Montgomery v. Smith

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GARY MONTGOMERY,

Plaintiff, Case No. 3:23-cv-00275

v. Judge Aleta A. Trauger

Magistrate Judge Alistair E. Newbern

PHILIP E. SMITH et al.,

Defendants.

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

Pro se and incarcerated Plaintiff Gary Montgomery filed this action to address an alleged

“scheme to defraud [him] of assets and steal his solo 401k retirement money” executed through

the division of property in Montgomery’s divorce from Lesley Burnett Montgomery (LBM). (Doc.

No. 11 ¶ 27.) Montgomery brings claims against LBM; her romantic partner Jonathan Taylor; the

late Tennessee Circuit Court Judge Philip E. Smith’s estate; LBM’s divorce attorney William H.

Stover; real estate agent Vicki Hertel and Regal Realty Group; real estate agent Brandon Schneider

and Exit Real Estate Solutions; prospective property buyer Doug Rogers; title companies

Birthright Title and Property Title Services; and Montgomery’s former criminal defense attorney

Thomas A. Longaberger. (Doc. No. 1.)

Four motions to dismiss are pending, filed by (1) Birthright Title, Exit Real Estate

Solutions, Property Title Services, Rogers, and Schneider (collectively, the Real Estate

Defendants) (Doc. No. 27); (2) Vicki Hertel and Regal Realty Group (Regal) (Doc. No. 35); (3)

the estate of Philip E. Smith (Smith) (Doc. No. 43); and (4) Stover (Doc. No. 47). Montgomery

has responded in opposition to each motion (Doc. Nos. 31, 46, 56, 58), and Regal and Hertel filed

replies (Doc. Nos. 50, 51).

LBM, Taylor, and Longaberger have not appeared in the action.1

The Court referred this action to the Magistrate Judge for case management and to dispose

or recommend disposition of any pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B). (Doc.

No. 4.) For the reasons that follow, the Magistrate Judge will recommend that the Court grant the

Real Estate Defendants’, Regal and Hertel, and Smith’s motions in full and grant Stover’s motion

in part as to Montgomery’s state law legal malpractice claim and decline to exercise supplemental

jurisdiction over Montgomery’s state law conversion claim.

I. Background

A. Factual Background

The following allegations taken from Montgomery’s amended complaint (Doc. No. 11) are

assumed to be true at this stage of the litigation. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175,

195 (2024).

Courts may consider “public records or [matters that] are otherwise appropriate for the

taking of judicial notice” without converting a motion to dismiss into a motion for summary

judgment. New England Health Care Emps. Pension Fund v. Ernst & Young, LLP, 336 F.3d 495,

501 (6th Cir. 2003). “Such public records that a court may consider include documents from other

court proceedings.” Watermark Senior Living Ret. Communities, Inc. v. Morrison Mgmt.

Specialists, Inc., 905 F.3d 421, 425–26 (6th Cir. 2018). The Court takes judicial notice of and

includes in this factual background and its legal analysis filings in the Montgomerys’ divorce

1 The Magistrate Judge will address the status of Montgomery’s claims against LBM and

Taylor by separate order. Montgomery has filed a second motion for entry of default against

Longaberger that will be addressed by the Clerk of Court. (Doc. No. 72.)

proceedings and Montgomery’s criminal cases that provide necessary context for Montgomery’s

claims.

The Court includes only the allegations that are relevant to the pending motions to dismiss.

Montgomery and LBM married in 2002 and lived in California. (Doc. No. 11 ¶ 18.)

Montgomery worked for Santa Clara County and also “had a real estate investment and flipping

company, ‘Bzbzbzboy Inc.’ [that] he operated alone since 1986.” (Id. ¶¶ 16–17.) After marital

difficulties, Mongtomery and LBM separated in 2006, and Montgomery moved to Nashville,

Tennessee. (Id. ¶¶ 19–21.) Montgomery states that he borrowed $50,000 from his Santa Clara

County 401(k) retirement account to purchase a house at on Lakeview Circle in Mount Juliet,

Tennessee (the Lakeview Property). (Id. ¶ 22.) He and LBM reconciled in 2007 and LBM joined

him in Nashville. (Id. ¶ 23.)

In 2010, Montgomery created a “solo” 401(k) plan for his company, designated as the

“Bzbzbzboy, Inc. 401K Plan” (the 401K Plan). (Id. ¶ 24.) The 401K Plan then purchased the

Lakeview Property “as its first investment holding” and was the property’s only owner. (Id. ¶¶ 24,

53.) In 2015, Montgomery purchased a property on Donna Hill Drive in Nashville (the Donna Hill

Property) where Taylor was a tenant with the intent to have the 401K Plan acquire the property in

2016. (Id. ¶ 29.)

Montgomery alleges that, in 2016, “LBM and her lover/boyfriend [Taylor] hatched a

scheme to defraud [Montgomery] of assets and steal his solo 401k retirement money” by

“create[ing] a fictitious story alleging [Montgomery] planned to have LBM killed . . . .” (Id. ¶ 27.)

Since 2016, Montgomery has been charged with multiple counts of solicitation of first-degree

murder under Tennessee law. This Court summarized those charges as follows:

In May 2016, Montgomery was charged with solicitation of first-degree murder for

allegedly trying to hire [Taylor] to murder his wife [LBM]. Over the next several

years, Montgomery was indicted two more times, first for attempting to hire a

cellmate to murder his wife and Taylor, and second for attempting to hire a cellmate

to murder his wife, Taylor, the first cellmate, and Montgomery’s first appointed

counsel.

Montgomery v. Hall, No. 3:21-CV-00701, 2022 WL 2721056, at *1 (M.D. Tenn. June 6, 2022).2

Montgomery was convicted of one count of solicitation of felony murder on July 19, 2023.

His other charges remain pending.3

LBM filed for divorce in May or June 2016 represented by Stover. (Doc. No. 11 ¶ 31.)

Montgomery represented himself in the divorce proceedings over which Smith presided.

Montgomery alleges that Stover “had a conflict of interest” representing LBM in the divorce

because Montgomery and LBM had hired Stover to evict Taylor from the Donna Hill Property.

(Id. ¶ 35.) Montgomery states that he advised Smith of this conflict but Smith “did nothing as if

[Montgomery] never spoke.” (Id.)

Montgomery was in custody as a pretrial detainee during the divorce proceedings and states

that Smith allowed Montgomery’s custodial status to negatively affect his “judgment and

professionalism.” (Id. ¶ 40.) Montgomery states that Smith spoke to him condescendingly (id.),

kept Montgomery from questioning witnesses to the same extent that he allowed Stover to question

witnesses (id. ¶ 50), and “abused his discretion in forcing the civil trial to go forward while

simultaneously a criminal case was active with similar allegations, which severely limited what

[Montgomery] could say and do” (id. ¶ 51). Montgomery further alleges that Smith made errors

2 Montgomery alleges in this case that Taylor and LBM admitted that Montgomery “never

hired or even directed [Taylor] to do anything to anyone” and asserts that his criminal charges are

based on “lies and fraud.” (Doc. No. 11 ¶¶ 30–33.)

3 See Metropolitan Nashville & Davidson County Criminal Court Case Search,

https://sci.ccc.nashville.gov/Search/NameSearchDetails/GARY%5EMONTGOMERY%5E0210

1961%5E548597/ (last visited August 4, 2024).

of law and fact in determining what of the Montgomerys’ assets were marital property, including

in his consideration of the 401K Plan (id. ¶¶ 52, 55, 56, 58).

Montgomery alleges that LBM “demand[ed]” that the court “give her control of [the

Lakeview Property]” “by conspiring with [Stover], saying to the court it was her property” even

though the property “was titled to [Montgomery] alone.” (Id. ¶ 31.) He states that LBM and Stover

“conspired to trick the court with misrepresentations to cover up the true owner and the existence

of a standing trustee” and that “Smith ignored [Montgomery’s] notices of all that info[rmation].”4

(Id. ¶ 38.) He also alleges that Stover and LBM “stole [his] corporate binder[s]” that contained

information regarding Bzbzbzboy Inc. and the 401K Plan. (Id. ¶ 39.)

After hearings in which Montgomery participated, Smith entered a final divorce decree on

January 29, 2020. (Doc. No. 38-1.)5 Smith found that the proof established “that [LBM’s] 401k

money acquired during the marriage was used to purchase [the Lakeview Property]”, that LBM’s

“401k money was deposited into the Bzbzbzboy 401K plan of which [Montgomery] was the

trustee”, that the Lakeview Property was originally purchased by Montgomery alone, was later

conveyed to the 401K Plan, and was marital property.6 (Id. at PageID# 353.) Smith found that the

Donna Hill property was “titled in both of the party’s [sic] names” and was marital property. (Id.

at PageID# 354.) Smith also found that a $40,000 IRS levy on LBM’s paycheck for unpaid taxes

4 Montgomery states that, “[i]n May 2016 [he] enrolled the services of his neighbor, Ramiro

Alvarez, to be the alternate trustee whom [he] trusted more with financial issues than LBM.” (Id.

¶ 36.)

5 Regal Realty Group and Hertel attached the Final Decree of Divorce and two subsequent

orders from Smith addressing the distribution of property as exhibits to their motion to dismiss.

(Doc. Nos. 38-1–38-4.) The Court considers these orders as public records and cites the copies of

the orders filed in this action for ease of reference.

6 Smith specifically noted that “[t]he real property is owned by Bzbzbzboy, which was

originally set up as a 401k.” (Id. at PageID# 357.)

was “in fact, a marital debt” because it was “the result of unpaid taxes on a security account that

[ ] Montgomery controlled” and that LBM and Montgomery were both parties to an installment

contract to pay off an HVAC system at the Lakeview Property. (Id. at PageID# 354–55.)

Ultimately, Smith entered the following judgment regarding the division of the marital

property:

It is further ORDERED, ADJUDGED AND DECREED that: [LBM] is

hereby ordered to sell the real property at 382 Lakeview Circle. LBM is further

vested the sole authority to select the real estate listing agent. . . .

* * *

It is further ORDERED, ADJUDGED AND DECREED that: The

Plaintiff/Wife [LBM] is hereby ordered to forward any serious offers to [Stover],

who will then forward those offers to [Montgomery].

It is further ORDERED, ADJUDGED AND DECREED that: [LBM] is

hereby ordered to direct the closing agent after the sale of the property in Mt. Juliet,

pay directly therefrom the IRS debt of approximately $40,000 or balance at that

time to be paid from the proceeds of the sale.

It is further ORDERED, ADJUDGED AND DECREED that: [LBM] is

hereby ordered to direct the closing agent after the sale of the [Lakeview Property],

pay directly therefrom the balance of the HVAC loan from the proceeds of the sale.

It is further ORDERED, ADJUDGED AND DECREED that: The balance

of the sale proceeds of the [Lakeview Property] will be divided equally after

deduction of the payment of the IRS debt, and the HVAC loan. [LBM] will receive

her proceeds at the closing. [ ] Montgomery’s proceeds from the sale will be held

and deposited into an interest-bearing escrow account with the clerk at the circuit

court until such time as this Final Decree becomes final.

It is further ORDERED, ADJUDGED AND DECREED that: [LBM] is

hereby awarded the real property located at 27I8 Donna Hill Drive free and clear

of any claim from [ ] Montgomery. [ ] Montgomery is hereby divested of all right,

title and interest in said property and [LBM] is solely responsible for all payments

associated with said property, including the mortgage, taxes, and insurance. . . .

(Id. at PageID# 362–63.)

Montgomery alleges that Smith “abused the process and his discretion by declaring all

assets marital property . . . when the contributions [by Montgomery and LBM to the 401K Plan]

were clearly kept separate.” (Id. ¶ 55.) Montgomery alleges that Smith allowed the 401K Plan “to

be destroyed by selling it and using the funds to pay a loan and LBM’s personal IRS tax debt of

$40,000+, all violations of ERISA’s protections.” (Doc. No. 11 ¶ 56.) He states that Smith

“unreasonably debased [Montgomery’s] retirement account and its ability to earn/grow in the

future” by requiring that proceeds from the sale of the Lakeview Property be deposited into “a

court controlled bank account paying 0.25% interest” when Montgomery had previously earned

“$39.000/year towards retirement plan growth . . . .” (Id. ¶ 58.) Montgomery alleges that Smith

further abused his discretion by denying Montgomery a transcript of the divorce proceedings and

“cherry pick[ing]” evidence to be included in the record on appeal “to avoid any legitimate

review.” (Id. ¶ 60.)

Montgomery alleges that, “once [LBM] got court approval to collect and manage the Plan’s

assets, she also assumed a fiduciary role to the Plan participants.” (Id. ¶ 42.) Montgomery states

that, instead of acting as a fiduciary, LBM “chose to pocket/commingle the rental income from all

Plan properties with her personal funds from [June 2016 to at least June 2022].” (Id.) He states

that he has not received “one penny” of the Plan’s proceeds from this rental income and that the

401K Plan has “suffered negatively” from LBM’s management. (Id.) Montgomery alleges that

LBM has not “provided a single ERISA report on funds collected, where they were deposited or

any distributions” and has used the funds “to pay her counsel expenses and for her personal needs.”

(Id. ¶ 45.) He alleges that Stover “knowingly accepted funds for inflated fees that he knew came

from the Plan’s rental income in violation of ERISA” and “conspired with LBM to do whatever

he could to insure [sic] LBM got access to the funds” and Montgomery’s efforts to access the funds

were denied. (Id. ¶ 46.)

Montgomery states that, on or about September 30, 2021, he “received a signed offer and

counteroffer of the [Lakeview Property]” with LBM listed as the seller and Rogers listed as the

buyer. (Doc. No. 11 ¶ 61.) Montgomery states that he “immediately objected in writing to the

court, Stover, all real estate licen[s]ees, real estate firms and title companies involved” because he

“never approved or signed a listing agreement” and “didn’t receive any prior notice or an offer to

consider until everything [was] signed.” (Id. ¶ 62.) Montgomery also filed a “lis pendens notice”

on the property “and sent that to the court and all defendants to avoid any mistake by closing the

sale.” (Id. ¶ 65.) Montgomery states that LBM “was not the plan administrator at the time of this

offer, only an acting fiduciary/trustee from the court,” that “the property was not legally listed,”

and that the property “was manipulated into sale by LBM and Stover’s tricks/sleight of hand.” (Id.

¶ 63.) Montgomery states that he “objected in open court,” but that Smith “ignored those objections

as if not said” and “ignored contrary evidence and ERISA protections.” (Id.) Montgomery alleges

that Rogers “failed to heed [Montgomery’s] notices and warning letters there was a lis pendens on

the 401K Plan property he was attempting to purchase and that the true owner was the Plan and

not [LBM].” (Id. ¶ 85.) Montgomery states that Rogers “intentionally chose to continue to conspire

with LBM, Stover, title companies and the real estate professionals for self-dealing motives.” (Id.)

LBM and Montgomery appeared before Smith for a hearing on December 10, 2021,

regarding the contract to sell the Lakeview Property to Rogers. (Doc. No. 38-2.) Smith found the

sale consistent with the divorce decree’s finding that the Lakeview Property “titled in the name of

BZBZBZBoy Inc. 401k Plan is marital property” and ordered that LBM “sell the house, divide the

net proceeds 50/50, and to pay [Montgomery’s] share into the Circuit Court Clerk’s office in an

interest bearing account.” (Id. at PageID# 368.) On December 13, 2021, Smith entered an “Order

Approving Contract” that stated:

[I]t is ORDERED, ADJUDGED, AND DECREED: That the contract to

sale the real property located at 382 Lakeview Circle, Mount Juliet, Tennessee

37122 to [Rogers] for $503,500.00 is hereby approved and ratified by the court.

It is further ORDERED, ADJUDGED, AND DECREED: that [LBM] is

hereby granted the authority to sign all closing documents necessary to transfer title

of said property from BZBZBZboy Inc. 401k Plan to [Rogers] in consideration of

the payment as outlined in the written contract.

It is further ORDERED, ADJUDGED, AND DECREED: that the closing

agent is hereby directed to disburse to [LBM], through her attorney of record Trust

Account, if necessary, her 50% net share of the proceeds at the closing.

It is further ORDERED, ADJUDGED, AND DECREED: that the closing

agent is hereby directed to pay [Montgomery’s] 50% share of the net proceeds to

the Davidson County, Tennessee Circuit Court Clerk’s office to be held in an

interest-bearing account under docket number 16D-1356.

(Id. at PageID# 369.)

Montgomery alleges that “the title companies, after notice and warning letters chose to

continue the fraud and conspiracy with LBM, Stover and others toward closure of this sale

transaction for self-dealing motives and without investigating.” (Id. ¶ 86.) Montgomery states that

they “violated RESPA laws by not providing all parties in interest notice and disclosure of the

transaction details” and “failed to verify the ‘seller’ was in fact the owner and that the ‘owner’ was

in fact the proper seller in the listing and sales agreements.” (Id.) Montgomery further alleges that

“all of the real estate agents and firms” violated their professional duties “to disclose, act in good

faith and choosing instead of self-dealing to get a commission” and that, “despite notice and

warning letters[,] they chose to continue their conspiracy with LBM, Stover and others.” (Id. ¶ 87.)

Smith held a second hearing regarding the sale of the Lakeview Property on February 25,

2022, at which LBM and Montgomery appeared. (Doc. No. 38-3.) In an order entered on April 21,

2022, Smith found that, “to facilitate the sale of the real property, a substitute Plan Administrator

and Trustee must be appointed” and appointed LBM as plan administrator and trustee of the 401K

Plan “for the purpose of executing the sale, and transfer of the property to the new buyer.” (Id. at

PageID# 371.) Smith ordered LBM “appointed as the Plan Administrator, and Trustee of

BZBZBZboy Inc. 401K Plan, thereby replacing all previous Plan Administrator’s [sic], and/or

TRUSTEES including, but not limited to GARY MONTGOMERY, or any agents appointed by

him previously.” (Id. at PageID# 372.)

The record does not reflect the terms of the Lakeview Property’s final sale. On December

29, 2022, Logos Realty Closing Services paid $188,038.92 to the Circuit Court Clerk in

compliance with Smith’s order reflecting Montgomery’s share of the Lakeview Property sale

proceeds. (Doc. No. 38-4.)

B. Procedural History

Montgomery initiated this action on March 28, 2023, by filing a complaint against Smith’s

estate, LBM, Rogers, Birthright Title, Property Title, Regal Realty, Hertel, EXIT Real Estate,

Schneider, Stover, Taylor, and an Unknown Closing Title Company. (Doc. No. 1.) The complaint

asserted claims under 42 U.S.C. § 1983, the Employee Retirement and Income Security Act

(ERISA), and Tennessee law, and sought declaratory and injunctive relief, damages, and costs.

(Id.) Montgomery paid the Court’s civil filing fee. (Doc. No. 1-1.)

The Court referred the action to the Magistrate Judge for case management and to dispose

or recommend disposition of any pretrial motions under 28 U.S.C. § 636(b)(1)(A) and (B) and

directed the Magistrate Judge to “provide for early, limited discovery to be served by

[Montgomery] to ascertain the complete identity of the as-yet fully identified defendant [Unknown

Closing Title Company]” and to “set a deadline for [Montgomery] to amend his complaint to

identify this individual by name and thereafter to effect service on the defendant.” (Doc. No. 4,

PageID# 50.) The Magistrate Judge entered an order allowing Montgomery to seek the identity of

the Unknown Closing Title Company from the “identified defendants when those defendants have

been served and appeared in the action.” (Doc. No. 5, PageID# 51.)

Montgomery filed an amended complaint that incorporated additional factual and legal

allegations, added Longaberger as a defendant, and removed Unknown Closing Title Company as

a defendant. (Doc. No. 11.)

On July 12, 2023, the Clerk of Court issued summonses for each defendant named in the

amended complaint and forwarded those summonses to the U.S. Marshals Service to effect service

of process. (Doc. No. 12.) Property Title, EXIT Real Estate, Schneider, Rogers, and Birthright

Title waived service (Doc. Nos. 23, 24). Hertel, Regal, and Stover were served and entered

appearances (Doc. Nos. 30, 32, 33, 48, 49).

Montgomery then moved for entry of default against Longaberger (Doc. No. 59) and LBM

(Doc. No. 62), who had not appeared. The Clerk of Court denied Montgomery’s motion on May

16, 2024, finding that, “while there is evidence in the record that service of process was achieved

as to Longaberger, [Montgomery] cannot verify service of process upon [LBM] because the

Process Return filed by the USMS confirms that it was unsuccessful in its attempt to secure

service” and that Montgomery’s motion was procedurally deficient regarding Longaberger. (Doc.

No. 70.)

C. The Motions to Dismiss

The defendants assert the following arguments in support of their motions to dismiss.

1. Defendants Rogers, Birthright Title, Property Title Services, EXIT Real

Estate Solutions, and Schneider (Doc. No. 27)

The Real Estate Defendants move to dismiss on grounds that they “withdrew from

involvement in the proposed sale, purchase, and closing of the real property in which

[Montgomery] alleges he had an ownership interest.” (Doc. No. 27.) They state that, “[b]eing in

receipt of certain communications from [Montgomery] and, upon becoming aware of

[Montgomery’s] alleged criminal actions and [Montgomery’s] history of pro se litigation, the

[Real Estate] Defendants thought it prudent to not proceed in any fashion with consummating any

transaction what-so-ever relating to the [Lakeview] Property.” (Doc. No. 28.) They argue that, for

this reason, they “are not ‘parties’ to the sale of the [Lakeview] Property, having withdrawn from

the proposed transaction in part due to the warnings of ‘illegality’ sent to them by [Montgomery].”

(Id.) Accordingly, they argue that “no reasonable inference that [they] are liable for the

misconduct alleged can be drawn” and that the Court should grant their motion to dismiss “as they

are not proper parties.” (Id.) The Real Estate Defendants filed five declarations with their motion

to dismiss in which each defendant or its representative states that the defendant withdrew from

the Lakeview Property sale and did not conspire with any person against Montgomery.7 (Doc. Nos.

27-1–27-5.)

Montgomery responds that the Real Estate Defendants’ declarations show that they were

“involved” in the sale of the Lakeview Property at some point and argues that they were parties to

the alleged conspiracy even if they were not parties to the final property sale. (Doc. No. 31.)

Montgomery includes a copy of a counteroffer made in the Lakeview Property sale and a copy of

the notice of a lien lis pendens action regarding the Lakeview Property that he filed against LBM

and Stover with his response. (Doc. No. 31-1.) He states that the “case is ripe for a [Federal Rule

of Civil Procedure] 56 judgment” based on the parties’ filings. (Doc. No. 31.) Montgomery also

7 These declarations are “matters outside the pleadings” that, if considered, require the Court

to convert the Real Estate Defendants’ motion to dismiss into a motion for summary judgment.

Fed. R. Civ. P. 12(d). Montgomery appears to recognize this by providing supporting documents

outside the pleadings with his response and by acknowledging that the motion is “ripe” for

judgment under Federal Rule of Civil Procedure 56. (Doc. No. 31.) Because the Court finds that it

does not have subject-matter jurisdiction over Montgomery’s claims against the Real Estate

Defendants, such conversion is not required, and the Court does not consider the Real Estate

Defendants’ declarations or Montgomery’s exhibits in its analysis.

asks the Court to order the Real Estate Defendants to preserve all communications and documents

for discovery. (Id.)

2. Regal Realty Group and Hertel (Doc. No. 35)

Regal and Hertel argue first that Montgomery’s claims against them are barred by the

Rooker-Feldman doctrine because they are an attempt to set aside the divorce decree and related

orders entered by Judge Smith. (Doc. No. 38.) Regal and Hertel include copies of the divorce

decree and subsequent orders as exhibits to their motion. (Doc. Nos. 38-1–38-4.) They argue that,

to the extent Montgomery contends the Lakeview Property should not have been sold, that issue

was litigated in the divorce proceedings and collateral estoppel prohibits any further consideration

by this Court. (Id.) Finally, Regal and Hertel argue that Montgomery has not plausibly alleged any

claims against them sufficient to withstand a Rule 12(b)(6) motion to dismiss. (Id.)

Montgomery responds that the basis of this action is “violations of ERISA, fraudulent acts,

theft, embezzlement and [acting] in concert” and not an attempt to review the state court divorce

proceedings to which Rooker-Feldman might apply. (Doc. No 46.) He similarly argues that “the

precise issues in this ERISA violations based complaint were not actually litigated” in state court

and, thus, are not barred by collateral estoppel. (Id.) Finally, Montgomery includes new allegations

that Hertel engaged in misconduct by failing to provide him with documentation of the Lakeview

Property sale and argues that, to the extent his allegations are not sufficiently specific, “[o]nly

discovery or admissions will tell” the extent of Regal and Hertel’s involvement in the alleged

conspiracy. (Id.)

Hertel repeats her arguments regarding application of the Rooker-Feldman doctrine and

collateral estoppel in her reply. (Doc. No. 50.) She also argues that Montgomery may not cure

deficiencies in his amended complaint by providing new allegations in responding to the motion

to dismiss. (Id.) Regal filed a separate reply brief adopting Hertel’s arguments. (Doc. No. 51.)

3. The Estate of Philip E. Smith (Doc. No. 43)

Montgomery sues Smith in his individual and official capacities. (Doc. No. 11.) Smith first

argues that Montgomery’s claims against him in his official capacity for monetary damages or

retroactive injunctive relief are barred by Eleventh Amendment immunity. (Doc. No. 44.) Smith

also argues that, in his official capacity, he is not a “person” for purposes of liability under § 1983.

(Id.) Next, Smith argues that Montgomery’s claims against him are barred by the Rooker-Feldman

doctrine, noting that Montgomery challenged Smith’s division of the marital estate and argued that

Smith was biased against him in his appeal of the final divorce judgment. (Id.) Smith argues that

he has absolute judicial immunity from Montgomery’s claims against him in his individual

capacity because Montgomery challenges judicial acts by Smith acting within his jurisdiction. (Id.)

Smith also argues that he could not provide the injunctive relief Montgomery requests in his

individual capacity and that, even if he could provide the requested legal remedies in his individual

capacity, “since [Smith] is now deceased and no longer presides over [Montgomery’s] divorce

case, he could not provide the injunctive relief requested.” (Id.) Finally, Smith argues that

Montgomery’s allegations do not state a colorable claim of a due process violation under § 1983

and are barred by the one-year statute of limitations for such actions. (Id.)

Montgomery responds that Rooker-Feldman does not apply to his claims in this “ERISA

federal statue based” action because his claims address “wrongful acts, misconduct, fraud upon

the court, or theft” and not injuries resulting from the state-court judgment. (Doc. No. 56.)

Montgomery rejects Smith’s claim of judicial immunity and argues that Smith acted without

jurisdiction in making decisions that were detrimental to the 401K Plan, not recognizing the 401K

Plan as the owner of the Lakeview Property, and denying Montgomery a “full and fair opportunity

to litigate” these issues in the divorce proceedings. (Id.)

4. Stover (Doc. No. 47)

Stover argues that Montgomery cannot succeed in a legal malpractice action against him

because there was no attorney-client relationship between him and Montgomery in the divorce

proceedings and, thus, no duty of care owed by Stover to Montgomery. (Doc. Nos. 47, 47-1.)

Stover further argues that “[a]ny allegations against [him] for legal malpractice or ‘breach of

fiduciary duty’ cannot survive since there was no attorney-client relationship.” (Id.)

Montgomery agrees that he had no attorney-client relationship with Stover in the divorce

proceedings. (Doc. No. 58.) He argues, however, that Stover represented him and the 401K Plan

“in an eviction action against [Taylor], wherein [Stover] discovered our good financial position

and our real property holdings.” (Id.) Montgomery argues generally that Stover assisted LBM in

taking over the 401K Plan through “fraud upon the court and deception.” (Id.) Montgomery also

states that Stover stole and retains possession of Montgomery’s corporate records related to the

401K Plan. (Id.)

II. Legal Standards

Federal courts are courts of limited subject-matter jurisdiction and can adjudicate only

those claims authorized by the Constitution or an act of Congress. Chase Bank USA, N.A. v. City

of Cleveland, 695 F.3d 548, 553 (6th Cir. 2012). Article III of the Constitution extends the federal

judicial power “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the

United States,” and several other categories of cases not at issue here.8 U.S. Const. art. III, § 2,

cl. 1; see also 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.”). Congress has also

8 For example, cases involving ambassadors, public ministers, and consuls and cases

between two states or in which the United States is a party. U.S. Const. art. III, § 2, cl. 1.

granted federal courts diversity jurisdiction over civil actions in which the parties are citizens of

different states and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332. Whether the

Court has subject-matter jurisdiction is a “threshold” question in any action. Am. Telecom Co. v.

Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007). This reflects the fundamental principle

that “‘[j]urisdiction is power to declare the law, and when it ceases to exist, the only function

remaining to the court is that of announcing the fact and dismissing the cause.’” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1868)).

The party asserting subject-matter jurisdiction bears the burden of establishing that it exists.

Id. at 104. A motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction “may

either attack the claim of jurisdiction on its face or it can attack the factual basis of jurisdiction.”

Golden v. Gorno Bros., 410 F.3d 879, 881 (6th Cir. 2005). A facial attack challenges the

sufficiency of the pleading and, like a motion under Rule 12(b)(6), requires the Court to take all

factual allegations in the pleading as true. Enriquez-Perdomo v. Newman, 54 F.4th 855, 861 (6th

Cir. 2022). A factual attack “‘contests the alleged jurisdictional facts by introducing evidence

outside the pleadings.’” Id. (quoting Gaetano v. United States, 994 F.3d 501, 505 (6th Cir. 2021)).

In resolving factual attacks, “‘the district court has wide discretion to allow affidavits, documents,

and even a limited evidentiary hearing to resolve jurisdictional facts, and the court can actually

weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.’”

Id. (quoting Gaetano, 994 F.3d at 505).

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court

must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded

factual allegations in the complaint as true, and draw all reasonable inferences in favor of the

plaintiff.” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). Federal Rule of

Civil Procedure 8(a)(2) requires only that a complaint contain “a short and plain statement of the

claim[.]” Fed. R. Civ. P. 8(a)(2). However, “[t]he factual allegations in the complaint need to be

sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead

‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz

v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A plaintiff must plead more than “‘labels

and conclusions[,]’” “‘a formulaic recitation of the elements of a cause of action[,]’” or “‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (third alteration in original) (quoting

Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

Because Montgomery appears pro se, the Court construes his filings “‘liberally’” and holds

his operative amended complaint “‘to less stringent standards than formal pleadings drafted by

lawyers[.]’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)). “However, this lenient treatment has limits.” Frengler v. Gen. Motors, 482 F. App’x

975, 976 (6th Cir. 2012). “[C]ourts are not required to conjure up unpleaded allegations or guess

at the nature of an argument.” Brown v. Cracker Barrel Rest., 22 F. App’x 577, 578 (6th Cir. 2001)

(citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III. Analysis

Montgomery does not associate specific causes of action with particular defendants in his

amended complaint.9 (Id.) In the section of the amended complaint titled “Claims For Relief,”

Montgomery alleges that Smith “violated [his] constitutional rights in not providing proper due

process, equal protection, and application of the laws” by interfering with Montgomery’s pro se

advocacy in the divorce proceedings; “denying obvious truth,” “intentional[ly] misrepresent[ing]”

the law, and “cherry picking” the contents of the record on appeal; violating judicial ethics through

biased interactions with Montgomery during the divorce proceedings; “debasing” the 401K Plan

by ordering the sale of the Lakeview Property and Montgomery’s share of the proceeds to be

deposited in a low-interest court account; “negligent[ly] enriching” LBM, Stover, “real estate

agents and firms and title companies” by “taking [Montgomery’s] ERISA protected funds from

9 In the introduction to the amended complaint, Montgomery states that he brings

this action

under Title 42 U.S.C. §§ 1983, 1985 and 1986 alleging denial of due process, equal

protection and application of law under the Fourteenth Amendment to the United

States Constitution, and access to fair judicial process of the courts under the Sixth

Amendment to the United States Constitution, and for violations of federal law,

namely the Employee Retirement Income Security Act of 1994 (“ERISA”) . . . .

(Doc. No. 11.)

Montgomery also cites

the specific torts of fraud, conspiracy to defraud, theft, attempted theft, forgery,

commingling of funds, unjust enrichment, conversion, fiduciary negligence,

extortion, misrepresentation, breach of fiduciary duty, legal malpractice, breach of

contract, abuse of process, abuse of judicial discretion, debasement of retirement

account and its returns, negligent enrichment, intentional infliction of emotional

distress, self-dealing and violations of Real Estate Settlements Procedures Act

(“RESPA”) . . . [and] intentional interference with business relationship.

(Id.)

his retirement account”; and causing Montgomery “mental and emotional distress.” (Doc. No. 11

¶¶ 88–90.)

Montgomery alleges that Stover conspired with LBM to “defraud [Montgomery] of

retirement and other personal assets” by making misrepresentations to Smith in the divorce

proceedings. (Id. ¶ 91.) He also alleges that Stover “committed legal malpractice” and “breached

his fiduciary duty” by making “misrepresentations to the court and others to further the conspiracy

to defraud” and “stealing [Montgomery’s] business papers and corporate binders and refusing to

return them.” (Id. ¶ 92.)

Montgomery alleges that Rogers “conspired to close the [Lakeview Property sale]

transaction for self-dealing reasons. He knew there was [an] ownership issue.” (Id. ¶ 95.)

Finally, Montgomery alleges that “all of the real estate professionals, firms and title

companies conspired with LBM and Stover to get the sale transaction closed for self-dealing

reasons” and, in doing so, “violated [the Real Estate Settlement Procedures Act (RESPA)] laws”

by failing to give Montgomery required documentation, intentionally interfered with business

relationships, and breached their fiduciary duties under Tennessee law. (Id. ¶ 96.)

A. Subject-Matter Jurisdiction

Federal courts “have an independent obligation to determine whether subject-matter

jurisdiction exists, even when no party challenges it.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010); Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465

(6th Cir. 2009) (noting that “federal courts have a duty to consider their subject matter jurisdiction

in regard to every case and may raise the issue sua sponte”). The Court also must assure itself of

jurisdiction before considering the parties’ merits-based arguments. See Great S. Fire Proof Hotel

Co. v. Jones, 177 U.S. 449, 453 (1900) (holding that “the first and fundamental question is that of

jurisdiction” and that “[t]his question the court is bound to ask and answer for itself, even when

not otherwise suggested, and without respect to the relation of the parties to it”); Imhoff Inv., L.L.C.

v. Alfoccino, Inc., 792 F.3d 627, 631 (6th Cir. 2015) (“Courts must resolve questions of subject

matter jurisdiction before ruling on the merits of the claim.”); George v. Haslam, 112 F. Supp. 3d

700, 706 (M.D. Tenn. 2015) (“[A] court must address ‘questions pertaining to its jurisdiction

before proceeding to the merits[.]’” (quoting Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005))). Accordingly,

the Court will begin by evaluating its jurisdiction to hear Montgomery’s claims against all

defendants.

Regal and Hertel and Smith argue in their motions to dismiss that this Court lacks subject-

matter jurisdiction over Montgomery’s claims under the Rooker-Feldman doctrine. (Doc. Nos. 38,

44.)

The Rooker-Feldman doctrine “generally provides that lower federal courts may not

engage in appellate review of state-court decisions.” In re Isaacs, 895 F.3d 904, 912 (6th Cir.

2018). It reflects the fact that the appellate jurisdiction of a federal court “to reverse or modify a

state-court judgment is lodged . . . by 28 U.S.C. § 1257, exclusively in” the Supreme Court of the

United States. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 283 (2005).

Rooker-Feldman is a narrow doctrine “confined to 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.” Id.

at 284. It is “properly applied on a claim-by-claim basis, even though”—or perhaps because—"it

is jurisdictional in nature.” In re Isaacs, 895 F.3d 904, 912 (6th Cir. 2018); see also Hohenberg v.

Shelby Cnty., Tennessee, 68 F.4th 336, 341 (6th Cir. 2023) (“As the Supreme Court has reminded

us nearly once a year for almost two decades, we should not lightly use jurisdictional rules to

pinch-hit for non-jurisdictional ones.”).

Rooker-Feldman is not implicated simply because a claim brought in federal court would

“call [an earlier state-court judgment] into question” or “undermine a judgment’s legal

underpinnings.” Hohenberg, 68 F.4th at 341; see also McCormick v. Braverman, 451 F.3d 382,

392 (6th Cir. 2006) (holding that “independent claims may deny a legal conclusion of the state

court” but “this fact does not lead to a divestment of subject matter jurisdiction in the federal

courts”; instead, “preclusion law is the appropriate solution for these independent claims”). Nor

does Rooker-Feldman “bar a federal-court challenge to an individual’s improper conduct during a

prior state court proceeding.” Pittman v. Cuyahoga Cnty Dep’t of Children and Family Servs., 241

F. App’x 285, 288 (6th Cir. 2007). “And it is not an all-purpose abstention doctrine, lying in wait

to untangle snarls when state and federal litigation mix.” Hohenberg, 68 F.4th at 339. Rather, the

doctrine “requires a challenged ‘judgment’ in the new action” and “an effort to ‘review’ that

judgment, namely to ‘undo’ or ‘overturn’ it in the new action.” Hohenberg, 68 F.4th at 340

(quoting Exxon, 544 U.S. at 284, 287 & n.2, 293).

To determine if Rooker-Feldman applies to a particular claim, “[t]he inquiry then is the

source of the injury the plaintiff alleges in the federal complaint.” McCormick, 451 F.3d at 393.

“The key point is that the source of the injury must be from the state court judgment itself; a claim

alleging another source of injury is an independent claim.” Id. at 394. “The source of the plaintiff’s

injury may in turn be determined by examining the request for relief.” In re Isaacs, 895 F.3d at

912. A request for relief that “effectively asks the [federal court] to vacate the state-court

judgment” or “declare the state court’s . . . judgment invalid” “falls within Rooker-Feldman’s bar.”

Id. at 913. Rooker-Feldman also bars, “in some circumstances, federal suits that purport to

complain of injury by individuals [but] in reality complaint of injury by state-court judgments.”

Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 89 (2d Cir. 2005). “For example, if a third

party’s actions are the product of a state court judgment, then a plaintiff’s challenge to those actions

[is] in fact a challenge to the judgment itself.” McCormick, 451 F.3d at 394 (citing Hoblock, 422

F.3d at 87–88).

Comparison of Montgomery’s amended complaint with the state court divorce proceeding

orders readily shows that most of what Montgomery seeks in this Court is to undo what Smith

ordered in the divorce. See Hoblock, 422 F.3d at 88 (finding that, to determine whether a plaintiff’s

“injury was produced by the state-court judgment” a court “look[s] both at the allegations in the

[plaintiff’s] federal complaint and the records of the state-court proceedings”). Even though

Montgomery has couched his claims in terms of ERISA violations and wrongdoing by LBM,

Stover, Smith, and the other defendants—and even though Montgomery states that “[t]his matter

is not an attempt to re-litigate any case” (Doc. No. 11, PageID# 65)—the amended complaint is,

at heart, a second appeal of the Montgomerys’ divorce decree.

For example:

• Montgomery asks this Court to issue an “injunction to prevent closing of the sale of the

401K Plan owned property,” for the “return of the real property to the proper owner ‘Bzbzbzboy

Inc. 401K Plan,’” and for himself to be “reinstate[d] . . . as the proper trustee and plan

administrator.” (Doc. No. 11 ¶¶ 99, 100.) Such an injunction would undo Smith’s orders requiring

that LBM “sell the [Lakeview Property]” (Doc. No. 38-1); appointing LBM “as the plan

administrator, and trustee of BZBZBZboy Inc. 401k Plan, thereby replacing all previous Plan

Administrator[]s, and/or TRUSTEES including, but not limited to [Montgomery]” (Doc. No. 38-

3); and “reliev[ing Montgomery] of any further responsibility, authority, or right to interfere with

[LBM’s] Appointment as Substitute Plan Administrator/Trustee as she consummates the sale of

the real property at issue in this case” (Doc. No. 38-3).

• Montgomery’s request that the Court order LBM to “return monies diverted to pay loans

and specifically monies to pay her personal tax debt of $40,000+, and [Montgomery’s] stolen and

thrown away items” (Doc. No. 11) would undo the divorce decree’s order that LBM “pay directly

. . . the IRS debt of approximately $40,000” and “the balance of the HVAC loan from the proceeds

of the [Lakeview Property] sale.” (Doc. No. 38-1.)

• Montgomery asks the Court order LBM to “pay [him] all of the 401K Plan income

collected from June 2016 to present . . . and to pay any uncollected rents representing los[s]es to

the Plan” (Doc. No. 11). That order would undo the divorce decree’s division of the marital estate

(Doc. No. 38-1).

• Montgomery’s request that the Court order Smith to “compensate the 401K Plan for loss

of interest/earning power” from depositing the sale proceeds into a court account “earning measly

0.25% interest per year” (Doc. No. 11) would undo the divorce decree’s order that Montgomery’s

“proceeds from the sale . . . be held and deposited into an interest-bearing escrow account with the

clerk at the circuit court . . .” (Doc. No. 38-1).

• Montgomery’s request that this Court require “[a]ll other defendants . . . [to] return fees

and commissions received from the Plan” because “[t]hey should not be allowed unjust

enrichment” (Doc. No. 11) would undo the divorce decree’s order vesting in LBM “the sole

authority to select the real estate listing agent” (Doc. No. 38-1) and the subsequent orders

approving the sale of the Lakeview Property to Rogers (Doc. No. 38-2) and “grant[ing] LBM the

authority to sign all closing documents necessary to transfer title of said property from

BZBZBZboy Inc. 401K Plan to [Rogers] in consideration of the payment as outlined in the written

contract” (Id.).

Montgomery cannot “avoid Rooker-Feldman simply by clever pleading—by alleging that

actions taken pursuant to a court order violate his rights without ever challenging the court order

itself[.]” Hoblock, 422 F.3d at 88. Every alleged wrongful act associated with these claims for

relief was ordered by the divorce decree or the subsequent related orders. All of those claims fall

within Rooker-Feldman’s bar.

Having conducted this analysis of Montgomery’s claims and claimed damages, the Court

finds it readily apparent that the source of Montgomery’s injuries is the state court divorce decree

and Smith’s following orders and not any defendant’s independent conduct. Montgomery’s

pleading shows him to be the quintessential “state-court loser[] complaining of injuries caused by

state-court judgments . . . and inviting district court review and rejection of those judgments.”

Exxon, 544 U.S. at 283. However, the Court is mindful of recent opinions calling out “the lower

courts’ extravagant use of Rooker and Feldman as a ‘quasi-magical means of docket clearing.’”

Hohenberg, 68 F.4th at 340. Because Montgomery has included allegations in the amended

complaint that certain defendants engaged in wrongful actions independent of the divorce decree

and following orders, the Court must assure itself that Montgomery has not adequately pleaded

any claims against these defendants that are not subject to Rooker-Feldman’s bar.

B. Additional Allegations Against Regal, Hertel, and the Real Estate Defendants

Montgomery argues throughout his responses to the defendants’ motions to dismiss that he

brings this action to address ERISA violations and fraud and misrepresentations made during the

divorce proceedings—“improper conduct” that he argues is independent of the state-court

judgment—and not to challenge the divorce decree. Pittman, 241 F. App’x at 288. And

Montgomery is right that claims to address “fraud and misrepresentation” made during state-court

proceedings are not subject to Rooker-Feldman’s bar. See McCormick, 451 F.3d at 393. But, as

the party invoking federal jurisdiction, Montgomery bears the burden of showing that it exists. See

Lewis v. Whirlpool Corp., 630 F.3d 484, 487 (6th Cir. 2011); N.A.A.C.P.-Special Contribution

Fund v. Jones, 732 F. Supp. 791, 794 (N.D. Ohio 1990). Montgomery’s allegations of independent

improper conduct during the state court proceedings do not state plausible claims for relief and,

thus, “are insufficient to defeat application of Rooker-Feldman.” Thompson v. Gorcyca, No. 20-

CV-10727, 2021 WL 4220753, at *5 (E.D. Mich. Sept. 16, 2021) (citing Sparks v. NBC E-Online,

No. 220CV05549ODWSPX, 2021 WL 860001, at *3 (C.D. Cal. Mar. 8, 2021) (“Here, based on

the allegations in [plaintiff's] Complaint ... [plaintiff] did not plausibly allege facts showing that

an adverse party committed an extrinsic fraud on the state court. Accordingly, the [c]ourt dismissed

his Complaint because it merely sought to set aside a state-court judgment based on a purported

legal error—a textbook example of a case barred by Rooker-Feldman”); Andrews v. California

Dep't of Consumer Affairs, 2018 WL 1471877, at ** 3-4 (N.D. Cal. Mar. 26, 2018) (explaining

that, while Rooker-Feldman “does not bar federal jurisdiction over claims asserting that state-court

judgments have been obtained by extrinsic fraud upon the court,” Rooker-Feldman nonetheless

barred the plaintiff's claims because “[t]he facts on which [plaintiff] relie[d]” did not “add up to a

plausible claim of extrinsic fraud”); Collins v. Wells Fargo Bank, No. CV-12-2284-PHX-LOA,

2013 WL 1092894, at *10 (D. Ariz. Mar. 15, 2013) (finding that the “Amended Complaint fail[ed]

to allege sufficient facts upon which to base a plausible claim for extrinsic fraud to preclude the

application of the Rooker–Feldman doctrine”)).

First and foremost, the conspiracy of fraud and misrepresentations among the defendants

as Montgomery describes it had one objective: to reap the profits of the Lakeview Property’s sale

and plunder Montgomery’s retirement funds by falsely representing to the state court that LBM

owned the Lakeview Property when the 401K Plan was its true owner. (See Doc. No. 11 ¶ 34

{“[T]he real owner of the [Lakeview Property] was the solo 401K ‘BZBZBZboy Inc. 401k Plan’

. . . It was not owned by LBM or [Montgomery] and both LBM and Stover knew that when they

made false representations to the court.”); id. at ¶ 38 (“LBM and Stover conspired to trick the court

with misrepresentations to cover up the true owner . . . who should have been noticed and involved

. . . .”); id. at ¶ 64 (“As evidenced by Wilson County Records Office, the owner of the real property

was ‘BZBZBZboy Inc. 401k Plan’ and not ‘Lesley Montgomery.’ The property was not legally

listed or sold by the 401K Plan. It was manipulated into sale by LBM and Stover’s tricker/slight

[sic] of hand.”).) But the divorce decree and following orders are based on an understanding that

the 401 K Plan owned the Lakeview Property. (See Doc. No. 38-1, PageID# 353 (the Lakeview

Property “was conveyed back to Bzbzbzboy by Larry Hartman with the execution of the Quit

Claim deed”); id. at PageID# 357 (“The real property is owned by Bzbzbzboy, which was

originally set up as a 401k.”); Doc. No. 38-2, PageID# 368 (reflecting that “the Court found that

the [Lakeview Property] titled in the name of BZBZBZboy Inc. 401k Plan is marital property . . .

.”); id. at PageID# 369 (granting LBM “the authority to sign all closing documents necessary to

transfer title of said property from BZBZBZboy Inc. 401k Plan to DOUG ROGERS in

consideration of the payment as outlined in the written contract”).) Montgomery’s allegations that

LBM and Stover committed fraud by misrepresenting to the state court and the Real Estate

Defendants that LBM owned the Lakeview Property are not plausible when considered with the

public records of the divorce proceedings.

Second, Montgomery alleges that “‘all of the real estate agents and firms’ failed to disclose

information to [him], failed to act in good faith, and chose to engage in ‘self-dealing’ and

‘conspiracy’” and that “‘all of the real estate professionals, firms, and title companies conspired .

. . to get the sale transaction closed,” violated RESPA, and breached their statutory professional

duties to the public in misrepresenting that LBM was the owner of the Lakeview Property. (Doc.

No. 11.) But Montgomery does not identify what role any real estate agent or firm—including

Regal or Hertel—played in any relevant event or allege a specific act taken by any of these

defendants. Montgomery alleges that Rogers “failed to heed [his] notices and warning letters there

was a lis pendens on the [Lakeview Property]” and that the 401K Plan, not LBM, owned the

property. (Id. ¶ 85.) He also alleges that Rogers “intentionally chose to continue to conspire with

LBM, Stover, title companies and the real estate professionals for self-dealing motives.” (Id.) But

he does not allege how Rogers conspired with any other defendant or what harm resulted from

Rogers’s “fail[ure] to heed” Montgomery’s “warning letters.” (Id.) “‘“[N]aked assertions devoid

of further factual enhancement”’ contribute nothing to the sufficiency of the complaint.’” SFS

Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (quoting 16630

Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 506 (6th Cir. 2013) (internal

quotations omitted)). Montgomery does not plausibly allege any conduct by Regal, Hertel, Rogers

or the other Real Estate Defendants to support claims against them that fall outside Rooker-

Feldman’s bar.

Accordingly, Montgomery’s allegations of conspiracy, fraud, misrepresentations, and

RESPA violations by Regal, Hertel, and the Real Estate Defendants are insufficient to defeat

application of Rooker-Feldman to bar his claims against those defendants.

C. Additional Allegations Against Stover

Montgomery generally alleges that Stover “committed legal malpractice in his

misrepresentations to the court and others to further the conspiracy to defraud” (id. ¶ 92) and that

Stover and LBM stole Montgomery’s “business papers and corporate binders and refus[ed] to

return them” (id.).

Stover only addresses Montgomery’s legal malpractice claim in his motion to dismiss. To

plead a claim of legal malpractice under Tennessee law, Montgomery must allege “(1) that the

accused attorney owed a duty to the plaintiff, (2) that the attorney breached that duty, (3) that the

plaintiff suffered damages, (4) that the breach was the cause in fact of the plaintiff’s damages, and

(5) that the attorney’s negligence was the proximate, or legal, cause of the plaintiff’s damages.”

Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). Stover argues that Montgomery’s legal

malpractice claim must fail under Tennessee law because there was no attorney-client relationship

between Stover and Montgomery in the divorce proceedings and, thus, Stover owed no duty to

Montgomery that could be breached. Montgomery responds that, although Stover did not represent

him in the divorce, Stover represented Montgomery and the 401K Plan “in an eviction action

against [Taylor], wherein he discovered our good financial position and our real property

holdings.” Stover does not address any effect of this prior representation in his motion.

“In Tennessee . . . actions brought by third parties against attorneys for professional

negligence/negligent misrepresentation . . . are to be considered ‘malpractice’ actions.” Hanson v.

Rudnick & Wolfe, No. 92-5480, 1993 WL 100084, *4–5 (6th Cir., Apr. 5, 1993) (rejecting

“proposition that only clients can bring ‘malpractice’ actions” and citing Security Bank & Trust

Co. v. Fabricating, Inc., 673 S.W.2d 860 (Tenn. 1983), “which specifically denominates a third-

party suit against attorneys a ‘malpractice’ cause of action”). Thus, the lack of an attorney-client

relationship between Montgomery and Stover in the divorce proceedings does not necessarily

defeat Montgomery’s claim. But Montgomery does not allege that Stover’s breach of any duty he

owed Montgomery resulted in damages or that Stover’s negligence was the proximate cause of

any harm to him. Montgomery alleges only that “Stove[r] committed legal malpractice in his

misrepresentations to the court and others to further the conspiracy to defraud, failing to disclose

all to [Montgomery] and for stealing [Montgomery’s] business papers and corporate binders and

refusing to return them. Stover breached his fiduciary duty.”10 (Doc. No. 11, ¶ 92.) Montgomery

has not alleged a plausible legal malpractice claim against Stover that would fall outside Rooker-

Feldman’s bar.

Finally, Montgomery alleges that Stover stole his business records regarding the 401K Plan

and has not returned them. Although Montgomery does not identify it as such, it appears he intends

to plead a conversion claim under Tennessee law. “Conversion is the appropriation of tangible

property to a party’s own use in exclusion or defiance of the owner’s rights.” PNC Multifamily

Cap. Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 553

(Tenn. Ct. App. 2012). To state a claim for conversion, a plaintiff must allege “with particularity”

“(1) the appropriation of another’s property to one’s own use and benefit, (2) by the intentional

exercise of dominion over it, (3) in defiance of the true owner’s rights.” Id.

Montgomery alleges that LBM and Stover “stole [his] corporate binder for his business

‘BZBZBZboy Inc.’ . . . It contained incorporating documents, minutes, financial transfer

documents[,] etc. They also stole binders for two . . . other corporations and for the 401K Plan.

These binders were kept in [Montgomery’s] secure home and in a safe. The safe combo was never

shared with LBM.” (Doc. No. 11 ¶ 39.) Montgomery alleges that, “at the very first divorce hearing

in front of Smith,” he advised Smith that the documents demonstrating that the Lakeview Property

“was purchased by [him] with sole and separate money from a retirement account and thereafter

sold to the plan” were in Montgomery’s “binder, which was on LBM and Stover’s plaintiff table.”

(Id. ¶ 40.) Montgomery alleges that Smith ignored this.

10 Montgomery does not allege that Stover obtained his “business papers and corporate

binders” in the course of any prior representation. Rather, he alleges that LBM and Stover stole

the binders and documents from Montgomery’s private safe. (Doc. No. 11 ¶ 39.)

Stover has not addressed whether these allegations state a plausible conversion claim under

Tennessee law. Liberally construed in recognition of Montgomery’s pro se status, these allegations

may state a conversion claim based on independent conduct that would fall outside the Rooker-

Feldman bar. However, the fact that this tort claim is the only cause of action against Stover that

remains, the likelihood that no federal causes of action will survive the defendants’ motions, and

the state law underpinnings of all Montgomery’s claims in this action constitute “exceptional

circumstances” that counsel against this Court retaining jurisdiction over this remaining claim. The

Court should, in its discretion, decline to exercise supplemental jurisdiction over Montgomery’s

conversion claim against Stover. 28 U.S.C. § 1367(c)(3)–(4); see Veneklase v. Bridgewater

Condos, L.C., 670 F.3d 705, 716 (6th Cir. 2012) (recognizing “default assumption” that a court

will exercise supplemental jurisdiction over related claims when there is a basis for the court’s

original jurisdiction and the statutory basis for declining to do so when the court “has dismissed

all claims over which it has original jurisdiction” or “in exceptional circumstances” where there

“are compelling reasons for declining jurisdiction” (quoting Campanella v. Commerce Exch. Bank,

137 F.3d 885, 892 (6th Cir. 1998), and then quoting 28 U.S.C. § 1367(c)(3)–(4)).

D. Additional Allegations Against Smith

Montgomery’s allegations against Smith are framed as a claim under § 1983 that Smith

violated his constitutional rights to due process, equal protection, and access to the courts. To

support this claim, Montgomery alleges acts including that Smith ignored Montgomery’s motions

and arguments, did not allow him the same level of advocacy that he allowed Stover, spoke to

Montgomery condescendingly, prevented Montgomery from having a full record of the

proceedings to pursue an appeal, and “conspired” with LBM and Stover to Montgomery’s

detriment in the divorce proceedings. (Doc. No. 11.) These acts could be considered “improper

conduct” that is independent of the state-court judgment. Pittman, 241 F. App’x at 288. To the

extent they are independent conduct, Smith argues other jurisdictional bars: that he is entitled to

absolute judicial immunity from suit in his individual capacity and to Eleventh Amendment

sovereign immunity from suit in his official capacity (Doc. No. 44). See Does v. Whitmer, 69 F.4th

300, 305 (6th Cir. 2023) (noting that the Sixth Circuit “treat[s] sovereign immunity as a

‘jurisdictional bar’ that, ‘once raised as a jurisdictional defect, must be decided before the merits’”)

(quoting Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015)).

1. Judicial Immunity

“It is well[ ]established that judges enjoy judicial immunity from suits arising out of the

performance of their judicial functions.” Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012)

(quoting Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004)). “[T]he paradigmatic judicial act

is the resolution of a dispute between parties who have invoked the jurisdiction of the court.”

Morrison v. Lipscomb, 877 F.2d 463, 465 (6th Cir. 1989) (citing Forrester v. White, 484 U.S. 219,

226 (1988)). The immunity that shields a judge from liability while performing those paradigmatic

duties can be pierced in only two circumstances: when a judge’s “actions [are] not taken in the

judge’s judicial capacity” or when a judge’s “actions, though judicial in nature, [are] taken in

complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991).

Montgomery argues that Smith “acted without all authority (jurisdiction) and thereby

without the shield of immunity” when Smith “completely ignored [Montgomery’s] pleadings”

regarding the proper owner of the 401k Plan. (Doc. No. 56, PageID# 460.) Montgomery also

argues that Smith made rulings based on misapplication of the law and against the evidence and

that Smith’s bias against Montgomery contributed to those erroneous rulings. (Doc. No. 56.)

“A judicial officer acts in the clear absence of jurisdiction only if he knows that he lacks

jurisdiction, or acts despite a clearly valid statute or case law expressly depriving him of

jurisdiction.” Mills v. Killebrew, 765 F.2d 69, 71 (6th Cir. 1985). Montgomery does not allege that

Smith’s actions were extrajudicial in this way or that Smith did not have jurisdiction over the

divorce proceedings under Tennessee law; he simply alleges that Smith’s rulings were wrong and

were made in bad faith and with malice against him. Even taken as true, those allegations do not

overcome the judicial immunity afforded Smith in his individual capacity. See Leech v. DeWeese,

689 F.3d 538, 543 (6th Cir. 2012); Stern v. Mascio, 262 F.3d 600, 607, 608 (6th Cir. 2001) (finding

that “[e]ven grave procedural errors or acts taken when no statute purports to confer on the court

the authority purportedly exercised will not deprive a judge of judicial immunity”). That immunity

applies even “to acts performed maliciously and corruptly as well as acts performed in bad faith

or with malice . . . .” Brookings, 389 F.3d at 617.

2. Sovereign Immunity

Smith also argues that, as a state actor, he is entitled to sovereign immunity from

Montgomery’s claims against him for money damages or retroactive injunctive relief in his official

capacity. (Doc. No. 44.) Montgomery has not responded to this argument.

The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial

power of the United States shall not be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. Const. amend. XI. “Although by its terms the Amendment

applies only to suits against a State by citizens of another State, [the Supreme Court’s] cases have

extended the Amendment’s applicability to suits by citizens against their own States.” Bd. of Trs.

of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). “The immunity also applies to actions

against state officials sued in their official capacity for money damages.” S & M Brands, Inc. v.

Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (quoting Ernst v. Rising, 427 F.3d 351, 358 (6th Cir.

2005)). However, Eleventh Amendment “immunity applies only to lawsuits against the State or

‘an arm of the State,’ not to those against political subdivisions like counties.” Laborers’

International Union, Local 860 v. Neff, 29 F.4th 325, 330 (6th Cir. 2022) (quoting Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)); see also Ernst, 427 F.3d at 358.

“[F]or the purpose of sovereign immunity[,] ‘individuals sued in their official capacities

stand in the shoes of the entity they represent.’” S.J. v. Hamilton Cnty., 374 F.3d 416, 420 (6th Cir.

2004) (quoting Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)). The Court must therefore

determine whether the Davidson County Circuit Court is considered an arm of the State of

Tennessee for purposes of the Eleventh Amendment. The Sixth Circuit directs courts to apply four

factors in making that determination:

(1) the State’s potential liability for a judgment against the entity; (2) the language

by which state statutes and state courts refer to the entity and the degree of state

control and veto power over the entity’s actions; (3) whether state or local officials

appoint the board members of the entity; and (4) whether the entity’s functions fall

within the traditional purview of state or local government.

Ernst, 427 F.3d at 359 (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44–45 (1994)).

This Court has found that Tennessee county criminal courts, chancery courts, and general

sessions courts are considered arms of the state under the Ernst analysis. See Valentine v. Gay, No.

3:23-CV-00204, 2023 WL 6690934, at *5 (M.D. Tenn. Oct. 12, 2023) (finding Sumner County

Criminal Court to be an arm of the state for Eleventh Amendment purposes); Doe v. State of

Tennessee, No. 3:18-CV-00471, 2022 WL 3365062, at *7 (M.D. Tenn. Aug. 15, 2022) (finding

Dickson County Chancery Court and Dickson County General Sessions Court to be arms of the

state for Eleventh Amendment Purposes). The Ernst test directs the same result for the Davidson

County Circuit Court, which is created, funded, and maintained by the same state statutory and

constitutional authority. Thus, the Eleventh Amendment bars claims against Smith in his official

capacity unless an exception applies.

“There are three exceptions to a state’s sovereign immunity: (1) when the state has

consented to suit; (2) when the exception set forth in Ex parte Young, 209 U.S. 123 (1908)[,]

applies; and (3) when Congress has clearly and expressly abrogated the state’s immunity.” Puckett

v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590, 598 (6th Cir. 2016). None of these exceptions

applies to Montgomery’s official-capacity claims against Smith.

First, the Tennessee Constitution provides that Tennessee has sovereign immunity from

claims brought against it unless the State Legislature expressly waives that immunity. Tenn. Const.

art. 1, § 17. The State Legislature codified this provision in Tenn. Code Ann. § 20-13-102, which

bars suits against the State of Tennessee in state and federal courts unless the State Legislature has

expressly waived that immunity. See Berndt v. Tennessee, 796 F.2d 879, 881 (6th Cir. 1986) (citing

Tenn. Code Ann. § 20-13-102(a)); Woolsey v. Hunt, 932 F.2d 555, 565 (6th Cir. 1991) (quoting

Tenn. Code Ann. § 20-13-102(a)). Tennessee has not waived its immunity to claims brought under

§ 1983. See Berndt, 796 F.2d at 881. The first exception therefore does not apply.

Second, the Ex parte Young exception allows suits for prospective injunctive relief against

state officials acting in violation of federal law. See Boler v. Earley, 865 F.3d, 391,412 (6th Cir.

2017) (quoting S & M Brands, Inc., 527 F.3d at 507). Smith asserts sovereign immunity only as a

bar to any claims for retroactive injunctive relief Montgomery brings against him.

Third, “[s]ection 5 of the Fourteenth Amendment . . . grant[s] Congress the authority to

abrogate the States’ sovereign immunity.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 80 (2000). A

federal statute may abrogate the states’ sovereign immunity if “Congress unequivocally expressed

its intent to abrogate that immunity” while “act[ing] pursuant to a valid grant of constitutional

authority.” Id. at 73. The Supreme Court has held that Congress did not abrogate states’ immunity

to suits brought under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65–67 (1989); see

also Boler, 865 F.3d at 410. The third exception does not apply to Montgomery’s claims against

Smith.

To the extent Montgomery’s claims against Smith are not subject to Rooker-Feldman, they

are barred by judicial immunity and sovereign immunity and are properly dismissed on those

grounds.

* * *

Because all Montgomery’s claims against these defendants are subject to dismissal for a

lack of subject-matter jurisdiction under Rooker-Feldman or are barred by judicial or sovereign

immunity, the Court need not—and should not—address the additional arguments made in the

defendants’ motions to dismiss. Steel Co., 523 U.S. at 94.

IV. Recommendation

For these reasons, the Magistrate Judge RECOMMENDS that the Court GRANT the

motion to dismiss filed by Defendants Rogers, Birthright Title, Property Title, EXIT Real Estate,

and Schneider (Doc. No. 27) and Regal Realty and Hertel (Doc. No. 35) for a lack of subject-

matter jurisdiction under Rooker-Feldman; GRANT the motion to dismiss filed by Smith for lack

of subject-matter jurisdiction under Rooker-Feldman and because any independent claims are

barred by judicial immunity or sovereign immunity (Doc. No. 43); and GRANT Stover’s motion

to dismiss as to Montgomery’s legal malpractice claim, DECLINE TO EXERCISE

SUPPLEMENTAL JURISDICTION over Montgomery’s conversion claim, and DISMISS the

conversion claim WITHOUT PREJUDICE to refiling in state court (Doc. No. 47).

Any party has fourteen days after being served with this Report and Recommendation to

file specific written objections. Failure to file specific objections within fourteen days of receipt

of this Report and Recommendation can constitute a waiver of appeal of the matters decided.

Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).

A party who opposes any objections that are filed may file a response within fourteen days after

being served with the objections. Fed. R. Civ. P. 72(b)(2).

Entered this 19th day of August, 2024.

Alito noleon

ALIST E. NEWBERN

United States Magistrate Judge

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