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Green v. Carlson

United States District Court, D. Minnesota

October 22, 2019

Carl Green, Carl Green Assignee of Rainbow House, LLC, Carl Green Assignee of Estate of Larry Gray and Kathleen Gray, Plaintiffs,
Attorney Thomas Carlson, The Honorable John Hoffman, and the Chief Judge Douglas Meslow, Defendants.

          Carl Green, pro se.

          Jeffrey R. Peters and Michael A. Klutho, Bassford Remele, Minneapolis, MN for Defendant Thomas Carlson.

          Kathryn Iverson Landrum, Minnesota Attorney General's Office, St. Paul, MN for Defendants Judge John Hoffman and Chief Judge Douglas Meslow.


          Eric C. Tostrud United States Judge.

         This case is pro se Plaintiff Carl Green's response to separate Minnesota state-court litigation that has thus far not gone as Green would like. In this case, Green has sued a Minnesota attorney, Thomas Carlson, who represented a party or parties adverse to Green in the state-court litigation, and two judges in Minnesota's Tenth Judicial District, Chief Judge Douglas B. Meslow and Judge John C. Hoffman, who issued orders in that litigation. Green asserts several federally created claims here, and Defendants have filed motions that, if granted, would result in the dismissal of this case. Defendants' motions will be granted. Green's claims are not viable under the law.

         Before turning to a description of Green's claims, it is necessary first to clear procedural underbrush: the most recent “second amended” version of Green's complaint [ECF No. 27] is improper and must be stricken. A plaintiff may amend his complaint once as a matter of course within 21 days after serving it or, if it is one to which a responsive pleading is required, then within 21 days after being served with a motion under rule 12(b), (e), or (f). Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Here, Green filed his initial complaint on June 25, 2019. Compl. [ECF No. 1]. On July 9, 2019, fewer than 21 days after filing and serving the complaint, Green filed and served an amended complaint. Am. Compl. [ECF No. 6]. On August 7, 2019, Green filed a second amended complaint. Second Am. Compl. [ECF No. 27]. Under the plain text of Rule 15, Green was required to obtain Defendants' written consent or leave of court before filing his second amended complaint, but he did not do that. For this reason, Defendant Carlson has moved to strike Green's second amended complaint, and that motion must be granted. A party may move to strike “from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f)(2). Although Rule 12(f) seems to contemplate striking only portions of a pleading, rather than a pleading in its entirety, courts in this district have granted motions to strike entire pleadings pursuant to Rule 12(f). See, e.g., Cahoon v. L.B. White Co., Inc., No. 19-cv-0155 (WMW/ECW), 2019 WL 3719413, at *3 (D. Minn. Aug. 7, 2019); Kennedy v. Mallinckrodt, Inc., No. 19-cv-2266 (PAM/JSM), 2008 WL 11349802, at *1 (D. Minn. June 13, 2008). This means that Green's July 9 amended complaint is the operative complaint.

         In his amended complaint, Green asserts claims against Defendants as follows: against Carlson alone, Green asserts a claim for accounting and for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.; against Chief Judge Meslow and Judge Hoffman, Green asserts a claim of deprivation of civil rights under color of law in violation of 18 U.S.C. § 242; against all defendants, Green asserts a claim of conspiracy against civil rights in violation of 18 U.S.C. § 241, and he seeks preliminary injunctive relief under 18 U.S.C. § 242. The facts supporting these claims are not easy to follow, though Green's claims all seem to stem essentially from a foreclosure action filed by Chamberlain Homeowners Association against the owner of a home, Rainbow House, LLC, and the second mortgage holder, PNC National Bank. See Carlson Mem. in Supp. at 2 [ECF No. 10]; Judicial Defs. Mem. in Supp. at 1-2 [ECF No. 19]; Affidavit of Kathryn Iverson Landrum (“Landrum Aff.”) Ex. A [ECF No. 20-1 at 1]; Declaration of Jeffrey R. Peters (“Peters Decl.”) Ex. D [ECF No. 11-1 at 9]. In that case, Chamberlain Homeowners Association obtained a judgment against Rainbow House. See Carlson Mem. in Supp. at 2; Peters Decl. Ex. D at 1. It appears that case is still ongoing and has been appealed to the Minnesota Court of Appeals. See Not. of State Court Filings [ECF No. 73].

         Green's FDCPA claim against Carlson. The overwhelming majority of the amended complaint relates to Green's FDCPA claim against Carlson. See Am. Compl. ¶¶ 7-34. Green alleges that Carlson arbitrarily billed Green more than $10, 000 in attorney's fees in relation to a judgment of $1, 500 or less in the above-mentioned foreclosure action. Id. ¶ 8(d) (alleging judgment of $1, 500); see also Peters Decl. Ex. C at 7 (entering money judgment of $1, 326.00). Green alleges that, when Carlson tried to collect the attorney's fees and/or the judgment, Carlson violated the FDCPA by engaging in harassing, oppressive, or abusive conduct. Am. Compl. ¶¶ 9-10. Green alleges that Carlson represented that Carlson had the legal right to collect “the unreasonable sums in attorney fees sought in the amount of more than $10, 000 and court cost.” Id. ¶ 11. Green says that Carlson “does not in fact have the legal right to collect the unreasonable sums . . . because no sum is owed by Plaintiff Carl Green to Chamberlain Homeowners Association and the judgment was satisfied by plaintiff Carl Green.” Id. ¶¶ 11-12. By “falsely representing that there exists a proper and legally valid agreement between Carl Green and Chamberlain Homeowners Association and a right of recovery due to Plaintiff Carl Green thereon, and by filing a lawsuit to vacate a satisfied judgment by default . . . Carlson has violated the FDCPA[.]” Id. ¶ 13. Green further alleges Carlson “has communicated credit information to persons, including but not limited to credit reporting bureau[s] or agencies, with respect to Plaintiff and foreclosed, which it knew or should have known to be false[.]” Id. ¶ 29. These communications with credit bureaus or agencies included “alleg[ations] Plaintiff owed the purported debt which was subject of state action and foreclosure and Chamberlain Homeowner's is the original creditor.” Id. ¶ 29. Green asserts that these communications were material, false, and misleading. Id. ¶ 31. Therefore, Green alleges that these communications violated the FDCPA. Id. ¶¶ 31-32.

         Green's claim for deprivation of civil rights in violation of 18 U.S.C. § 242 against Chief Judge Meslow and Judge Hoffman. Green's claim for deprivation of civil rights under 18 U.S.C. § 242 challenges Chief Judge Meslow and Judge Hoffman's refusal to “remove themselves from hearing a Rule 60 Motion from [sic] relief from a judgment denying Plaintiff's rights to due process of law.” Id. ¶ 39. Green's reference to “Rule 60” seems best understood either as one brought as a motion for relief from a judgment or order under Rule 60 or as a notice to remove a judge or judicial officer under Rule 63.03 of the Minnesota Rules of Civil Procedure. Green says he requested that Judge Hoffman recuse himself from hearing that Rule 60 motion, and Judge Hoffman denied that request. Id.

         Although not explicitly alleged, Green appears to allege that he appealed that denial to Chief Judge Meslow, who denied Green's appeal. See id; see also Judicial Def. Mem. in Supp. at 2; Landrum Aff. Exs. G-J. Green further alleges that “[t]he above Judge has in the past, deliberately violated other litigants' personal liberties and/or wantonly refused to provide due process and equal protection to all litigants before the Court or has behaved in a matter [sic] inconsistent with that which is needed for full and fair impartial hearings.” Am. Compl. ¶ 42.

         Green's civil-rights conspiracy claim under 18 U.S.C. § 241 against all Defendants. In support of his claim that Defendants conspired to deprive him of civil rights, Green asserts that:

[t]wo or more attorneys have conspired to injure, oppress, threaten or intimidate Carl Green and Carl Green assignee of Rainbow House, LLC and Carl Green Assignee of the Estate of Larry and Kathleen Gray from the free exercise of a Rule 60 motion from relief from a judgment by due process of law and equal protection of the law in the pursuit of liberty and property interest, a right or privilege secured to Plaintiff by the Constitution or laws of the United States, or because of him having exercised the same.

Id. ¶ 37. Essentially, Green seems to assert that defendants conspired to deny Green's Rule 60 motion for relief from a judgment.

         Green's request for an injunction. Green “seeks preliminary injunctive relief on the summary eviction action until his claims can be heard under the color of law for the deprivation of his civil rights.” Id. ΒΆ 50. The amended complaint asserts no facts relating to any summary eviction action, but it appears from the motions to dismiss that an eviction action was filed against Green in June 2019. Peters Decl. Ex. E at 1; Landrum Aff. Ex. L at 1. It seems that the case has been completed ...

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