United States District Court, D. Montana, Butte Division
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
MORRIS UNITED STATES DISTRICT COURT.
Richard Charles Lussy filed a complaint on October 23, 2017.
(Doc. 1.) Lussy then filed an amended complaint and had
summonses issued on November 8, 2017. (Doc. 8.) The Clerk of
Court entered defaults pursuant to Federal Rule of Civil
Procedure 55(a) against Defendants Luana Lynn Roque, Juahlee
Murie Bornoff, and Merna Green on January 23, 2018. (Docs.
31, 33.) Roque and Bornoff successfully moved to set aside
entry of default. (Doc. 57.) Lussy filed a Motion for Default
Judgment against Green on February 2, 2018. (Doc. 35.)
Defendant Wade J. Dahood filed a Motion to Dismiss on
December 13, 2018. (Doc. 12.) Defendants Henry Paumie Lussy,
Roque, and Bornoff filed a Motion to Dismiss on December 20,
2017. (Doc. 18.) Roque and Bornoff filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) on March
7, 2018. (Doc. 45.) The Court held oral argument on
Lussy's motion for default judgment and on Roque and
Bornoff's motion to dismiss on April 6, 2018. (Doc. 58.)
At oral argument, Lussy agreed that his amended complaint
raised causes of action under (1) the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1961; (2) mail fraud pursuant to 18 U.S.C. §
1341; and (3) a common law fraud claim. (Doc. 61 at 18-22.)
States Magistrate Judge Jeremiah Lynch entered Findings and
Recommendations in this matter on May 2, 2018. (Doc. 63.)
Judge Lynch recommended that Defendants' Rule 12(b)(6)
motions be granted, and Lussy's motion for default
judgment against Green be denied. (Doc. 63 at 14.) Judge
Lynch further recommended that Lussy's Amended Complaint
be dismissed without leave to amend as to Defendants Lussy,
Dahood, Roque, Bornoff, and Green. (Doc. 63 at 14-15.) Judge
Lynch also recommended that if Lussy filed objections to the
Findings and Recommendations showing that Lussy is able to
state a claim for relief against Green, then Lussy should be
allowed to file an ameded complaint as to Green. (Doc. 63 at
15.) Lussy timely objected to Judge Lynch's Findings and
Recommendations on May 15, 2018. (Doc. 64.)
eleven objections are as difficult to understand as the
causes of actions raised in Lussy's amended complaint.
Lussy raises the following objections: (1) that he adequately
plead federal question and diversity jurisdiction; (2) that
he has standing to keep federal jurisdiction; (3) that there
is a “jury verdict civil tort law application referral
for crime enforcement after manipulation [and] falsifying
public record;” (4) that the statute of frauds allows
Lussy to retain federal jurisdiction; (5) that elder abuse
and contract affirmative defenses allow Lussy to amend his
complaint; (6) that the defendants “have no exclusion
Rule/Clause . . . to exempt itself from functional literacy
aka textualism;” (7) that Judge Lynch's
“unfit-no-good behavior” is an affirmative
defense allowing Lussy leave to amend his complaint; (8) that
equitable estoppel and defendants' waiver by delayed
express mail allow Lussy to amend his complaint; (9) that
Judge Lynch mollycoddled defendants' pleadings; (10) that
Judge Lynch violated his oath to protect the United States
Constitution; and (11) that Judge Lynch showed bias to his
“own lawyer tribe/labor union against non-lawyer
competition.” (Doc. 64 at 9-34.).
Court reviews de novo Findings and Recommendations timely
objected to. 28 U.S.C. § 636(b)(1). The Court reviews
for clear error the portions of the Findings and
Recommendations not specifically objected to. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Where a party's objections
constitute perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same
arguments set forth in the original response, however, the
Court will review the applicable portions of the findings and
recommendations for clear error. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014)
(internal citations omitted).
difficult to follow, Lussy essentially objects to Judge
Lynch's finding that Lussy's RICO, mail fraud, and
common law fraud claims failed to satisfy Rule 12(b)(6).
Lussy further objects to Judge Lynch's recommendation
that Lussy be denied leave to amend his complaint.
Lussy's objections advance the same arguments made in
Lussy's responses to defendants' motions to dismiss
and in Lussy's motion for default judgment against
Defendant Green. Judge Lynch considered these arguments in
making his recommendation to the Court. Thus, the Court finds
no specific objections that do not attempt to relitigate the
same arguments and will review Judge Lynch's Findings and
Recommendations for clear error. The Court finds no error.
Leave to Amend Complaint as to Green
Lynch recommended the Court grant Lussy leave to amend his
complaint as to Green if Lussy could show that he was able to
state a claim for relief against Green. A motion to dismiss
under Rule 12(b)(6) tests the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). “Dismissal under Rule 12(b)(6) is
appropriate only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal
theory.” Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a
motion to dismiss, the complaint must allege sufficient facts
to state a plausible claim for relief. Taylor v.
Yee, 780 F.3d 928, 935 (9th Cir. 2015). The Court
liberally construes the allegations in a complaint filed by a
pro se litigant. Ortez v. Washington County, State of
Oregon, 88 F.3d 804, 807 (9th Cir. 1996). In his
objections, Lussy summarizes the legal theories raised in his
complaint. Lussy then rehashes the same arguments raised in
his motion for default judgment against Green and in his
responses to defendants' motions to suppress. Lussy did
not state a claim for relief against Green.
IT IS ORDERED that Magistrate Judge
Lynch's Findings and Recommendations (Doc. 63) is
ADOPTED IN FULL.
Motions to Dismiss (Docs. 12, 18, and 45) are
Motion for Default Judgment Against Green (Doc. 35) is
matter is DISMISSED WITHOUT LEAVE TO AMEND
as to Defendants Lussy, ...