Opinion
C/A 8:22-cv-01734-DCC-JDA
07-20-2022
Geary Thomas Dooly, Plaintiff, v. Nicholas Niles Sears, Jr.; William Stork; Johnson and Freedman, LLC; Brock & Scott, PLLC; Does 1-5, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
Geary Thomas Dooly (“Plaintiff”), proceeding pro se, brings this action alleging that Defendants have violated various state and federal laws related to a foreclosure action currently pending in the state court. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., the undersigned United States Magistrate Judge is authorized to review the Complaint and make a recommendation to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this case should be summarily dismissed without issuance and service of process for the reasons explained below.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff commenced this action in this Court by filing a Complaint against the abovenamed Defendants [Doc. 1] as well as an attachment with various documents related to his claims [Doc. 1-1]. The Court has carefully reviewed each of Plaintiff's submissions.
The undersigned further notes that, on June 29, 2022, Plaintiff filed a motion for preliminary injunction. [Doc. 9.] On July 6, 2022, the undersigned entered a Report, recommending that the District Court deny Plaintiff's motion. [Doc. 14.]
Plaintiff purports to bring this action under the Court's diversity jurisdiction and federal question jurisdiction. [Doc. 1 at 3.] However, the crux of this action appears to be a challenge to a state court foreclosure action, which remains pending against Plaintiff in the Spartanburg County Court of Common Pleas at case number 2012-cp-42-03027 (the “Foreclosure Action”). [Doc. 1 at 4]; see also Deutsche Bank Nat'l Trust Co. v. Dooly, No. 2012-CP-42-03027, available at Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/PISearch.aspx (search by case number “2012cp4203027”) (last visited Jul. 20, 2022). The Court takes judicial notice of the Foreclosure Action and has reviewed the records from the docket in that case. In the present action, Plaintiff asserts numerous claims related to the Foreclosure Action, and he seeks money damages and injunctive relief related to the proceedings in the state court.
The Court takes judicial notice of the records in Plaintiff's state court cases and other actions filed in this Court. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
In his Complaint, Plaintiff alleges that, on July 19, 2012, Defendant Sears filed a fraudulent representation in the Foreclosure Action claiming that Deutsche Bank National Trust Company had an interest in Plaintiff's land without presenting any evidence for that to be true. [Doc. 1 at 4.] Plaintiff contends that Defendants have continued to unlawfully pursue the foreclosure of Plaintiff's land and they intend to sell his land without the legal authority to do so. [Id. at 5.]
Based on these allegations, Plaintiff asserts the following causes of action. First, Plaintiff asserts a claim for “False Representation” under the Fair Debt Collection Practices Act (“FDCPA”). [Id. at 7.] Second, Plaintiff asserts a claim for the denial of his right to a jury trial under the Seventh Amendment to the United States Constitution. [Id. at 8.] Third, Plaintiff asserts a due process claim under the Fourteenth Amendment to the United States Constitution. [ Id. at 8-9.]
For his relief, Plaintiff seeks money damages and for “Emergency Injunctive relief, both preliminary and permanent, as allowed by law, enjoining the Defendant[]s from selling [his] land . . .” [Id. at 10.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint. This Court possesses the inherent authority to review a pro se complaint to ensure that subject matter jurisdiction exists and that a case is not frivolous, even where the complaint is not subject to the prescreening provisions of 28 U.S.C. § 1915. See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307S08 (1989) (“Section 1915(d) . . . authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (unpublished) (“[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid . . . [and] because a court lacks subject matter jurisdiction over an obviously frivolous complaint, dismissal prior to service of process is permitted.”) (citations omitted); see also Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (“[A] district court's obligation to review its own jurisdiction is a matter that must be raised sua sponte, and it exists independent of the ‘defenses' a party might either make or waive under the Federal Rules.”); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (providing a judge may dismiss an action sua sponte for lack of subject matter jurisdiction without issuing a summons or following other procedural requirements).
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
As noted, while facing foreclosure of his property in the state court Foreclosure Action, Plaintiff filed this action in federal court against the above-named Defendants. [Docs. 1; 1-1.] Although Plaintiff asserts three causes of actions and seeks numerous avenues of relief, including money damages, the crux of this action is a challenge to the pending Foreclosure Action, and Plaintiff asks that this Court “enjoin[ ] the Defendant[]s from selling [his] land.” [Doc. 1 at 10.] For the reasons below, the undersigned finds that this action should be dismissed because this Court does not have jurisdiction over the claims, Plaintiff has failed to state a plausible claim for relief under federal law, and the Court cannot grant the relief requested.
Jurisdiction and Failure to State a Claim
As an initial matter, the undersigned questions whether this Court even has jurisdiction over the claims asserted in this action. Plaintiff appears to allege that the Court has subject matter jurisdiction based on both diversity and federal question. [Doc. 1 at 3.] However, the Court does not have diversity jurisdiction as both Plaintiff and at least some of the named Defendants are citizens of South Carolina. [Id. (alleging that Plaintiff and Defendants William Stork and Brock & Scott are citizens of South Carolina).] Likewise, although Plaintiff has identified the FDCPA and the Seventh and Fourteenth Amendments as the basis for his federal question claims, he has failed to allege facts to state any cognizable claim under either the FDCPA or the Constitution.
The diversity statute requires complete diversity between the parties and an amount in controversy in excess of $75,000.00. See 28 U.S.C. § 1332(a) ; Anderson v. Caldwell, No. 3:10-cv-1906-CMC-JRM, 2010 WL 3724752, at *4 (D.S.C. Aug. 18, 2010), Report and Recommendation adopted by 2010 WL 3724671 (D.S.C. Sept. 15, 2010). Complete diversity of the parties means that no party on one side may be a citizen of the same state as any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978).
Federal question jurisdiction arises from 28 U.S.C. § 1331, which provides that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. To determine whether a plaintiff's claims “arise under” the laws of the United States, courts typically use the “well-pleaded complaint rule,” which focuses on the allegations of the complaint. Prince v. Sears Holdings Corp., 848 F.3d 173, 177 (4th Cir. 2017) (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004)). “In other words, federal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); King v. Marriott Int'l, Inc., 337 F.3d 421, 426 (4th Cir. 2003)).
As to the FDCPA claim, Plaintiff simply alleges that Defendants “used false, deceptive, and misleading representations when they filed a complaint [for foreclosure] in an attempt to collect a debt that they knew had already been satisfied when Argent Mortgage Company LLC sold all ownership interest in the Intangible Obligation from a Note to multiple classes of the ARSI 2004-W11 Trust on or about October 08, 2004.” [Doc. 1 at 7.] Plaintiff does not identify any specific subsection of the FDCPA purporting to cover his claim and his cursory “FDCPA allegation standing alone is a clear example of a ‘formulaic recitation of the elements of a cause of action,' and is not a ‘showing . . . of entitlement to relief.'” Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 779 (E.D. N.C. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007)). Likewise, given that Plaintiff premises his FDCPA claim on Defendants' actions made in 2004 and 2012 [see Doc. 1 at 4, 7], his claim would be barred under the FDCPA's one-year statute of limitations. See Howes v. Wells Fargo Bank, N.A., No. ELH-14-cv-2814, 2015 WL 5836924, at *46 (D. Md. Sept. 30, 2015) (“Under 15 U.S.C. § 1629K(d), ‘[a]n action to enforce any liability created by [the FDCPA] may be brought in an appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.'”), aff'd in part, remanded in part, 676 Fed.Appx. 207 (4th Cir. 2017).
“Congress enacted the FDCPA with the goal of eliminating abusive, deceptive, and unfair debt collection practices.” Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 490 (4th Cir. 2014) (citing 15 U.S.C. § 1692). “To establish an FDCPA claim, a plaintiff must prove that: ‘(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.'” Boosahda v. Providence Dane LLC, No. 10-1933, 2012 WL 268345, at *1 n.3 (4th Cir. Jan. 31, 2012) (quoting Ruggia v. Wash. Mut., 719 F.Supp.2d 642, 647 (E.D. Va. 2010)).
As to the Constitutional claims under the Seventh and Fourteenth Amendments, those claims appear to be premised on Plaintiff's contention that he was denied due process in that he is entitled to a jury trial and an impartial and disinterested tribunal “in order to defend his rights to his own land.” [Doc. 1 at 8-9.] However, the law is well settled that “[b]ecause foreclosures are equitable, not legal, there is no Seventh Amendment right to a jury trial in an action challenging a foreclosure.” Stewart v. Dimon, No. 1:14-cv-1707, 2015 WL 11110945, at *4 (E.D. Va. Mar. 13, 2015) (citations omitted); see also Hosch v. United Bank, Inc., No. 4:09-cv-01490-TLW, 2012 WL 13005676, at *1 (D.S.C. Dec. 17, 2012) (same) (collecting South Carolina state court cases). Likewise, “the due process and equal protection clauses of the Fifth and Fourteenth Amendments are valid only against state or federal government actors and are not cognizable against wholly private parties like defendants.” Stewart, 2015 WL 11110945, at *4; see also Madukwe v. Cap. One Fin. Corp., No. GJH-16-767, 2017 WL 1133276, at *8 (D. Md. Mar. 24, 2017) (explaining that the plaintiff's claims that state court “foreclosure proceedings violate the Due Process Clause of the Constitution fails because such claims may only be raised against state actors, not . . . private corporations”). Accordingly, as Plaintiff has failed to plead facts showing this Court has jurisdiction or stating a cognizable claim for relief, this action is subject to dismissal.
Abstention
Moreover, this Court should abstain from hearing the merits of this action or granting Plaintiff's requested relief, including Plaintiff's request for injunctive relief, based on abstention principles. This is so because, even if Plaintiff's claims were not subject to dismissal based on the jurisdictional defects noted above, this Court should abstain from considering the issues arising from the Foreclosure Action based on the abstention doctrines announced in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), and Younger v. Harris, 401 U.S. 37 (1971). Colorado River abstention “allows a district court to abstain where parallel litigation exists in federal and state court and exceptional circumstances warrant abstention.” Gannett Co. v. Clark Constr. Grp., Inc., 286 F.3d 737, 740 (4th Cir. 2002). Younger provides that a federal court should not interfere with ongoing state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). The Supreme Court has extended the Younger doctrine to apply in “‘noncriminal judicial proceedings when important state interests are involved.'” Harper v. Pub. Serv. Comm'n of W.Va., 396 F.3d 348, 351 (4th Cir. 2005) (quoting Middlesex Cnty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Courts in this District have routinely abstained in similar actions pursuant to the Colorado River and Younger abstention doctrines. See, e.g., Cooper v. Van Slambrook, No. 2:19-cv-649-DCN-BM, 2019 WL 3777153, at *5 (D.S.C. June 4, 2019), Report and Recommendation adopted by 2019 WL 3778739 (D.S.C. June 25, 2019); Doherty v. PNC Mortg., No. 0:14-cv-4013-TLW-SVH, 2015 WL 5012781, at *5-8 (D.S.C. July 16, 2015), Report and Recommendation adopted in part by 2015 WL 5012823 (D.S.C. Aug. 21, 2015).
Anti-Injunction Act
Finally, as Plaintiff seeks to enjoin the pending state court Foreclosure Action by asking this Court to prevent the sale of his land in a foreclosure sale, the Anti-Injunction Act (the “Act”) precludes such relief. The Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court.” 28 U.S.C. § 2283. “An injunction issued against parties to a state court proceeding is, for purposes of the Act, considered an injunction to stay the state court proceeding itself.” In re MI Windows and Doors, Inc., Prods. Liab. Litig., 860 F.3d 218, 224 (4th Cir. 2017) (emphasis omitted).
The Act constitutes “an absolute prohibition against any injunction of any state-court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630
(1977) (plurality opinion). These three exceptions are injunctions: (1) expressly authorized by statute; (2) necessary to aid the court's jurisdiction; or (3) required to protect or effectuate the court's judgments. Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988); Atlantic Coast Line R.R. Co. v. Bd. of Locomotive Eng'rs, 398 U.S. 281,287-88 (1970) . . . . Further, “where the Anti-Injunction Act bars an injunction it ‘also bars the issuance of a declaratory judgment that would have the same effect as an injunction.'” Lovett v. Deutsche Bank Nat'l Trust Co., No. 12-1816-MBS-SVH, 2013 WL 841679, at *6 (D.S.C. Feb. 12, 2013) (quoting Denny's, Inc. v. Cake, 364 F.3d 521, 528 (4th Cir. 2004) (internal quotation marks and citations omitted)), adopted by, 2013 WL 841675 (D.S.C. Mar. 6, 2013); see also Tucker v. Specialized Loan Servicing, LLC, 83 F.Supp.3d 635, 641 (D. Md. 2015) [denying injunctive and declaratory relief regarding the foreclosure of a mortgage and enforceability of the note]; Liggett v. Fifth Third Mortg., C/A 7:16-cv-4011-HMH-JDA, 2017 WL 4083136, at *3 (D.S.C. Aug. 14, 2017), adopted by, 2017 WL 4074884 (D.S.C. Sept. 14, 2017).Bruce v. Wilmington Sav. Fund Soc'y, FSB, Tr. of Stanwich Mortg. Loan Tr. C, No. 2:18-cv-2555-BHH-BM, 2019 WL 1293718, at *5 (D.S.C. Jan. 15, 2019), Report and Recommendation adopted by 2019 WL 2281364 (D.S.C. May 29, 2019). The Supreme Court has stated that, “even if the declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same practical impact as a formal injunction would.” Samuels v. Mackell, 401 U.S. 66, 73 (1971).
Here, Plaintiff seeks an order from this Court preventing the sale of his land in the state court Foreclosure Action. However, Plaintiff's request “preempts the foreclosure and has ‘the same effect' as his request for an injunction to prevent foreclosure; both ‘result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.'” Hayes v. JP Morgan Chase Bank, No. 3:13-cv-1884-JFA, 2014 WL 4198897, at *5 (D.S.C. Aug. 20, 2014) (quoting Samuels, 401 U.S. at 72). Because Plaintiff's requested relief would effectively enjoin the state court Foreclosure Action, it is barred by the Act.
CONCLUSION
Accordingly, for the reasons explained above, it is recommended that the Complaint filed in this action be summarily DISMISSED without leave to amend and without issuance and service of process.
The undersigned finds that, for the reasons stated herein, it would be futile for Plaintiff to amend his Complaint and therefore recommends that the Court decline to give Plaintiff leave to amend. See Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).