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Serna v. Webster

United States District Court, D. New Mexico

May 4, 2017

EMMA SERNA d/b/a SERNA & ASSOCIATES CONSTRUCTION CO., LLC, Plaintiff,
v.
MARGETTE WEBSTER; DAVID WEBSTER; STATE OF NEW MEXICO, U.S. Judicial Court Division; CLAYTON CROWLEY; ALEX CHISHOLM; CARL BUTKUS; CINDY MOLINA; ALAN MALOTT; BEATRICE BRICKHOUSE; BOBBY JO WALKER; JAMES O'NEAL; ROBERT BOB SIMON; ESTATE OF PAUL F. BECHT; CARL A. CALVERT; JOEY MOYA; AMY MAYER; GARCIA MADELIENE; ARTHUR PEPIN; MONICA ZAMORA; CHERYL ORTEGA; JOHN DOE #1; PAT MCMURRAY; MARTHA MUTILLO; SALLY GALANTER; NEW MEXICO CONSTRUCTION INDUSTRIES DIVISION; ROBERT “MIKE” UNTHANK; MARTIN ROMERO; AMANDA ROYBAL; NAN NASH; and JOHN WELLS, Defendants.

          SECOND PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         Despite being filed in January 2017, this case has already endured an unusually large amount of motion practice and other filings. This Second Proposed Findings and Recommended Disposition (“Second PFRD”) will recommend disposition of the following motions and other filings, in the order in which they were filed:

         1. Pro se Plaintiff Emma Serna's request to refile a lien expunged by the state district court (Doc. 11);

         2. Serna's motion for injunctive relief from the Second Judicial District Court for the State of New Mexico (Doc. 20);

         3. Serna's motion for an order directing the Bernalillo County Clerk to “dismiss the expungement” of a lien (Doc. 21);

         4. Defendant Clayton Crowley's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), (b)(4), (b)(5), and (b)(6) (Doc. 23);

         5. Serna's second motion for injunctive relief (Doc. 24);

         6. Serna's motion for default and default judgment as to Crowley (Docs. 26, 27);

         7. Serna's motion for default and default judgment as to Defendant Margette Webster (Doc. 28);

         8. Serna's motion for default and default judgment as to Defendant David Webster (Doc. 29);

         9. Serna's motion for default and default judgment as to Defendant Alex Chisholm (Doc. 30);

         10. Serna's motion for default and default judgment as to Defendant Carl Calvert (Doc. 31);

         11. Serna's motion for default and default judgment as to Defendant Robert “Bob” Simon (Doc. 32)

         12. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6) filed by the following Defendants: Judge Monica Zamora, Judge Beatrice Brickhouse, Judge Carl Butkus, Judge Alan Malott, Joey Moya, Amy Mayer, Madeline Garcia, Lynette Rodriguez[1], Arthur Pepin, Cheryl Ortega, James Noel, Cindy Molina, Bobby Jo Walker, and the State of New Mexico (collectively, the “Judicial Defendants”) (Doc. 33);

         13. Defendant Carl Calvert's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), (b)(2), (b)(4), (b)(5), and (b)(6) (Doc. 34);

         14. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by the following Defendants: New Mexico Construction Industries Division (“CID”), Robert Unthank, Sally Galanter, Martha Murillo, Pat McMurray, Martin Romero, and Amanda Roybal (collectively, the “CID Defendants”) (Doc. 36);

         15. Simon's motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e) (Doc. 38);

         16. Defendant Judge Nan Nash's motion to dismiss (Doc. 40);

         17. What I construe to be Serna's motion for sanctions against counsel for the Judicial Defendants for failing to disclose his employment status (Doc. 58);

         18. Serna's request to subpoena bank statements and phone records of the Defendants (Doc. 61);

         19. Serna's motion for entry of default judgment as to all Defendants (Doc. 66);

         20. Serna's motion for default judgment as to Defendants Margette and David Webster (Docs. 77, 92);

         21. The Judicial Defendants' motion to strike (Doc. 84) Serna's unauthorized surreply (Doc. 83);

         22. Serna's motion for leave to file a surreply (Doc. 90);

         23. What I construe to be Serna's second motion for sanctions against counsel for the Judicial Defendants (Doc. 91);

         24. Serna's third motion for injunctive relief (Doc. 94);

         25. Serna's motion for dismissal of expungement of a lien (Doc. 96);

         26. Serna's motion for emergency temporary injunction (Doc. 98);

         27. The Judicial Defendants' motion to impose filing restrictions on Serna (Doc. 99);

         28. Serna's fourth motion for injunctive relief (Doc. 104);

         29. Serna's motion to “dismiss” state court orders, which I construe as a motion for injunctive relief (Doc. 105);

         30. Serna's motion for default judgment as to Defendant John Wells (Doc. 115); and

         31. What I construe to be several motions to amend Serna's complaint (Docs. 7, 8, 25, 47, 61, 87, 93, 94).

         Because Serna is a pro se litigant, I must construe her pleadings liberally and hold them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro se litigant's “failure to cite proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence construction, or [her] unfamiliarity with pleading requirements.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110) (alterations omitted). However, “the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Id.

         I note that Serna has attempted to bring claims on behalf of her construction company, Serna & Associates Construction Co., LLC. Serna may not proceed pro se and represent her LLC. D.N.M.LR-Civ. 83.7; Perry v. Stout, 20 F. App'x 780, 782 (10th Cir. 2001) (unpublished) (citing 28 U.S.C. § 1654); (Doc. 103). At the time of writing, Judge Browning has not yet ruled on the outstanding PFRD that would dismiss the LLC as a Plaintiff. (Doc. 103.) However, I proceed under the assumption that the LLC cannot maintain its claims without representation, and thus address only the claims of Serna herself.

         To the extent that Serna attempts to bring criminal claims-state or federal-against any of the Defendants, I recommend that the Court dismiss those claims sua sponte. “[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another” and cannot base a claim for which relief can be granted on criminal statutes. Diamond v. Charles, 476 U.S. 54, 64 (1986) (quotation omitted). No amount of factual amendment will convert criminal charges into cognizable civil causes of action. To the extent that Serna attempts to assert criminal claims in this case, I recommend that the Court dismiss those claims with prejudice.

         Background

         As previously stated, this case has an unusually large record for being so recently filed. Essentially, this case arises from underlying state court litigation. Serna and the Webster Defendants entered into a construction contract sometime in 2002. The work was apparently not completed and/or paid for by mid-2004. The parties attempted to sort out the differences, but ultimately filed two separate civil cases in 2006 or 2007, and those cases were consolidated. The Websters alleged that Serna walked off the job-site, in breach of contract, and they incurred additional expenses due to that breach. Serna contended that the work was finished but the Websters did not finish paying for the work, and sued to collect those fees. In addition to suing Serna, the Websters sued Serna's husband.

         In 2008, Crowley, who was then representing Serna, filed a motion for summary judgment in the consolidated cases as to Serna's husband only and seeking dismissal of Serna's husband. (Doc. 8 at 32.) The state district judge who heard the motion for summary judgment as to Serna's husband granted that motion and dismissed Serna's husband from the underlying litigation. (Id. at 41, 50.) Things went downhill from there.

         Since that time, the consolidated cases have gone up and down the New Mexico court system with Serna doggedly insisting, at every level, that summary judgment was granted in her favor. This argument has been rejected by every level of the New Mexico courts. In fact, every level of the New Mexico courts have imposed filing restrictions on Serna because of her frivolous and abusive filings. (See Doc. 34-5 (imposing filing restrictions in the New Mexico Court of Appeals); Doc. 34-6 (imposing filing restrictions in the Second Judicial District Court for the State of New Mexico); Doc. 34-7 (imposing filing restrictions in the New Mexico Supreme Court).)

         The allegations are as follows: the Websters filed suit in state district court in 2007, claiming that Serna walked off the job-site and breached the contract; Serna, then represented by Simon, countersued for unpaid labor. (Doc. 1 at 8-9.) Serna claims that Simon filed a motion for partial summary judgment, but “mumbled” in court, so the motion was denied. (Id. at 9.) Serna then fired Simon.

         Serna then hired Crowley. Crowley filed for “full summary judgment, ” summary judgment was granted by non-party Judge Lang, Judge Lang retired, Crowley submitted a proposed order to the state court but “was not going to correct the order, ” and “refused to dismiss the Webster's lawsuit” in state court. (Id.) Serna then fired Crowley. She later states that “Crowley committed obstruction of the law, extortion, conspiring to commit extortion, aiding and abetting, fraud, bribery, false statements to the court, illegal kickbacks, false information and misleading information, racketeering conspiracy to commit, money laundering.” (Id. at 17.) Serna also asserts that “Crowley has blackballed the Construction Company with 90% of the attorneys in Albuquerque.” (Doc. 26 at 1.)

         Judge Butkus took over the underlying state case when Judge Lang retired, after Judge Lang orally granted the motion for summary judgment as to Serna's husband. (Doc. 8 at 34, 37 (“Memorandum in Support of Defendants' Motion for Summary Judgment” in state court); Doc. 8 at 41 (transcript of state court hearing with Judge Lang granting the motion for summary judgment as to Serna's husband).) Judge Butkus refused to dismiss the entire lawsuit based on Serna's misinterpretation of the proceedings. (Doc. 1 at 9.)

         Serna then hired Becht. Becht drafted a motion and affidavit stating that the construction company used licensed sub-contractors. Becht then drafted a motion to dismiss the case. (Id.) Serna then claims that Becht “refused to dismiss the Webster's lawsuit” and conspired and attempted to defraud Serna. (Id.)

         Judge Malott took over the case from Judge Butkus and committed, in Serna's eyes, the same sins. (Id.) Serna took an appeal, pro se, sometime in late 2008 or 2009. The appeal was denied. The New Mexico Supreme Court then denied Serna's petition for certiorari in 2013. (Id. at 10); but see Serna v. Webster, 321 P.3d 126 (N.M. 2013) (table decision) (denying certiorari on December 9, 2013). Serna claims that “Mandate was sent in March, 2014 for the summary judgment.” (Id.) This is incorrect. No such mandate exists in the record or in the state court docket. (But see Doc. 8 at 58-60 (opinion and mandate of the New Mexico Court of Appeals, dismissing the appeal for lack of jurisdiction).) Serna alleges that Judge Brickhouse was essentially ghostwriting materials for the New Mexico Court of Appeals. (Doc. 1 at 11.)

         Judge Malott eventually recused and the case was transferred to Judge Brickhouse, after some appellate practice. (Id. at 10.) Judge Brickhouse also refused to sign Serna's proposed order granting Serna summary judgment based on Serna's erroneous conclusions. Judge Brickhouse then ordered the clerks of the district court not to accept additional filings from Serna without first presenting the filing to Judge Brickhouse for approval. Judge Brickhouse also directed the parties to participate in court-annexed arbitration. (Id.) Serna alleges that Judge Brickhouse raised her voice in the hearings. (Id. at 15.)

         Serna alleges that district court clerk James Noel, incorrectly identified as James O'Neal, was the person to return filings to her that were not approved by Judge Brickhouse and told her that she could not file anything more. (Id. at 10.) Serna further alleges that Bobby Jo Walker, Judge Brickhouse's secretary or assistant, was rude to Serna and told Serna that “they don't do things the legal way.” (Id. at 11.)

         Then, in May 2014, Serna filed with the American Arbitration Association (“AAA”) to invoke the arbitration clause of the underlying construction contract. AAA Arbitrator Calvert was assigned the case and held a preliminary hearing on October 20, 2014. (Doc. 8 at 62.) The Websters did not participate in that hearing. On December 14, 2014, Calvert issued a written decision determining that he did not have jurisdiction to resolve the matter on the merits in light of the litigation history and Judge Brickhouse's order-with the parties' agreement-that the case go to binding court-annexed arbitration. (Doc. 34 Ex. 1.)

         While the AAA proceeding was pending, the court-annexed arbitration was held, with Wells assigned as the arbitrator. Serna did not attend the arbitration. (Doc. 1 at 11.) An arbitral award was entered in favor of the Websters. (Id.) Serna never appealed to the district court. (Id.)

         Somewhere in this procedural mess, Serna filed a second petition for writ of certiorari with the New Mexico Supreme Court. Serna alleges that Moya, the Clerk of Court, “refused to submit” any of her filings to the Justices. (Doc. 1 at 12.) Serna appears to blame Moya for the New Mexico Supreme Court's order imposing filing restrictions on her. Moya allegedly told Serna that her “problem is with the lower court judges” and refused to help Serna. (Doc. 1 at 13.)

         Serna further alleges that Mayer, another clerk at the New Mexico Supreme Court, later accepted a filing and told Serna that “she was Paid to close [Serna's] case.” (Doc. 1 at 12.) Serna contends that Mayer accepted a bribe. According to Serna, the Websters “compensated”-that is, bribed-Crowley, Simon, Becht, Walker, Ortega, Judge Butkus, Judge Malott, Judge Brickhouse, Judge Zamora, Moya, Mayer, Garcia and Rodriguez. (Id.)

         Serna then filed an ethics complaint with Rodriguez, the Human Resources Manager at the New Mexico Supreme Court. Rodriguez apparently agreed to investigate the claim. It is unclear what Rodriguez allegedly did wrong. Serna appears to contend that Rodriguez refused to conduct an investigation and refused to give Serna affidavits from each of the allegedly corrupt officials.

         Serna also submitted a complaint to the New Mexico Attorney General's office, where she spoke with Pepin. (Doc. 1 at 13.) Serna submitted her “unfulfilled orders” to Pepin and asked Pepin to transmit a motion to reopen her case to the judges for the Court of Appeals. (Id.) Serna alleged that Mayer was being compensated/bribed. Pepin did not respond quickly enough, so Serna went to Santa Fe, where Pepin confirmed that he had received the complaint. (Id.) Serna then asked Pepin to draft a cover letter to the Judicial Disciplinary Board. (Id.) Pepin allegedly did so, and also sent a copy to the Websters. (Id.) Serna interprets this as proof-positive that Pepin conspired against her. Pepin's transgression appears to be, as with most of the Defendants, not acceding to Serna's whim and her interpretation of the law.

         While all of this was happening, apparently, CID sent Serna a copy of a complaint that the Websters filed against her-evidently sometime in 2016. (Id.) The Websters alleged that Serna walked off the job, left the job partially undone, and that they had an arbitral award against her. (Id.) Serna disputed the name of the person to whom the arbitral award was made out- Margaret Webster as opposed to Margette Webster-and also the identity of the business. (Id.) She also asserted that she had summary judgment in the matter. (Id.)

         CID inquired as to the summary judgment matter and told Serna, correctly, that she was never granted summary judgment. (Doc. 1 at 14.) Serna alleges that “these were words, that Brickhouse would say, ” which apparently proves that CID is part of the conspiracy. (Id.) Murillo, who works for CID, apparently participated in the conspiracy by mailing the complaint to Serna “without checking it out” and without independently determining if there were “any grounds for opening the complaint.” (Id.) Galanter, a CID attorney, was complicit because she did not do anything to stop it. CID investigator Roybal looked into the complaint and “brought back ...


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