Opinion
Civil Action No. 19-cv-00293-PAB-STV
02-18-2020
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.
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.
I. LEGAL STANDARD
A. Pro Se Litigant Filings
"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)).
B. Temporary Restraining Order
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).
C. The Rooker-Feldman Doctrine
"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." 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 Rooker-Feldman doctrine is derived from 28 U.S.C. § 1257(a), [which] provides that only the Supreme Court has jurisdiction to hear appeals from final state court judgments," Suasnavas v. Stover, 196 F. App'x 647, 652 n.3 (10th Cir. 2006) (internal quotation omitted), and gets its name from two Supreme Court decisions: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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)).
II. BACKGROUND
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.
For purposes of setting forth the relevant background for the instant Motion, the Court draws from the factual allegations set forth in Mr. Tso's various complaints.
A. Illinois and Colorado State Court Proceedings
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]
B. The 15-2398 Case
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]
C. The 16-2480 Case
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 Order. [16-2480 Case, #182] The Court found that Mr. Tso had not shown a likelihood of success on the merits, because "[m]any if not all of [Mr. Tso's] claims appear[ed] to be best understood as either requests for injunctive relief to halt ongoing state adjudicatory proceedings, and/or as a collateral attack on the lawfulness of final state court judgments and orders" and "[a]s such, it is likely this Court ultimately cannot grant Mr. Tso relief on these claims, under the Younger abstention and/or Rooker-Feldman doctrines." [Id. (citing Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013) (holding that Younger abstention applies to ongoing "civil enforcement proceedings," in state courts and to "civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions"))]
On February 28, 2018, the Court granted the defendants' motions to dismiss and dismissed all of the claims asserted in the 16-2480 Case, based upon lack of personal jurisdiction as to Ms. Murray's Illinois attorneys, sovereign immunity and quasi-judicial immunity as to the Fifth Amendment claim, and a lack of subject matter jurisdiction over Mr. Tso's RICO claims pursuant to the Rooker-Feldman doctrine. [16-2480 Case, #282 at 25-26]
Mr. Tso appealed, and on January 9, 2019, the Tenth Circuit issued an order affirming the dismissal of Mr. Tso's claims and the denial of his motion to amend. [16-2480 Case, #306] The Tenth Circuit explained that "[Mr.] Tso's Fifth Amendment, Fourteenth Amendment, and RICO claims all are subject to dismissal under Rooker-Feldman because (with one insignificant exception)[] the harms for which he seeks relief in these claims all result from state-court judgments" and thus "[a]lthough the district court did not dismiss all these claims under Rooker-Feldman, [the Tenth Circuit] exercise[d] [its] discretion to affirm its dismissal on alternative grounds." [Id. at 5]
With regard to the "one insignificant exception," the Tenth Circuit noted that Mr. Tso's contention that his litigation costs in the state court domestic proceedings were increased because the number of pleadings the defendants filed was excessive and their expert witnesses were unqualified was not a harm resulting from the state-court judgments. [16-2480 Case, #306 at 6 n.1] Nonetheless, the Tenth Circuit affirmed dismissal, because the allegations in the complaint relating to litigation expenses were "conclusory" and "d[id] not adequately support any of [Mr.] Tso's claims." [Id.]
D. The 17-2523 Case
On October 20, 2017, less than a month after a recommendation was issued recommending dismissal of the 16-2480 Case, Mr. Tso filed the 17-2523 Case against many of the same defendants named in the instant lawsuit. [17-2523 Case. #1] On February 22, 2018, Judge Brimmer denied Mr. Tso's motion for a TRO to enjoin the defendants from suspending his driver's license, finding that Mr. Tso "d[id] not cure the two infirmities identified by Judge Martínez" in his denial of the TRO in the 16-2480 Case. [17-2523 Case, #61 at 4] On the next day, Mr. Tso filed a second motion for a TRO to enjoin Defendants from suspending his driver's license. [17-2523 Case, #62] The Court denied the second motion on September 30, 2018, in part, upon finding that Mr. Tso "ha[d] not shown a likelihood of success on the merits because he ha[d] not shown that he is likely to establish that the Court has jurisdiction to hear his claims." [17-2523 Case, #160 at 4]
In April 2018, Mr. Tso filed his Third Amended Complaint, which asserted claims for violation of the Fifth Amendment, RICO, and his due process rights against 28 defendants arising out of the Illinois and Colorado domestic proceedings and child support enforcement efforts. [17-2523 Case, #96] Many of the allegations and claims asserted in the Third Amended Complaint overlap with those alleged in the 16-2480 Case. [Compare 17-2523 Case, #96 with 16-2480 Case, #120] On December 18, 2018, Judge Brimmer issued an Order dismissing all of Mr. Tso's claims, concluding that the Court lacked subject matter jurisdiction pursuant to Rooker-Feldman, because all of Mr. Tso's claims were "premised on the actions of the Illinois and Colorado state courts" and "[if] the state court in Illinois had not entered the support order, [Mr. Tso] would have no claim[s]." [17-2523 Case, #188 at 18] Judge Brimmer further explained that "[Mr. Tso's] requested relief [in his Fifth Claim]—that the Court enjoin the states' activities enforcing his child support obligations—can only be entered if the Court concludes that the state court orders are unlawful." [Id.] On January 16, 2019, Mr. Tso filed a notice of appeal. [17-2523 Case, #192]
On September 18, 2019, Judge Brimmer adopted this Court's recommendation and granted the defendants' motion for filing restrictions prohibiting Mr. Tso from "fil[ing] new actions in this Court raising claims related to his divorce, child custody, or child support obligations (or the enforcement of those orders and obligations) without the representation of a licensed attorney admitted to practice in the District of Colorado, unless Mr. Tso obtains permission from the District of Colorado to proceed pro se. [17-2523 Case, #227] Mr. Tso has appealed that order. [17-2523 Case, #228] Both of Mr. Tso's appeals resulting from orders in the 17-2523 Case remain pending.
E. The 19-0293 Case
Despite Judge Brimmer's ruling in the 17-2523 Case finding that Mr. Tso should not be granted another opportunity to amend his complaint [17-2523 Case, #188], on February 1, 2019, Mr. Tso filed the instant lawsuit—raising similar claims against the same defendants related to the Support Order and Defendants' efforts to enforce that order. [#1] The 109-page complaint filed by Mr. Tso to commence the instant case is very similar to the 107-page proposed Fourth Amended Complaint rejected by Judge Brimmer in the 17-2523 Case. [Compare 17-2523 Case, #161-2 with #1] Both name the same 28 defendants and assert the same seven claims for relief: (1) violation of 18 U.S.C. § 1962(a), (2) violation of 18 U.S.C. § 1962(c), (3) violation of 18 U.S.C. § 1962(d), (4) 42 U.S.C. § 1983 claim for violation of federal rights, (5) violation of Col. Rev. Stat. § 18-17-104(1)(a), (6) violation of Col. Rev. Stat. § 18-17-104(3), and (7) violation of Col. Rev. Stat. § 18-17-104(4). [Id.] Mr. Tso's federal RICO claims in both the proposed Fourth Amended Complaint in the 17-2523 Case and the initial complaint filed in the instant case were premised upon the same three schemes and alleged violations of federal, Colorado, and Illinois law. [Id.]
On May 31, 2019, Mr. Tso filed a 123-page amended complaint asserting the following 11 claims for relief: three claims for RICO violations, five claims that various statutes and actions taken by Defendants are unconstitutional, and three claims for violations of the Colorado Organized Crime Control Act. [#52] As with his prior lawsuits, all of Mr. Tso's claims allege various violations of his rights in connection with obtaining and enforcing the Support Order—e.g., vexatious litigation practices, false representations made to the state court, a lack of due process and jurisdiction in the state court, enforcement of an illegally obtained Support Order, and unconstitutional application of statutes in obtaining and enforcing the Support Order. [Id.]
On August 23, 2019, this Court issued a recommendation recommending that Defendants' motion for filing restrictions be granted for the same reasons the motion for filing restrictions was granted in the 17-2523 Case. [#73] This Court further recommended that all of Mr. Tso's claims in this lawsuit be dismissed for lack of subject matter jurisdiction and as futile. [Id.] Mr. Tso's objection to those recommendations remain pending. [#74]
F. The Instant Motion for TRO
On October 15, 2019, Mr. Tso received a letter from the "Department of Human Services" informing him that it "is considering filing a motion for contempt . . . due to [Mr. Tso's] failure to comply with the [Support Order] . . . [and] if the Court determines that a parent is in contempt, a sentencing hearing follows and the Court may order fines and impose a jail sentence." [#78-2 at 5] On October 20, 2019, Mr. Tso filed the instant Motion [#78], seeking to "[e]njoin[ ] [D]efendants . . . and the state agencies cooperating or working on behalf of the aforementioned defendants . . . and all courts or tribunals considered to have jurisdiction in this matter throughout the State of Colorado from all further enforcement of the [Support Order]," until the instant lawsuit, Mr. Tso's pending appeals before the Tenth Circuit, and any potential proceedings before the United States Supreme Court, are fully resolved. [#78-1] On November 12, 2019, Defendants responded to the Motion [#83], and Mr. Tso then filed a reply in support of the Motion [#84].
Mr. Tso contends that "Colorado's statutory scheme for determining contempt of a court order does not allow for a challenge to the underlying court order already presumed to be valid" and implies that the threatened contempt proceedings seek to punish Mr. Tso "for his poverty" based upon his inability to comply with the Support Order "for financial . . . reasons." [#78-2 at 9-10] Neither proposition appears accurate. Colorado Rule of Civil Procedure 107 "provides the authority pursuant to which trial courts are to conduct remedial and punitive contempt proceedings." In re Marriage of Nussbeck, 974 P.2d 493, 498 (Colo. 1999). That rule defines contempt, in part, as "disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court." Colo. R. Civ. Proc. 107(1) (emphasis added). Thus, "only an order issued within a court's authority can support a finding and order of contempt." White v. Adamek, 907 P.2d 735, 737 (Colo. App. 1995) (vacating contempt order where trial court "was without jurisdiction" to make the underlying order that was violated). Moreover, sanctions for contempt may not be imposed unless the contemnor either has a present ability to pay or had a present ability to pay at the time the underlying order was issued. See C.R.C.P. 107(d)(2) (specifying that, before imposing remedial contempt sanctions, the court must find a "present ability" to perform); In re Marriage of Nussbeck, 974 P.2d at 498 ("The fixed penalties imposed for punitive contempt make it clear that a contemnor imprisoned after being adjudged to be in punitive contempt . . . is punished for violating a court order by failing to pay amounts due at a time when the contemnor had the ability to pay.")
II. ANALYSIS
To succeed on the instant Motion, Mr. Tso must make a clear and unequivocal showing of: "(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, 242 F.3d at 955; Schrier, 427 F.3d at 1258.
As noted above, on three prior occasions Mr. Tso has sought—and been denied—injunctive relief against defendants' efforts to enforce the Support Order. [16-2480 Case, #182; 17-2523 Case, #61; 17-2523 Case, #160] In each of those instances, the Court found that Mr. Tso had failed to meet his burden to demonstrate a substantial likelihood of success on the merits, because his claims—and request to enjoin enforcement—all would have required the Court to conduct "a review of the proceedings already conducted by the 'lower' tribunal to determine whether it reached its result in accordance with law." [#160 at 4 (quoting Jensen, 603 F.3d at 1193)] Mr. Tso thus had not shown a likelihood of success on the merits because "he ha[d] not shown that he [was] likely to establish that the Court has jurisdiction to hear his claims." [Id.] The same rationale applies with equal force to the instant Motion.
Moreover, this Court previously found and recommended that all of Mr. Tso's claims in the instant lawsuit should be dismissed for a lack of subject matter jurisdiction and/or as futile. [#73] For the same reasons articulated in that recommendation, the Court finds that Mr. Tso has not demonstrated a substantial likelihood of success on the merits.
In the Motion, Mr. Tso challenges this Court's prior application of the Rooker-Feldman doctrine to his claims because (1) the Illinois court allegedly did not have jurisdiction to enter the Support Order; and (2) the Support Order was obtained through fraud. [#84 at 1-8] First, Mr. Tso argues that the Court should apply a "void ab initio exception" to Rooker-Feldman, because the Illinois state court allegedly lacked jurisdiction to enter the Support Order, because Mr. Tso, Ms. Murray, and their minor child had all relocated to Colorado at the time the Support Order was entered. [#84 at 4-5] In Anderson v. Private Capital Grp., Inc., the Tenth Circuit declined to "reach any general conclusions regarding whether the void ab initio exception has any room to operate in the Tenth Circuit." 549 F. App'x 715, 717 (10th Cir. 2013). The Anderson court, however, emphasized that all of the other circuits to consider the exception have either "declined outright to adopt the exception" or "limited the exception to a specialized context that is inapposite here—specifically, the bankruptcy context." Id. Mr. Tso argues that the exception should apply here—as it does in certain bankruptcy contexts—because the issuance of the Support Order was "a function of federal law." [#84 at 5 (citing 42 U.S.C. § 654(20)(A); 42 U.S.C. § 666(f)] The Court does not find this argument persuasive. The Tenth Circuit has not yet even adopted the void ab initio exception in the bankruptcy context, and the rationale courts outside this circuit have given for applying it in a limited bankruptcy context clearly does not apply to Title IV-D support orders. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 240 n.25 (3d Cir. 2004) (explaining that Third Circuit adopted exception in bankruptcy context, "because an automatic stay obviates the state court's jurisdiction and renders its decision void ab initio" and "the state court's jurisdiction, or lack thereof, was a function of federal law (the federal bankruptcy statute)"); Schmitt v. Schmitt, 324 F.3d 484, 487 (7th Cir. 2003) (noting that "a void ab initio Rooker-Feldman exception might be appropriate in some bankruptcy cases (apparently the only situation in which it has been applied) in order to protect the dominant federal role in that specialized area of the law"); In re Goodman, No. 14-62333, 2015 WL 3507119, at *4 (Bankr. N.D. Ohio June 1, 2015) (noting that bankruptcy cases applying the void ab initio exception "generally involve action that usurps or limits a bankruptcy court's authority in its domain"). Mr. Tso thus "has failed to offer . . . any cogent reasons why [the Court] should split from the heavy weight of authority . . . that has either rejected the exception in full or limited its scope to the bankruptcy context, which is inapposite here." Anderson, 549 F. App'x at 718.
In order for a state to qualify for Aid to Families with Dependent Children (AFDC) program funds, "the State must certify that it will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-669b . . . and will do so pursuant to a detailed plan that has been approved by the Secretary of Health and Human Services." Blessing v. Freestone, 520 U.S. 329, 333 (1997).
Mr. Tso also contends that he "has federal rights to contest fraudulent orders . . . under the Title IV-D program." [#84 at 5] In Blessing, however, the Supreme Court expressly held "that Title IV-D does not give individuals a federal right to force a state agency to substantially comply with Title IV-D." Blessing, 520 U.S. at 333. "Because [Title IV-D] focuse[s] on the aggregate services provided by the State, rather than the needs of any particular person, it confer[s] no individual rights and thus c[an]not be enforced by § 1983." Gonzaga Univ. v. Doe, 536 U.S. 273, 282 (2002) (quotation omitted).
Second, Mr. Tso argues that there is an "[e]xtrinsic fraud-on-the-court exception to Rooker-Feldman" that applies because Mr. Tso "has asserted no legal error by the state court but has asserted extrinsic fraud on the state court." [#84 at 5, 6] Mr. Tso argues that "Rooker-Feldman . . . does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of action for extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that fraud." [#84 at 7] Contrary to Mr. Tso's contention, however, the Tenth Circuit "has not recognized an 'extrinsic fraud' exception to the Rooker-Feldman doctrine." Goodwin v. Hatch, 781 F. App'x 754, 759 (10th Cir. 2019); see also Collins v. CFAM Fin. Servs., LLC, 668 F. Appx. 333, 334 (10th Cir. 2016) ("If [plaintiff] wishes to raise his extrinsic fraud on the court claim, state court would be the place."); Tal v. Hogan, 453 F.3d 1244, 1256 (10th Cir. 2006) ("It is true that new allegations of fraud might create grounds for appeal, but that appeal should be brought in the state courts.").
Mr. Tso's reliance on Bulloch v. United States is misplaced. 763 F.2d 1115 (10th Cir. 1985). In Bulloch, the plaintiffs filed "an independent action to set aside, on the ground of fraud, a judgment against them entered by the same [federal] court." Id. at 1116. The Bulloch decision thus "relates solely to the issue of fraud committed in a federal court and that court's power to remedy it; the decision says nothing about the jurisdiction of a federal court to address fraud allegedly committed in a state court." Farris v. Burton, 686 F. App'x 590, 592-93 (10th Cir. 2017) (emphasis in original).
Mr. Tso thus has not demonstrated that he has a substantial likelihood of success on the merits of his case, and the Court thus respectfully recommends that his Motion for a preliminary injunction be DENIED.
"The Court declines to address the remaining preliminary injunction elements, as the resolution of them will have no bearing on the outcome." Johnson v. W. State Colo. Univ., No. 13-CV-2747-WJM-KMT, 2013 WL 6068464, at *7 (D. Colo. Nov. 18, 2013); see also Russell v. Dep't of Air Force, 915 F. Supp. 1108, 1122 (D. Colo. 1996) ("Having decided that [plaintiff] has not shown clearly that he has a substantial likelihood of success on the merits, [the Court] need not address the remaining factors.").
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that the Motion [#78] be DENIED. DATED: February 18, 2020
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review). --------
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge