Punchall v. US Subsidiary Incorporated District of New Mexico

• Court: District Court, D. Arizona
• Decided: March 18, 2021
• Docket: 4:20-cv-00350
• Status: Unknown

Opinion

1 WO 2

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10

11 Lord Punchall, No. CV-20-00350-TUC-RM 12 Plaintiff, ORDER 13 v. 14 Mischel L Grisham, et al., 15 Defendants. 16

17 Pending before the Court are multiple Motions to Dismiss. (Docs. 13, 15, 16, 43.) 18 Defendant Robert Haynes filed a Motion to Dismiss (Doc. 13), to which Plaintiff 19 responded (Doc. 24). Defendants Honorable Justice Barbara Vigil and Honorable Jarod 20 Hofacket (the “Judicial Defendants”) filed a Motion to Dismiss (Doc. 15), to which 21 Plaintiff responded (Doc. 25). Defendants Michelle Lujan Grisham, Charles W. Daniels, 22 Richard C. Bosson, Petra Jimenez Maes, Mary Lynn Newell and Daniel Veramontez (the 23 “State Defendants”) filed a Motion to Dismiss (Doc. 16), to which Plaintiff responded 24 (Doc. 23). Defendants Luna County Board of Commissioners, Raymond Cobos, Mike 25 Eby, and Joe Vigil (the “County Defendants”) filed a Motion to Dismiss (Doc. 43), which 26 Plaintiff moved to strike (Doc. 49).1 27 1 Plaintiff’s Motion to Strike does not set forth any valid grounds for striking the County 28 Defendants’ Motion to Dismiss. See LRCiv 7.2(m). Accordingly, the Motion to Strike will be denied. 1 Also pending are various miscellaneous motions filed by Plaintiff and other 2 parties. The Court will grant the Motions to Dismiss, dismiss the above-captioned action, 3 and deny the remaining motions as moot. 4 I. Background 5 Plaintiff’s convoluted First Amended Complaint alleges “criminal extra-territorial 6 invasion,” “criminal trespass to chattel of a political dwelling,” false imprisonment, 7 violation of 28 U.S.C. § 1985, conspiracy to interfere with civil rights, violation of 18 8 U.S.C. § 953, violation of the Logan Act, and “conspiracy to criminal trespass.” (Doc. 9 10.) These claims appear to arise out of a real estate transaction in the State of New 10 Mexico and a trespass action in that State. (Id. at 8-10, 12.) Plaintiff appears to allege his 11 status as a “foreign agent” and claims that the property that is the subject of this dispute is 12 a “royal embassy annex” of a foreign country called Royal Continental Nubian Sudan 13 over which he presides. (Doc. 10 at 7-8.) All named Defendants appear to reside in New 14 Mexico, except for Roman Colter and Leroy Jones, for whom Plaintiff provided 15 addresses in Arizona.2 (Id. at 5-7.) As far as the Court can ascertain from the Complaint, 16 all events giving rise to this action occurred in New Mexico. (See Doc. 10.) 17 Plaintiff has filed numerous frivolous complaints in the United States District 18 Court for the District of New Mexico and is subject to vexatious litigant filing restrictions 19 in that district and in the Court of Appeals for the Tenth Circuit. (Doc. 16 at 2, Doc. 43 at 20 1-2); see also Punchard v. United States, 290 Fed. Appx. 160, 162 (10th Cir. 2008); 21 Punchard v. Deming City Mun. Court, No. CIV 07-589 MV/KBM, 2008 WL 11417185, 22 at *4 (D.N.M. Feb. 5, 2008) (“[Plaintiff] has been filing frivolous suits for over twenty 23 years and making the same frivolous and delusional arguments.”) (citing Punchard v. 24 Luna Cty. Comm’n, 202 F.3d 282 (10th Cir. 2000)). 25 2 Plaintiff’s Amended Complaint indicates that the address listed for Leroy Jones is 26 actually that defendant’s mother’s address. (Doc. 10 at 5.) The record indicates that Leroy Jones has not been served with either the original Complaint (Doc. 1) or the Amended 27 Complaint (Doc. 10). Pursuant to Fed. R. Civ. P. 4(m), service was due within 90 days of the date the Complaint was filed. Even liberally construing the service deadline to 28 correspond to the filing of the First Amended Complaint on October 29, 2020 (Doc. 10), Jones has not been timely served. 1 Plaintiff has also previously filed meritless lawsuits in the District of Arizona 2 based on allegations similar to those raised in the present case; his prior lawsuits were all 3 dismissed. See Punchard v. U.S. Bureau of Land Mgmt, No. CV-17-0148-JGZ (D. Ariz. 4 July 26, 2017), aff’d, Punchard v. U.S. Bureau of Land Mgmt., 715 Fed. App’x 783 (9th 5 Cir. 2018) (mem.); Edwards v. Martinez, No. CV-17-00149-TUC-RCC (D. Ariz. July 6, 6 2017), aff’d, Edwards v. Martinez, 713 Fed. App’x 636 (9th Cir. 2018) (mem.); Punchard 7 v. Luna Cnty. Bd. of Comm’rs, No. 19-159-TUC-JGZ (D. Ariz. June 18, 2019), aff’d, 8 Punchard v. Luna Cnty. Bd. of Commisions, 797 Fed. App’x 345 (9th Cir. 2020) (mem.). 9 Plaintiff has been warned that sanctions may be imposed against him—including 10 vexatious litigant filing restrictions—if he “continues to file cases with obvious 11 jurisdictional defects or other deficiencies in this Court.” Punchard v. U.S. Bureau of 12 Land Mgmt, No. CV-17-0148-JGZ (D. Ariz. July 26, 2017). 13 II. Personal Jurisdiction 14 The County and State Defendants argue that this action should be dismissed for 15 lack of personal jurisdiction. (Docs. 16, 43.) The Court also has an independent duty to 16 ensure it has personal jurisdiction over every party. In re JPMorgan Chase Derivative 17 Litig., 263 F. Supp. 3d 920, 928 (E.D. Cal. 2017); see also Ctr. for Biological Diversity v. 18 Bernhardt, No. CV 19-109-M-DLC, 2020 WL 7640045, at *4 (D. Mont. Dec. 23, 2020).3 19 The plaintiff bears the burden of establishing that the exercise of personal jurisdiction is 20 proper. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). 21 “Federal courts apply state law to determine the bounds of their jurisdiction over a 22 party.” Williams v. Yamaha Motor Co., 851 F.3d 1015, 1020 (9th Cir. 2017). Arizona’s 23 long-arm statute permits the exercise of jurisdiction to the full extent permissible under 24 the United States Constitution. Ariz. R. Civ. P. 4.2(a); Davis v. Metro Prods., Inc., 885 25 F.2d 515, 520 (9th Cir. 1989). In order for the exercise of personal jurisdiction over an 26 out-of-state defendant to comport with the requirements of due process under the United 27 States Constitution, the defendant must “have certain minimum contacts” with the forum

28 3 The Court need not reach the subject matter jurisdiction inquiry if it determines that no personal jurisdiction exists. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999). 1 state “such that the maintenance of the suit does not offend traditional notions of fair play 2 and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal 3 quotation omitted). 4 Unless a defendant’s contacts with a forum are so substantial, continuous, and 5 systematic that the defendant can be deemed to be “present” in that forum for all 6 purposes, a forum may exercise only “specific” jurisdiction—that is, jurisdiction based 7 on the relationship between the defendant’s forum contacts and the plaintiff’s claim. See 8 Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1205 (9th 9 Cir. 2006). A district court has specific jurisdiction over a defendant only if: (1) the 10 defendant purposefully avails himself of the privilege of conducting activities in the 11 forum, thereby invoking the benefits and protections of its laws; (2) the claim arises out 12 of or relates to the defendant’s forum-related activities; and (3) the exercise of 13 jurisdiction is reasonable. Id. (citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 14 797, 802 (9th Cir. 2004)). “Before a federal court may exercise personal jurisdiction over 15 a defendant, the procedural requirement of service of summons must be satisfied.” Omni 16 Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). 17 Plaintiff’s Complaint does not allege any facts establishing that this Court has 18 personal jurisdiction over Robert Haynes, the Judicial Defendants, the State Defendants, 19 or the County Defendants. Plaintiff’s Complaint does not allege any connection between 20 these Defendants and the District of Arizona. Nothing in the Complaint suggests that 21 these parties are “present” in Arizona for all purposes, or that they have conducted any 22 activity in the forum. The Defendants are located in New Mexico and nothing in the 23 Complaint alleges that they have had any contact with Arizona or that they have taken 24 any action with respect to Arizona. Moreover, Plaintiff’s Complaint arises out of his 25 alleged interest in land which appears to be located in Deming, New Mexico. Plaintiff 26 himself is a New Mexico resident. Plaintiff has not met his burden of demonstrating that 27 this Court has personal jurisdiction over Robert Haynes, the Judicial Defendants, the 28 State Defendants, or the County Defendants. 1 Plaintiff provided Arizona addresses for Defendants Leroy Jones and Roman 2 Colter, although he indicated the address provided for Leroy Jones was the address of 3 that defendant’s mother. The record does not indicate that Leroy Jones has been served, 4 and the Court lacks personal jurisdiction over him until the procedural requirement of 5 service of summons has been satisfied. See Omni Capital Int’l, 484 U.S. at 104.4 The 6 record also does not indicate that Roman Colter has been served, although he filed a 7 counterclaim, discussed below in Section IV.5 Even if this Court may have personal 8 jurisdiction over Defendant Colter, dismissal of this action is still appropriate due to 9 improper venue, as discussed below in Section III. 10 III. Venue 11 The requirements for venue are set forth in 28 U.S.C. § 1391(b): (b) Venue in general. A civil action may be brought in— 12 (1) a judicial district in which any defendant resides, if all 13 defendants are residents of the State in which the district is located; 14 (2) a judicial district in which a substantial part of the events 15 or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or 16 (3) if there is no district in which an action may otherwise be 17 brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal 18 jurisdiction with respect to such action. 19 “The venue statutes are generally intended to protect a defendant from being 20 forced to defend in an unfair or inconvenient forum.” Shell v. Shell Oil Co., 165 F. Supp. 21 2d 1096, 1106 (C.D. Cal. 2001). The “[p]laintiff has the burden of proving that venue is 22 proper in the district in which the suit was initiated.” Hope v. Otis Elevator Co., 389 F. 23 Supp. 2d 1235, 1243 (E.D. Cal. 2005) (citing Airola v. King, 505 F. Supp. 30, 31 (D. 24 4 Pursuant to Fed. R. Civ. P. 4(m), service was due within 90 days of the date the 25 Complaint was filed. Even liberally construing the service deadline to correspond to the filing of the First Amended Complaint on October 29, 2020 (Doc. 10), there is no 26 indication that Jones has been timely served. Before dismissing a defendant for failure to serve, the Court would normally provide notice to the plaintiff and an opportunity to 27 show good cause for an extension of the time for service. See Fed. R. Civ. P. 4(m). Here, however, dismissal of this entire action is appropriate due to improper venue, and 28 therefore Plaintiff cannot show good cause to extend the time for serving Leroy Jones. 5 The counterclaim appears to argue lack of service. (See Doc. 30.) 1 Ariz. 1980)). When deciding a challenge to venue, the pleadings need not be accepted as 2 true, and the district court may consider facts outside of the pleadings. Arguenta v. Banco 3 Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). 4 The Court finds that venue is not proper in this Court pursuant to 28 U.S.C. § 5 1391(b). First, venue is improper under Section 1391(b)(1) because, although it appears 6 up to two defendants may reside in the District of Arizona, the remainder of the named 7 Defendants reside in the District of New Mexico. Second, venue is improper in Arizona 8 under Section 1391(b)(2) because the events giving rise to Plaintiff's claims took place in 9 New Mexico, and the property at issue is located in New Mexico. Finally, Section 10 1391(b)(3) does not apply because, had Plaintiff complied with the vexatious litigant 11 restrictions which apply to him in the District of New Mexico, this case could have been 12 brought in that district. 13 If a court determines that venue is improper, it must then determine if it is 14 appropriate to transfer the matter to the district in which it could have been brought, or, 15 alternatively, to dismiss the matter. See 28 U.S.C. § 1406(a); see also Edwards, 2017 WL 16 4678456, at *4 (determining that venue in the District of Arizona was improper and 17 declining to transfer the action). A case should be transferred instead of being dismissed 18 if a transfer is “in the interest of justice.” 28 U.S.C. § 1406(a). 19 The Court finds that it is not appropriate to transfer this matter to the district in 20 which it could have been brought, the District of New Mexico. It appears that Plaintiff 21 may have filed this action in the District of Arizona in an attempt to circumvent the 22 vexatious litigant filing restrictions to which he is subject in the District of New Mexico. 23 Given Plaintiff’s history of vexatious litigation and the convoluted and fantastical 24 allegations of his Complaint, the Court does not find that transferring this case to the 25 District of New Mexico would serve the interest of justice. 26 The Judicial Defendants, State Defendants, and County Defendants have also 27 raised several other meritorious arguments for dismissal, including judicial immunity, 28 qualified immunity, lack of subject matter jurisdiction, and failure to state a claim upon 1 which relief may be granted. The Court does not address these arguments because it is 2 apparent this matter should be dismissed on jurisdictional and venue grounds. 3 IV. Counterclaim 4 Defendant/Counter-Plaintiff Roman Colter filed a counterclaim against Plaintiff. 5 (Doc. 30.) The counterclaim states, in relevant part, as follows: 6 Plaintiff, was never served any papers. Ask Defendant, to prove service to me. Defendant is in judgment by District 7 Court in Deming and unable to seek any damage in dismissed 8 case. Plaintiffs seek 50,000 in damages for stress undo [sic] harm and false claims. Ask Court to except [sic] cross 9 complaint; and dismiss any motion by Billy Edwards. 10 (See Doc. 30 at 1.) Plaintiff filed an Objection to the counterclaim, which the Court will 11 construe as a motion to dismiss. (Doc. 37.) Plaintiff argues that (1) he served Defendant 12 Colter; (2) this is a “U.S. foreign relations case” and therefore counterclaims are 13 forbidden; and (3) Colter committed fraud and set up a “criminal enterprise” across state 14 lines. (Id.) 15 “The standard for dismissal of a counterclaim is the same as the standard for 16 dismissal of a complaint.” Hudson Bay Master Fund Ltd. v. Patriot Nat’l, Inc., 309 F. 17 Supp. 3d 100, 112 (S.D.N.Y. 2018). A pleading must contain a “short and plain statement 18 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) 19 (emphasis added). While Rule 8 does not demand detailed factual allegations, “it 20 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 22 cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] 23 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 24 relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 25 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that 26 allows the court to draw the reasonable inference that the defendant is liable for the 27 misconduct alleged.” Id. 28 1 Even liberally construed, Colter’s counterclaim fails to state a claim upon which 2 relief can be granted. The counterclaim contains merely conclusory assertions and states 3 no facts that could give rise to a plausible claim against Plaintiff. 4 Furthermore, it appears that the counterclaim must be dismissed for lack of subject 5 matter jurisdiction. “Lack of subject matter jurisdiction may [] be raised by the district 6 court sua sponte.” Brooke v. Cosumnes River Land LLC, No. 2:19-cv-02533-MCE-AC, 7 2020 WL 2062182, at *1 (E.D. Cal. Apr. 29, 2020). Subject matter jurisdiction in federal 8 court may be conferred by either federal question jurisdiction or diversity jurisdiction. “A 9 complaint for relief properly invokes federal jurisdiction where its well-pleaded 10 allegations establish either that federal law creates the cause of action or that the 11 plaintiff’s right to relief necessarily depends on resolution of a substantial question of 12 federal law.” Tijerino v. Stetson Desert Project, LLC, 934 F.3d 968, 975 (9th Cir. 2019) 13 (internal citation and quotation omitted). “There is no federal question jurisdiction where 14 the federal claim asserted is ‘too insubstantial,’ defined as so patently without merit that 15 the claim requires no meaningful consideration.” Id. (internal citation omitted). The Court 16 finds that the counterclaim plainly fails to state a cause of action under federal law or to 17 show that Colter’s right to relief depends on resolution of a substantial question of federal 18 law. Thus, no federal question jurisdiction exists over the counterclaim. 19 Diversity jurisdiction under 28 U.S.C. § 1332(a)(1) “requires: (i) complete 20 diversity among the parties; and (ii) that ‘the matter in controversy exceeds the sum or 21 value of $75,000, exclusive of interest and costs.” Jerry Erwin Assocs., Inc. v. Est. of 22 Asher by & through Zangara, 290 F. Supp. 3d 1213, 1229 (D.N.M. 2017). Although 23 Plaintiff and Defendant/Counterplaintiff Colter are apparently residents of different 24 states, the counterclaim alleges damages in the amount of $50,000, which does not meet 25 the amount-in-controversy requirement of $75,000. Thus, no diversity jurisdiction exists 26 over the counterclaim. 27 Accordingly, 28 1 IT IS ORDERED that Plaintiffs “Motion to Squash, Suppress, Strike” 2|| Defendants’ Motion to Dismiss (Doc. 49) is denied on the merits to the extent it || requests an order striking the County Defendants’ Motion to Dismiss, and denied as moot in all other respects. 5 IT IS FURTHER ORDERED Defendants’ Motions to Dismiss (Docs. 13, 15, 6|| 16, 43) are granted. This matter is dismissed without prejudice. The Clerk of Court shall enter judgment accordingly and close this case. 8 IT IS FURTHER ORDERED that Roman Colter’s Counterclaim (Doc. 30) is || dismissed. 10 IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment || (Doc. 26), Plaintiff's Motion for Permanent Injunction (Doc. 27), Defendant Colter’s || Motion for Entry of Default (Doc. 46), Plaintiff's “Motion to Squash, Suppress, Strike” 13 || Defendants’ Response (Doc. 47), Plaintiffs Motion for Court’s Consideration of 14|| Memorandum (Doc. 58), and Defendant Colter’s Motion for Payment (Doc. 60) are || denied as moot. 16 Dated this 17th day of March, 2021. 17 18 19 — 42h □ 20 Honorable Rostsiary □□□□□□□ 21 United States District □□□□□ 22 23 24 25 26 27 28

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