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Broughton v. Gregory

United States District Court, E.D. North Carolina, Western Division

August 13, 2019

Robert B. Broughton, Jr. and Celeste G. Broughton, Plaintiffs,
v.
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.

         On 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.

         A. Failure to Prosecute and Failure to Comply with Court Orders

         On 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.

         In 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.

         Plaintiffs' complaint is dismissed pursuant to Rule 41(b), with prejudice.

         B. Wells Fargo's Motion to Dismiss

         Wells 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[1] 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.

         C. Motion for Prefiling Injunction

         Wells 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.

         The All 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.

         In its motion, Wells Fargo details federal and state litigation in which either or both Plaintiffs have been engaged as follows:

         I. 2010 Federal Court Lawsuit

         On June 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).

         The 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).

         During 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 ...


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