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Telford v. Department of Housing and Urban Development

United States District Court, D. South Dakota, Central Division

May 1, 2017

HOLLIE TELFORD, AND BRENDA BURTON, Plaintiffs,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ALAN B. JOHNSON, NENA JAMES, IN HER INDIVIDUAL OFFICIAL OFFICIAL CAPACITY; JENNFIER TIDWELL, IN HER INDIVIDUAL OFFICIAL AND PERSONAL CAPACITIES; ROCK SPRINGS HOUSING AUTHORITY, APRIL THOMPSON, GLOBAL E. LLC, ANN CLAYTON, JUDY CIRRILLO, DOES 1-10, CENTURYLINK, HOLLIE PORTILLO, O'KELLEY H. PEARSON, LAW OFFICE HICKEY AND EVANS LLP, THOMAS DEERING, IN HIS INDIVIDUAL AND OFFICIAL OFFICIAL CAPACITY; UNITED STATE OF AMERICA, DONALD THATCHER, EVA TAFOYA, HUD, Defendants.

          OPINION AND ORDER GRANTING MOTIONS TO DISMISS AND DENYING CERTAIN OTHER MOTIONS

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Plaintiffs Brenda Burton (Burton) and Hollie Telford (Telford) through a Second Amended Complaint make various claims against multiple defendants relating to eviction from a trailer home park in Green River, Wyoming; relating to litigation concerning the eviction in Wyoming state and federal court; relating to alleged deprivation of certain telecommunication services in Wyoming; and relating to communication with the United States Department of Housing and Urban Development (HUD) and at least one of its employees regarding their Wyoming housing situation. Various defendants who have been served filed motions to dismiss. There are other pending motions as well. For the reasons explained herein, the motions to dismiss are granted because venue is inappropriate in the District of South Dakota, there is an absence of personal jurisdiction over many of the Defendants, several of the Defendants have judicial immunity from suit, and claims against HUD, United States, and the HUD employee are otherwise subject to dismissal. The other pending motions all can be denied under the circumstances.

         I. Summary of Facts Pertinent to Motions to Dismiss

         On August 8, 2016, Glen Ambort (Ambort) filed this civil action against some of the named defendants. Doc. 1. Ambort purported to be "an assignee trustee for disabled beneficiaries Marti Lundahl and Hollie Telford." Doc. 1 at ¶ 2. The Complaint related to an eviction action from a mobile home park in Wyoming of Marti Lundahl (Lundahl) and Telford, who in the Complaint also was referred to as "Hollie Lundahl Telford." Doc. 1 at ¶¶ 6-18.

         As this Court explained in a prior opinion and order, Doc. 9, this Court had screened the original Complaint and prepared an order, but before that order was filed, a First Amended Complaint with Ambort, Telford, and Lundahl as plaintiffs and with additional defendants and claims was filed. Doc. 5; see Doc. 9. Because the Plaintiffs were proceeding pro se and seeking in forma pauperis status, this Court screened the First Amended Complaint under 28 U.S.C. § 1915(e)(2)(B). Doc. 9. This Court observed that Ambort's purported bringing of a Complaint alleging that he was "assignee trustee" and that he was "an aggrieved person . . . even if he is not a tenant . . . because he aided Plaintiffs Hollie [Telford] and Marti [Lundahl] in seeking protection of their rights, " Doc. 5, seemed to run afoul of the principle that a non-lawyer may not represent another, except in the most limited circumstances. Doc. 9; see Jones v. Corr. Med. Servs., Inc. 401 F.3d 950, 952 (8th Cir. 2005) (non-lawyer probate estate administer may not bring cause of action under 42 U.S.C. § 1983 for deceased); Steele v. City of Bemidji, 257 F.3d 902, 905 (8th Cir. 2001) (non-lawyer may not represent business); Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (non-lawyer trustee may not represent trust); Restatement (Third) of the Law Governing Lawyers § 4 cmt. d (2000) ("In general, however, a person appearing pro se cannot represent any other person or entity, no matter how close the degree of kindship, ownership, or other relationship.")

         This Court in its order screening the First Amended Complaint noted that there was an apparent issue with venue. This Court stated:

28 U.S.C. § 1391(b) [prescribes] the proper venue in which civil actions may be brought. As applicable to this case, a plaintiff may bring a civil action in "a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located" or "a judicial district in which a substantial part of the events . . . giving rise to the claim occurred." 28 U.S.C. § 1391(b)(1)-(2). Under § 1391(b)(1), Plaintiffs have sued individuals that purportedly reside in Wyoming and Nebraska, although Plaintiffs have alleged that the Department of Housing and Urban Development and a newly added Defendant, CenturyLink, reside in South Dakota. Docs. 1, 5. Under § 1391(b)(2) and based on the allegations of the First Amended Complaint, a "substantial part of the events" in this case occurred in Wyoming, not South Dakota. Doc. 5 at 2-6. Plaintiffs' First Amended Complaint currently does not allege facts to establish proper venue under either subdivision of § 1391(b) within the District of South Dakota.
When venue is improper, a court can transfer the case to the district in which the plaintiff originally could have filed. 28 U.S.C. § 1404(a). This case appears as if it should be transferred to the District of Wyoming, and it is highly unlikely that any amended complaint would change that likely outcome. Transfer of course may be moot if nothing is filed before September 8, 2016, and the case is dismissed without prejudice.

Doc. 9.

         Plaintiffs Burton and Telford then filed a Second Amended Complaint, Doc. 11; the original Plaintiff Ambort no longer is a party. The Second Amended Complaint is lengthy, but centers on the same core circumstances-the eviction of Telford and Lundahl from a trailer park in Green River, Wyoming; legal action relating to the eviction that occurred in Wyoming state and federal court; dissatisfaction with actions of HUD and an HUD employee; and issues about discontinuation of certain telecommunications services in Wyoming. The major change from the First Amended Complaint to the Second Amended Complaint to make the District of South Dakota seem to be a more apt venue is the addition of Burton as a Plaintiff, an allegation that Burton is a resident of South Dakota representing her own interests and injuries, and a contention that Burton owned the Wyoming mobile home at issue and had involvement with HUD. Plaintiffs served a number of Defendants with the Second Amended Complaint, although apparently not all Defendants. Docs. 27-35, Doc. 57.

         Plaintiffs filed a "Verified Emergency Petition for Preliminary Injunction, " Doc. 66, and a "Second Emergency Motion to Execute a Preliminary Injunction, " Doc. 70. This Court determined that the Plaintiffs had not shown a likelihood of success on the merits and expressed continued skepticism of the propriety of this Court's interjecting itself into a Wyoming state eviction action or how jurisdiction rested somehow in the District of South Dakota to collaterally review Plaintiffs' disputes relating to housing issues in Wyoming. Doc. 73. Accordingly, this Court denied those motions in January of 2017. On January 23, 2017, Plaintiffs filed a Notice of Appeal of the interlocutory order denying the request for injunction. Because the Notice of Appeal is from a denial of an injunction, this Court is not divested of jurisdiction to rule on the remaining motions. See West Publ'g Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229 (8th Cir. 1986) ("[T]he pendency of an interlocutory appeal from an order granting or denying a preliminary injunction does not wholly divest the District Court of jurisdiction over the entire case.").

         The Defendants named in the Second Amended Complaint break into several groupings for purposes of both the alleged conduct and how they are represented. In setting forth the facts, this Court uses those groupings to describe the allegations and the grounds for the motions to dismiss. The first filed motion to dismiss is from Defendants Nena James and Thomas Deering, both of whom are Wyoming judicial officials. Doc. 45; see Doc. 11. The Second Amended Complaint recognizes that Judge James and Judge Deering are judicial officials in the state of Wyoming and indeed names them in the caption in their official capacities. Doc. 11 at ¶¶ 10. Judge James and Judge Deering have presided over eviction-related legal claims involving the residence of Telford and Lundahl, which the Second Amended Complaint alleges to have been owned by Burton. The Second Amended Complaint accuses Judge James and Judge Deering of "permiting [sic] the enforcement of [an] eviction judgment. . . ." Doc. 11 at ¶ 93. The Second Amended Complaint alleges that Judge Deering denied a motion for sanctions filed by Telford and that Judge Deering knew that Telford had some evidence in support of a racketeering case against two defendants. Doc. 11 at ¶ 79. Among other things, the Plaintiffs want this Court to enjoin Judge James and Judge Deering from acting in the Wyoming eviction case. Doc. 11 at ¶ 93. Judge James and Judge Deering argue for dismissal under Rule 12(b)(6) for failure to state a claim, invoking judicial immunity generally and under the Federal Courts Improvement Act of 1996. Doc. 45.

         The next group of Defendants to file a motion to dismiss include Global E, LLC, a/k/a Pioneer Park (Global E), Ann Clayton, and Judy Cirrillo. Doc. 47. The Second Amended Complaint recognizes that Cirrillo and Clayton are residents of the state of Wyoming and contends that Global E is a resident of Colorado. Doc. 11 at ¶¶ 11-12. Global E is the owner of the mobile home park in Green River, Wyoming, where the mobile home at issue was located. Doc. 11 at ¶ 16. Clayton and Cirrillo have worked with Global E. Doc. 11 at ¶ 22. Global E entered into a lease agreement for the site at issue of 935 Wilderness Trail, Green River, Wyoming, with Kimberly Vogt and Marti Lundahl. Doc. 11-5. Global E was a plaintiff in an action in Sweetwater County, Green River, Wyoming against Telford and Lundahl. Doc. 11-6. Defendants Global E, Clayton, and Cirrillo seek dismissal based on improper venue under Federal Rules of Civil Procedure Rule 12(b)(2), a lack of personal jurisdiction over them under Rule 12(b)(2), and insufficiency of service. These Defendants, together with other Defendants, have alerted this Court that Telford has a lengthy history of litigation abuses and frivolous, harmful, and vexatious litigation, and therefore seek attorney's fees and costs as well. Doc. 47.

         Indeed, the United States District Court for the District of Wyoming has detailed orders entered by the United States Court of Appeals for the Ninth Circuit, the United States District Court for the District of Utah, the United States Supreme Court, the United States Court of Appeals for the Tenth Circuit, the United States District Court for the Western District of Texas, and the United States District Court for the District of Idaho, which have all imposed restrictions on Telford's filings due to her "routinely frivolous" filings. Doc. 47-6. The District of Wyoming itself has imposed a filing restriction on Telford, which would make transfer of this case to the District of Wyoming inapt. Lundahl v. Eli Lilly & Co.. No. 13-CV-241-SWS, 2014 WL 347157 (D. Wyo. Jan. 30, 2014). That order enjoins Telford "from proceeding as a plaintiff or petitioner in any civil matter in the United States District Court for the District of Wyoming unless she is represented by a licensed attorney admitted to practice law in Wyoming or unless [she] first obtains permission to proceed pro se" and then describes what Telford must submit in order to receive such permission. Id. Telford's bar in the District of Wyoming explains much r about why Plaintiffs seek to bring this case involving Wyoming housing issues and Wyoming defendants in the District of South Dakota instead.

         The third group of Defendants to file a motion to dismiss is CenturyLink Public Communications, Inc. (Public Communications). Plaintiffs allege that CenturyLink conspired to deprive them of telecommunication service in Wyoming. Public Communications moves to dismiss based on improper venue and lack of subject matter jurisdiction. Despite being alleged in the Second Amended Complaint to be a South Dakota citizen, Public Communications submitted information that it does not conduct ...


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