Petition for Writ of Certiorari — Holly MacIntyre, Petitioner v. JPMorgan Chase Bank, N.A.

GINAL

20No.

THE SUPREME COURT OF THE UNITED STATES.

HOLLY MACINTYRE

Petitioner,

FILED

MAR 1 8 2021

v.

JP MORGAN CHASE BANK, N.A •>

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

HOLLY MACINTYRE

Petitioner pro se

2991 Harrogate Way

Abingdon, MD 21009

410.967.4051

hollymac2@yahoo.com

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RECEIVED

MAR 2 2 2021

OFFICE OF THE CLERK

SUPREME COURT. US.

I.

1.

QUESTIONS PRESENTED

Whether a plaintiff in a diversity case who seeks monetary relief — for

damages emanating from the defendant’s fraud in procuring a state-court judgment

— thereby triggers application of the Rooker-Feldman doctrine because he is

“necessarily” seeking federal review and rejection of the judgment itself, despite the

fact the requested relief would leave the judgment in full force and effect.

2.

Whether a federal court, which would have been sitting in diversity if

not for a federal jurisdictional doctrine inapplicable in the state judiciary, may

nonetheless invoke the state’s fee-shifting statute to award attorneys’ fees against

the federal plaintiff, and may do so admittedly without ever having had subject

matter jurisdiction.

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TABLE OF CONTENTS

I.

QUESTIONS PRESENTED

3

II.

TABLE OF AUTHORITIES

4

III.

PETITION FOR WRIT OF CERTIORARI

IV.

OPINIONS BELOW.

V.

JURISDICTION

VI.

STATEMENT OF THE CASE

VII.

REASONS FOR GRANTING THE PETITION

VIII. CONCLUSION

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6

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APPENDICES:

Appendix A — Order and Judgment — Tenth Circuit

Appendix B — Order of Dismissal — U. S. District Court

Appendix C —Order Granting Attorneys’ Fees — U.S. District Court

Appendix D — Order Denying Rehearing on Fees—U.S. District Court

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!

II.

TABLE OF AUTHORITIES

Cases:

Campbell v. City of Spencer,

682 F.3d 1278 (10th Cir. 2012)

10

Exxon Mobil v. Saudi Basic Industries,

544 U.S. 280 (2005)

11, 15

Infant Swimming Research v. Faegre & Benson,

335 F.App’x 707 (10th Cir. 2009)...............

In re Otasco,

18 F.3d 841 (10th Cir. 1994)

13

8

Jones v. Denver Post,

203 F.3d 748 (10th Cir. 2000)

14

Lopez v. United States,

823 F.3d 970 (10th Cir. 2016)

9

Lorillard Tobacco Co. v. Engida,

611 F.3d 1209 (10th Cir. 2010)

13, 14

Loubser v. Thacker,

12

440 F.3d 439 (7th Cir. 2006)

Mayotte v. U.S. Bank,

880 F.3d 1169 (10th Cir. 2018)

10, 11

Mo’s Express v. Sopkin,

441 F.3d 1229 (10th Cir. 2006)

10

Nesses v. Shepard,

68 F.3d 1003 (7th Cir. 1995)

Sebelius v. Auburn Reg. Med. Ctr.

133 S.Ct. 817 (2013)............

13

9

4

Truong v. Bank of America,

111 F.3d 377 (5th Cir. 2013)

United States v. Munsingwear,

340 U.S. 36 (1950)..........

11, 12

7

Van Schaack Holdings v. Fulenwider,

798 P.2d 424 (Colo. 1990)..........

7

Venable v. Haislip,

721 F.2d 297 (10th Cir. 1983)

10

Vossbrinck v. Accredited Home Lenders,

773 F.3d 423 (2nd Cir. 2014)........

12

Williams v. Life Savings and Loan,

802 F.2d 1200 (10th Cir. 1986)

9

Statutes:

C.R.S. § 13-17-201

8, 9, 13

28 U.S.C. § 1254(1)

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Rules:

Fed.R.Civ.P. 59(e)

Fed.R.Civ.P. 60(b)(4)

8, 9

10

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III.

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Holly MacIntyre, respectfully seeks a writ of certiorari to review

the Order and Judgment of the United States Court of Appeals for the Tenth

Circuit.

IV.

OPINIONS BELOW

The Order and Judgment of the Tenth Circuit affirming the United States

District Court for the District of Colorado is unpublished, was issued on September

10, 2020, and is attached as Appendix A. The District Court’s Order dismissing the

case is attached as Appendix B. The Order Granting Attorneys’ Fees is Appendix C.

The Order Denying Rehearing on Fees is Appendix D.

V.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). The

Order and Judgment of the Tenth Circuit, for which review is sought, was issued on

September 10, 2020. The Tenth Circuit then extended the time to file a Petition for

Rehearing, which was timely filed, but denied on October 19, 2020. One hundred

fifty days thereafter, this Petition for a Writ of Certiorari is being timely filed on

March 18, 2021, pursuant to the Supreme Court’s Order of March 19, 2020, 589

U.S.__ (2020).

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VI.

STATEMENT OF THE CASE

On January 18, 2019, in the United States District Court for the District of

Colorado, MacIntyre filed a diversity Complaint against JP Morgan Chase Bank

(“Chase”) asserting causes of action under Colorado law. She specifically alleged

that Chase had used falsified legal instruments in winning a state-court judgment

of judicial foreclosure against her four years earlier. In 2016, while the appeal of

that judgment was pending in the Colorado Court of Appeals, her residential real

estate had been sold, as ordered by the trial court. Ignoring the sale, which had

actually mooted the appeal, the Colorado Court of Appeals nonetheless affirmed the

judgment. MacIntyre then sought certiorari review in the Supreme Court of

Colorado, which, in January 2017, granted her Suggestion of Mootness and

dismissed the case.

Because Chase had successfully opposed all of her attempts to stay the

foreclosure sale, and the state courts had refused to grant a stay on any terms, the

mootness of her appeal had been involuntarily inflicted. That meant the Colorado

Court of Appeals had a “duty” to “reverse or vacate the judgment below and remand

with a direction to dismiss.” Van Schaack Holdings v. Fulenwider, 798 P.2d 424,

427 (Colo. 1990), quoting United States v. Munsingwear, 340 U.S. 36, 39-40 (1950).

In the event the state appellate court declined to perform this “duty”, MacIntyre

would then be compelled to seek an “exception” to the preclusive effect of the

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unvacated judgment. In re Otasco, 18 F.3d 841, 844 (10th Cir. 1994). Anticipating

state-court aversion to this “duty”, she filed the aforementioned federal Complaint

against Chase and made it expressly contingent upon the outcome of a forthcoming

judgment-vacation request in the state courts. If that request was granted, she

informed the federal court, she would not require federal relief. If it was denied,

then she would require it: an exception to the preclusive effect of the unvacated

judgment and, once that was obtained, monetary damages for fraud.

All of this planning went awry. Before a motion to vacate had been filed in

the Colorado Court of Appeals, Chase—which had not yet been served with the

Complaint—discovered it on PACER, entered an appearance, decreed an unsought

and alleged “waiver” to service, and filed a motion to dismiss for lack of subject

matter jurisdiction due to the Rooker-Feldman doctrine. When the motion to vacate

was finally filed, the Colorado Court of Appeals promptly denied it on April 11,

2019. Refusing to await the outcome of a rule to show cause in the Colorado

Supreme Court (on which the Complaint was expressly contingent), the federal

District Court dismissed the case on Rooker-Feldman grounds. MacIntyre’s Rule

59(e) motion to alter or amend judgment was denied—with one minor exception not

relevant here—on July 17, 2019.

While MacIntyre’s appeal (No. 19-1290) was pending in the Tenth Circuit,

Chase sought attorneys’ fees pursuant to Colorado’s fee-shifting statute, C.R.S. §

13-17-201. On October 10, 2019, the District Court, finding the state statute

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applicable to this would-be diversity case, awarded Chase its fees, but reduced the

requested amount by 25%. MacIntyre filed a Rule 59(e) motion to reconsider the

award on jurisdictional grounds. Because the District Court lacked subject matter

jurisdiction to adjudicate what would have been a diversity case with access to

Colorado statutes, it actually had no access whatsoever to any of them, including

C.R.S. § 13-17-201. In denying the Motion to Reconsider, Appendix D, on December

11, 2019, the court stated, page 3, that it was “not appropriate for the Court to

entertain the argument” because it could have been raised earlier in MacIntyre’s

response to Chase’s fee-award motion, and regardless, “is incorrect.” In fact, on

page 3 of her November 29, 2019, reply to Chase’s response opposing

reconsideration, MacIntyre had already explained that the timing of her

jurisdictional argument cannot, by definition, be inappropriate:

The essence of the Motion to Reconsider is a purely jurisdictional

challenge to this Court’s ability to award attorney’s fees and thus “can

be raised at any time.” Lopez v. United States, 823 F.3d 970, 975 n. 6

(10th Cir. 2016), citing Sebelius v. Auburn Reg. Med. Ctr., 133 S.Ct.

817, 824, 184 L.Ed.2d 627 (2013). If this Court deems a Rule 60(b)

motion to be more appropriate—it is perfect for addressing a judgment

that is void for lack of jurisdiction—then it may unquestionably

construe the Motion to Reconsider as a Motion to Vacate instead. In

either event, when subject matter jurisdiction is lacking, it cannot be

conferred for any reason, certainly not by an alleged error, and most

certainly not because a litigant supposedly used the wrong rule

number in her motion.

“A judgment is void when a court enters it lacking subject matter

jurisdiction or jurisdiction over the parties.” Williams v. Life Savings

and Loan, 802 F.2d 1200, 1202 (10th Cir. 1986). “If the underlying

judgment is void for lack of personal or subject matter jurisdiction. . .

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the district court must grant relief’ under Rule 60(b)(4). Venable v.

Haislip, 721 F.2d 297, 300 (10th Cir. 1983).

MacIntyre appealed the fee award to the Tenth Circuit in a separate case,

No. 20-1016. Chase’s motion to consolidate the appeals was denied. Yet the Tenth

Circuit ultimately reunited the twin appeals into the present case comprising both

the dismissal and the fee award, affirming both on September 10, 2020. A Petition

for Rehearing and Rehearing En Banc was denied on October 19, 2020

With respect to the dismissal, the Tenth Circuit gave three reasons for the

application of Rooker-Feldman. First, MacIntyre’s allegation of fraud in the

procurement of the state-court judgment “depends on a federal court finding that

the state courts erred in entering judgment for Chase,” and “an element of [her]

claim” is “that the state court wrongfully entered its judgment” (quoting Campbell

v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir. 2012). Appendix A at 10. Second,

she cannot “prove her claims without any reference to the state-court proceedings”

(quoting Mayotte v. U.S. Bank, 880 F.3d 1169, 1176 (10th Cir. 2018). Id. at 10-11.

Third, a judgment for monetary damages “would necessarily undo the Colorado

court’s judgment because it would place her back in the position she occupied prior

to the foreclosure.” (Quoting Mo’s Express v. Sopkin, 441 F.3d 1229, 1237 (10th Cir.

2006)(brackets omitted). Id. at 11-12.

The Tenth Circuit’s analysis is factually and legally untenable. First, in her

pre-foreclosure-sale position, MacIntyre owned residential real estate. Monetary

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relief would obviously not “place her back in” that position. (Inconsistently, the

Tenth Circuit in Mayotte at 1176 reached the opposite conclusion: Rooker-Feldman

did not prevent the plaintiff from suing in federal court for the restoration of a

property foreclosed upon in a state-court proceeding). Second, nothing in the

Supreme Court’s clarification of the Rooker-Feldman doctrine in Exxon Mobil v.

Saudi Basic Industries, 544 U.S. 280 (2005) comes close to imposing the Tenth

Circuit’s unique requirement to “prove. . .claims without any reference to the statecourt proceedings”. Third, although a fraud claim in a Tenth Circuit diversity case

automatically triggers the application of Rooker-Feldman, in the Fifth Circuit it

does not, as long as it “is an independent claim.” Truong v. Bank of America, 717

F.3d 377, 384 n. 6 (5th Cir. 2013). As the Fifth Circuit explained at 383-84:

In sum, Truong has alleged that BOA and Wells Fargo (1) misled the

state court into thinking that the executory process evidence was

authentic when, in fact, it was not; and (2) misled her into foregoing

her opportunity to dispute authenticity in the state-court proceedings.

These are independent claims over which the district court had

jurisdiction; Truong did not seek to overturn the state-court judgment,

and the damages she requested were for injuries caused by the banks'

actions, not injuries arising from the foreclosure judgment, (citations

omitted).

To be sure, the banks’ actions allegedly led to a state-court judgment

that inflicted further injury on Truong. But as one of our sister circuits

has stated, although the damages recoverable through an independent

claim might be limited by preclusion principles, “[t]he RookerFeldman doctrine does not...turn all disputes about the preclusive

effects of judgments into matters of federal subject-matter jurisdiction.

The Fifth Circuit also observed at 383 (emphasis added, internal quotation marks

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omitted) that “[b]ecause Truong did not seek to reverse or void the adverse

foreclosure judgment, her request for a declaration that Wells Fargo and BOA

lacked the necessary authentic evidence to support the use of executory process did

not deprive the district court of jurisdiction.”

What works quite well in the Fifth Circuit would not work at all in the Tenth

Circuit. Because a claim about fraud in a state court is automatically seen as a

direct attack on the judgment issued by that court, no plaintiff can ever convince

the Tenth Circuit that the claim is “independent” and thus exempt from RookerFeldman. Because monetary damages, which would leave the state-court judgment

in place, are indiscriminately seen to “undo” that very judgment, one wonders what

relief Rooker-Feldman would not prohibit in the Tenth Circuit. Because a plaintiff

is not allowed even to mention the state-court proceeding, in the Tenth Circuit

“Rooker-Feldman”is a pseudonym for “collateral estoppel”.

Nor is the Fifth Circuit alone in its correct interpretation of Rooker-Feldman.

See, for example, Vossbrinck v. Accredited Home Lenders, 773 F.3d 423, 427 (2nd

Cir. 2014): “. . . Vossbrinck’s pro se complaint can be liberally construed as

asserting fraud claims that are not barred by Rooker-Feldman—because they seek

damages from Defendants for injuries Vossbrinck suffered from their alleged fraud,

the adjudication of which does not require the federal court to sit in review of the

state court judgment. . .” See also Loubser v. Thacker, 440 F.3d 439, 441-42 (7th

Cir. 2006):

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The claim that a defendant in a civil rights suit “so far succeeded in

corrupting the state judicial process as to obtain a favorable judgment”

is not barred by the Rooker-Feldman doctrine. Nesses v. Shepard, 68

F.3d 1003, 1005 (7th Cir. 1995). Otherwise there would be no federal

remedy other than an appeal to the U.S. Supreme Court, and that

remedy would be ineffectual because the plaintiff could not present

evidence showing that the judicial proceeding had been a farce.

With respect to the second question presented above, the District Court, in its

order granting attorneys’ fees to Chase, had relied upon two Tenth Circuit cases.

But on page 4 of its order denying reconsideration, (Appendix D), it acknowledged

that only one applied: a case of attorneys’ fees awarded under Colorado’s feeshifting statute, despite dismissal for lack of subject matter jurisdiction: Infant

Swimming Research v. Faegre & Benson, 335 F.App'x 707, 715 (10th Cir. 2009).

Infant Swimming, besides being unpublished, offers no clue as to how a court

lacking subject matter jurisdiction over a would-be diversity case finds the

jurisdiction to utilize C.R.S. § 13-17-201. The Tenth Circuit—which, despite the

District Court’s reservations on page 9 above, did review the issue on pages 17 of

Appendix A—completely ignored the unhelpful Infant Swimming and cited instead

Lorillard Tobacco Co. v. Engida, 611 F.3d 1209, 1217 (10th Cir. 2010)(alterations

omitted): “A district court need not have subject matter jurisdiction to award

attorney’s fees pursuant to Colo. Rev. Stat. § 13-17-102.” That, of course, is utterly

incorrect in the circumstances of the present case. Lorillard was voluntarily

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dismissed by the plaintiff, not involuntarily dismissed by the court for lack of

subject matter jurisdiction. Nor may a federal court ever gain access to a state

statute, including a fee-shifting statute, unless it is actually exercising diversity

jurisdiction, which the District Court in this case insists it never was. This

misapplication of Lorillard violates the long-established Tenth Circuit rule in Jones

v. Denver Post, 203 F.3d 748, 757 (10th Cir. 2000)(emphasis added): “When

exercising jurisdiction,” the Tenth Circuit stated, “if our jurisdiction rested on

diversity of citizenship” then “we must apply the substantive law of the forum

state.” That is the rule throughout the United States. The Tenth Circuit was never

exercising diversity jurisdiction. It awarded attorneys’ fees as if it were.

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VII.

REASONS FOR GRANTING THE PETITION

It is clear that the Tenth Circuit is not heeding Justice Ginsburg’s precise

clarification of Rooker-Feldman: a doctrine that is “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.” Exxon Mobil, 544 U.S. at 284. The Tenth

Circuit’s unique ideas about the doctrine place it in conflict with the Second, Fifth,

and Seventh Circuits. On the subject of attorneys’ fees, the Tenth Circuit is in

conflict with all others. No other circuit, having affirmed a dismissal for lack of

subject matter jurisdiction emanating from a federal doctrine, then claims a right to

award attorneys’ fees under a state statute, without ever having exercised diversity

jurisdiction. The Supreme Court has not yet addressed this specific issue.

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VIII. CONCLUSION

*

The Petitioner respectfully requests that the Supreme Court grant this

I*

Petition as to both questions presented.

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Respectfully submitted on this eighteenth day of March, 2021.

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Molly Maclnwre

Petitioner/pro se

2991 Harrogate Way

Abingdon, MD 21009

410.967.4051

hollym ac2@y ahoo. com

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