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McCann v. Taleff

United States District Court, D. Montana, Great Falls Division

July 23, 2019

GENET McCANN, Plaintiff,
v.
WARD TALEFF, et al., Defendants.

          ORDER

          Brian Morris, United States District Court Judge

         BACKGROUND

         Plaintiff Genet McCann (“McCann”) alleges that three of her siblings conspired to exert unlawful control over cash that belongs to family-owned corporations. This underlying dispute has led to extensive litigation in Montana state courts. McCann's efforts in the Montana state court litigation have resulted in judgments against her. The Montana Supreme Court has disbarred McCann as a lawyer, declared McCann a vexatious litigant, and prohibited McCann from filing any further lawsuits in state court without prior approval.

         McCann filed the present lawsuit as an effort to continue to litigate the family dispute in federal court. The named Defendants include the following parties: the state district court judge who presided over the guardianship and conservatorship proceeding for McCann's mother; the state district judge's judicial assistant; the lawyers appointed by the Montana state court to serve as guardian and conservator for McCann's mother; the lawyers who participated in the Montana state disciplinary proceedings that resulted in McCann's disbarment as a lawyer; and the lawyers who opposed McCann's efforts in Montana state court to dissolve the family-owned corporations.

         The Court today addresses Defendants' motion to dismiss and Defendants' motion that seeks an order declaring McCann a vexatious litigant in this Court. Magistrate Judge John Johnston conducted a hearing on these two motions on March 12, 2019. Judge Johnston issued Findings and Recommendations on April 24, 2019. Judge Johnston determined that McCann's Complaint could not be cured by an amendment. Judge Johnston recommended that all of McCann's claims be dismissed with prejudice. Judge Johnston further recommended that McCann be declared a vexatious litigant in federal court. McCann timely filed her objections to Judge Johnston's Findings and Recommendations on June 5, 2019. (Doc. 71.)

         DISCUSSION

         McCann sets forth the following six objections: McCann argues that (1) Judge Johnston violated McCann's First and Fifth Amendment rights to meaningful access and opportunity to be heard on her claims in federal court; (2)

         Judge Johnston abused his discretion in taking judicial notice of the factual recitals in the 10 orders from Montana state courts; (3) Judge Johnston erred in law in not giving notice per Rule 12(b) and the opportunity to respond regarding judicial notice of the 10 orders from Montana state courts; (4) Judge Johnston violated McCann's First and Fifth Amendment rights to access the federal court by denying McCann a meaningful opportunity to be heard at the hearing; (5) Judge Johnston abused his discretion by concluding that amendment of McCann's complaint would be futile; and (6) Judge Johnston erred in recommending that McCann be declared a vexatious litigant.

         The Court reviews de novo Findings and Recommendations to which a party timely objected. 28 U.S.C. § 636(b)(1). The Court reviews for clear error the portions of the Findings and Recommendations to which a party did not specifically object. 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 re-argument of the same arguments set forth in the original response, however, the Court will review for clear error the applicable portions of the Findings and Recommendations. Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations omitted).

         A. Judicial Notice

         Judge Johnston did not err in taking judicial notice of the underlying Montana state court cases. Defendants assert that the doctrines of res judicata and the Rooker-Feldman doctrine apply. Those doctrines required Judge Johnston to look at prior proceedings in the Montana state courts to determine whether McCann's claims must be precluded. Judge Johnston did not err in taking judicial notice of McCann's Montana state court cases to determine whether res judicata and the Rooker-Feldman doctrines applied to McCann's claims.

         B. Motions to Dismiss

         Defendants moved to dismiss all of McCann's claims under Rule 12(b)(1) and Rule 12(b)(6). Fed.R.Civ.P. 12(b)(1) authorizes a court to dismiss claims over which it lacks subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A plausible claim exists when “the plaintiff pleads factual content that allows the court to draw reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

         1. Claims Against Sheila McCann, Paul McCann, Jr., William McCann, Mark Parker, and Guy Rogers.

         McCann asserts claims for monetary relief against her siblings Sheila, Paul Jr. and William, and attorneys Parker and Rogers. Defendants assert that the doctrine of res judicata bars all of McCann's claims. The doctrine of res judicata bars a party from re-litigating claims that could have been brought in a prior action. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).

         The doctrine of res judicata deters “plaintiffs from splitting a single cause of action into more than one lawsuit.” Asarco LLC v. Atlantic Richfield Co., 369 P.3d 1019, 1023 (Mont. 2016). Montana law sets forth five elements that must be met under the doctrine of res judicata: (1) the parties or their privies must be the same in the first and second actions; (2) the subject matter of the actions must be the same; (3) the issues must be the same in both actions, or they must be issues that could have been raised in the first action, and they must relate to the same subject matter; (4) the capacities of the parties in both actions must be the same in reference to the subject matter and the issues raised in the actions; and (5) the first action must have ended with a final judgment on the merits. Brilz v. Metropolitan General Ins. Co., 285 P.3d 494, 501 (Mont. 2012).

         Judge Johnston correctly determined that Defendants met each element of res judicata. Judge Johnston first reasoned that each Defendant in this lawsuit represent either parties in McCann 10 or are privies with persons or entities in McCann 10. Judge Johnston next determined that both cases involve the same subject matter as both cases arise from the same McCann family dispute.

         Third, Judge Johnston concluded that both McCann 10 and this action arise out of “a common nucleus of operative facts.” See Ziolkowski v. Johnson Rodenburg & Lauinger, PLLP, 2013 WL 1291615, at *7 (D. Mont. Mar. 27, 2013). As in McCann 10, McCann seeks a forced dissolution of the family corporations. Res judicata further bars McCann's alleged RICO claims that she did not raise in McCann 10 because ...


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