United States District Court, D. Montana, Great Falls Division
Morris, United States District Court Judge
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.
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.
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.
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)
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.
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).
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.
Motions to Dismiss
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.
Claims Against Sheila McCann, Paul McCann, Jr., William
McCann, Mark Parker, and Guy Rogers.
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).
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).
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.
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 ...