Klein v. Klein et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Bruce G. Klein, 	)
)
Plaintiff, 	) 	REPORT AND RECOMMENDATION
)
vs. 	)
)
Gregory D. Klein, Wesley J. Klein, 	)
Jeffrey G. Klein, and Jelena M. 	)
Bouret/Barfield, 	) 	Case No. 1:23-cv-223
)
Defendants. 	)
On August 26, 2024, Defendants Gregory D. Klein (“Gregory”) and Wesley J. Klein
(“Wesley”) filed a Motion to Dismiss Complaint. 	(Doc. No. 32). 	Defendant Jelena M.
Bouret/Barfield (“Jelena”) has joined in the motion. (Doc. No. 34).
On September 23, 2024, Plaintiff Bruce Klein (“Bruce’) filed a Motion for an Extension of
Time to Complete Discovery. (Doc. No. 37).
Judge Daniel M. Traynor has referred the Motion to Dismiss and Motion for an Extension
of Time to Complete Discovery to the undersigned for preliminary consideration. For the reasons
that follow, the undersigned recommends that the Motion to Dismiss Complaint (Doc. No. 32) be
be granted in part, that this action be dismissed in its entirety for lack of jurisdiction, and that the
Motion for an Extension of Time to Complete Discovery (Doc. No. 37) be deemed moot.
I. 	BACKGROUND
Plaintiff Bruce Klein is a North Dakota citizen. He initiated the above-captioned action with
the submission of a paid, pro se complaint on November 15, 2023. (Doc. No. 1). In his complaint,
under the heading “Jurisdiction,” he cites the following as the bases for this Court’s exercise of
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federal question jurisdiction:
28 U.S. Code 144 - Bias or Prejudice of Judge
28 U.S. Code 1404 - Change of Venue
28 U.S. Code 455 - Disqualification of Justice, Judge, or Magistrate Judge
6th Amendment of the United States Constitution - Right to Make Closing Argument
14th Amendment of the United States Constitution
(Id.). 	He names four defendants, three with North Dakota addresses and one with an Indiana
address. (Id.). He takes issue with a hearing regarding the John V. Klein Surface Trust and the sale
of trust land that was held at the Stark County Courthouse in Dickinson, North Dakota, before State
District Court Judge James Gion on or about November 14, 2022. (Id.). He asserts that the venue
of the hearing was changed from the Dunn County Courthouse in Manning, North Dakota, to the
Stark County Courthouse without sufficient notice and in violation of 28 U.S.C. 1404, that Judge
Gion was neither fair nor impartial, that he was denied his constitutional right to examine trustees
and to make a closing argument at the hearing, and that Defendant Wesley Klein lied under oath.
(Id.). He seeks the immediate stay of any and all trust activities, the stay of a trust land sale, the
removal of current trustees, and the installation of a court-appointed trustee. (Id.).1
On December 19, 2023, Jelena filed an Answer. (Doc. No. 10). On December 21, 2023,
Gregory and Wesley filed a Answer. (Doc. No. 13). Defendant Jeffrey Klein has yet to file an
Answer or otherwise respond to Bruce’s Complaint.
1 Gregory and Wesley are co-Trustees of the John V. Klein Family Trust. (Doc. No. 35-2). All of the parties
to this action are trust beneficiaries. (Id.).
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On August 26, 2024, Gregory and Wesley filed a Motion to Dismiss. (Doc. No. 32).2 On
September 16, 2024, Jelena filed a response to and joinder in the motion. (Doc. No. 34). That same
day Bruce 	filed a response to the motion. 	(Doc. No. 35).3 On October 1, 2024, Gregory and
Wesley filed a reply. (Doc. No. 40).
Meanwhile, on September 23, 2024, Bruce filed a Motion for Extension of Time for
Discovery. (Doc. No. 37). Gregory and Wesley filed a response on October 7, 2024. (Doc. No. 41
and 42). Bruce filed a reply on October 7, 2024. (Doc. No. 42).
II. 	APPLICABLE RULES
Gregory, Wesley, and Jelena move to dismiss for lack of subject-matter jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(1) or, alternatively, for failure to state a claim pursuant to Fed. Civ. P.
12(b)(6). They technically cannot file a Rule 12(b) motion because they have already answered
Bruce’s Complaint. Fed. R. Civ. P. 12(b) (“A motion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed.”). 	Any party, however, may challenge
subject-matter jurisdiction at any time pursuant to Fed. R. Civ. P. 12(h). 	See Fed.. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”); see also Kontrick v. Ryan, 540 U.S. 443, 455, 124 S. Ct. 906, 915, 157 L. Ed.
2d 867 (2004) (“A litigant generally may raise a court's lack of subject-matter jurisdiction at any
time in the same civil action, even initially at the highest appellate instance.”); S.D. Farm Bureau,
2 Gregory and Wesley makes reference to and rely extensively on state court records in their Brief in Support
of the Motion to Dismiss. (Doc. No. 32-1), They did not file these records with this court as exhibits in support of their
motion, however.
3 Bruce attached the following to his response: a copy of Judge Gion’s “Order Granting Trustee’s Petition for
Sale of Trust Surface Interests and Distribution of Mineral Interests to Beneficiaries” dated February 2, 2023; and a copy
of a “Petition for Sale of Assets and Distribution from Trust” dated July 20, 2022. (Doc. No. 35-2).
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Inc. v. Hazeltine, 340 F.3d 583, 591 (8th Cir.2003) (“Whether a court has subject matter jurisdiction
is an issue that any party or the court may raise at any time.”). The Court may construe a challenge
to jurisdiction as having been made under that rule. 	See Brown v. Grandmother's, Inc., No.
4:09CV3088, 2010 WL 611002, at *3 (D. Neb. Feb. 17, 2010). Similarly, the Court can construe
Defendants' motion to dismiss for failure to state a claim as having been made under Fed. R. Civ.
P. 12(c). Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). 	“T he standards
applicable to analyses of Rule 12(b)(1) and 12(b)(6) motions remain applicable even though the
[Defendants’] motion is not properly brought pursuant to those rules.” Brown v. Grandmother's,
Inc., No. 4:09CV3088, 2010 WL 611002, at *3; Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659,
665 (8th Cir. 2009). (stating that a motion to dismiss brought under Rule 12(c) is reviewed under
the same standard as a Rule 12(b)(6) motion); Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d
874, 879 n. 3 (3d Cir.1992) (“The distinction between a Rule 12(h)(3) motion and a Rule 12(b)(1)
motion is simply that the former may be asserted at any time and need not be responsive to any
pleading of the other party. For purposes of this case, the motions are analytically identical because
the only consideration is whether subject matter jurisdiction arises.”).
The United States Supreme Court set forth the standard for evaluating a motion to dismiss
under Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009). To avoid dismissal, a complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 547. A “formulaic recitation of the
elements of a cause of action” will not suffice. Id. at 555. “The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
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When reviewing a motion to dismiss, the Court “must accept [the] plaintiff[s]'s specific
factual allegations as true but [need] not ... accept a plaintiff[s]'s legal conclusions.” Brown v.
Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010) (citing Twombly, 550 U.S. at 556). 	The
Complaint must be construed liberally, and any allegations or reasonable inferences arising
therefrom must be interpreted in the light most favorable to the plaintiffs. Twombly, 550 U.S. at
554–56. A complaint should not be dismissed simply because the Court is doubtful the plaintiff will
be able to prove all of the necessary factual allegations. Id. at 556. Accordingly, a well-pleaded
complaint will survive a motion to dismiss even if it appears recovery is very remote and unlikely.
Id.
Subject matter jurisdiction can be challenged on the face of the Complaint or on the factual
truthfulness of the allegations. Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914 (8th Cir.
2015). 	A facial attack simply asserts the plaintiff has not plead a basis for subject matter
jurisdiction. Id. In a facial attack, the Court must afford the non-moving party the benefit of the
Rule 12(b)(6) safeguards, and it may only consider the pleadings and “materials that are ‘necessarily
embraced by the pleadings and exhibits attached to the complaint.’” Carlsen v. GameStop, Inc., 833
F.3d 903, 908 (8th Cir. 2016) (quoting Cox v. Mortg. Elec. Registration Sys., Inc., 685 F.3d 663,
668 (8th Cir. 2012)). A factual attack asserts the actual existence of subject matter jurisdiction is
lacking “irrespective of the pleadings, and matters outside the pleadings, such as testimony and
affidavits, are considered.” 	Branson Label, 793 F.3d at 914-15 (quoting Menchaca v. Chrysler
Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
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III. 	DISCUSSION
A. 	Motion to Dismiss
Gregory, Wesley, and Jelena assert that dismissal of this action for lack of jurisdiction is
appropriate because Bruce’s pleadings do not raise a federal question and complete diversity of
citizenship is lacking. In the alternative, they assert dismissal is appropriate as Bruce’s pleadings
do not state claims upon which relief may be granted. Finally, they assert that Bruce’s claims were
previously litigated in state court and are therefore barred by the principles of res judicata, collateral
estoppel, and waiver.
In response, Bruce asserts, inter alia, that the motion to dismiss filed by Gregory and Wesley
and joined by Jelena is untimely as it was filed after they had answered his Complaint and that this
Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 “because [his] complaint alleges
violations of the 14th Amendment, 5th Amendment, 42 U.S.C.A § 1983, and 42 U.S.C.A § 1985.”
1. 	Timeliness
The undersigned construes Gregory’s ,Wesley’s and Jelena’s motion to dismiss for lack of
jurisdiction and for failure to state a claim has having been made under Fed. R. Civ. P. 12(h)(3) and
12(c). As noted above, any party may challenge subject-matter jurisdiction at any time pursuant to
Fed. R. Civ. P. 12(h)(3). The undersigned shall now turn to Bruce’s states bases for this Court’s
exercise of jurisdiction.
2. 	28 U.S.C. § 144
Bruce first asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 144. Section 144
is a federal statute addressing the bias or prejudice of a federal judge. 28 U.S.C. § 144. It does not
provide for a private right of action; it only provides that United States District Judges may not
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proceed further and another United States Judge must be assigned if a party files a sufficient
affidavit that the judge before whom the matter is pending has a personal bias or prejudice. It does
not 	apply 	to 	state-court 	judges. 	See 	e.g., 	Saul 	v. 	U.S. 	Bank 	Nat'l 	Ass'n, 	No.
1:24-CV-00362-DHU-KK, 2024 WL 2185681, at *1 (D.N.M. May 15, 2024) (dismissing a
plaintiff’s 28 U.S.C. § 144 claim). Consequently, it does not provide the basis for a cognizable
claim much less a basis for this court’s exercise of jurisdiction.
3. 	28 U.S.C. § 1404
Bruce next asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1404. Section
1404 is a federal statute addressing the venue of civil actions filed in federal court. 28 U.S.C. §
1404. It has no application to state court proceedings. Consequently, it does not provide the basis
for a cognizable claim much less a basis for this court’s exercise of jurisdiction.
4. 	28 U.S.C. § 455
Bruce next asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 455. Section 455
is a federal statute governing the disqualification of federal judges and magistrate judges. It does
not concern the disqualification of state judges. 	See 28 U.S.C. § 455 (“Any justice, judge, or
magistrate judge of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.”); see e.g., Sussman v. San Diego Police Dep't, No.
19-CV-01063-DMS-JLB, 2019 WL 13273194, at *5 (S.D. Cal. Nov. 4, 2019), aff'd, 821 F. App'x
841 (9th Cir. 2020) (dismissing a plaintiff’s 28 U.S.C. § 455 claim). Consequently, it does not
provide the basis for a cognizable claim much less a basis for this court's exercise of jurisdiction.
5. 	Sixth Amendment to the United States Constitution
Bruce next invokes the Sixth Amendment as a basis for this Court’s exercise of jurisdiction
and then goes on to assert he was denied the opportunity to confront witnesses and/or make a closing
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argument in civil proceeding, i.e., the hearing in state court regarding the John V. Klein Surface
Trust and the sale of trust land. The Sixth Amendment's Confrontation Clause provides that, “[i]n
all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him.” (emphasis added). This bedrock procedural guarantee applies to both federal and state
criminal prosecutions. See Crawford v. Washington, 541 U.S. 36, 42 (2004). It does not apply to
civil actions. See e.g,. Lott v. Ferrell, 109 F. App'x 827, 828 (8th Cir. 2004) ([T]he 	Sixth
Amendment right to confrontation does not apply in civil matters.”). Consequently, it does not
provide the basis for a cognizable claim much less a basis for this court’s exercise of jurisdiction in
this instance.
6. 	Fourteenth Amendment to the United States Constitution
Bruce next invokes the Fourteenth Amendment as a basis for this Court’s exercise of
jurisdiction. He then goes on to complain about the process or lack therefore he received during the
hearing regarding the John V. Klein Surface Trust and the sale of trust land.
Insofar as Bruce is endeavoring to assert a constitutional due process claim, it is
jurisdictionally barred by the Rooker-Feldman doctrine. Although the Rooker-Feldman doctrine is
not explicitly raised by the parties, it can be raised sua sponte by the Court. See Johnson v. City of
Shorewood, Minnesota, 360 F.3d 810, 818 (8th Cir. 2004) (stating that the Rooker–Feldman
doctrine is jurisdictional and may therefore be raised sua sponte); Lewis v. Anderson, 308 F.3d 768,
771 (7th Cir. 2002) (“The Rooker–Feldman doctrine is jurisdictional in nature, and thus it may be
raised at any time for the parties and by the court sua sponte.... Because of the jurisdictional nature
of the doctrine, we must assure ourselves that it does not bar the suit before we turn to the merits.”
(internal citation omitted)); Gentner v. Shulman, 55 F.3d 87, 89 (2d Cir. 1996) (same).
The Rooker-Feldman doctrine provides that, with the exception of habeas corpus petitions,
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lower federal courts lack subject matter jurisdiction over challenges to state court judgments and
state court proceedings. See Mosby v. Ligon, 418 F.3d 927, 931 (8th Cir. 2005); Dodson v. Univ.
of Ark. for Med. Scis., 601 F.3d 750, 754 (8th Cir. 2010) (“The basic theory of the Rooker–Feldman
doctrine is that only the United States Supreme Court has been given jurisdiction to review a
state-court decision, so federal district courts generally lack subject-matter jurisdiction over
‘attempted appeals from a state-court judgment.” (internal quotation marks omitted)); see also Lance
v. Dennis, 546 U.S. 459, 466 (2006) (“The doctrine applies only in ‘limited circumstances,’ ... where
a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal
court. The Rooker–Feldman doctrine does not bar actions by nonparties to the earlier state-court
judgment simply because, for purposes of preclusion law, they could be considered in privity with
a party to the judgment.”). Specifically, the doctrine “bars federal courts from hearing cases brought
by the losing parties in state court proceedings alleging ‘injury caused by the state-court judgment
and seeking review and rejection of that judgment.’” Mosby, 418 F.3d at 931 (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)); see also Bruce v. City & Cnty. of Denver,
57 F.4th 738, 746 (10th Cir. 2023) ( “The Rooker-Feldman doctrine recognizes a jurisdictional bar
on lower federal courts’ review of claims where (1) the plaintiff lost in state court, (2) the state court
judgment caused the plaintiff's injuries, (3) the state court rendered judgment before the plaintiff
filed the federal claim, and (4) the plaintiff is asking the district court to review and reject the state
court judgment.”). This jurisdictional bar extends to “challenges to state-court decisions ... even
if those challenges allege that the state court's action was unconstitutional.” D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462, 486 (1983; see also Ballinger v. Culotta, 322 F.3d 546, 548-49 (8th Cir.
2003) (dismissing claims under the Rooker-Feldman doctrine where the relief requested in the
complaint would effectively reverse or undermine the state court decision or void its ruling and
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noting that “[f]ederal district courts thus may not ‘exercis[e] jurisdiction over general constitutional
claims that are “inextricably intertwined” with specific claims already adjudicated in state court’”
(citation omitted)). Put simply, a federal district court does not possess authority in a civil rights case
to review or alter a final judgment of a state court judicial proceeding. See West v. Crnkovich, No.
8:12CV273, 2013 WL 2295461, at *3 (D. Neb. May 24, 2013); see also Keene Corp. v. Cass, 908
F.2d 293, 297 (8th Cir. 1990) (stating the Rooker-Feldman doctrine applies to Section 1983 actions
as well as claims for injunctive and declaratory relief).
Here, the nature of Bruce's participation in the state court proceedings about which he now
complains and the relief he seeks renders the Rooker-Feldman doctrine applicable; he is beneficiary
of the trust, participated in the state court proceedings, perhaps to a degree less than his liking, is
bound by the state court’s judgment, and is challenging the judgment after the fact. The relief he
seeks would as a practical matter nullify the state court’s decision. His attempt to recast his state
court loss as deprivations of constitutional rights does not overcome the Rooker-Feldman
jurisdictional bar. 	See Campbell v. City of Spencer, 682 F.3d 1278, 1284–85 (10th Cir. 2012)
(explaining the doctrine bars a § 1983 claim where “an element of the claim is that the [state]
judgment was wrongful”); see also Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007);
Market v. City of Garden City, 723 F. App'x 571, 574 (10th Cir. 2017) (unpublished) (holding the
Rooker-Feldman doctrine barred § 1983 claim where “for [plaintiff] to win, the municipal court's
judgment had to be wrong”). The doctrine forbids review of state judgments “based on the losing
party's claim that the state judgment itself violates the loser's federal rights,” Johnson v. De Grandy,
512 U.S. 997, 1006 (1994).
Bruce’s alleged injuries arise from, and are inseparable from, the outcome of the state court
proceeding. 	Consequently, his constitutional claims are inextricably intertwined with the state
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court’s judgment. 	Tellingly, the relief Bruce seeks to unwind the state court’s decision and re-
litigate his dispute regarding the sale of trust lands. This is precisely the relief the Rooker-Feldman
doctrine says lower federal courts are powerless to provide. See e.g, Dillard v. Bank of New York,
476 F. App'x 690, 691-92 (10th Cir. 2018) (holding that plaintiff's due process claim was barred by
the Rooker-Feldman doctrine because she “unquestionably sought review and rejection of the state
court foreclosure and eviction proceedings”); Castro v. Kondaur Cap. Corp., 541 F. App'x 833,
837-38 (10th Cir. 2013) (unpublished) (affirming district court's conclusion that plaintiffs’ due
process claim arising out of a foreclosure proceeding was barred by the Rooker-Feldman doctrine
because “reviewing Plaintiffs’ due process claim would impermissibly involve a reexamination of
the underlying state court proceedings and judgment”); Driskell v. Thompson, 971 F. Supp. 2d 1050,
1065 (D. Colo. 2014) (dismissing plaintiff's Fifth Amendment due process claim and Fourth
Amendment unlawful seizure claim arising out of a Rule 120 hearing because reviewing those
claims “would impermissibly involve a reexamination of the underlying state court proceedings and
judgments, which is barred by the Rooker-Feldman doctrine”); Bishop v. JP Morgan Chase Bank,
Nat'l Ass'n, No. 17-cv-01188-RM-KLM, 2018 WL 4368614, at *3 (D. Colo. Mar. 6, 2018) (holding
that plaintiff's due process claim – alleging a host of defects in foreclosure proceedings, including
a lack of discovery, the inability to present evidence of fraud, and the inability to appeal foreclosure
orders – was barred by the Rooker-Feldman doctrine).
7. 	42 U.S.C. § 1983, 42 U.S.C. § 1985, and the 5th Amendment to the United
States Constitution
In his response to the motion to dismiss, Bruce invokes for the first time 42 U.S.C. § 1983,
42 U.S.C. § 1985 and the Fifth Amendment to the United States Constitution.
As discussed above the Rooker–Feldman doctrine forecloses indirect attempts to undermine
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state court decisions in federal court. A federal district court does not possess authority in a civil
rights case to review or alter a final judgment of a state court judicial proceeding.
B. 	Defendant Jeffrey G. Klein
Defendant Jeffrey G. Klein has not entered an appearance and thus has not joined in the
motion to dismiss. The Court should nevertheless sua sponte dismiss this action as it pertains to him
for lack of jurisdiction.
C. 	Discovery Motion
As this matter is subject to dismissal for lack of jurisdiction, Bruce’s motion for additional
time to complete discovery should be deemed moot.
IV. 	CONCLUSION AND RECOMMENDATION
The undersigned RECOMMENDS that the court GRANT the motion to dismiss for lack
of jurisdiction (Doc. No. 32), DISMISS the above-captioned action in its entirety, and deem the
motion for an extension of time to complete discovery (Doc. No. 37) MOOT.
NOTICE OF RIGHT TO FILE OBJECTIONS
Objections to this recommendation are due by December 6, 2024. Failure to file appropriate
objections may result in the recommended action being taken without further notice or opportunity
to respond.
Dated this 20th day of November, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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