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Chien v. Motz

United States District Court, E.D. Virginia, Richmond Division

January 7, 2019

ANDREW CHIEN, pro se Plaintiff,
v.
DIANA GRIBBON MOTZ, et al, Defendants.

          REPORT AND RECOMMENDATION

          David J. Novak United States Magistrate Judge.

         Plaintiff Andrew Chien ("Plaintiff), proceeding pro se, brings this action against Defendants United States Court of Appeals for the Fourth Circuit Judges Diana Gribbon Motz, Pamela A. Harris and James A. Wynn, Jr. (collectively, "Defendants"), alleging that Defendants committed tortious, unconstitutional and "non-judicial" acts in their decision to affirm the dismissal of Plaintiff s complaint in prior litigation styled Chien v. Grogan, 710 Fed.Appx. 600 (4th Cir. 2018), aff'g, 2017 WL 3381978 (E.D. Va. Aug. 3, 2017). This matter comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on Defendants' Rule 12(b)(1) Motion to Dismiss (ECF No. 13) and Plaintiffs "Motion for Alternatively [sic] Relief Chien under '28 § 1651. Writs' & Under Three Judge Panel for Review of Statute of VA Code '§8.01-508'" ("Motion for Alternative Relief) (ECF No. 17), Motion for a Hearing (ECF No. 19), Motion to Allow One-Day Delay for Delivery of "Objection" due to Issue of Post Office ("Motion for a Delay") (ECF No. 20), second "Motion for Alternatively [sic] Relief Chien under '28 § 1651. Writs' & Under Three Judge Panel for Review of Statute of VA Code '§8.01-508'" ("Second Motion for Alternative Relief) (ECF No. 21) and two pleadings titled "Supplementary to Chien's Various Pleadings Based on Fair Debt Collection Practices Act" ("Supplement") (ECF No. 25) and "More of Supplementary to Chien's Various Pleadings Based on Fair Debt Collection Practices Act" ("Additional Supplement") (ECF No. 26), (collectively, "Plaintiffs Motions").

         For the reasons set forth below, the Court recommends that Defendants' Motion to Dismiss (ECF No. 13) be GRANTED, that Plaintiffs Complaint (ECF No. 1) be DISMISSED WITH PREJUDICE and that Plaintiffs Motions (ECF Nos. 17, 19, 20, 21, 25, 26) be DENIED.

         I. FACTUAL BACKGROUND

         When, as here, a defendant raises substantive challenges to a court's jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the court may consider facts outside of a complaint and need not accept the allegations in the complaint as true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Accordingly, the Court will consider facts beyond Plaintiffs Complaint to resolve Defendants' Motion to Dismiss. For the purposes of establishing background, the Court will also consider the facts as outlined in Chien v. Grogan (Chien 1), 2017 WL 3381978, at * 1-3 (E.D. Va.Aug.3, 2017).

         A. Defamation Lawsuit, Debt Collection and Contempt Detention

         At some point before 2011, Commonwealth Biotechnologies Incorporated ("CBI") retained Plaintiff, an independent financial consultant, to file forms on the company's behalf before the Securities and Exchange Commission and to manage CBI's shareholder meetings. Chien I, 2017 WL 3381978, at *1. While working with CBI, Plaintiff met Richard J. Freer ("Freer"), who served as CBI's chief operating officer. Id.

         In 2011, CBI filed for bankruptcy in Virginia. Id; see also In re Commonwealth Biotechnologies, Inc., 2012 WL 5385632, at *1 (E.D. Va. Bkr. Nov. 1, 2012) (noting bankruptcy filing date of January 20, 2011). Around the same time, Plaintiff accused Freer of committing fraud and embezzlement. (Compl. (ECF No. 1) ¶ 1); Chien I, 2017 WL 3381978, at *1. In response, on February 17, 2012, Freer filed a defamation lawsuit against Plaintiff in the Circuit Court for the County of Chesterfield. (Compl. ¶ 2); Chien I, 2017 WL 3381978, at *1; Freer v. Chien (Freer I), No. CL12000485-00 (Va. Cir. Ct.). Upon receiving a judgment for $1.6 million, on September 26, 2012, Freer moved to domesticate the Virginia judgment in Connecticut, where Plaintiff lived and owned property. (Compl. ¶¶ 1, 2); Chien I, 2017 WL 3381978, at *1; Freer v. Chien (Freer II), No. NNH-CV12-4053717-S (Conn. Super. Ct.).

         On January 4, 2013, Freer also instigated judgment collection proceedings in Virginia. (Compl. ¶ 3); Chien I, 2017 WL 3381978, at *1; Freer I, No. CL12000485-00. William Grogan ("Grogan") oversaw these proceedings on behalf of the Chesterfield County Circuit Court in his role as Commissioner in Chancery. (Compl. ¶ 3); Chien I, 2017 WL 3381978, at *1. In this capacity, and over Plaintiffs objections, Grogan ordered that Plaintiff transfer to Freer the shares that Plaintiff owned in two companies, including China Bull Management ("CBM"), giving Freer control of those companies. (Compl. ¶¶ 22-23); Chien I, 2017 WL 3381978, at *1. After Plaintiff refused to appear before the Chancery Court to answer interrogatories, Grogan also issued a writ of capias, ordering Plaintiffs detention for contempt. (Compl. ¶¶ 3, 28); Chien I, 2017 WL 3381978, at *1.

         While detained, Plaintiff filed multiple suits in several jurisdictions, challenging the debt collection proceedings and his detention. (Compl. ¶ 28); Chien 7, 2017 WL 3381978, at *2. On April 26, 2013, Plaintiff filed two separate suits in Virginia's federal courts, namely: (1) an adversarial proceeding against Freer and CBI in the Bankruptcy Court for the Eastern District of Virginia, Chien v. Commonwealth Biotechs., Inc., 2013 WL 3387785 (E.D. Va. Bkr. July 1, 2013); and, (2) a suit against Chesterfield County, Grogan and others in this Court, seeking damages under 42 U.S.C. § 1983 and habeas relief, Chien v. Chesterfield Cty., 2013 WL 12099300 (E.D. Va. Nov. 6, 2013). On July 1, 2013, the Bankruptcy Court dismissed Plaintiffs complaint, Commonwealth Biotechs., 2013 WL 3387785, which this Court affirmed on appeal, further enjoining Plaintiff from filing any more pleadings in the underlying CBI bankruptcy proceedings without first retaining counsel or receiving leave of court, Chien v. Freer, 2014 WL 4072147, at *2-3 (E.D. Va. Aug. 15, 2014). On November 6, 2013, this Court dismissed Plaintiffs § 1983 action and habeas petition for failure to state a claim, Chesterfield Cty., 2013 WL 12099300 at *2, which the Fourth Circuit affirmed, Chien v. LeClairRyan, 566 Fed.Appx. 275 (4th Cir. 2014).

         Plaintiff also filed claims in Virginia's state courts. In June 2014, while still incarcerated, Plaintiff filed two lawsuits in the Circuit Court for Prince George County, seeking relief against Grogan, Freer, Andrew Clark ("Clark") and the Commonwealth of Virginia for alleged violations arising from the debt collection proceedings. Chien I, 2017 WL 3381978, at *2; see also Chien v. Freer, No. CL14000491-00 (Va. Cir. Ct.) (showing dismissal on September 8, 2014); Chien v. Commonwealth, No. CL14000549-00 (Va. Cir. Ct.) (same). The Prince George County Circuit Court dismissed Plaintiffs claims in part, because the defendants enjoyed judicial and sovereign immunity. Chien I, 2017 WL 3381978, at *2. And, in 2015 and 2016, Plaintiff filed two more actions in Virginia state court - one seeking habeas relief and the other seeking civil relief against Grogan. Id; see also Chien v. Riverside Reg'I Jail, No. CL16HC1123-00 (Va. Cir. Ct.) (showing dismissal on July 13, 2016); Chien v. Grogan, No. CL15001569-00 (Va. Cir. Ct.) (showing dismissal on August 19, 2015 after demurrer hearing).

         Finally, Plaintiff filed two lawsuits in 2012 and 2016 in the United States District Court for the District of Connecticut, again seeking relief from the Virginia debt collection proceedings and his release from detention. Id. (internal citations omitted); see also Chien v. Clark, 2017 WL 6629263, at *l-3 (D. Conn. Sept. 8, 2017) (dismissing Plaintiffs 211-page complaint, awarding sanctions and enjoining Plaintiff from filing any further pleadings), aff'd, 2018 WL 5880582 (2d Cir. July 12, 2018), petition for cert, filed, (U.S. Dec. 21, 2018) (No. 18-598); Chien v. Commonwealth Biotechs., Inc., 2013 WL 4482750, at *1 (D. Conn. Aug. 21, 2013) (dismissing Plaintiffs malicious prosecution claims against CBI, Freer and LeClairRyan, PC). Eventually, on June 27, 2016, Chesterfield County Circuit Court Judge Frederick Rockwell, III ("Judge Rockwell"), ordered Plaintiffs release after 1, 146 days in jail. (Compl. ¶ 3, 6); Riverside Reg'I Jail, No. CL16HC1123-00.

         B. Underlying Litigation

         Following his release, Plaintiff continued to seek judicial relief, and. on March 28, 2017, Plaintiff filed a 123-page complaint in this Court, alleging 195 counts against Grogan and five counts against Grogan's law firm, William K. Grogan & Associates, including violations of federal and state law and the United States Constitution. Chien I, 2017 WL 3381978, at *2-3. Based on these alleged violations, Plaintiff sought return of the assets that Grogan had ordered transferred to Freer. Id. On August 3, 2017, United States District Judge Liam O'Grady ("Judge O'Grady") dismissed Plaintiffs complaint under the Rooker-Feldman doctrine, which deprives federal district courts of jurisdiction to adjudicate or review issues presented to and decided by a state court, or that are "inextricably intertwined with" questions ruled on by a state court. Chien I, 2017 WL 3381978, at *3 (citing Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997); Willner v. Frey, 243 Fed.Appx. 744, 745-56 (4th Cir. 2007)). Because the relief that Plaintiff sought - return of the assets that Plaintiff lost during the debt collection proceedings - would require appellate review of state-court judgments, Judge O'Grady held that the district court lacked jurisdiction to consider Plaintiffs claims, no matter the legal theories that Plaintiff presented. Id. Judge O'Grady added that principles of res judicata further warranted dismissal. Id.

         Plaintiff appealed Judge O'Grady's decision and, on February 7, 2018, Defendants issued a per curiam opinion affirming the dismissal of Plaintiff s complaint. Chien v. Grogan (Chien II), 710 Fed.Appx. 600, 600-01 (4th Cir. 2018). Specifically, Defendants agreed with Judge O'Grady that the Rooker-Feldman doctrine precluded a district court from adjudicating Plaintiff s claims. Id.

         C. Procedural History

         Following Defendants' ruling, on February 14, 2018, Plaintiff filed suit in this Court (ECF No. 1), alleging that Defendants' ruled in error. (Compl. ¶ 8.) Plaintiffs Complaint argues that Grogan's orders transferring Plaintiffs assets to Freer and holding Plaintiff in contempt violated Plaintiffs rights, various statutes and the United States Constitution. (Compl. ¶¶ 14-29.) Specifically, Plaintiff argues that Grogan could not order the transfer of a controlling share of Plaintiff s company, CBM, because CBM's shareholders voted on July 10, 2016 to reject Freer's takeover of the company. (Compl. ¶ 22-26.) In addition, Plaintiff argues that CBM is registered in Nevada, rendering the company outside the personal jurisdiction of Virginia's courts and voiding any order transferring the company's assets. (Compl. ¶ 26.)

         As to his confinement for contempt, Plaintiff argues that the Chesterfield County Circuit Court never endorsed Grogan's detention order. (Compl. ¶¶ 14-15.) Instead, Plaintiff accuses Grogan and "Clerk Craze" of impersonating Judge Rockwell to fraudulently order Plaintiffs detention. (Compl. ¶¶ 14-15.) According to Plaintiff, Judge Rockwell in fact determined that Grogan lacked the authority to order Plaintiffs confinement. (Compl. ¶ 14.) And Plaintiff argues that his 2013 bankruptcy proceedings in the Bankruptcy Court for the District of Connecticut required Grogan to stay the Virginia debt collection proceedings. (Compl. ¶¶ 29-30.) Ultimately, Plaintiff alleges that Grogan's contempt order amounted to "kidnapping." (Compl. ¶ 28.)

         Given the above, Plaintiff contends that Grogan committed "subject error" in ordering the transfer of CBM's assets and Plaintiffs detention. (Compl. ¶ 30.) Plaintiff asserts that Defendants likewise committed "subject error" when they affirmed the dismissal of Plaintiff s challenge to those orders. (Compl. ¶¶ 30, 32.) Because of their alleged errors, Plaintiff argues that Defendants, like Grogan, committed "non-judicial acts" when they issued their decision. (Compl. ¶ 32.) Plaintiff adds that, because state authorities failed to assign him an attorney for his civil and habeas lawsuits and denied him access to documents and resources needed to prosecute those suits, those authorities violated Plaintiffs Sixth Amendment rights and Defendants had no jurisdiction over his case. (Compl. ¶ 33.) Ultimately, without providing specific evidence in support, Plaintiff accuses Defendants of "wantonly, recklessly or maliciously" conspiring to "protect" Grogan's alleged violations of Plaintiff s Fourth, Fifth, Sixth, Seventh and Fourteenth Amendment rights, resulting in Grogan's "unjust enrichment" and Plaintiffs loss of assets. (Compl. ¶¶ 36-42.) Based on these accusations, in addition to fees and costs, Plaintiff seeks an apology from Defendants with an admission that Defendants committed "subject error" in affirming Judge O'Grady's dismissal of Chien I. (Compl. ¶¶ 44-46.)

         In response to Plaintiffs Complaint, on April 25, 2018, Defendants filed their Motion to Dismiss (ECF No. 13) pursuant to Federal Rule of Civil Procedure 12(b)(1). Plaintiff filed a response brief (ECF No. 16) on May 17, 2018, rendering Defendants' Motion to Dismiss now ripe for review. Plaintiff also filed six motions, including a Motion for Alternative Relief (ECF No. 17) and Motion for a Hearing (ECF No. 19) on May 17, 2018; a Motion for a Delay (ECF No. 20) and Second Motion for Alternative Relief (ECF No. 21) on May 21, 2018; and, a Supplement (ECF No. 25) and Additional Supplement (ECF No. 26) on December 17 and December 18, 2018, which the ...


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