Ingress v. McKenney, et al.

2014 DNH 228

• Court: District Court, D. New Hampshire
• Decided: October 28, 2014
• Docket: 14-cv-202-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeanne-Louise Ingress

v. Civil No. 14-cv-202-LM Opinion No. 2014 DNH 228 Daniel McKenney, John G. Stumpf, Timothy J. Sloan, James M. Strother, Paul D. Lambert, John Connolly, Kevin Geaney, Rachelle Willard, Steven Ablitt, Jessica A. Babine, Stephen Stewart, Eric Houser, Lynn Killkelley, Martha R. Crocker, and Edwin W. Kelly

O R D E R

This case arises out of the foreclosure of a mortgage and

an eviction action initiated by the successful bidder at the

ensuing foreclosure sale. Jeanne-Louise Ingress, proceeding pro

se, has sued 15 defendants, including the president of a

mortgage company and several bankers, lawyers, and judicial

officers and employees. Five defendants have yet to be served.

The ten who have been served have moved to dismiss. Before the

court are motions to dismiss filed by: (1) Daniel McKenney; (2)

Martha Crocker, Edwin Kelly, and Lynn Killkelley; (3) Jessica

Babine, Eric Houser, and Stephen Stewart; and (4) Timothy Sloan,

James Strother, and John Stumpf. All four motions are unopposed. For the reasons that follow, all four motions to

dismiss are granted.

Background

This section begins by drawing on Judge Barbadoro’s order

in Ingress v. Merrimack Mortgage Co., No. 11-cv-373-PB, 2012 WL

405499 (D.N.H. Feb. 8, 2012), a case that arose from the

foreclosure that preceded the eviction action that gives rise to

most of the claims in this case.

In September of 2005, Ingress borrowed about $200,000 from

Merrimack Mortgage Company (“Merrimack”). Id. at *1. To secure

her repayment, she mortgaged a property in Wilton, New Hampshire

(“the property”). See id. Merrimack sold the mortgage and

transferred the right to service it. See id. Ingress stopped

making payments on the mortgage in late 2008 or early 2009. See

id. In March of 2009, Wells Fargo Bank, N.A. (“WFB”), the

successor mortgagee, began foreclosure proceedings. See id.

Ingress brought an action in the Merrimack County Superior

Court in an effort to head off foreclosure. See id. That

action was dismissed. See id. at *2. At the foreclosure sale,

WFB purchased the property and, on September 7, 2011, it filed a

foreclosure deed in the Hillsborough County Registry of Deeds,

see Compl., Attch. 1 (doc. no. 1-2), at 31 of 86.

2 After Ingress’s state-court action was dismissed, but

before the foreclosure sale, Ingress filed No. 11-cv-373-PB,

naming as defendants the parties she had sued unsuccessfully in

her state-court action, including Merrimack, plus one other.

See Ingress, 2012 WL 405499, at *12. The same day she filed No.

11-cv-373-PB, she also filed a quiet-title action in state court

against the defendants in her federal case. See id. That

action was dismissed with prejudice, on grounds of res judicata.

See id. Judge Barbadoro, in turn, dismissed Ingress’s claims on

grounds of res judicata. See id. at *5.

Because Ingress did not vacate the property after the

foreclosure sale, WFB served her with an eviction notice. See

Compl., Attach. 1 (doc. no. 1-1), at 61 of 90. Because Ingress

did not quit the property in response to the eviction notice,

WFB filed a Landlord and Tenant Writ against her in New

Hampshire’s 9th Circuit Court, Milford District Division. See

id. at 64-65 of 90. On February 24, 2014, Presiding Justice

Martha Crocker ruled in WFB’s favor, ordering that a Writ of

Possession in favor of WFB would issue. See Compl., Attach. 1

(doc. no. 1-2), at 7 of 86. Simultaneously, Judge Crocker

dismissed what appears to have been a counterclaim that Ingress

filed in WFB’s eviction action that includes much of the

material included in her complaint in this case. See id. at 12-

3 16 of 86 (“civil action” asserting common law claim, filed by

Ingress in WFB’s eviction action); see also id. at 26 of 86

(endorsed order dismissing Ingress’s “civil action”).

After Judge Crocker ruled against her, Ingress filed a

timely notice of intent to appeal Judge Crocker’ decision to the

New Hampshire Supreme Court (“NHSC”). See Compl., Attach 1

(doc. no. 1-2), at 9 of 86. Within the time limit for filing a

Notice of Mandatory Appeal pursuant to Rule 7 of the Rules of

the Supreme Court of the State of New Hampshire (“Supreme Court

Rules”), Ingress filed a petition for original jurisdiction,

pursuant to Rule 11 of the Supreme Court Rules, but did not file

a Rule 7 appeal from Judge Crocker’s decision. See Compl.,

Attach. 1 (doc. no. 1-1), at 1-37 of 90. On May 20, 2014,

Ingress filed this action. Thereafter, the NHSC denied

Ingress’s Rule 11 petition. See Def.’s Mot. to Dismiss, Ex. H

(doc. no. 13-9).

As noted, four groups of defendants have moved to dismiss

Ingress’s claims against them. In the section that follows, the

court considers each of the four motions to dismiss.

Discussion

A. McKenney (doc. no. 7)

McKenney is the president of Merrimack. In Count 1 of her

complaint, Ingress claims that McKenney is liable to her for

4 “using [her] signature to create the funds, for creating double

bookkeeping entries to defraud [her] of [her] property and for

securitizing moneys created by [her] signature.” Compl. (doc.

no. 1) 7. This claim is based upon McKenney’s conduct during

Merrimack’s tenure as mortgagee, which ended no later than March

of 2009, when WFB initiated foreclosure proceedings. In a

summary of her claims, Ingress states that “the commencement of

the wrong and harm began September 7, 2011 when the wrongdoers

filed a fraudulent foreclosure action against [her].” In light

of the court’s obligation “to construe the pleadings liberally

in favor of [a] pro se party,” Ingress, 2012 WL 405499, at *3

(citing Ayala Serrano v. Lebron Gonzales, 909 F.2d 8, 15 (1st

Cir. 1990); Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the

court notes that September 7, 2011, is the date on which WFB

filed its foreclosure deed, although it commenced foreclosure

proceedings in March of 2009. Thus, the court construes

Ingress’s complaint as claiming that the conduct giving rise to

this suit commenced in March of 2009, when WBF initiated

foreclosure proceedings. Id. In document no. 7, McKenney moves

to dismiss Ingress’s claim against him on the following grounds:

(1) lack of subject-matter jurisdiction, see Fed. R. Civ. P.

12(b)(1); (2) res judicata and collateral estoppel; and (3)

failure to state a claim on which relief can be granted, see

5 Fed. R. Civ. P. 12(b)(6). McKenney’s first argument is

dispositive.

In her complaint, Ingress does not indicate any basis for

invoking this court’s subject-matter jurisdiction over her claim

against McKenney. Because the theory of liability she

identifies is common-law fraud, the only basis for subject-

matter jurisdiction that may be reasonably inferred from the

complaint is diversity of citizenship. See 28 U.S.C. §

1332(a)(1) (granting district courts original jurisdiction over

civil actions between citizens of different states where the

amount in controversy exceeds $75,000). “[T]he party invoking

federal court jurisdiction bears the burden of demonstrating

that the court has subject-matter jurisdiction over the case.”

Milford-Bennington R.R. Co. v. Pan Am Rys., Inc., 695 F.3d 175,

178 (1st Cir. 2012) (citing Amoche v. Guar. Trust Life Ins. Co.,

556 F.3d 41, 48 (1st Cir. 2009)). Ingress’s complaint says

nothing about McKenney’s citizenship.1 Thus, she has failed to

carry her burden of demonstrating that the court has subject-

matter jurisdiction over her claim against McKenney.

1 Moreover, while not dispositive, Ingress’s amended affidavit of certificate of service includes a list of eleven out-of-state defendants, but that list does not include McKenney. See doc. no. 9, at 2-4.

6 Accordingly, McKenney is entitled to dismissal of Ingress’s

claim against him.

Even if the court did have subject-matter jurisdiction over

Ingress’s claim against McKenney, that claim would be subject to

dismissal for at least two other reasons. First, because there

can be no legitimate question that McKenney, as president of

Merrimack, is in privity with Merrimack, Ingress’s claim against

him is barred by res judicata, for the same reasons that Judge

Barbadoro gave when he ruled that Ingress’s claims against

Merrimack were barred by res judicata in No. 11-cv-373-PB. See

Ingress, 2012 WL 405499, at *3 (citing Brooks v. Trs. of

Dartmouth Coll., 161 N.H. 685, 690 (2011) (explaining that for

res judicata to apply, “the parties must be the same or in

privity with one another”)). In addition, Ingress’s claim

against McKenney also seems ripe for dismissal under Rule

12(b)(6) because her complaint, as construed by the court,

states that the wrongdoing on which she bases all of her claims

commenced in March of 2009, but alleges neither conduct by

McKenney nor any connection between McKenney and Ingress after

the date on which she says the wrongdoing began.

B. Judge Crocker, Killkelley, and Judge Kelly (doc. no. 8)

Lynn Killkelley is the clerk of the Milford District

Division of the 9th Circuit Court, i.e., the court in which

7 Judge Crocker presided over WFB’s eviction action. Edwin Kelly

is the Administrative Judge of the New Hampshire Circuit Court.

In Count 5 of her complaint, Ingress claims that Killkelley

and Judge Crocker are liable to her for

knowing [WFB’s eviction action] [was] fraud because it’s all in the record, and for participating in the fraud by attempting to rob [her] of [her] property through an unlawful eviction action where there [was] no ratification of commencement, no proof of subject matter jurisdiction, no proof of agency, no injured party, no proof of ownership, no instrument, no contract, and where attorney testimony [was] unlawfully (Trinsey v. Pagliaro [229 F. Supp. 647, 649 (E.D. Pa. 1964)]), accepted as truth and fact with no proof of anything whatsoever.

Compl. (doc. no. 1) 9. In the factual narrative of her

complaint, Ingress directs one set of allegations to what she

sees as the legal infirmities of Judge Crocker’s decision in

WFB’s eviction action, and directs another set of allegations to

an argument that no New Hampshire state-court judge could ever

render an impartial decision in a case involving WFB because of

WFB’s involvement with the retirement system in which all state

judges participate. Thus, Ingress clams that Judge Crocker’s

decision in WFB’s eviction action was both legally incorrect and

a product of a conflict of interest. Ingress makes no free-

standing allegations against Killkelley, the clerk of court, but

merely attaches her name to most of the allegations against

Judge Crocker.

8 In Count 6, Ingress claims that Judge Kelly is liable to

her for

allowing fraud and conspiracy to commit fraud, felonies and conspiracy to commit felonies, misprision of felonies and conspiracy to commit misprision of felonies, treason and conspiracy to commit treason, misprision of treason and conspiracy to commit misprision of treason, to operate unchecked in the courts under [his] charge.

Compl. (doc. no. 1) 9. The factual narrative in Ingress’s

complaint does not mention Judge Kelley. Rather, her claim

appears to be based upon some form of respondeat superior under

which an administrative judge is vicariously liable for the

conduct of the other judges on the court he or she serves as an

administrative judge.

In document no. 8, Judge Crocker, Judge Kelly, and

Killkelley (“the judicial defendants”) move to dismiss Ingress’s

claims against them on the following grounds: (1) Eleventh

Amendment sovereign immunity; (2) judicial immunity; (3) the

Rooker-Feldman doctrine; and (4) failure to state a claim on

which relief can be granted, see Fed. R. Civ. P. 12(b)(6). The

judicial defendants’ third argument is dispositive.

“The Rooker-Feldman doctrine precludes ‘the losing party in

state court [from filing] suit in federal court after the state

proceedings [have] ended, complaining of an injury caused by the

state-court judgment and seeking review and rejection of that

9 judgment.’” Coggeshall v. Mass. Bd. of Reg. of Psychologists,

604 F.3d 658, 663 (1st Cir. 2010) (quoting Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005)); see also

D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983);

Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923). When the

Rooker-Feldman doctrine bars a claim, a district court lacks

subject-matter jurisdiction over it. See Exxon Mobil, 544 U.S.

at 291.

Ingress’s claims against the judicial defendants are

nothing more than a challenge to Judge Crocker’s decision in

WFB’s eviction action. That judgment became final when Ingress

failed to file a Rule 7 notice of appeal within the allotted

time for doing so. See N.H. Cir. Ct. Dist. Div. R. 1.11.A.

Because Ingress filed this action after Judge Crocker’s judgment

became final, and because Ingress seeks only to challenge that

judgment, her claim against Judge Crocker and Killkelley is

barred by the Rooker-Feldman doctrine. Moreover, because Judge

Kelly’s purported liability is entirely derivative of the

asserted liability of Judge Crocker, Ingress’s claim against

Judge Kelly is also barred by the Rooker-Feldman doctrine.

Because the Rooker-Feldman doctrine bars Ingress’s claims

against the judicial defendants, this court lacks subject-matter

jurisdiction over those claims. See Exxon Mobil, 544 U.S. at

10 291. Accordingly, the judicial defendants are entitled to

dismissal of Ingress’s claims against them.

C. Sloan, Strother, and Stumpf (doc. no. 14)

John Stumpf, Timothy Sloan, and James Strother are all

officers of WFB. In Count 2 of her complaint, Ingress claims

that Stumpf, Sloan, and Strother (“the WFB defendants”) are

liable to her for “pretending to be the injured parties on

behalf of WFB which cannot be an injured party because it cannot

act, communicate or be responsible as a dead entity.” Compl.

(doc. no. 1) 8. In document no. 14, the WFB defendants move to

dismiss Ingress’s claim against them on the following grounds:

(1) lack of personal jurisdiction; (2) res judicata and

collateral estoppel; (3) failure to plead fraud with adequate

particularity, see Fed. R. Civ. P. 9(b); and (4) failure to

state a claim on which relief can be granted, see Fed. R. Civ.

P. 12(b)(6). The WFB defendants are entitled to dismissal of

the claim against them for yet another reason: lack of subject-

matter jurisdiction. See In re Plaza-Martínez, 747 F.3d 10, 12

(1st Cir. 2014) (“a court is duty-bound to notice, and act upon,

defects in its subject matter jurisdiction sua sponte”) (quoting

Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir. 2011))

(alteration omitted).

11 While Ingress’s complaint is somewhat difficult to

understand, its factual narrative makes it relatively clear that

her claim against the WFB defendants rests upon her theory that

the eviction notice she was served suffered from some sort of

legal infirmity that infected the entire eviction action. That

is plainly an attack on the validity of the judgment rendered in

that action. But, such a claim is barred by the Rooker-Feldman

doctrine. Because this court lacks subject-matter jurisdiction

over Ingress’s claim against the WFB defendants, see Exxon

Mobil, 544 U.S. at 291, they are entitled to dismissal of that

claim.

D. Babine, Houser, and Stewart (doc. no. 13)

Eric Houser is the president of the law firm Houser and

Allison, APC. Jessica Babine is an attorney with that firm, and

Stephen Stewart is a paralegal at the firm. The Houser and

Allison firm represents the WFB defendants in this action. In

Count 4 of her complaint, Ingress claims that Houser, Babine,

and Stewart (“the law-firm defendants”) are liable to her for

perpetrating fraud by entering testimony into the record and acting as an attorney witness (Trinsey v. Pagliaro), as if [they had] first-hand knowledge or [were] an injured party; and for registering surprise at not being able to perpetrate “business as usual” in fraud.

12 Compl. (doc. no. 1) 9. In document no. 13, the law-firm

defendants move to dismiss Ingress’s claim against them on the

following grounds: (1) collateral estoppel; (2) failure to plead

fraud with adequate particularity, see Fed. R. Civ. P. 9(b); and

(3) failure to state a claim on which relief can be granted, see

Fed. R. Civ. P. 12(b)(6). The law-firm defendants’ third

argument is dispositive.

When ruling on a motion to dismiss for “failure to state a

claim on which relief can be granted,” Fed. R. Civ. P. 12(b)(6),

the court is to conduct a limited inquiry, focusing not on

“whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.”

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The purpose of the

court’s inquiry is to determine “whether the complaint contains

sufficient factual matter to state a claim to relief that is

plausible on its face.” Carrero–Ojeda v. Autoridad de Energía

Eléctrica, 755 F.3d 711, 717 (1st Cir. 2014) (quoting Rodríguez–

Reyes v. Molina–Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013))

(internal quotation marks and brackets omitted). When

conducting its inquiry, a court must: (1) “isolate and ignore

statements in the complaint that simply offer legal labels and

conclusions or merely rehash cause-of-action elements,” id.

(quoting Schatz v. Rep. State L’ship Comm., 669 F.3d 50, 55 (1st

13 Cir. 2012)); and (2) “take the facts of the complaint as true,

‘drawing all reasonable inferences in [plaintiff’s] favor, and

see if they plausibly narrate a claim for relief,’” id. (quoting

Schatz, 669 F.3d at 55).

Here, Ingress’s complaint lists the law-firm defendants in

its caption, and Count 4 purports to state a claim against them.

However, the complaint’s factual narrative does not describe any

conduct by the law-firm defendants. The 319-page attachment to

the complaint is similarly silent on this key issue. The only

factual allegation in Count 4 itself, i.e., that the law-firm

defendants entered testimony into the record, is conclusively

refuted by the record, which includes no testimony of any kind

from the law-firm defendants. Because Ingress’s “complaint

[does not] contain[] sufficient factual matter to state a claim

to relief [against the law-firm defendants] that is plausible on

its face,” Carrero–Ojeda, 755 F.3d at 717, the law-firm

defendants are entitled to dismissal of Ingress’s claim against

them.

Conclusion

For the reasons described above, all ten defendants who

have been served are entitled to dismissal of Ingress’s claims

against them. Accordingly, the four pending motions to dismiss,

document nos. 7, 8, 13, and 14, are all granted. Thus, this

14 case now consists only of Count 3, which asserts claims against

Paul Lambert, John Connolly, Kevin Geaney, Rachelle Willard, and

Steven Ablitt, none of whom have been served. Count 3 is

subject to Chief Deputy Clerk Phelan’s order of October 15, 2014

(doc. no. 15), directing Ingress to make service on the five

remaining defendants within 60 days or face possible dismissal

of her claims against them.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 28, 2014

cc: Jeanne-Louise Ingress, pro se Jessica Suzanne Babine, Esq. Nancy J. Smith, Esq. Joshua M. Wyatt, Esq.