Petition for Writ of Certiorari — Guetatchew Fikrou, Petitioner v. Montgomery County Office of Child Support Enforcement Division, et al.

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UNITED STATES COURT OF APPEALS

F:: I L EE b

FOR. THE NINTH CIRCUIT

JAN 29 20 1 8

a

MadLY C. DWYER,CLERK

U$. COURT OF APPEALS

(JU.E'ATCHEW FIKR()U,

-

P1a In tiff- A ppe I I ant,

V.

MONTGOMERY COUNTY OFFICE OF

CHI LD SUPPOR'I' ENFORCEMENT

DIVISION; et al.,

No. 16-15669

D.C. No. 2:1 5-cv-O l2cY7GMN-.

NJK

District, of Nevada

Las Vegas

ORDER

Defend ants - Appel lees.

Before:

SCHROEDER, TAS HIM A, and M. SMITH, Circuit Judges.

The full c.ouit has been advised of the petition for rehearing en bac

J udge has requested. a vote on whether to rehear the matter en bane.

and no

See red. R.

App. P.35.

Fikrou's petition for rehearing en bane (Docket. Entry No, 29) is dnied.

No further filings will be entertained in this closed case.

11

Is

NOT FOR PUBLICATION

f I 1I.- EE I

UNITED STATES COURT OF APPEALS

AUG 15 2O7

MOLLY C DER. CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

(1UETATCHEW jJJjOIj

No. 16-15669

P1 aintiff-Appellant,

D.C. No. 2:15-cv-01297-GMNNJK

V.

MONTGOMERY COUNTY OFFICE

OF MEMORANDUM*

CHILD SUPPORT ENFORCEMENT

DIVISION; et al.,

Defendants -Appellees.

Appeal from the United States District Cou

rt

for the District of Nevada

Gloria M. Navarro, Chief Judge, Presidi

ng

Submitted August 9, 2017

Before:

SCHROEDER, TASI-IIMA, and M. SMITH

, Circuit Judges

(Iiuetatchew Fikrou appeals prose

from

dismissing his action alleging federal and

the district court's judgment

state law claims stemming from

deThndants' enforcement of a child sup

port order. We have jurisdiction under

*

This disposition is not appropriate for pub

except as provided by Ninth Circuit Rul

e :16-3.

lication and is

28

not precedent

The panel unanimous

ly concludes this case is suitable for dec

ision

wthut oral argument. See

Fed. R. App. P. 34(a)(2).

23

-

H-) the opening brief or arguments raised for the first time on appeal. See Padgett

T/'ight, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

E02

91

1613669

4

cfltz .1. 01 13

UNITED STATES DIST

RICT COURT

2

DISTRICT OF NEVADA

3

4

GU ETATCHEW FIKROU,

Plaintiff,

6

7

8

9

Case No.: 215-cv-0129'7-G

S

vs.

MONTGOMERY COUNTY

OFFICE OF

CHILD SUPPORT ENFO

RCEMENT

DIVISION, et al.,

Defendants.

MN-NJK

)

)

ORDER

)

)

)

10

II

Pending before the Court

12

Reconsider (ECF No. 56), and

13

Guetatchew Fikrou ("Plai

ntiff)

14

Kunz, Los Angeles County

15

Montgomery County Offic

e of

16

California Child Support En

17

"Defendants") filed Respo

18

Replies (ECF Nos. 61--63),

19

I. BACKGROUND

20

is the Motion to Amend Co

mplaint ECF No. 55), Moti

on to

Motion to Reopen Case (E

CF No. 57)filed by Plaintiff

. Defendants E. Harkleroad

, Debbie Hinds, Christophe

r J.

California Child Support En

forcement Division, Sami

r Malhortra,

Child Support Enf o rceme

nt Division, Santa Clara Co

unty

forcement Division, and Pa

mela Steromwsky (collecti

nses to the instant motions

This action arises out of the

21

attempts by Maryland and

22

filed the instant action alleg

23

1983 violations; (2) Mone

24

imprisonment; (5) wrongfu

25

malicious prosecution; (8)

vely,

(BCE Nos. 58-60), and Pla

intiff filed

various wentries of child sup

California to enforce such

port orders and the subseque

nt

orders. (Complaint, BCE No

ing the following causes of

. 1). Plaintiff

action against Defendants

: (1) Section

ll claims; (3) preliminary an

d permanent injunction; (4)

l foreclosure; (6) intentiona

false

l infliction of emotional dis

negligent hiring, retention,,

tress; (7)

and su

pervision; (9) proecutoria1

Page 1 of

to 4

I

-

misconduct; (10) violation

s of the

2

3

Maryland constitution; (1

falsehood; and (12) inten

tional interference with

On October 28, 2015, the

4

entered judgment in fav

5

thereafter, Plaintiff filed

the

6

II. LEGAL STANDA

RI)S

7

A. Motion to Reconsid

aqe 2 ot 3

...

1) common law fraud an

d injurious

economic advantage. (Id.

¶J 56-113).

Court granted various mo

tions to dismiss filed by

or of Defendants, and clo

sed the case. (ECF Nos.

Defendants,

53-54). Shortly

instant motions.

er

8

9

10

"[A] motion for reconsid

I I circumstances." Carroll v.

eration should not he gr

anted, absent highly unus

Nakatani, 342 F.3d 934, 945

Reconsideration is approp

ria

te where: (1) the court is

11

12

1.3

14

evidence, (2) the court co

if there is an intervening

mmitted clear error or the

ACandS, Inc., 5 F.3d 1255

presented earlier, Re

solution

21

22

23

24

25

estly unjust, or (3)

nomah County v.

wever, a motion for recon

a mechanism for rearguin

16

20

initial decision was manif

, 1263 (9th Cir. 1993). Ho

F.2d 1386, 1388 (9th Ci

r, 1985), or "advancing

19

covered

. School Dist. No. II, Mult

15

18

omitted).

presented with newly dis

change in controlling law

g issues presented in the

17

(9th Cir. 2003) (citation

ual

sideration is not

original filings, Backlun

d v. Barnhart, 778

theories of the case that

Trust Corp. v. Holmes,

(footnotes omitted). Thus

could have been

846 F. Supp. 1310, 1316

, Rule 59(e) and 60(b) an

(S.D. Tex. 1994)

d are not "intended to giv

litigant one additional ch

an

ce to sway the judge."

(ED. Va. 1977).

e an unhappy

Durkin v. Taylor, 44

4 F. Supp, 879, 889

B. Leave to Amend

Rule 15(a)(2) of the Fede

leave [to amend when ju

that the pleading

ure permits courts to "fr

s tice so requir

held that in dismissing foi

ll

grant leave to amend ev

ral Rules of Civil Proced

eely give

es." Fed. R. Civ, P. 15(a)

(2). The Ninth Circuit "h

failure to state a claim un

a[s]

der Rule 12(b)(6), 'a distri

er if no request to amen

ct court should

d the pleading was made

could not possibly he cured

by the allegation of other

, unless it determines

facts." Lopez v. Smith

,

Page 2of3

E04

2

-

u u4/uW1b Page

3 of 3

203 F.3d 1122, 1127 (9th Ci

r. 2000) (quoting Doe v. United States 58

,

F.3d 494, 497 (9th Cir.

11995)).

3

DISCUSSION

4

For the first time, Plaintiff

5

wi,;iti

.

-

raises a response to Defen

dants' arguments that Plaint

claims are barred under the Rooke

iffs

r-Feldman. doctrine. (Mot. Reco

6

56). However, the Court has reviewed

.7

in its motion and has not fou

8

finds neither clear error nor ma

0

Accordingly, Plaintiffs Mo

tio

nsider 5:3-7:21, ECF No.

the prior Order and the arg

nd any reason to overturn thi

uments presented by Plaint

s Court's previous Order. Th

e Court

nifest injustice in the rea

soning of its previous Orde

n to Reconsider and Motion

1)

iff

Moreover, the Court finds

that pro

r,

to Reopen Case are DENI

ED.1

viding Plaintiff leave to am

11

12

13

14

15

futile, and Plaintiff's Motion for

end his Complaint would be

Leave to Amend is DENIED

.

CONCLUSION

IT IS HEREBY ORDERE

D that the Motion to Amen

Motion to Reconsider (ECF

d Complaint (ECF No. 55),

No, 56), and Motion to Re

open Case (ECF No. 57) file

d by

Plaintiff Guetatchew Fik

rou are DENIED.

16

17

IT IS FURTHER ORDE

RED that the Motion for

filed by Plaintiff Guetatch

ew Fiksou is DENIED

18

DATED this

Request for Ruling (ECF

No. 65)

as moot.

day of April, 2016,

19

20

21

22

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24

25

Unite States District Judg

e

The Court acknowledges tha

t Plaintiff has flied similar cla

ims against Defendants

Mot. Dismiss, ECF Nos, 5-2-5.3

;Ex. B to Request for

in other courts. (Exs. 2-3 to

courts in the Northern Distric

Judicial Notice, ECF No.

t of Ca

1 6-2). Moreover, one

lifo

rni

a

dec

of those

lared Plaintiff a vexatious liti

Notice at IS, ECF No. 16-I.).

gant. (Ex. A to Request for Jud

icial

Page 3 of

E 0 44

Case 2:15-cv-01297-GMfNJK Document 53 Filed 10/28/15 Page 1 of 5

IJNU'ED STATES DISTRICT COURT

DISTRICT OF NEVAIDA

GUETA'.[CHEW FIKROU,

Case No.: 2:1 5-cv-O 1297••GM-NJK

Plaintiff,

vs.

ORDER

MONTGOMERY COUNTY OFFICE OF

CHILD SUPPORT ENFORCEMENT

DIVISION, et at.,

Defendants

ril

Pending bef ore the Court ,is the Motion to Dismiss (ECF No. 5) flied by Defendants

12

Montgomery County Office of Ci1d Support Enforcement, Samir Maihotra, Christopher J.

Kunz, Erin Harkleroad, Pamela tromowsky, and Debbie Hinds (collectively, the "Maryland

14

Defendants"). Also pending before the Court is the Motion to Dismiss (E(,F No. 15) filed

IS

Defendant Santa Clara County Department of Child Support Services ("5CC DCSS"), and the

14

Motion to Dismiss (ECF No. 22)fi1ed by Defendant Los Angeles County Department of Child

by

Support Services ("LAG DCSS"). All the Motions have been fully briefed.'

18

I.

BACKGROUND

This action arises out of the various entries of child support orders and the subsequent

attempts by Maryland arid California to enforce such orders. Plaintiff Guetatchew

Fikrou

alleges that a "temporary support jorder was entered 6/12/93, upon fraud of the court." (Compi.

¶ 26, ECF No. 1). Plaintiff furthei' alleges a new support order that was entered

23

Clara County family court judge bn January 24, 2003 (Id.

2'

these support orders, Plaintiff alleges various attempts to enforce

by a Santa

¶ 39). Subsequent to the entry of

these orders, including wage

25,

The Court GRANTS P!aintiPs Motion to Extend Time

I

(E(,F No. 8).

Page 1of5

E03

1

Case 2:15-cv-01297-GMfii-NJK Document 53 Filed 10/28/15

Page 2 of 5

1

garnishments, garnishments of Social Security benefits, garnishments of

2

interception of tax returns, inier4e ption of foreclosure funds, and evictions, (See id.

3

37, 39, 4l3, 54).

¶J 30, 32,

Plaintiff filed the instant action alleging the following causes of action agains

4

6

hank accounts,

t

Defendants: (1) Section 1983 violations; (2) Monell claims; (3) preliminary

and permanent

injunction; (4) false imprisonment; (5) wrongful foreclosure; (6) intentional

infliction of

emotional distress; (7) malicious prosecution; (8) negligent hiring, retenti

on, and supervision;

8

(9) prosecutorial misconduct; (1) violations of the Maryland constitution;

9

fraud and injurious falsehood; and (12) intentional interference with econom

(11) common law

ic advantage. (Id.

10

56-113).

Ii

Shortly thereafter the instnt Motions to Dismiss were filed, asserting, inter

12

Plaintiffs Complaint should he dismissed in its entirety because Plaintiff's

13

the Rooker-Feldman doctrine. (SL'e, e.g., Mot. Dismiss 4--9). Each of Plainti

14

the instant Motions to Dismiss fakied to address the substantive argum

j:

1!6

Ii?

a/ia, that

claims are barred by

ff's Responses to

ents related to the

Rooker-Feldman doctrine. Accoding1y, because Plaintiff failed to

Defendants' Motions, these Motins could be summarily granted.

respond properly to

See D. Nev. R. 7-2(d).

However, the Court will consider the merits of Defendants' Rooke

r-Feldman arguments.

.8

19

29

21

2

II.

LEGAL STANDARD

A motion to dismiss for lac k of subject matter jurisdiction

Civil Procedure 12(b)(1) may be construed in one of two ways.

v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th

pursuant to Federal Rule of'

Thornhill Publishing Co., Inc.

Cm. 1979). It may be described as

facial,' meaning that it attacks the' sufficiency of the allegat

ions to support subject matter

23:

jurisdiction. Id. Or it may be described

24

subject matter jurisdiction in fact.' Id.

25

as 'factual,' meaning that it "attack [s] the existence of

Unless subject matter jurisdiction is affirmatively pled,

Page 2 of S

E032

Case 2:15-cv-01297-GMNN3K Document 53 Filed 10/2

8/15 Page 3 of 5

I

the court will, presume that it lacks subject matter jurisdicti

2.

Tribes of the Colville Reservation, 873 F.2d 122L, 1225

.3

When a court considers a 'facial' attack made pursuant to Rule

12(b)(1), it must consider

,

the allegations of the complaint to he true and cons

true them in the light most favorable to the

plaintiff. Love v. United States,, 915 F.2d 1242, 1245 (9th Cir.

1989).

-

.3

6

.7

on. Stock West, Inc. v. Confederated

(9th Cir. 1989).

Unlike a 'facial' attack, a 'factual' attack made purs

uant to Rule 12(b)(1) may be

accompanied by extrinsic evidence. St. Clair v. City of

8

1989); Treniacosta v. Frontier 1ac. Aircraft Indu

.9

The opposing party must then "resent affidavits

.1 ()

burden of establishing that the edurt, in fact, poss

Ii

880 F.2d at 201. When considering a factual attac

12

court is ordinarily free to hear evidence regarding

13

trial, resolving factual disputes here necessary."

Chico, 880 F.2d 199, 201 (9th Cir.

s., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987).

or any other evidence necessary to satisfy its

esses subject matter jurisdiction." St. Clair,

k on subject matter jurisdiction, "the district

jurisdiction and to rule on that issue prior to

Augustine v. United States, 704 F.2d 1074,

1077 (9th Cir. 198:3). "No presumptive truthfulne

ss attaches to plaintiffs allegations, and the

15

16

I7

8

9

20

existence of disputed material fats will not preclude

the merits of jurisdictional claims." Thornhill Publ

ishing Co., Inc., 594 F.2d at 733 (quoting

Mortensen v. First Fed. Say. & Loan Assn, 549

for determining jurisdiction

...

a 12(b)(1) motion are not appropriate

where issues of jurisdiction and substance are inter

twined. A

court may not resolve genuinely disputed facts wher

e 'the question of jurisdiction is dependent

on the resoluti on of factual issues going to

22

1177 (9th Cir, 1987) (quoting Augustine,

2.4

F.2d 884, 891 (3rd Cir. 1977)).

However, "[t]he relatively expansive standards of

2I

2

the trial court from evaluating for itself

the merits." Roberts v. Corrothers,

812 F.2d 1173,

704 F.2d at 1077). In such cases, "the jurisdictional

determination should await a deter

mination of the relevant facts on either a motion

merits or at trial." August/ne, 704 F.2d

going to the

at 1077.

2S

Page 3 of 5

E033

Case 2:15-cv-01,297-GMNNJK Docume

nt 53 Filed 10/28/:1.5 Page 4 01 5

ilL 1)ISCUSSlON

2

What has become known as the Rooker—Feldman doctrine arise

s from two United States

Supreme Court decisions defining federal distr

ict cour

t jurisdiction and the relationship

between federal district courts and state courts.

original" jurisdiction, and thus have no power

Federal district courts possess "strictly

to exercise subject matter jurisdiction over a de

6

facto appeal from a stale court judgment. See Rooker v. Fid.

Trust Co., 263 U.S. 413, 414-17

7

(1923); D.C. Ct. ofAppeals, et äl. v. Feldman, 460 U.S. 462,

482 (1983); K.ougasian v. TMSL,

8

Inc., 359 F.3d 1136, 1139 (9th Cir, 2004). Only

0

jurisdiction to review such judgments. Feldman, 460 U.S.

the United States Supreme Court has

10

doctrine "is confined to cases of the kind from

whic

II

brought by state-court losers complaining of injur

.12

before the district court proceedings commenced

13

of those judgments." Exxon Moil Corp. v. Saud

14

at 482. The Rooker—Feldman

h the doctrine acquired. its name: cases

ies caused by state-court judgments rendered

and inviting district court review and rejection

i Basic Indus, Corp., 544 U.S. 280, 284 (200

"The clearest case for disiuissal based on the

5).

Rooker--Feldman doctrine occurs when 'a

federal plaintiff asserts as a legal wrong an alleg

edly erroneous decision by a state court, and

16

seeks relief from a state court judgment base

d on that decision .... "Henrichs v. Vall

.

ey

'

17

Dev., 474 F.3d 609, 613 (9th Cir; 2007) (quo

View

ting Noel v. Rail, 341 F.3d 1148

18

9

20

21

22

23

24

251

, 1164 (9th Cir.

2003)). In addition to barring de facto appeals

Feldman doctrine forbids federal

from state court judicial decisions, the

district courts from deciding issues "inextricably

with an issue the state court resolved. in its deci

sion. Noel, 341 F.3d all 158.

"inextricably intertwined" test coines into play

Rooker—

intertwined"

But the

only, when the federal lawsuit

"is at least in

part

a forbidden de facto appeal of a state court judg

ment, and an issue in that federal suit is

'inextricably intertwined' with an issue resolved

the forbidden de facto appeal is taken."

by the state court judicial decision from which

Id. at 1165. if a plaintiff's suit falls with

in the Rooker—

Page 4 of .5

E034

Case 2:15•cv-01297-GMN-NJK Document

53 Filed 10/28/15

Feldman doctrine, then the district court must dismiss for lack of

Page 5 of 5

subject matter jurisdiction.

Kougasion, :359 F.3d at 1139.

3

4

The Court finds that Plaintiff complains of injuries

rendered before this case was commenced. All of

caused by state-court judgments

Plaintiff's claims are inextricably intertwined

with state court decisions regarding child support and the enfo

6

the Court finds that Plaintiff's action is barred by the Rook

7

Plaintiffs Complaint wth prejudice.

rcement thereof. Accordingly,

er-Feidman doctrine and dismisses

IV.

QQLJQ.

IT IS HEREBY ORDERED that the Motion to Dism

iss (ECF No. 5) filed by the

Maryland Defendants is GRANTED.

IT IS FURTHER ORDERED that the Motion to

Extend Time (ECF No. 8) filed by

Plaintiff Guetatchew Fikrou is GRANTED.

IT IS FURTHER ORDERED that the Motion to

Defendant SC

Dismiss (ECF No. 15) filed by

DCSS i; GRANTED.

IT IS FURTHER ORDERED that the Motion to Dism

iss (ECF No. 22) filed by

to Defendant LAC

DCSS is GRANTED.

7

18

19

2(1

211

22

IT IS FURTHER ORDERED that the Moti

on for Temporary Restraining Order (ECF

No. 42) and Motion for Preliminary Injunction (ECS

F No. 43) filed by Plaintiff Guetatchew

Fikrou are DENIED as MOOT.

Accordingly, the instant action is dismissed with preju

dice. The Clerk of the Court shall

enter judgment accordingly and clOse the case.

DATED this

28 day of October, 2015.

23

24

25

Gloria,,4 Navarro, Chief Judge

UnitdJ'tates District Judge

Page 5 of 5

E 0 35

Additional material

from this filing is

available i n the

Clerk's Office.