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IN THE DISTRICT COURT OF GUAM

RICHARD T. ARNOLD,

Plaintiff,

vs.

MANU P. MELWANI, et al.,

Defendants.

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CV. NO. 09-00030 DAE

ORDER: (1) GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND
(2) GRANTING JUDICIARY DEFENDANTS’ MOTION TO DECLARE

PLAINTIFF A VEXATIOUS LITIGANT

On October 19, 2012, the Court heard Former Guam Judiciary

Defendants’ Motion to Dismiss and Motion to Strike Second Amended Complaint

(doc. # 133), Former Guam Judiciary Defendants’ Motion to Declare Plaintiff a

Vexatious Litigant (doc. # 135), and Melwani Defendants’ Motion to Dismiss (doc.

# 158). Plaintiff Richard T. Arnold appeared pro se on behalf of himself; B. Ann

Galey-Keith, Esq., appeared on behalf of the Current Guam Judiciary Defendants;

Assistant Attorney General Marianne Woloschuk appeared on behalf of the Former

Guam Judiciary Defendants; and Robert Kutz, Esq., appeared on behalf of the

Melwani Defendants.

After reviewing the motions and the supporting and opposing

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memoranda, the Court GRANTS the Former Guam Judiciary Defendants’ and

Current Guam Judiciary Defendants’ (collectively, “Judiciary Defendants”) Motion

to Dismiss; GRANTS the Melwani Defendants’ Motion to Dismiss; and GRANTS

the Judiciary Defendants’ Motion to Declare Plaintiff a Vexatious Litigant.

BACKGROUND

The instant action arises out of a contract dispute between Plaintiff

Richard T. Arnold’s (“Plaintiff”) construction company, Pacific Superior

Enterprises Corp. (“PSEC”), and Defendant Manu P. Melwani (“Melwani”) over

ownership rights to payment on a renovation project for Guam Housing and Urban

Renewal Authority (“GHURA”) residential housing units. (See doc. # 19, ex. A.)

On June 14, 1996, GHURA filed an interpleader action, CV887-96, against PSEC

and Melwani in the Superior Court of Guam to determine ownership rights to

money owed by GHURA for the renovation of the housing units. (See “SAC,”

doc. # 124 at 2.) Melwani filed a crossclaim against PSEC, and PSEC filed a

counterclaim and third-party claim. Plaintiff’s dispute with Melwani has spurred

over a decade of litigation in the Superior Court of Guam and the Supreme Court

of Guam.

On December 22, 2009, Plaintiff filed the instant action in federal

district court, seeking to recover money related to his dispute with Melwani that he

alleged the Superior Court of Guam had withheld from him in a “fourteen year . . .

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unconstitutional prejudgment attachment.” (See doc. # 1 at 1.) Plaintiff filed his

First Amended Complaint (“FAC”) on March 11, 2010. (Doc. # 16.) On March

29, 2010, Plaintiff moved for the recusal of Chief Judge Frances Tydingco-

Gatewood, which she denied. (See docs. ## 25, 44.) Plaintiff then sought

reconsideration of that ruling, which Judge Tydingco-Gatewood also denied.

(Docs. ## 46, 58.) Plaintiff then appealed the order denying reconsideration to the

Ninth Circuit, but the action was dismissed for lack of appellate jurisdiction. (See

docs. ## 62, 69.)

On March 31, 2011, the Court dismissed the FAC pursuant to Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. # 92.)

However, in light of Plaintiff’s pro se status, the Court granted Plaintiff leave to

amend as to Counts I, II and IV of the FAC. (See id. at 6.) The Court dismissed

Count III—in which Plaintiff challenged the legality of certain decisions of the

Superior and Supreme Courts of Guam—with prejudice based on the Rooker-

Feldman doctrine and judicial immunity. (See id. at 7.) The Court then entered

judgment as to Count III on March 31, 2011. (See doc. # 93.)

The Melwani Defendants1 filed a Motion to Amend Judgment on

1 The Melwani Defendants include Manu P. Melwani, Anita Melwani,

Lawrence Melwani, J. Teker, and Robert P. Kutz.

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April 14, 2011, asking that the Court dismiss the entirety of the FAC with

prejudice. (Doc. # 95.) Shortly thereafter, on April 27, 2011, Plaintiff filed three

motions. First, Plaintiff filed a Motion for Reconsideration of the Court’s prior

March 31, 2011 Order dismissing Count III of the FAC with prejudice.

(Doc. # 98.) Second, Plaintiff filed a Motion to Vacate an August 14, 2000

decision of the Superior Court of Guam granting partial summary judgment and

the final judgment entered in favor of Defendant Melwani on May 8, 2001.

(Doc. # 99.) Third, Plaintiff filed a Motion to Vacate the judgment of the Superior

Court of Guam in Special Proceedings Case No. 0057-07. (Doc. # 100.)

Approximately one week later, Plaintiff filed a fourth motion, a Notice of a

Constitutional Question, challenging the constitutionality of District of Guam

Local Civil Rule 7.1. (Doc. # 101.)

On August 31, 2011, the Court issued an order denying the Melwani

Defendants’ Motion to Amend Judgment (doc. # 95) and also denying all four of

Plaintiff’s motions (docs. ## 98–101). (Doc. # 112.)

On October 14, 2011, Plaintiff filed a second Motion for

Reconsideration of the Court’s March 31, 2011 Order dismissing Count III with

prejudice. (Doc. # 114.) The motion also asked for reconsideration of the Court’s

dismissal of Plaintiff’s constitutional question in its August 31, 2011 Order. (Id.)

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On January 20, 2012, the Melwani Defendants filed an Opposition to the Motion

for Reconsideration. (Doc. # 120.) On January 24, 2012, Plaintiff filed a Reply to

Melwani Defendants’ Opposition. (Doc. # 122.)

On January 27, 2012, Plaintiff filed a Motion for Reconsideration of

the Court’s August 31, 2011 Order denying his Motion for Reconsideration as to

the Court’s dismissal of Count III of the FAC with prejudice (doc. # 98) and

denying Plaintiff’s two Motions to Vacate various judgments of the Superior and

Supreme Courts of Guam (docs. ## 99, 100). (Doc. # 123.)

On February 10, 2012, Plaintiff filed the present Second Amended

Complaint (“SAC”).2 (Doc. # 124.) On June 11, 2012, Plaintiff filed a Motion for

Extension of Time to Serve Summonses and Second Amended Complaint and

Motion for Order to Have U.S. Marshall’s [sic] Service to Serve Same.

(Doc. # 131.) On June 13, 2012, a group of defendants comprised of current sitting

members of the Guam judiciary3 (“Current Guam Judiciary Defendants”) filed an

Opposition to Plaintiff’s Motion for Extension of Time (Doc. # 138). On June 14,

2Chief Judge Tydingco-Gatewood recused herself from the case on March

28, 2012, because the SAC named her as a defendant. (Doc. # 126.)

3 The group includes Chief Justice F. Phillip Carbullido, Associate Justice

Robert J. Torres, Associate Justice Katherine A. Maraman, Judge Richard Benson,
CNMI Supreme Court Associate Justice John Manglona, and Superior Court of
Guam Judge Michael J. Bordallo.

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2012, a group of defendants made up of former members of the Guam judiciary

(“Former Guam Judiciary Defendants”)4 joined the Opposition (doc. # 139).

On June 12, 2012, the Former Guam Judiciary Defendants filed the

present Motion to Dismiss and a Motion to Strike the SAC (“Former Guam

Judiciary Defendants’ Motion to Dismiss”). (Doc. # 133.) The Former Guam

Judiciary Defendants also filed a Motion to Declare Plaintiff a Vexatious Litigant

(“Vexatious Litigant Motion”) the following day, on June 13, 2012. (Doc. # 135.)

The Current Guam Judiciary Defendants substantively joined both motions. (See

docs. ## 136–137.) On June 27, 2012, Plaintiff filed an Opposition to the Former

Guam Judiciary Defendants’ Motion to Dismiss (doc. # 144) and an Opposition to

the Vexatious Litigant Motion (doc. # 145). On July 5, 2012, the Former Guam

Judiciary Defendants filed a Reply regarding their Motion to Dismiss (doc. # 147)

and a Reply regarding their Vexatious Litigant Motion (doc. # 148).

On August 7, 2012, the Melwani Defendants filed a Motion to

Dismiss Plaintiff’s Second Amended Complaint (“Melwani Defendants’ Motion to

Dismiss”). (Doc. # 159.) On August 21, 2012, Plaintiff filed an Opposition to the

Melwani Defendants’ Motion to Dismiss. (Doc. # 162.) The Melwani Defendants

4 The group includes Benjamin Cruz, Frances Tydingco-Gatewood, Joaquin

Manibusan, Peter Siguenza, and Mitchell Thompson.

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did not file a Reply.

Finally, on August 31, 2012, Plaintiff filed a Motion to Vacate the

Court’s August 31, 2011 Order. (Doc. # 164.) On September 14, 2012, the former

and current members of the Guam judiciary filed Oppositions to Plaintiff’s Motion

to Vacate (docs. ## 166, 167), which the Melwani Defendants joined on September

18, 2012. (Doc. # 168.)

On September 20, 2012, the Court issued an Order (1) Denying

Plaintiff’s Motions for Reconsideration (docs. ## 114, 123) and (2) Denying

Plaintiff’s Motion to Vacate (doc. # 164).

On October 16, 2012, three days before the Court’s scheduled hearing

on the Guam Judiciary Defendants’ and Melwani Defendants’ motions, Plaintiff

filed a Notice of Appeal as to the Court’s September 20, 2012 order (doc. # 179)

and a Motion to Stay Proceedings Pending Appeal (doc. # 180). The Court denied

Plaintiff’s Motion to Stay.5 (Doc. # 181.) On November 8, 2012, the Ninth Circuit

Court of Appeals dismissed Plaintiff’s appeal for lack of jurisdiction.

5 Because of severe time limitations and travel necessities of the Court and
counsel, the Court issued a brief order denying Plaintiff’s motion and stated that it
would provide a reasoned order at a later time. Because the Ninth Circuit
subsequently dismissed Plaintiff’s appeal for lack of jurisdiction, see supra, this
Court need not provide further reasoning for denying Plaintiff’s motion.

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(Doc. # 188.)

The Court held a hearing on the Guam Judiciary Defendants’ and

Melwani Defendants’ motions on October 19, 2012. The Court directed the

Judiciary Defendants to file relevant portions of the record in the Superior Court of

Guam and the Supreme Court of Guam and allowed Plaintiff to file additional

relevant case law no later than October 26, 2012. On October 19, 2012, the

Former Guam Judiciary Defendants filed a Supplement to the Motion to Dismiss.

(Doc. # 183.) On October 29, 2012, Plaintiff filed an Affidavit and Supporting

Documents Concerning SP0057-07 and a Motion for Extension of Time to File

Supporting Documents in Opposition to Motion to Dismiss. (Docs. ## 186, 187.)

On November 8, 2012, the Court granted Plaintiff’s Motion for an Extension of

Time. (Doc. # 189.) On November 27, 2012, Plaintiff filed a Notice of Intent to

File Motion for Partial Summary Judgment (doc. # 190); and on January 3, 2013,

Plaintiff filed a Notification and Certificate of Service indicating that he planned to

move for partial summary judgment on or before January 15, 2013.

STANDARD OF REVIEW

I.

Federal Rule of Civil Procedure 12(b)(1)

A federal court may dismiss a complaint for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court may

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determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule

12(b)(1) so long as “the jurisdictional issue is [not] inextricable from the merits of

a case.” Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195

(9th Cir. 2008).

“[U]nlike a Rule 12(b)(6) motion, in a Rule 12(b)(1) motion, the

district court is not confined by the facts contained in the four corners of the

complaint—it may consider facts and need not assume the truthfulness of the

complaint[,]” and the existence of disputed material facts will not preclude the

court from evaluating the existence of subject matter jurisdiction. Americopters,

LLC v.. Fed. Aviation Admin., 441 F.3d 726, 732 n. 4 (9th Cir. 2006); see also

Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) ( “If subject-matter jurisdiction

turns on contested facts, the trial judge may be authorized to review the evidence

and resolve the disputes on [his or] her own.”). Accordingly, the court may use

affidavits and other forms of competent evidence offered by the parties in order to

resolve the disputed jurisdictional issues without converting the motion to dismiss

into one for summary judgment. See United States ex rel. Meyer v. Horizon Health

Corp., 565 F.3d 1195, 1200 n. 2 (9th Cir. 2009); Safe Air for Everyone, 373 F.3d

at 1039; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). “‘Once the

moving party has converted the motion to dismiss into a factual motion by

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presenting affidavits or other evidence properly brought before the court, the party

opposing the motion must furnish affidavits or other evidence necessary to satisfy

its burden of establishing subject matter jurisdiction.’” Safe Air for Everyone, 373

F.3d at 1039 (quoting Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039

n. 2 (9th Cir. 2003)).

When, as here, subject matter jurisdiction is challenged in a motion to

dismiss, the plaintiff has the burden of proving jurisdiction. Kingman Reef, 541

F.3d at 1197; Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir.

2001); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994) (“It is to be presumed that a cause lies outside [a federal court’s] limited

jurisdiction . . . and the burden of establishing the contrary rests upon the party

asserting jurisdiction[.]”) (citations and quotation marks omitted)).

II.

Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

(“Rule”), a motion to dismiss will be granted where the plaintiff fails to state a

claim upon which relief can be granted. Review is limited to the contents of the

complaint and matters properly subject to judicial notice. See Colony Cove

Properties, LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). A complaint

may be dismissed as a matter of law for one of two reasons: “(1) lack of a

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cognizable legal theory, or (2) insufficient facts under a cognizable legal claim.”

Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984)

(citation omitted). Allegations of fact in the complaint must be taken as true and

construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v.

Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

A complaint need not include detailed facts to survive a Rule 12(b)(6)

motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).

In providing grounds for relief, however, a plaintiff must do more than recite the

formulaic elements of a cause of action. See id. at 556–57; see also McGlinchy v.

Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (“[C]onclusory allegations

without more are insufficient to defeat a motion to dismiss for failure to state a

claim.”) (citation omitted). “The tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions,” and

courts “are not bound to accept as true a legal conclusion couched as a factual

allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and

citations omitted). Thus, “bare assertions amounting to nothing more than a

formulaic recitation of the elements” of a claim “are not entitled to an assumption

of truth.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[T]he

non-conclusory ‘factual content,’ and reasonable inferences from that content,

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must be plausibly suggestive of a claim entitling the plaintiff to relief.”) (internal

quotations and citations omitted).

A court looks at whether the facts in the complaint sufficiently state a

“plausible” ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must

include enough facts to raise a reasonable expectation that discovery will reveal

evidence and may not just provide a speculation of a right to relief. Id. at 586.

When a complaint fails to adequately state a claim, such deficiency should be

“exposed at the point of minimum expenditure of time and money by the parties

and the court.” Id. at 558 (citation omitted). If a court dismisses the complaint or

portions thereof, it must consider whether to grant leave to amend. Lopez v.

Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be

granted “if it appears at all possible that the plaintiff can correct the defect”)

(internal quotations and citations omitted).

III.

Federal Rule of Civil Procedure 8

Federal Rule of Civil Procedure 8 mandates that a complaint include a

“short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), and that each

allegation “be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). A complaint

that is so confusing that its “‘true substance, if any, is well disguised’” may be

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dismissed sua sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police

Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of

Richmond, 417 F.2d 426, 431 (9th Cir. 1969); see also McHenry v. Renne, 84 F.3d

1172, 1180 (9th Cir. 1996) (“Something labeled a complaint but . . . prolix in

evidentiary detail, yet without simplicity, conciseness and clarity as to whom

plaintiffs are suing for what wrongs, fails to perform the essential functions of a

complaint.”); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981)

(“A complaint which fails to comply with [Rule 8] may be dismissed with

prejudice[.]”).

Put slightly differently, a complaint may be dismissed for failure to

comply with Rule 8 where it fails to provide the defendants fair notice of the

wrongs they have allegedly committed. See McHenry, 84 F.3d at 1178–80

(affirming dismissal of complaint where “one cannot determine from the complaint

who is being sued, for what relief, and on what theory, with enough detail to guide

discovery”); cf. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 n.4

(9th Cir. 2008) (finding dismissal under Rule 8 was in error where “the complaint

provide[d] fair notice of the wrongs allegedly committed by defendants and [did]

not qualify as overly verbose, confusing, or rambling”). Rule 8 requires more than

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“the-defendant-unlawfully-harmed-me accusation[s].” Iqbal, 556 U.S. at 678

(internal quotations omitted). Further, “[a] pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not

do.” Id. (internal quotations omitted). “Nor does a complaint suffice if it tenders

naked assertions devoid of further factual enhancement.” Id. (internal quotations

omitted). “The propriety of dismissal for failure to comply with Rule 8 does not

depend on whether the complaint is wholly without merit.” McHenry, 84 F.3d at

1179.

The court may “begin by identifying pleadings that, because they are

no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556

U.S at 679. Legal conclusions must be supported by factual allegations. Id.

“When there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to

relief.” Id.

IV.

Federal Rule of Civil Procedure 9(b)

Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging fraud

or mistake, a party must state with particularity the circumstances constituting

fraud or mistake.” Fed. R. Civ. P. 9(b). Under Ninth Circuit law, “Rule 9(b)

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requires particularized allegations of the circumstances constituting fraud.” In re

GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547–48 (9th Cir. 1994) (en banc),

superseded on other grounds by 15 U.S.C. § 78u-4.

In their pleadings, plaintiffs must include the time, place, and nature

of the alleged fraud; “mere conclusory allegations of fraud are insufficient” to

satisfy this requirement. Id. at 1548 (quoting Moore v. Kayport Package Express,

Inc., 885 F.2d 531, 540 (9th Cir. 1989)). “[T]he circumstances constituting the

alleged fraud [must] ‘be specific enough to give defendants notice of the particular

misconduct . . . so that they can defend against the charge and not just deny that

they have done anything wrong.’” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124

(9th Cir. 2009) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.

2001)); see also Moore, 885 F.2d at 540 (finding that Rule 9(b) requires a plaintiff

to attribute particular fraudulent statements or acts to individual defendants).

However, “[m]alice, intent, knowledge, and other conditions of a person’s mind

may be alleged generally.” Fed. R. Civ. P. 9(b); see also In re GlenFed, Inc. Sec.

Litig., 42 F.3d at 1547 (“We conclude that plaintiffs may aver scienter . . . simply

by saying that scienter existed.”); Walling v. Beverly Enter., 476 F.2d 393, 397

(9th Cir. 1973) (finding that Rule 9(b) “only requires the identification of the

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circumstances constituting fraud so that the defendant can prepare an adequate

answer from the allegations” (citations omitted)).

A motion to dismiss for failure to plead with particularity is the

functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state

a claim. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003). In

considering a motion to dismiss, the court is not deciding the issue of “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)

overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

DISCUSSION

I.

Former and Current Guam Judiciary Defendants’ Motion to Dismiss

Plaintiff defines the case as a “17-year saga wherein the Superior and

Supreme Courts of Guam have deprived Arnold of his life’s savings by purposely

issuing void judgments for the benefit of Melwani and GHURA.” (SAC at 2.) The

SAC lists ten counts that largely criticize the decisions of the Superior and

Supreme Courts of Guam; his claims are somewhat difficult to discern. At the

hearing, Plaintiff stated that he is asserting claims under 28 U.S.C. § 1983 and 28

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U.S.C. § 1343.6 The SAC largely makes references to constitutional violations,

such as violations of due process.7 The instant action appears to arise from two

cases originating in the Superior Court of Guam: (1) the interpleader action filed

by GHURA against PSEC and Melwani to determine the ownership rights to

$411,978.15, the amount due on certain construction contracts; and (2) a judgment

in a Special Proceedings Case confirming an arbitrator’s award in favor of

Melwani.

In Count I, entitled “The Superior Court Had No Right to Institute the

Interpleader,” Plaintiff alleges that former Superior Court Judge Cruz denied

Plaintiff due process of law by denying PSEC’s Motion for Partial Summary

Judgment “without comment” and releasing GHURA from the interpleader. (SAC

at 12–13.) According to the Plaintiff, GHURA subsequently deposited with the

Superior Court PSEC’s “contractually due funds of $411,978.15,” and Judge Cruz

“had no right to take PSEC’s money and ignore PSEC’s Motion for Partial

Summary Judgment,” which was a “manifest disregard of federal and local law,

and, Rule 56 of Guam’s Rules of Civil Procedure.” (Id. at 13.) Plaintiff also

6 Plaintiff also stated that he is asserting diversity jurisdiction.
7 Plaintiff also occasionally alleges violations of Guam Rules of Civil

Procedure.

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complains that the Superior and Supreme Courts of Guam have “continuously

ignored” Melwani’s failure to comply with certain federal and Guam laws and that

the Superior Court still maintains a post-judgment attachment against the

remaining funds (approximately $35,000) in order to prevent Plaintiff from hiring

counsel. (Id. at 14.)

In Count II, Plaintiff claims that it was “unfair” that the Superior

Court—namely, then-Superior Court Judge Tydingco-Gatewood and Judge

Stephen Umpingco—allowed PSEC’s attorneys to withdraw from the case while

PSEC’s partial summary judgment motion was pending.8 (Id. at 14.)

In Count III, Plaintiff claims that on November 23, 1999, Judge

Manibusan lacked jurisdiction to order Plaintiff to redeposit PSEC’s funds in the

interpleader action “on an alleged Rule 62 violation proffered by Melwani” after

Judge Bordallo dismissed the interpleader as being improperly filed. (Id. at 16.)

Count IV alleges that the Superior Court lacked jurisdiction to

“entertain” an equitable subrogation defense in Melwani’s time-barred Rule 59

Motion for reconsideration of an order granting PSEC’s Motion for Summary

8Plaintiff also asserts that Judge Umpingco had a conflict of interest but

allowed the attorneys to withdraw before recusing himself. (Id. at 15.) Umpingco
is not named as a defendant in the SAC.

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Judgment regarding the interpleader action. (Id. at 16–17.)

Count V alleges that on August 14, 2000, Judge Bordallo granted

Melwani summary judgment on Melwani’s cross-claim against PSEC but lacked

jurisdiction to do so because he previously dismissed the interpleader. (Id. at

17–19.)

Count VI alleges that the Supreme Court of Guam—namely, Justice

Siguenza and Justices pro tempore Manglona and Thompson—lacked subject

matter jurisdiction to issue 2001 Guam 08 because Melwani’s Rule 59 motion for

reconsideration was time barred and Melwani lacked standing. (Id. at 19–20.)

Count VII alleges that the Judge Bordallo lacked jurisdiction to enter

the May 8, 2001 Rule 54(b) judgment in favor of Melwani regarding Melwani’s

cross-claim “because he had no basis to maintain the prejudgment attachment on

PSEC’s contractually due funds from GHURA pursuant to the [Guam Supreme

Court’s] opinion in 2001 Guam 08[.]” (Id. at 21.)

Count VIII alleges that the Guam Supreme Court panel comprising

Carbullido, Tydingco-Gatewood, and Benson lacked jurisdiction to issue the

December 17, 2004 opinion (2004 Guam 22) “because Melwani’s surety premium

claim was no basis to maintain the prejudgment attachment.” (Id. at 22.)

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Specifically, it appears that Plaintiff complains that the 2004 opinion ordered

Melwani’s cross-claim against PSEC in the interpleader action to be resolved in

arbitration although the Guam Supreme Court’s 2001 opinion stated that

Melwani’s cross-claim was no basis for Judge Bordallo to maintain the

interpleader. (Id. at 22.)

Count IX, labeled “The Arbitration,” appears to claim that an

arbitrator’s decision in favor of Melwani was erroneous. (Id. at 23–24.) Count IX

also complains that Judge Bordallo failed to hear or rule on Melwani’s motion to

confirm the arbitrator’s award and PSEC’s motion to vacate the arbitrator’s award

but the Superior Court released $428,000 of PSEC’s money to Melwani based on a

default judgment against Arnold instead of PSEC in Superior Court case SP0057-

07. (Id. at 24.)

In Count X, labeled “Special Proceedings Case SP 0057-07,” Plaintiff

appears to argue that the Superior Court lacked jurisdiction to issue a final

judgment confirming the arbitration award against Arnold on December 11, 2007

and that the judgment is void. (Id. at 29.) Plaintiff also asserts that the December

5, 2007 hearing was held without his or his attorney’s knowledge. (Id. at 26.)

Plaintiff states that Justice Carbullido, who wrote the opinion in 2004 Guam 22

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and 2010 Guam 07, was “under retainer by Melwani as an attorney-at-law [and]

was also retained by GHURA for representation in civil case CV 1233-97[.]”

(SAC at 27.)

The Former Guam Judiciary Defendants argue that Plaintiff’s SAC

should be dismissed on the following grounds: (1) failure to state a claim pursuant

to Rule 12(b)(6) and the doctrine of judicial immunity; (2) the Guam Judiciary

Defendants are improper defendants under the Supreme Court case Ngiraingas v.

Sanchez, 495 U.S. 182 (1990); (3) the Rooker-Feldman doctrine; (4) failure to

plead fraud with particularity pursuant to Rule 9(b); and (5) untimely service of

process pursuant to Rule 4(m). The Former Guam Judiciary Defendants also seek

to strike the SAC as improperly filed pursuant to Rule 15(a)(2).9

9 The Judiciary Defendants have submitted copies of the judgments and
opinions in GHURA v. Pac. Super. Ents. Corp., Superior Court of Guam Civil
Case No. CV0887-96; GHURA v. Pac. Super. Ents. Corp., Supreme Court of
Guam Case No. CVA00-009; GHURA v. Pac. Super. Ents. Corp., Supreme Court
of Guam Case No. CVA-03-002; Melwani v. Arnold, Superior Court of Guam
Special Proceedings Case No. SP0057–07; Melwani v. Arnold, Supreme Court of
Guam Case No. CVA08-001. The Court takes judicial notice of those documents,
which are public documents. See United States v. 14.02 Acres of Land More or
Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008) (citing Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“Although, as a general rule, a district
court may not consider materials not originally included in the pleadings in
deciding a Rule 12 motion, Fed. R. Civ. P. 12(d), it ‘may take judicial notice of

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As a preliminary matter, the Court notes that Plaintiff’s inclusion of

the former and current Guam Judiciary Defendants in the SAC exceeds the scope

of the leave to amend granted by the Court. The Court’s March 31, 2011 Order

granted Plaintiff leave to amend only with respect to Counts I, II and IV, which

asserted allegations against Defendants Manu and Anita Melwani, Lawrence

Teker, and Robert Kutz, respectively. (See doc. # 92 at 6–7; doc. # 16 at 2–3.)

The Court expressly stated that it did not give Plaintiff leave to amend his claim

against the Superior Court of Guam and the Supreme Court of Guam because the

claim was barred by Rooker-Feldman and judicial immunity.10 (Doc. # 92 at 7.)

Moreover, Plaintiff did not seek leave to amend nor did Plaintiff receive consent

from the Defendants pursuant to Rule 15. See Fed. R. Civ. P. 15(a)(2) (“[A] party

may amend its pleading only with the opposing party’s written consent or the

court’s leave.”). Therefore, the Court finds that dismissal of Plaintiff’s claims

against the former and current Guam Judiciary Defendants is warranted.

Even if Plaintiff were allowed to assert his claims against the former

matters of public record’ and consider them without converting a Rule 12 motion
into one for summary judgment.”)).

10 The March 31, 2011 Order stated: “As to Count I, II and IV, the Plaintiff,

as a pro se litigant, shall be given leave to amend. . . . As to Count III, the court
hereby dismisses it with prejudice, and the Plaintiff shall not be given leave to
amend, for the reasons stated herein.” (Doc. # 92 at 6–7.)

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and current Guam Judiciary Defendants, these claims would nevertheless fail for

the reasons stated below.

A.

Judicial Immunity

Plaintiff’s claims fail under the doctrine of judicial immunity. It is

well settled that absolute immunity is generally accorded to judges functioning in

their official capacities. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922

(9th Cir. 2004) (citing Stump v. Sparkman, 435 U.S. 349, 364 (1978)). This

immunity reflects the long-standing “general principle of the highest importance to

the proper administration of justice that a judicial officer, in exercising the

authority vested in him, shall be free to act upon his own convictions, without

apprehension of personal consequences to himself.” Bradley v. Fisher, 80 U.S.

335, 347 (1871). “A judge is not deprived of immunity because he takes actions

which are in error, are done maliciously, or are in excess of his authority.” Meek

v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 1999) (citing Stump, 435 U.S.

at 355–56). “The rationale for granting judges immunity from liability for even

intentional and malicious conduct while acting in their judicial capacity is that

judges should be free to make controversial decisions and act upon their

convictions without fear of personal liability.” Id. (citing Stump, 435 U.S. at

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363–64).

Judges are immune from liability for damages in section 1983 actions

for acts committed within the scope of their judicial duties, “even when such acts

are in excess of their jurisdiction, and are alleged to have been done maliciously or

corruptly.” Stump, 435 U.S. at 356. “A judge will not be deprived of immunity

because the action he took was in error, was done maliciously, or was in excess of

his authority; rather, he will be subject to liability only when he has acted in the

clear absence of all jurisdiction.” Id. at 356–57 (internal quotations omitted);

accord Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986).

There are two exceptions to this rule. “First, a judge is not immune

from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial

capacity. Second, a judge is not immune for actions, though judicial in nature,

taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9,

11–12 (1991). The Ninth Circuit has held that a “clear absence of all jurisdiction

means a clear lack of all subject matter jurisdiction.” Miller v. Davis, 521 F.3d

1142, 1147 (9th Cir. 2008) (quoting Mullis v. U.S. Bankr. Court, Dist. of Nev., 828

F.2d 1385, 1389 (9th Cir. 1987). Where “jurisdiction over the subject-matter is

invested by law in the judge or in the court which he holds, the manner and extent

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in which the jurisdiction shall be exercised are generally as much questions for his

determination as any other questions involved in the case.” Stump, 435 U.S. at 356

n.6 (emphasis added); accord Ashelman, 793 F.2d at 1076. “Jurisdiction should be

broadly construed to effectuate the policies supporting immunity.” Ashelman v.

Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc); see also Stump, 435 U.S. at

356 (“Because ‘some of the most difficult and embarrassing questions which a

judicial officer is called upon to consider and determine relate to his jurisdiction

. . . ,’ the scope of the judge’s jurisdiction must be construed broadly . . . .”

(citations omitted)). The Supreme Court in Stump illustrated the distinction

between the two types of deficiencies in jurisdiction as follows:

[I]f a probate judge, with jurisdiction over only wills and estates,
should try a criminal case, he would be acting in the clear absence of
jurisdiction and would not be immune from liability for his action; on
the other hand, if a judge of a criminal court should convict a
defendant of a nonexistent crime, he would merely be acting in excess
of his jurisdiction and would be immune.

435 U.S. at 357 n.7. Even “grave procedural errors” are not enough to deprive a

judge of immunity. Ashelman, 793 F.2d at 1077 (citing Stump, 435 U.S. at 359);

see also Harvey v. Waldron, 210 F.3d 1008, 1012 (9th Cir. 2000) (“[A]s long as

the judge has jurisdiction to perform the ‘general act’ in question, he or she is

immune ‘however erroneous the act may have been, . . . however injurious in its

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consequences it may have proved to the plaintiff’ and irrespective of the judge’s

motivation.”).

Here, the acts forming the basis of Plaintiff’s claims against the

Judiciary Defendants were clearly judicial acts, and Plaintiff does not appear to

argue to the contrary. Rather, Plaintiff argues that the Judiciary Defendants are not

protected by judicial immunity because their acts were taken in the “complete

absence of jurisdiction.” (Doc. # 144 at 4.) However, although Plaintiff repeatedly

asserts that the Guam courts acted without proper jurisdiction, there is nothing in

Plaintiff’s SAC or Opposition indicating that the Guam courts lacked subject-

matter jurisdiction over the proceedings and decisions of which Plaintiff

complains. Rather, the bases that Plaintiff relies on to support his argument that

the Judiciary Defendants acted without jurisdiction, even if assumed to be true,

would amount to at most an excess of jurisdiction, not a clear absence of

jurisdiction.11

For example, Plaintiff appears to claim that Judge Manibusan “lacked

11 Plaintiff’s arguments regarding jurisdiction also largely appear to consist

of nothing more than his disagreement with a court’s decision. For example,
Plaintiff argues that Judge Bordallo lacked jurisdiction to rule in favor of Melwani
with regard to Melwani’s cross-claim because it “violates due process of law.”
(Doc. # 124 at 21.)

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all personal and subject matter jurisdiction” to order Plaintiff to “deposit his

personal funds back into the registry of the court based on a GRCP Rule 62

violation” because there was no Rule 62 violation. (Doc. # 144 at 5–6.) Plaintiff

also asserts that Melwani’s Rule 59 motion was time-barred and that Melwani did

not have standing, thus depriving the Superior Court and the Supreme Court of

Guam of jurisdiction to rule on the matter.12 (Id. at 6; doc. # 124 at 17, 20.)

Plaintiff also argues that Judge Bordallo lacked subject matter jurisdiction when he

granted Melwani summary judgment on a case that he previously dismissed.13

(Doc. # 124 at 17–19.) Finally, Plaintiff asserts that Judge Bordallo lacked

jurisdiction to enter a default judgment against Arnold in the Special Proceedings

case because, inter alia, the arbitrator failed to file his “rigged ‘award’ with the

court”; no jurisdictional statement was contained in Melwani’s motion to affirm;

12 In his Opposition, Plaintiff appears to argue that the Supreme Court of

Guam had no jurisdiction because Melwani’s lack of standing meant he was not an
aggrieved party under 7 G.C.A. § 25104. However, Melwani was an aggrieved
party because under the March 17, 2000 final judgment, the Court granted PSEC
summary judgment that adversely affected Melwani. (See docs. ## 183-1, 183-3.)
13 Plaintiff appears to misunderstand the litigation process. Judge Bordallo
granted Melwani summary judgment with respect to Melwani’s crossclaim against
PSEC, which is a separate matter from the dismissal of the interpleader. (See docs.
## 183-1, 183-2.) Thus, Judge Bordallo’s grant of summary judgment in favor of
Melwani was within the court’s jurisdiction.

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and the void default judgment exceeds the amount of Melwani’s surety premium

claim. (Doc. # 124 at 29–31.)

There is no basis for concluding that the Judiciary Defendants were

acting in “complete absence of jurisdiction” where there is no allegation that the

Superior Court judges or Guam Supreme Court justices are not empowered to hear

as a general matter the type of action before the Judiciary Defendants. See Stump,

435 U.S. at 357 & n.17 (holding that “complete absence of jurisdiction” means

“clear absence of all jurisdiction,” such as where a probate judge tries a criminal

case). In Guam, the Superior Court is a court of general jurisdiction. See Guam

Code Ann. tit. 7, §§ 3101, 4101. The Supreme Court of Guam has jurisdiction to

review appeals from judgments of the Superior Court. See Guam Code Ann. tit. 3

§ 12121 (“Any party aggrieved by the judgment of the Superior Court of Guam

may appeal therefrom to the Supreme Court of Guam[.]”) Moreover, Plaintiff’s

argument that the Judiciary Defendants also lacked personal jurisdiction is a non-

starter, because the Ninth Circuit has established that “a judge is entitled to

immunity even if there was no personal jurisdiction over the complaining party.”

Ashelman, 793 F.2d at 1076. In sum, Plaintiff has not alleged any facts that, even

if assumed to be true, would lead the Court to conclude that Defendants were

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acting in complete absence of jurisdiction. See Stump, 435 U.S. at 357 & n.17;

Mireles v. Waco, 502 U.S. 9, 13 (“If judicial immunity means anything, it means

that a judge will not be deprived of immunity because the action he took was in

error . . . or was in excess of his authority.”) (internal quotation omitted); McCulley

v. Chatigny, 390 F. Supp. 2d 126, 130 (D. Conn. 2005) (holding that the plaintiff’s

allegation that the judge ruled on an untimely motion for reconsideration is

insufficient to strip the judges of their absolute immunity); Franceschi v. Schwartz,

57 F.3d 828, 830–31 (9th Cir. 1995) (finding that a commissioner’s reactivation of

a bench warrant after agreeing to transfer the case to another judge was an act in

excess of jurisdiction rather than in the clear absence of jurisdiction); Mullis v.

U.S. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1389 (9th Cir.

1987) (bankruptcy judge’s actions after debtor filed notice of appeal may have

been in excess of jurisdiction but were not in clear absence of jurisdiction) (cited

by Franceschi, 57 F.3d at 831); O’Neil v. City of Lake Oswego, 642 F.2d 367, 369

(9th Cir. 1981) (a pro tem municipal judge’s “action in holding [the plaintiff] in

contempt, an offense within his jurisdiction, although without the requisite papers

to confer jurisdiction over this particular commission of the offense,” is in excess

of jurisdiction). Accordingly, Plaintiff’s claims against the Judiciary Defendants

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are barred by judicial immunity.

B.

Rooker-Feldman Doctrine

The Judiciary Defendants contend that Plaintiff’s claims against them

are barred by the Rooker-Feldman doctrine because Plaintiff is attempting to undo

the judgments of the Guam courts. (Judiciary Mot. at 6–7.) The Rooker-Feldman

doctrine generally bars federal district courts “from exercising subject matter

jurisdiction over a suit that is a de facto appeal from a state court judgment.”

Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004). Such a de facto

appeal exists where “claims raised in the federal court action are ‘inextricably

intertwined’ with the state court’s decision such that the adjudication of the federal

claims would undercut the state ruling or require the district court to interpret the

application of state laws or procedural rules.” Reusser v. Wachovia Bank, N.A.,

525 F.3d 855, 859 (9th Cir. 2008). “In such circumstances, ‘the district court is in

essence being called upon to review the state court decision.’” Id. (quoting

Feldman, 460 U.S. at 483 n.16). “Essentially, the doctrine bars ‘state-court losers

complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced’ from asking district courts to review and

reject those judgments.” Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th

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Cir. 2007) (quoting Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284 (2005)); accord Reusser, 525 F.3d at 859. The Rooker-Feldman doctrine

“is not limited to claims that were actually decided by the state courts, but rather it

precludes review of all ‘state court decisions in particular cases arising out of

judicial proceedings even if those challenges allege that the state court’s action was

unconstitutional.’” Bianchi v. Rylaarsdam, 334 F.3d 895, 901 (9th Cir. 2003)

(quoting Kenmen Eng’g v. City of Union, 314 F.3d 468, 475 (10th Cir. 2002).

“Stated plainly, Rooker-Feldman bars any suit that seeks to disrupt or undo a prior

state-court judgment, regardless of whether the state-court proceeding afforded the

federal-court plaintiff a full and fair opportunity to litigate her claims.” Id.

Moreover, Rooker-Feldman “prevents lower federal courts from exercising

jurisdiction over any claim that is ‘inextricably intertwined’ with the decision of a

state court, even where the party does not directly challenge the merits of the state

court’s decision but rather brings an indirect challenge based on constitutional

principles.” Id. at 901 n.4.

However, Rooker-Feldman does not bar actions by non-parties to the

state court judgment merely because they were in privity with a state-court loser.

Lance v. Dennis, 546 U.S. 459, 466 (2006). Here, Arnold was not a party in the

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interpleader case filed by GHURA; Arnold’s company, PSEC, was a named party.

Therefore, Plaintiff’s claims against the Judiciary Defendants regarding the

interpleader case are not barred by Rooker-Feldman.

Plaintiff, however, was a named party in the Special Proceedings Case

and was clearly a “state-court loser[] complaining of injuries caused by [a] state-

court judgment.” Henrichs, 474 F.3d at 613. Although the Guam Superior Court

decided to award a default judgment in the Special Proceedings Case, a default

judgment is a decision on the merits for the purposes of Rooker-Feldman. See

Reusser, 525 F.3d at 860 (default judgment bars federal review even when parties

argue it could have been based on procedural grounds when “the parties did not

present a procedural argument before the state court”). Thus, Plaintiff’s claims that

the judgment in the Special Proceedings Case is void are barred under Rooker-

Feldman.

Although the SAC’s prayer for relief only mentions damages, Plaintiff

plainly seeks to void or disrupt the adverse rulings by the Guam courts. Plaintiff’s

federal suit against the Judiciary Defendants asserts that the judgments against him

are incorrect or otherwise void, and Plaintiff is claiming injury resulting from those

allegedly erroneous judgments. “As courts of original jurisdiction, however,

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federal district courts lack jurisdiction to review the final determinations of a state

court in judicial proceedings.” Doe & Assoc. Law Offices v. Napolitano, 252 F.3d

1026, 1029 (9th Cir. 2001). His alleged injuries and damages flow from the Guam

courts’ judgments. Indeed, Plaintiff defines the case as “a 17-year saga wherein

the Superior and Supreme Courts of Guam have deprived Arnold of his life’s

savings by purposely issuing void judgments for the benefit of Melwani and

GHURA.”14 (SAC at 2.) Moreover, Plaintiff would only receive a damage award

from the Judiciary Defendants if this court determined that the Guam Superior and

Supreme Courts’ decisions were in error. Thus, to evaluate his claims and grant

him the relief he seeks, this court would be required to review and reject those

orders. Accordingly, to the extent that Plaintiff is attempting to appeal the court

decisions in the Special Proceedings Case, the Rooker-Feldman doctrine prohibits

these claims.15

14 In his Motion to Stay Proceedings Pending Appeal, Plaintiff also stated

that he would dismiss the Judiciary Defendants upon “the Superior Court’s
immediate release of the $35,000.00 prejudgment attachment remaining its registry
[sic], and the recovery of the $428,000.00 illegally in Melwani’s possession.”
(Doc. # 180 at 1–2.)

15 In his Opposition, Plaintiff appears to argue that Rooker-Feldman does not
apply because he was denied the “right to a full and fair opportunity to litigate” his
claims. (Doc. # 144 at 13.) Specifically, Plaintiff complains that he and PSEC
“have been deprived of their property by the local courts for 16 years by the court’s

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Because the Court’s foregoing determinations with respect to judicial

immunity and the Rooker-Feldman doctrine dispose of Plaintiff’s claims against

the Judiciary Defendants, the Court need not address the Judiciary Defendants’

remaining arguments.

II. Melwani Defendants’ Motion to Dismiss

The Melwani Defendants argue that Plaintiff’s SAC should be

dismissed as to them because (1) diversity jurisdiction is lacking, (2) the Court

lacks jurisdiction because Plaintiff failed to join PSEC as a necessary party to the

action, and (3) the SAC fails to state a claim. (Doc. # 158.) The Melwani

Defendants also argue that Plaintiff has failed to state a cause of action against

refusal to rule on federal law and Guam’s positive civil laws on licensing and
insurance authority[.]” (Id.) Plaintiff cites Robinson v. Ariyoshi, in which the
Ninth Circuit held that Rooker-Feldman is inapplicable “where the complaining
party did not have a full and fair opportunity to litigate a claim in state court or
where the state court demonstrated inability or unwillingness to protect federal
rights.” 753 F.2d 1468, 1472 (9th Cir. 1985), vacated on other grounds by
Robinson v. Ariyoshi, 887 F.2d 215 (9th Cir. 1989). This exception, however, is
applicable only when a state court “had explicitly refused to hear federal
constitutional claims,” not when the state court had considered and rejected those
claims, or when those claims were not raised but could have been. Partington v.
Gedan, 961 F.2d 852, 865 (9th Cir. 1992). Plaintiff fails to state beyond
conclusory assertions any allegations that a Guam court explicitly refused to hear
his claims. Plaintiff “simply has not alleged an ‘inability to be heard’ that is
analogous to the inability of the plaintiffs in Robinson, or that justifies a departure
from the strictures of Rooker-Feldman.” Partington, 961 F.2d at 865.

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Defendants Pacific American Title Insurance and Escrow Company (“PATICO”)

and Pacific Tri-Star, Inc. (“Tri-Star”). For the reasons below, the Court finds that

the Melwani Defendants’ arguments have merit; Plaintiff’s claims against the

Melwani Defendants, PATICO, and Tri-Star must be dismissed.

A.

Diversity Jurisdiction

The Melwani Defendants are all citizens of the Territory of Guam.

They argue that diversity jurisdiction is lacking in the instant case because Plaintiff

is also a citizen of the Territory of Guam, not a citizen of Missouri, as he claims in

the SAC. This is a factual rather than facial challenge to this Court’s subject-

matter jurisdiction, and the Court “may look beyond the complaint” to evaluate

jurisdictional facts without converting the motion into a motion for summary

judgment. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); Trentacosta v.

Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987) (collecting

cases). For the reasons given below, the Court concludes that, in light of all the

available evidence, it lacks diversity jurisdiction over Plaintiff’s claims against the

Melwani Defendants.

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1.

Burden of Proof

Federal courts are courts of limited subject matter jurisdiction, and

there is no presumption that a court has jurisdiction in any particular case. See

U.S. Const. art. III. Hence, in order to properly sue in federal court, a plaintiff

must affirmatively establish at the outset that subject matter jurisdiction existed at

the time of filing. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994); McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936).

A plaintiff may plead subject matter jurisdiction under either diversity

or “federal question” jurisdiction. Under diversity jurisdiction, district courts have

original jurisdiction in civil actions where the matter in controversy exceeds

$75,000 and where the suit is between citizens of different states. 28 U.S.C. §

1332(a). “Diversity jurisdiction requires complete diversity between the

parties—each defendant must be a citizen of a different state from each plaintiff.”

In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008) (citing

Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806)).

An individual is deemed to be a citizen of the state where he is

“domiciled”—that is, the one “place where he has his true, fixed, and permanent

home and principal establishment, and to which he has the intention of returning

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