Opinion
C/A 2:22-00941-DCN-MHC
11-15-2022
MB Hutson, a/k/a MB Hudson, Plaintiff, v. Thomas L. Harper, Esq.; John Wilkerson, Esq.; Frank J. Gordon, Esq.; Timothy J. Newton, Esq.; John Grantland, Esq.; William Johnson, Esq.; Richard Clark; Steven Lovell; TLC Holdings, LLC; Christian Stegmaier, Esq.; Penn America Insurance Company and Global Indemnity Group, Inc.; Womble Carlyle Sandridge & Rice LLP; Turner Padget Graham & Laney P.A.; Millburg Gordon Stewart PLLC; Murphy Grantland P.C.; Johnson Durant & Nester LLC; Collins & Lacy, P.C.; Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
This is a civil action filed by Plaintiff MB Hutson, a pro se litigant. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
In an Order dated May 24, 2022, Plaintiff was given the opportunity to bring his case into proper form by providing the items specified in the Order. Plaintiff was also notified of material defects in his Complaint and given the opportunity to cure the defects by filing an amended complaint. ECF No. 8. Plaintiff filed an Amended Complaint with exhibits on June 21, 2022. ECF No. 12. Plaintiff failed to file all of the required documents to bring his case into proper form, and a second proper form order was issued on September 13, 2022. ECF No. 15.
I. BACKGROUND
In December 2010, Plaintiff entered into a Lease Purchase Agreement with Defendant TLC Holdings, LLC; Defendant Richard Clark (Clark); Defendant Jimmy Lovell (Lovell), and James Thigpen as to real property in Clarendon County, South Carolina. This property included the “Campground known as Big Water Resort.” Plaintiff appears to allege claims relating to this Lease Purchase Agreement and subsequent litigation in this Court as well as in the Court of Common Pleas for Clarendon County. See ECF Nos. 12 at 7, 12-1 (Lease Purchase Agreement). He requests that his case be allowed “to move forward” and that he be awarded not less than $32 million in damages. ECF No. 12 at 25-26.
Records from Clarendon County indicate that Plaintiff was a defendant in an action for which there was a stipulation of dismissal in January 2016. George v. Hutson, No. 2013CP1400333. He was a defendant in an action that was ended by jury trial in January 2018. TLC Holdings LLC v. Hutson, No. 2015CP1400615. See Clarendon County Third Judicial Circuit Public Index, https:// publicindex.sccourts.org/Clarendon/PublicIndex/PISearch.aspx [search by case number] (last visited Nov. 10, 2022). This Court may take judicial notice of factual information located in postings on government websites. See Tisdale v. South Carolina Highway Patrol, No. 0:09-1009-HFF-PJG, 2009 WL 1491409, at *1 n. 1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. 2009); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4185869, at * 2 (E.D. La. Sept. 8, 2008) (noting that courts may take judicial notice of governmental websites including other courts' records).
In his Amended Complaint, Plaintiff's first cause of action is titled “Violation of S.C. Law # 27-33-30.” ECF No. 12 at 8. His second cause of action does not have a description, but appears to involve a claim for fraud. He writes “[l]ack of good title and the hidden $22M dollar obligation to Plaintiff which was never disclosed by any Defendant.” Id. at 12. As to his third cause of action, Plaintiff writes that “[h]erein incorporated by reference is the right to purchase and develop all of which was fraudulent.” Id. at 14. His fourth cause of action is titled “[b]latant violations of Plaintiff[']s Seventh Constitutional Amendment Rights” and his fifth cause of action is titled “[g]ross extrinsic fraud upon the Judges and Courts and great fraud against Plaintiff and proof of bad and defective title[.]” Id. at 15, 19.
II. STANDARD OF REVIEW
This case is before the Court for pre-service review. See 28 U.S.C. § 1915(e)(2)(B); In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (pleadings by non-prisoners should also be screened). Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint herein pursuant to the procedural provisions of § 1915, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); Haines v. Kerner, 404 U.S. 519 (1972); and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Section 1915 permits an indigent litigant to commence an action in federal court without paying the administrative costs of proceeding with the lawsuit. However, to protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. at 327.
This Court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
A. Lack of Jurisdiction
This action is subject to summary dismissal because Plaintiff has asserted no basis for federal court jurisdiction. Federal courts are courts of limited jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994), and a district court is charged with ensuring that all cases before it are properly subject to such jurisdiction. In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Generally, a case can be filed in a federal district court only if there is diversity of citizenship under 28 U.S.C. § 1332, or if there is federal question jurisdiction under 28 U.S.C. § 1331.
There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). To this end, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for the court's jurisdiction[.]” Plaintiff has failed to do so. Although Plaintiff provides a section titled “Jurisdiction,” this appears to discuss personal jurisdiction and venue rather than subject matter jurisdiction. ECF No. 12 at 3-7 (“This Court has personal jurisdiction and the venue is proper in this district by virtue of”).
The 26-page Amended Complaint (which is supplemented by more than 270 pages of attachments) does not contain a “facts” section. Plaintiff's Complaint thus also appears to be in violation of the directive in Federal Rule of Civil Procedure 8(a) that the pleadings shall contain “a short and plain statement” of the basis for the court's jurisdiction and of the basis for a plaintiff's claims against the defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring, in order to avoid dismissal, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'”).
1. Federal Question Jurisdiction (§ 1331)
In the light most favorable to Plaintiff, he may be attempting to assert that there is federal question jurisdiction because he alleges (presumably pursuant to 42 U.S.C. § 1983) that his Seventh Amendment rights were violated. However, he cannot state a claim under § 1983 because none of the named Defendants are state actors.
A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States,” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege (1) he or she suffered a deprivation of “rights, privileges or immunities secured by the Constitution and laws” of the United States; and (2) the act or omission causing the deprivation was committed by a person acting under color of law. West v. Atkins, 487 U.S. 42, 48 (1988); see also Loftus v. Bobzien, 848 F.3d 278, 284-85 (4th Cir. 2017). A person acts under color of state law when he “exercise[s] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019) (quoting West, 487 U.S. at 49). This requires that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Id. (internal quotation marks omitted). Private conduct will not be deemed state action “unless the state has so dominated such activity as to convert it to state action.” (internal quotation marks omitted). Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 181 (4th Cir. 2009). Here, Defendants are private attorneys (Harper, Wilkerson, Gordon, Newton, Grantland, Johnson, Stegmaier) and their respective law firms, an insurance company (Penn America Insurance Company and Global Indemnity Group Inc.), a limited liability company (TLC Holdings), and private individuals (Clark and Lovell). Plaintiff has provided no facts to indicate that any of the Defendants are state actors.
Additionally, to the extent that Plaintiff alleges that his Seventh Amendment rights were violated because Defendants (it is unclear which Defendant(s) allegedly did what) conspired to prevent him from having a jury trial in certain civil actions filed in state or federal court, he fails to state a claim. The Seventh Amendment of the United States Constitution preserves the right of a trial by jury in suits at common law. U.S. Const. amend VII. However, a demand for a jury trial does not itself raise a federal question. Nalls v. Countrywide Home Servs., LLC, 279 Fed.Appx. 824, 825 (11th Cir. 2008). Moreover, a jury “has no role with respect to dismissals for failure to state a claim or lack of subject matter jurisdiction.” Johnson v. United States, 323 Fed.Appx. 310 (5th Cir. 2009) (citing Barrett v. Indep. Order of Foresters, 625 F.2d 73, 75 (5th Cir. 1980). Further, many procedural devices that diminish “the civil jury's historic domain have been found not to be inconsistent with the Seventh Amendment.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) (citing various examples of procedural devices that have been held not to violate the Seventh Amendment); see also Bock v. Gavenus, 108 Fed.Appx. 91, 92 (4th Cir. 2004) (finding that a claim that the summary dismissal of two civil actions with prejudice violated the plaintiff's Seventh Amendment right to a trial by jury was without merit).
Moreover, a Seventh Amendment claim as to a civil jury trial right in state court is meritless because this right has not been extended to the states through the Fourteenth Amendment. Letendre v. Fugate, 701 F.2d 1093, 1094 (4th Cir. 1983); McArthur v. Clark, No. 5:05-CV-634-FL, 2006 WL 4759223, at *5 (E.D. N.C. May 24, 2006); Everettv. Crossroads, No. 5:04-CV-805-BR, 2004 WL 3591320, at *1 (E.D. N.C. Nov. 4, 2004). “State court proceedings are not governed by the Seventh Amendment, but by corresponding provisions in state constitutions.” Boyd v. Bulala, 672 F.Supp. 915, 921 (W.D.Va.1987).
2. Diversity Jurisdiction (§ 1332)
Within his five listed causes of action (ECF No. 12 at 8-25), Plaintiff primarily appears to allege claims for fraud under South Carolina law and a violation of a South Carolina statute (§ 2733-30). However, these are state law claims and are not a basis for federal question jurisdiction under 28 U.S.C. § 1331.
This statute provides:
In order to give notice to third persons any lease or agreement for the use or occupancy of real estate shall be recorded in the same manner as a deed of real estate.S.C. Code Ann. § 27-33-30.
To the extent that Plaintiff may be attempting to bring such state claims based on diversity jurisdiction, he fails to establish the required complete diversity. A district court may have jurisdiction of a civil action “where the matter in controversy exceeds the sum or value of $75,000...and is between - (1) citizens of different States...”. 28 U.S.C. § 1332. However, Plaintiff has not alleged complete diversity of the parties. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 372-374 (1978) (Complete diversity of parties means that no party on one side may be a citizen of the same State as any party on the other side). Here, Plaintiff as well as many of the Defendants are South Carolina citizens such that there is not complete diversity. See ECF No. 12 at 3.
Federal courts are allowed to hear and decide state-law claims in conjunction with federal-law claims, through the exercise of “supplemental jurisdiction.” See 28 U.S.C. §1367; Wisconsin Dep't of Corrs. v. Schacht, 524 U.S. 381, 387 (1998). However, as discussed above, Plaintiff fails to assert a basis for federal question diversity, such that only Plaintiff's state law claims would remain. As Plaintiff has asserted no valid federal claim and there is no diversity jurisdiction, this Court should not exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. § 1367; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Tigrett v. Rector and Visitors of the Univ. of Va., 290 F.3d 620, 626 (4th Cir. 2002) (affirming district court's dismissal of state law claims when no federal claims remained in the case); Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999) (“[T]he Constitution does not contemplate the federal judiciary deciding issues of state law among non-diverse litigants”).
3. Federal Rule of Civil Procedure 60
In the light most favorable to Plaintiff, he may also be attempting to bring this action pursuant to Federal Rule of Civil Procedure 60 concerning what he claims is extrinsic fraud in the Federal Courts. He outlines five elements of conduct that constitute extrinsic fraud upon the Court as stated by an unidentified opinion of the Court of Appeals for the Sixth Circuit. This appears to refer to the requirements pursuant to Fed.R.Civ.P. 60(d)(3) for fraud upon the court. See, e.g. Hood v. Postmaster Gen., No. 17-1400, 2017 WL 8791096 (6th Cir. Oct. 18, 2017) (noting that under Rule 60(d)(3), “fraud on the court involves conduct: 1) on the part of an officer of the court; that 2) is directed to the judicial machinery itself; 3) is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth; 4) is a positive averment or a concealment when one is under a duty to disclose; and 5) deceives the court.”).
However, Rule 60 provides grounds for relief from a final judgment, order or proceeding. Plaintiff has pointed to nothing allowing him to bring a new case (rather than bringing a motion in a prior case) based on this rule. See Fed.R.Civ.P. 60(b) (“on motion and just terms, the court may relieve a party or its legal representative from a final judgment, order or proceedings for the following reasons....”). Further, to the extent Plaintiff instead is attempting to assert a claim for relief from a final judgment, order, or proceeding in this Court pursuant to Fed.R.Civ.P. 60(b), any such motion is untimely because it must be made “no more than a year after entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c)(1).
Records from this Court indicate that Plaintiff was a defendant in an action brought by AutoOwners Insurance Company, in which there was a stipulation of dismissal with prejudice on February 25, 2016. See Auto-Owners Insurance Company v. Big Water Resort LLC, No. 2:15-03460-DCN (D.S.C.), Doc. No. 10. He was a defendant in an action brought by Penn-America Insurance Company, but was dismissed with prejudice as a party to the action on September 3, 2016. See Penn-America Insurance Company v. BWR, Inc., No. 2:16-01943-DCN (D.S.C.), Doc. No. 17. He was a third-party Defendant and counterclaimant in a case in which a stipulation of dismissal with prejudice was entered on April 11, 2018. See Reed v. Big Water Resort, LLC, No. 2:14-01583-DCN-MGB (D.S.C.), Doc. No. 342. Plaintiff also removed a case from the Clarendon County Court of Common Please (South Carolina case number 2015-CP-14-00615), that was remanded to the state court on March 3, 2016. See TLC Holdings LLC v. Clark, No. 2:16-0003-DCN, Doc. 17. Plaintiff also refers to proceedings before “Judge Wait[e]s.” ECF No. 12 at 1. This appears to refer to a case in the bankruptcy court, but Plaintiff has not provided a case number or any further information. To the extent that he refers to Bankruptcy case number 14-00165-jw, it is noted that the case was dismissed with prejudice on April 8, 2014.
B. Failure to Get Case Into Proper Form
Finally, Plaintiff has failed to bring this case into proper form. In the Court's Order dated May 24, 2022, Plaintiff was directed to bring his case into proper form by submitting a Form AO-240, a summons form listing every Defendant, a Form USM-285 for each Defendant, and answers to Local Civil Rule 26.01 interrogatories. ECF No. 8. Plaintiff failed to provide all of the required documents. A second proper form order was issued on September 13, 2022, giving Plaintiff additional time to bring his case into proper form by filing the required documents. ECF No. 15. On October 3, 2022, Plaintiff submitted some, but not all of the required documents. See ECF Nos. 14-2 and 20.
The time for Plaintiff to get his case into proper form has passed, and he has failed to provide all of the remaining required proper form documents (a summons form listing all Defendants and Forms USM-285 for each Defendant). Plaintiff was specifically warned (ECF Nos. 8 and 15) that the failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. See Fed.R.Civ.P. 41. Thus, in the alternative, it is recommended that this action be dismissed without prejudice in accordance with Fed. R. Civ. P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
Specifically, Plaintiff has failed to file summons forms for Defendants Frank J. Gordon, Esq.; Timothy J. Newton; Steven Lovell; TLC Holdings, LLC; Christian Stegmaier, Esq.: Penn American Insurance Company and Global Indemnity Group, Inc.; Millburg Gordon Stewart PLLC; Johnson Durant & Nester LLC; and Collins & Lacy, P.C. He has failed to provide completed and signed Forms USM-285 for Defendants Timothy J. Newton, Esq.; Christian Stegmaier, Esq.; Penn America Insurance Company; and Collins & Lacy, P.C.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that Court dismiss Plaintiff's Amended Complaint without prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend ... the order dismissing the complaint is final and appealable”).
Plaintiff's attention is directed to the important notice on the following 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
Post Office Box 835
Charleston, South Carolina 29402
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. \0 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).