United States District Court, E.D. North Carolina, Western Division
Robert B. Broughton, Jr. and Celeste G. Broughton, Plaintiffs,
Roger Gregory, Chief Judge, 4th Circuit; Michelle McGirr, Court Reporter; U.S. Marshal Service Wake County NC; Martin K. Reidinger, Judge, USD Court; and Wells Fargo & Co., Defendants.
OPINION AND ORDER AND ORDER TO SHOW CAUSE
Margaret B. Seymour, Senior United States District Judge.
February 20, 2019, Plaintiffs Robert B. Broughton, Jr. and
Celeste G. Broughton, proceeding pro se, filed a complaint
against Defendants Roger Gregory, Michelle McGirr, the U.S.
Marshal's Service, Martin K. Reidinger, and Wells Fargo
& Co. (“Wells Fargo”). The case was
reassigned to the undersigned on March 14, 2019. On April 16,
2019, United States Magistrate Judge Mary Gordon Baker was
designated to perform judicial duties under 28 U.S.C. §
636(a), (b), and (c), as needed. This matter is before the
court on Plaintiffs' failure to prosecute and comply with
court orders, as well as Wells Fargo's motions to dismiss
and for prefiling injunction.
Failure to Prosecute and Failure to Comply with Court
April 17, 2019, the Magistrate Judge issued an order
directing plaintiffs to bring the complaint into proper form
by (1) completing and filing notices of self-representation
in accordance with Local Civil Rule 5.3(b); (2) completing
and filing financial disclosure statements that satisfy Local
Civil Rule 7.3; (3) completing and filing a civil action
cover sheet; (4) either paying the filing fee or apply to
proceed in forma pauperis; (5) completing and filing one
summons form for each defendant, as well as summonses
addressed to the Attorney General of the United States and
the United States Attorney for the Eastern District of North
Carolina; and (6) completing and returning a Form USM-285 for
each Defendant, as well as for the Attorney General of the
United States and the United States Attorney, if proceeding
in forma pauperis. Plaintiffs were cautioned that their
failure to comply with the Magistrate Judge's order could
subject the action to dismissal for failure to prosecute and
for failure to comply with an order of the court.
See Fed.R.Civ.P. 41(b). On May 21, 2019, the
envelopes including a copy of the Magistrate Judge's
proper form order were returned to the Office of the Clerk of
Court. Affixed to the envelopes were stickers reading
“NOTIFY SENDER OF NEW ADDRESS” and providing a
post office box in Raleigh, North Carolina. Accordingly, the
Magistrate Judge forwarded her order to Plaintiffs at the new
address and extended the time for Plaintiffs to bring the
case into proper form until June 13, 2019. The envelopes have
not been returned to the Clerk's Office, and Plaintiffs
have not responded to the order.
Davis v. Williams, 588 F.2d 69 (4th Cir. 1978), the
Court of Appeals for the Fourth Circuit addressed an appeal
wherein a district court dismissed an action with prejudice
under Rule 41(b). The Fourth Circuit noted that the district
court, in exercising its discretion to dismiss with
prejudice, must balance considerations of sound judicial
administration, applying four criteria: (1) the degree of
personal responsibility on the part of the plaintiff; (2) the
amount of prejudice to the defendant caused by the delay; (3)
the presence or absence of a “drawn out history of
deliberately proceeding in a dilatory fashion”; and (4)
the effectiveness of sanctions less drastic than dismissal.
Davis, 588 F.2d at 70 (quoting McCargo v.
Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). In this
case, Plaintiffs have failed to make any response to numerous
notices from the court, Wells Fargo's motion to dismiss,
or the Magistrate Judge's order. In fact, they have done
nothing other than filing the complaint. No. Defendant has
been served with copies of the summons and complaint.
Although Wells Fargo has appeared and filed certain motions
with the court, it notes that service was not effected by
Plaintiffs. ECF No. 7, 1 n.1. Rather, Wells Fargo contends
that the complaint is grounded on the same theories and
claims rejected by the North Carolina courts in numerous
previous actions. These facts demonstrate Plaintiffs'
personal responsibility, prejudice to Wells Fargo needing to
again defend against claims already disposed of, and a
“drawn out history of deliberately proceeding in a
dilatory fashion.” Given Plaintiffs' failure to
prosecute the within action, when considered in conjunction
with their nine-year history of frivolous and repetitious
litigation, the court discerns no sanction less drastic than
dismissal with prejudice.
complaint is dismissed pursuant to Rule 41(b), with
Wells Fargo's Motion to Dismiss
Fargo filed a motion to dismiss and memorandum in support of
the motion on April 16, 2019. Wells Fargo contends that the
claims in the complaint are grounded on theories dismissed in
previous actions. The Office of the Clerk of Court issued a
Rule 12 letter to each Plaintiff on May 24, 2019,
advising each Plaintiff of Wells Fargo's motion to
dismiss and the possible consequences of failing to respond.
Plaintiffs filed no response in opposition to Wells
Fargo's motion. Because the court has dismissed the
complaint pursuant to Rule 41(b), Wells Fargo's motion to
dismiss is denied as moot.
Motion for Prefiling Injunction
Fargo seeks an injunction prohibiting Plaintiffs from filing
any new action or filing in this court relating to Wells
Fargo and any of the claims, theories, or circumstances
relating to their previously dismissed state and federal
court actions unless Plaintiffs have obtained prior
authorization from a United States District Judge who has
determined that the proposed filing complies with
Fed.R.Civ.P. 11 and is not based on the claims theories, or
circumstances underlying prior state or federal actions
brought by either Plaintiff.
Writs Act, 28 U.S.C. § 1651(a) (2000), grants federal
courts the authority to limit access to the courts by
vexatious and repetitive litigants. Cromer v. Kraft Foods
N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). Such a
drastic remedy must be used sparingly, however, consistent
with constitutional guarantees of due process of law and
access to the courts. Id. (citing U.S. Const. amend.
XIV, § 1). These rights are longstanding and of
fundamental importance in our legal system. “‘The
due process clause requires that every man shall have the
protection of his day in court.'” Id.
(quoting Truax v. Corrigan, 257 U.S. 312, 332
(1921)). The Supreme Court has explained that the particular
constitutional protection afforded by access to the courts is
“‘the right conservative of all other rights, and
lies at the foundation of orderly government.'”
Id. (Chambers v. Baltimore & Ohio R.R.
Co., 207 U.S. 142, 148 (1907)). Thus, a judge should not
in any way limit a litigant's access to the courts absent
“‘exigent circumstances, such as a litigant's
continuous abuse of the judicial process by filing meritless
and repetitive actions.'” Id. at 817-18
(quoting Brow v. Farrelly, 994 F.2d 1027, 1038 (3d
Cir. 1993)). Indeed, “‘use of such measures
against a pro se plaintiff should be approached with
particular caution' and should ‘remain very much
the exception to the general rule of free access to the
courts.'” Id. at 818 (quoting
Pavilonis v. King, 626 F.2d 1075, 1079 (1st
Cir. 1980)). In determining whether a prefiling injunction is
substantively warranted, a court must weigh all the relevant
circumstances, including (1) the party's history of
litigation, in particular whether he has filed vexatious,
harassing, or duplicative lawsuits; (2) whether the party had
a good faith basis for pursuing the litigation, or simply
intended to harass; (3) the extent of the burden on the
courts and other parties resulting from the party's
filings; and (4) the adequacy of alternative sanctions.
Id. (citing cases). Such injunctions should be
narrowly tailored to achieve the objective. Id.
motion, Wells Fargo details federal and state litigation in
which either or both Plaintiffs have been engaged as follows:
2010 Federal Court Lawsuit
7, 2010, Ms. Broughton filed a lawsuit in this Court against
WFC [Wells Fargo Company], Wake County Chief District Court
Judge Robert B. Rader, and attorneys for the Estate of Robert
Broughton, Sr. (the “Estate”). See Broughton
v. Aldridge, et al., No. 5:10-cv-00231-FL (E.D. N.C.
filed June 7, 2010) (the “First Federal Action”).
Like the present case, the First Federal Action asserted
claims under 42 U.S.C. § 1983 based on the theory that a
judge who ruled against her on the merits conspired with WFC
and others to violate her constitutional rights and to
deprive her of the benefits of an alleged
“contract” (which is the term Ms. Broughton
incorrectly uses to describe a 1980 Order entered in North
Carolina state court relating to alimony payments).
Honorable Louise Flanagan dismissed the First Federal Action,
relying primarily on the Rooker-Feldman doctrine,
concluding that Ms. Broughton may not use this Court as a
forum to appeal orders entered in North Carolina state court.
Broughton v. Aldridge, No. 5:10-CV-231-FL, 2010 WL
4809036, at *4 (E.D. N.C. Nov. 17, 2010). The Fourth Circuit
affirmed the dismissal. Broughton v. Aldridge, 445
Fed. App'x 656, 657 (4th Cir. 2011).
the course of the First Federal Action-including two 2011
appeals to the Fourth Circuit that were consolidated and
captioned Broughton v. Aldridge, No. 11-1115 (4th
Cir. docketed ...