Objection to Defendants'
Motion to Dismiss.” Dkt. 27.
January 31, 2018, the Defendant attorneys and law firm
replied and argued that they are entitled to dismissal of
Plaintiff's claims because she has failed to state a
claim under § 1983 and because they are entitled to
immunity as to the fraud claim. Dkt. 51. They assert
that Plaintiff failed to articulate a viable constitutional
challenge to O.R.S. 31.150 and argue that none of the cases
she cites support such a challenge. Id. Defendants
lastly assert that the Court should not consider the exhibits
attached to Plaintiff's response or her declaration
because they are irrelevant, the documents are inadmissible
because they have not been authenticated, and contain
ORGANIZATION OF OPINION
opinion will first address Defendants' contention that
the Court should not consider the exhibits attached to
Plaintiff's response or her declaration. It will then
address Defendants' motion to dismiss Plaintiff's
constitutional and fraud claims. It will then turn to
Defendants' motion to strike Plaintiff's fraud claim
and their motion for attorneys' fees and costs both
pursuant to Oregon's Strategic Lawsuit Against Public
Participation (“Anti-SLAPP”) statute, O.R.S.
31.15, et. seq. Lastly, the opinion will address
Plaintiff's further arguments regarding the propriety of
dismissing the two federal judges from this case.
CONSIDERATION OF EXHIBITS AND DECLARATION
extent possible, the Court considered Plaintiff's
submissions, in part, to establish the background for this
case. The Defendants properly point out that a majority of
the exhibits offered are admissible and irrelevant. Further,
there is extensive hearsay throughout the pleadings. The
Court has already stricken almost 1, 000 pages of irrelevant
pleadings. Dkt. 49.
STANDARD ON ...