Poblete v. U.S. Marshals Service et al

MOTION to Dismiss for Lack of Jurisdiction

D.D.C.September 14, 2016

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Luis Ivan Poblete, Plaintiff v. U.S. Marshals Service, et al. Defendants ) ) ) ) ) ) 1:16--‐cv--‐01797--‐RDM Judge Randolph D. Moss HESSLER BIANCO’S MOTION TO DISMISS Comes now Hessler Bianco (hereinafter referred to as “HB”), by and through counsel, Richard Bianco, Stephen Hessler, Patrick Jules, and Hessler Bianco, and moves this Court in accordance with Federal Rule of Civil Procedure 8 and 12(b)(1) to dismiss this Complaint. In support of this request the Court is respectfully referred to the attached Memorandum of Points and Authorities and Order entered by Judge Amy Berman Jackson in No. 16-1800 (ABJ) on September 13, 2016. Because this is a dispositive motion, the undersigned has not sought Plaintiff’s consent before filing it. Local Civil Rule 7(m). Pro se Plaintiff will take note that if he fails to respond to Defendant’s motion to dismiss, the Court may grant this motion and dismiss his case because of his failure to respond. See Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988). A proposed order consistent with this motion is attached hereto. Respectfully submitted /s/____Patrick Jules_____ Richard Bianco #475319 Stephen O. Hessler #230102 Patrick R. Jules #1011142 Hessler Bianco Group 1313 F Street, NW #300 Washington, DC 20004 202-393-8100 pjules@hbrealgroup.com Attorneys for Defendant HB Case 1:16-cv-01797-RDM Document 3 Filed 09/14/16 Page 1 of 3 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Luis Ivan Poblete, Plaintiff v. U.S. Marshals Service, et al. Defendants ) ) ) ) ) ) ) 1:16--‐cv--‐01797--‐RDM Judge Randolph D. Moss MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS Defendant Hessler Bianco (hereinafter referred to as “HB”), by and through counsel, Richard Bianco, Stephen Hessler, Patrick Jules, and Hessler Bianco, and in accordance with the Federal Rule of Civil Procedure 8, hereby files this Memorandum of Points and Authorities in Support of their Motion to Dismiss the Plaintiff’s Complaint, and states as follows: Plaintiff’s Complaint fails to state a claim against HB, hence the claims should be dismissed pursuant Fed. R. Civ. P. 8. In the entirety of the Complaint, Plaintiff puts forth numerous claims, none of which are clear and none of which allege a cause of action or fact as to HB. As there are no claims alleged in Plaintiff’s Complaint involving HB this case should be dismissed pursuant to Fed. R. Civ. P. 8. As stated in Douglas K. Steward v. the Federal Bureau of Investigation, Civil Action No. 16-0734 (CKK), “[t]his complaint does not set forth a statement of a cognizable claim showing plaintiff’s entitlement to relief. Because it fails to meet the standard set forth in Rule 8(a), Case 1:16-cv-01797-RDM Document 3 Filed 09/14/16 Page 2 of 3 3 the complaint will be dismissed.” Similarly, this Complaint should also be dismissed due Plaintiff’s failure to comply with Fed. R. Civ. P. 81. II. CONCLUSION For the foregoing reasons, Defendants respectfully request that Plaintiff’s complaint be dismissed with prejudice. Respectfully submitted /s/ Patrick Jules_______________ Stephen O. Hessler #230102 Richard Bianco #475319 Patrick R. Jules #1011142 Hessler Bianco Group 1313 F Street, NW #300 Washington, DC 20004 202-393-8100 soh@hbrealgroup.com Attorneys for Defendants HB/Jules CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion to Dismiss was served on Luis Ivan Poblete on September 14, 2016 at 4130 16th Street, NW, Washington, DC 20011. /s/___Patrick Jules_____________ Patrick Jules 1 HB/Jules notes that Plaintiff’s Complaint is almost identical to a claim brought in Luis Ivan Poblete v. U.S. Marshals Service, et al., No. 16--‐1800 (ABJ) which was dismissed for failure to state a claim and for lack of subject matter jurisdiction. See Attached Exhibit A. Case 1:16-cv-01797-RDM Document 3 Filed 09/14/16 Page 3 of 3 Exhibit A Case 1:16-cv-01797-RDM Document 3-1 Filed 09/14/16 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LUIS IVAN POBLETE, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1800 (ABJ) ) U.S. MARSHALS SERVICE, et al., ) ) Defendants. ) ____________________________________) ORDER Pursuant to Federal Rules of Civil Procedure 12 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is ORDERED that this matter is hereby DISMISSED for lack of subject matter jurisdiction. AMY BERMAN JACKSON United States District Judge DATE: September 13, 2016 Case 1:16-cv-01800-ABJ Document 2 Filed 09/13/16 Page 1 of 1Case 1: 6-cv-01797-RDM ocu ent 3-1 Filed 09/14/16 Page 2 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LUIS IVAN POBLETE, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1800 (ABJ) ) U.S. MARSHALS SERVICE, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Plaintiff Luis Ivan Poblete has filed this pro se action against the United States Marshals Service, Chief Judge Beryl A. Howell, the law firm Hessler Bianco, attorney Patrick Jules, and Channing D. Phillips, the United States Attorney for the District of Columbia. Writ of Mandamus/Prohibition [Dkt. # 1-1] (“Writ”). This case appears to arise out of a civil foreclosure action brought by Residential Credit Opportunities Trust (“the Trust”) against Poblete, which is currently pending before Chief Judge Howell. Id. ¶ 3; see also Public Docket, Res. Credit Opportunities Trust v. Poblete, No. 16-cv-0561-BAH (D.D.C.). In the foreclosure action, the plaintiff, Residential Credit Opportunities Trust, is represented by Patrick Jules of Hessler Bianco, and it has filed a motion for summary judgment, which is pending. See Mot. for Summ. J. [Dkt. # 6], Res. Credit Opportunities Trust v. Poblete, No. 16-cv-0561-BAH. Poblete initiated this civil action on August 19, 2016 in Superior Court. See Writ. The Marshals Service, Chief Judge Howell, and U.S. Attorney Phillips removed the matter to this Court on September 8, 2016. Notice of Removal [Dkt. # 1]. In his writ, Poblete appears to be asserting that the District Court lacks jurisdiction over the foreclosure action brought by the Trust, and he seeks a “writ of mandamus/prohibition” Case 1:16-cv-01800-ABJ Document 3 Filed 09/13/16 Page 1 of 5Case 1: 6-cv-01797-RDM ocu ent 3-1 Filed 09/14/16 Page 3 of 7 2 “immediately arresting action of the inferior Court” “under the authority of the Common Law of England.” Writ ¶¶ 2-3. He asserts that the Trust’s law firm, Hessler Bianco, “entered a Void Summons and Complaint” in the foreclosure action, and he “demand[s] the involuntary dismissal and the quashing of said service of process of the said instant matter.” Id. ¶¶ 6, 10. He further alleges that the defendants “are acting in fraud and in violation of God’s covenant . . . by attempting to enforce an unlawful lien on said real and personal property of [his] estate, in violation of 17 C.F.R. 450 et. seq. and the Holy Covenant of the Creator God,” and that “[t]he Federal Court of the District of Columbia is a criminal enterprise.” Id. ¶¶ 13-14, 16. Specifically, he claims that the District Court “is under the direct supervision of a Judge known to have acted without jurisdiction” - Chief Judge Beryl Howell - and that “any and all Judges and state officers . . . who are under her authority are acting without jurisdiction [and] are acting in conflict with the Federal Constitution.” Id. ¶ 17. Poblete also contends that “[t]he Court and the Court officers including but not limited to Plaintiffs [sic] attorney has joined into the action that was conspired against [him] and [his] parents that deprived [them] of [their] citizenship by changing [their] citizenship status from American State Citizens to a U.S. Citizenship,” which Poblete insists “is punishable by death pursuant to the 1949 Geneva Convention, Article 3.” Writ ¶ 18. He further alleges that “[t]he courts and its officers including but not limited to Plaintiffs [sic] attorney is involved in the act of ‘inland piracy’ and ‘PRESS-GANGING’ which is a criminal offense pursuant to the 1949 Geneva Convention, Article 3.” Id. ¶ 19. He supports his writ with an affidavit, in which he avers that “the flesh lives and the blood flows and nothing stands between the Affiant and the divine.” Aff. of Luis Ivan Poblete [Dkt. # 1-1] ¶ 4. Case 1:16-cv-01800-ABJ Document 3 Filed 09/13/16 Page 2 of 5Case 1: 6-cv-01797-RDM ocu ent 3-1 Filed 09/14/16 Page 4 of 7 3 Before this matter proceeds any further, the Court must determine whether it has jurisdiction to hear it. “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed 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 (1994) (internal citations omitted). In addition, “‘[i]t is axiomatic that subject matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.’” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982). Indeed, a federal court must raise the issue because it is “forbidden - as a court of limited jurisdiction - from acting beyond [its] authority, and ‘no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Id., quoting Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). Therefore, a district court may dismiss a complaint sua sponte pursuant to Federal Rule of Civil Procedure 12(h)(3) when it is evident that the court lacks subject-matter jurisdiction. See Evans v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2, 2010), citing Hurt v. U.S. Court of Appeals for the D.C. Cir., No. 07-5019, 2008 WL 441786 (D.C. Cir. Jan. 24, 2008); Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 982, 985 (9th Cir. 2003); Zernial v. United States, 714 F.2d 431, 433-34 (5th Cir. 1983). Subject matter jurisdiction is lacking where a complaint “is ‘patently insubstantial,’ presenting no federal question suitable for decision.” Tooley v. Napolitano, 586 F.3d 1006, 1009 (D.C. Cir. 2009), quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994). A claim is “patently insubstantial” when it is “flimsier than doubtful or questionable . . . [and] essentially fictitious.” Best, 39 F.3d at 330 (internal quotation marks omitted); see also Hagans v. Lavine, 415 U.S. Case 1:16-cv-01800-ABJ Document 3 Filed 09/13/16 Page 3 of 5Case 1: 6-cv-01797-RDM ocu ent 3-1 Filed 09/14/16 Page 5 of 7 4 528, 536-37 (1974) (“[F]ederal courts are without power to entertain claims otherwise within their jurisdiction if they are so attenuated and unsubstantial as to be absolutely devoid of merit, wholly insubstantial, [or] obviously frivolous . . . .”) (internal citations and quotation marks omitted); see, e.g., Peters v. Obama, Misc. No. 10-0298 (CKK), 2010 WL 2541066 (D.D.C. June 21, 2010) (sua sponte dismissing complaint alleging that President Obama had been served with and failed to respond to an “Imperial Writ of Habeas Corpus” by the “Imperial Dominion of Amexem,” requiring the plaintiff’s immediate release from a correctional institution). Although the Court is mindful that complaints filed by pro se litigants must be held to less stringent standards than those applied to formal pleadings drafted by lawyers, see Haines v. Kerner, 404 U.S. 519, 520 (1972); Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008), plaintiff’s allegations in this case present “no federal question suitable for decision.” Best, 39 F.3d at 330. Insofar as the complaint is even intelligible, it lacks a “short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). To the extent plaintiff’s complaint asks this Court to make a jurisdictional determination or otherwise intervene in the foreclosure action, the Court cannot do so, because “one district court does not have jurisdiction to review the decisions of another district court or federal appellate court, or to take disciplinary action against other federal judges.” Klayman v. Kollar- Kotelly, No. 12-5340, 2013 WL 2395909, at *1 (D.C. Cir. May 20, 2013) (citations omitted). Any challenge to the decision that is eventually rendered in the foreclosure action must be brought by filing an appeal to the D.C. Circuit Court of Appeals. See 28 U.S.C. § 1291 (the courts of appeals “shall have jurisdiction of appeals from all final decisions of the district courts of the United States”). Finally, Poblete’s claim against Chief Judge Howell fails because a Case 1:16-cv-01800-ABJ Document 3 Filed 09/13/16 Page 4 of 5Case 1: 6-cv-01797-RDM ocu ent 3-1 Filed 09/14/16 Page 6 of 7 5 federal district judge enjoys absolute immunity from suit for acts committed within her judicial jurisdiction. See Mireles v. Waco, 502 U.S. 9 (1991). Accordingly, the Court will dismiss this case sua sponte pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. A separate order will issue. AMY BERMAN JACKSON United States District Judge DATE: September 13, 2016 Case 1:16-cv-01800-ABJ Document 3 Filed 09/13/16 Page 5 of 5Case 1: 6-cv-01797-RDM ocu ent 3-1 Filed 09/14/16 Page 7 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Luis Ivan Poblete, Plaintiff v. U.S. Marshals Service, et al. Defendants ) ) ) ) ) ) ) 1:16--‐cv--‐01797--‐RDM Judge Randolph D. Moss ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Upon consideration of Defendants, Hessler Bianco, and Patrick Jules’ Motion to Dismiss Plaintiff, Luis Ivan Poblete’s Complaint, any opposition thereto and any hearing thereon, it is this _________ day of _____________, 2016 hereby ORDERED that Defendants’ Motion to Dismiss be and hereby is, Granted, and it is further ORDERED, that Plaintiff, Luis Ivan Poblete’s Complaint is hereby dismissed with prejudice. _____________________________ Judge Case 1:16-cv-01797-RDM Document 3-2 Filed 09/14/16 Page 1 of 1