Opinion
7:22-CV-00178-FL
05-03-2023
Laurie Reynolds, et al., Plaintiffs, v. United States Government, et al., Defendants.
ORDER & MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II, United States Magistrate Judge
In October 2022, dozens of pro se Plaintiffs sued more than 50 government entities and officials for allegedly conspiring to violate their civil rights in state-level child custody proceedings. See Compl., D.E. 1. On January 6, 2023, the court dismissed most Plaintiffs for failing to follow court orders and failing to prosecute their cases. Order Dismissing Pls., D.E. 258. As a result, only six Plaintiffs remain: Keona Bradley, Raymond Sipult, Glenda Cody, Russ Cody, Cecelia Everetz, and Laurie Reynolds. Id. at 8.
Many Defendants have asked the court to dismiss the claims against them. See Mots. Dismiss, D.E. 216; 237; 261; 265; 268; 270; 272; 292, 294, 317; 335; 368; 381. Aside from these motions to dismiss, the docket teems with other motions-largely filed by current or former Plaintiffs. Presently before the court are these 19 non-dispositive motions:
These motions will be resolved by separate order.
• Five motions for discovery filed by Raymond Sipult (D.E. 393 & 396), Keona Bradley (D.E. 395), and Glenda and Russ Cody (D.E. 397 & 398);
• Four motions to intervene filed by Latisa Micheaux (D.E. 427), Season Micheaux (D.E. 495), Rowana Riggs (D.E. 497), and Karla Johnson (D.E. 499);
• Two motions for various Americans with Disabilities Act accommodations filed by Raymond Sipult (D.E. 439) and Glenda and Russ Cody (D.E. 440);
• Two motions seeking an extension of time to respond to Kansas Governor Laura Kelly's motion to dismiss filed by Glenda and Russ Cody (D.E. 539) and Keona Bradley (D.E. 503);
• A motion from all Federal Defendants seeking more time to file a comprehensive reply (D.E. 562);
• Two motions asking the court to stay discovery until the resolution of all motions to dismiss filed by Defendants William Clark and Saint Francis Ministries (D.E. 550) and Governor Kelly (D.E. 565);
• Three motions asking the court to set aside its judgment dismissing all but six Plaintiffs filed by Renesha Tomlin (D.E. 388), Brenda and Daniel Blue (D.E. 389), and Deanna Robinson (D.E. 496);
This group is made up of the United States of America, President Joseph R. Biden, Jr., Vice President Kamala Harris; Secretary of the U.S. Department of Health and Human Services Xavier Becerra, U.S. Attorney General Merrick B. Garland, Associate Commissioner of the Office of the Administration for Children and Families Aysha Schomburg, and various unnamed officials with the Administration for Children and Families.
Each of these motions has been referred to the undersigned by text order. For the reasons set forth below:
• The court denies the motions filed at D.E. 393, 395, 396, 397, 398, 427, 439, 440, 495, 497, and 499;
• The court grants the motions to stay discovery until it resolves all pending motions to dismiss (D.E. 550 & 565);
• The court grants Glenda and Russ Cody's motion for an extension of time (D.E. 539) and considers their response to Governor Kelly's motion to dismiss timely filed;
• The court strikes Keona Bradley's motion for an extension of time (D.E. 503) and her response to Governor Kelly's motion to dismiss (D.E. 543). Bradley may submit a response-drafted and signed by her-no later than May 19, 2023;
• The court grants Federal Defendants' motion for an extension of time (D.E. 562)-they will have until May 19, 2023, to file a comprehensive response brief; and
• The undersigned recommends that the court deny the remaining motions to set aside its January 6, 2023 judgment (D.E. 388; 389; 496).
I. Motions for Discovery
Typically, the Federal Rules of Civil Procedure prohibit parties from conducting discovery before their Rule 26(f) scheduling conference. Fed.R.Civ.P. 26(d). In March 2023, the court entered a text order staying the scheduling conference until the resolution of Defendants' various motions to dismiss. As a result, no scheduling order has been entered, and discovery has not officially started.
But several Plaintiffs hope to begin the discovery process early. Together, Glenda and Russ Cody, Keona Bradley, and Raymond Sipult have filed five documents on the court's docket that ask Defendants Saint Francis Ministries and William Clark to answer over 250 interrogatories. Mots. for Discovery, D.E. 393; 395; 396; 397; 398. The court construes these filings as motions asking for permission to conduct discovery before the entry of a scheduling order.
The court notes that the Federal Rules typically limit parties to 25 interrogatories. See Fed.R.Civ.P. 33(a)(1).
This motion, filed by Glenda and Russ Cody, contains no proposed interrogatory questions. If it weren't bundled with other motions for discovery, this motion would be difficult to decipher.
Courts rarely authorize early discovery. When a party challenges personal jurisdiction, however, the “court may compel discovery to aid its resolution of” that narrow issue. Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. 628, 644 (D.S.C. 1992) (citation omitted). So long as a plaintiff's claim is not facially frivolous, courts can allow jurisdictional discovery to aid the plaintiff in establishing the court's personal jurisdiction over the defendant. Id.; see also Trudell Med. Int'l v. D R Burton Healthcare, LLC, No. 4:18-CV-9-BO, 2021 WL 684200, at *2 (E.D. N.C. Feb. 22, 2021); Yacht Basin Provision Co. v. Hot Fish Club, LLC, No. 7:21-CV-117-FL, 2021 WL 6493858, at *3 (E.D. N.C. Dec. 13, 2021).
Clark and Saint Francis Ministries contend that this court lacks personal jurisdiction over them. See SFM & Clark Mot. Dismiss, D.E. 270. Without delving into the merits of Plaintiff's claims, though, the court thinks it sufficient to conclude that none of Plaintiffs' proposed interrogatories (or the motions surrounding them) have anything to do with Defendants' contacts to North Carolina. In other words, Bradley, Sipult, and the Codys have not moved for jurisdictional discovery to find out whether this court can assert personal jurisdiction over Clark and Saint Francis Ministries-not one proposed interrogatory mentions North Carolina. Instead, they have filed motions seeking permission to engage in premature merits discovery without any justification for doing so. But discovery has not yet begun; their motions (D.E. 393; 395; 396; 397; 398) are denied. Plaintiffs will need to re-serve their discovery requests once the parties hold a Rule 26(f) conference.
This is not to say that Plaintiffs' discovery requests are meritorious-many of them would face challenges even if they had been served at an appropriate time.
II. Motions to Stay Discovery
Clark, Saint Francis Ministries, and Governor Kelly ask that the court stay discovery pending the resolution of their motions to dismiss. Mots. to Stay Disc, D.E. 550 & 565. A motion to stay discovery is, at bottom, a motion “for a protective order prohibiting or limiting discovery” under Federal Rule 26(c). Kron Med. Corp. v. Groth, 119 F.R.D. 636, 637 (M.D. N.C. 1988). That Rule gives the court the authority to issue a protective order staying discovery while it resolves a motion to dismiss. Tilley v. United States, 270 F.Supp.2d 731, 734 (M.D. N.C. 2003); Fed.R.Civ.P. 26(c)(1)(B) & (D). As with all protective orders, the moving party must show good cause for the court to issue the order. Fed.R.Civ.P. 26(c)(1).
As noted above, the court has already stayed the parties' scheduling conference until it rules on Defendants' dispositive motions. But this has not stopped Plaintiffs from filling improper discovery materials on the docket and prematurely seeking discovery from Defendants. Thus, the court will grant Defendants' motions to formally stay all discovery until each outstanding motion to dismiss is resolved (D.E. 550 & 565). No party may engage in discovery-or file discovery materials on the docket-until the court lifts this stay. Failure to abide by this order may result in sanctions, including dismissal of a party's claims or entry of a default judgment.
The undersigned United States Magistrate Judge will issue an order-rather than a memorandum and recommendation-on this motion for two reasons: First, the Federal Magistrates Act of 1968 does not preclude Magistrate Judges from issuing an order on a motion to intervene. See 28 U.S.C. § 636(b)(1). And second, while the Fourth Circuit has not ruled on whether motions to intervene are appropriate for resolution by a Magistrate Judge, the overwhelming weight of evidence suggests that they are. See, e.g., Coleman v. Labor & Indus. Rev. Comm'n, 860 F.3d 461, 474 (7th Cir. 2017) (“A magistrate judge can... rule on a motion to intervene[.]”); Yorkshire v. IRS, 26 F.3d 942, 944 n.3 (9th Cir. 1994) (noting that motions to intervene are non-dispositive and therefore may be resolved by Magistrate Judges); United States v. Duke Energy Corp., No. 1:00CV1262, 2009 WL 10717776, at *2 (M.D. N.C. Jan. 30, 2009) (reviewing a Magistrate Judge's order on a motion to intervene); United States v. Certain Real Prop. & Premises, 751 F.Supp. 1060, 1061 (E.D.N.Y. 1989) (denying appeal that argued a Magistrate Judge must issue a recommendation on motions to intervene).
Four nonparty individuals have filed motions to intervene as Plaintiffs. Federal Rule 24, which governs intervention, explains that party has a right to intervene when unconditionally allowed by a federal statute or when the party has an interest in the suit that could be left unprotected without its participation. Fed.R.Civ.P. 24(a)(1)-(2). A court may also permit a party to intervene when conditionally allowed by a federal statute or when the party “has a claim or defense that shares ...a common question of law or fact” with the underlying lawsuit. Id. 24(b)(1)-(2).
Latisa Micheaux, Season Micheaux, and Rowana Riggs have filed nearly identical motions to intervene in this action. See Mots. to Intervene, D.E. 427; 495; 497. Although each motion claims that its author has the right to intervene under Federal Rule 24(a), none explains why. Instead, the motions claim that these prospective Plaintiffs “seek[] legal redress for the deprivation, under color of law, of the rights of families and children” and allege that preventing them from intervening will preclude them from obtaining relief.
The court has repeatedly admonished Plaintiffs for filing documents that they did not draft. See, e.g., Order Denying Various Mots. at 1-3, D.E. 373.
The court already denied a spate of similar motions to intervene in its January 6, 2023 Order. See Order Dismissing Pls. at 5-8. Like the individuals attempting to intervene months ago, these three prospective Plaintiffs “have not demonstrated how denial of the[ir] motions to intervene will impair their ability to protect their [legal] interest[s].” Id. at 6. And as before, the court finds no justification for allowing them to intervene permissively or as of right. See id. at 7 (“Multiplying existing claims in this case by additional claims of proposed intervenors arising out of jurisdictions throughout the country will not promote just, speedy, and inexpensive determination of this action.”). Thus, the court denies Latisa Micheaux's, Season Micheaux's, and Riggs' motions to intervene (D.E. 427; 495; 497).
One motion to intervene remains. Karla Johnson-who has already tried to join this lawsuit-once again asks the court to add her as a Plaintiff. Compare Johnson Fist Mot. to Intervene, D.E. 251, with Johnson Second Mot. to Intervene, D.E. 499. For the reasons discussed above, the court denied her first motion in its January 6, 2023 Order. See Order Dismissing Pls. at 5-8. But her renewed motion shares the same defects as her prior one-there is no reason to multiply the number of claims in this action when Johnson is free to file a lawsuit in her own jurisdiction challenging local child custody proceedings. See Order Denying Various Mots. at 4, D.E. 373 (“[N]othing in [this] order precludes the ability of movants to commence lawsuits properly in their respective jurisdictions challenging the constitutionality of child custody proceedings involving them.”). Thus, the court denies Johnson's newest motion to intervene (D.E. 499) as well.
IV. Motions for ADA Accommodations
Raymond Sipult and the Codys, invoking the ADA, ask that the court extend them various accommodations to facilitate their litigation efforts. Mots. for ADA Accommodations, D.E. 439 & 440. At bottom, both motions request that the court appoint counsel for these Plaintiffs to help them draft and file documents. Sipult also asks that the court grant him automatic deadline extensions and help him pay post office fees to mail documents to the court. See Sipult Mot. for ADA Accommodations ¶ 11, 14, D.E. 439.
But there is no constitutional (or ADA) right to counsel in civil suits, and courts should exercise their discretion to appoint counsel for pro se civil litigants “only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The existence of exceptional circumstances justifying appointment of counsel depends on “the type and complexity of the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (quoting Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982)), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).
These Plaintiffs have filed many motions with the court already, indicating that they are able to handle the litigation themselves. This case is not one in which exceptional circumstances merit the appointment of counsel. Sipult's other ADA requests are also unavailing-the court will consider specific deadline extensions when necessary, and it has no power to help individual Plaintiffs cover the cost of their PO boxes. So the court denies Sipult's and the Codys' motions for ADA accommodations (D.E. 439 & 440).
V. Motions for Extension of Time to Respond to Governor Kelly's Motion to Dismiss
Two Plaintiffs have asked for more time to respond to Governor Kelly's motion to dismiss, which she filed on February 20, 2023. See Gov. Kelly Mot. Dismiss, D.E. 368. Under Federal Rule 6, the court may extend the deadline for a party to act if the party shows good cause and makes its request before the original deadline lapses. Fed.R.Civ.P. 6(b)(1)(A). Alternatively, the court can extend a party's deadline after the original one lapses only if the party establishes both good cause and excusable neglect. Id. 6(b)(1)(B).
In March, the Codys and Keona Bradley sought an unspecified extension of time to respond to Governor Kelly's motion. Pls.' Mots. for Extension, D.E. 539 & 503. Before the court ruled on their motions, both the Codys and Bradley filed their proposed responses. See Codys Resp., D.E. 542; Bradley Resp., D.E. 543. The Codys have shown good cause and excusable neglect for their delay, so the court grants their motion for an extension of time (D.E. 539) and considers their response (D.E. 542) timely filed.
The Codys moved for an extension of time after their response to Governor Kelly's motion to dismiss was due.
Bradley's motions are another matter. Neither her motion for an extension of time nor her response to Governor Kelly's motion to dismiss bears her signature. Instead, they have been signed by a nonparty-Kelly Patton-on Bradley's behalf. See Bradley Mot. for Extension at 2, D.E. 503; Bradley Resp. at 12. Patton has authored several other motions for former Plaintiffs, but nowhere does she claim that she is licensed to practice law in North Carolina. See Notices of Interlocutory Appeal, D.E. 443; 444; 445. The court has searched its roster of admitted attorneys as well as the rolls of the North Carolina State Bar and has found no indication that Patton is a member of the bar of this court-or even a licensed attorney.
The court warns Patton that further attempts to engage in the unauthorized practice of law will likely lead to sanctions.
Federal Rule 11 mandates that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name-or by a party personally if the party is unrepresented.” Fed.R.Civ.P. 11(a). The court must strike all papers that do not bear a proper signature unless the error “is promptly corrected after being called to the attorney's or party's attention.” Id.
Bradley has already been warned that she may not have others litigate this case for her. See Order Requiring Notice of Self-Representation at 1-3, D.E. 164; Order Dismissing Pls. at 2-3. To remain a Plaintiff after the court's February 7, 2023 Order, Bradley had to file a notice confirming that she is acting on her own behalf. See Bradley Notice of Self-Representation, D.E. 208. But by having a non-attorney sign her filings, Bradley has disregarded the court's clear command. Thus, the court will strike her motion for an extension of time (D.E. 503) and her response to Governor Kelly's motion to dismiss (D.E. 543) for failure to comply with the court's orders and Rule 11. Bradley may submit a response-drafted and signed by her-no later than May 19, 2023.
VI. Motion for Extension of Time to File a Comprehensive Reply
Federal Defendants have also asked for an extension of court deadlines. As discussed above, the Federal Rules allow the court to grant an extension of time to act if the moving party establishes good cause and, if necessary, excusable neglect. See Fed.R.Civ.P. 6(b)(1). Federal Defendants moved to dismiss the claims against them on March 6, 2023. See Fed. Defs.' Mot. Dismiss, D.E. 381. The day before their reply brief was due, they asked the court for more time to file a comprehensive reply to all responses to their motion. See Fed. Defs.' Mot. for Extension, D.E. 562. Because Federal Defendants may need to reply to multiple responses to their motion to dismiss, the court concludes that there is good cause to grant an extension. Thus, Federal Defendants will have until May 19, 2023, to file their reply brief.
VII. Motions to Set Aside January 6, 2023 Judgment
After surveying caselaw, the undersigned concludes that magistrate judges generally address motions for relief from a final judgment through a memorandum and recommendation. See, e.g., United States v. First Investors, LLC of N.C. , No. 7:07-CV-00018-D, 2010 WL 2679983, at *7 (E.D. N.C. May 10, 2010). Thus, the undersigned will recommend-rather than order-that these motions be denied.
Finally, four former Plaintiffs who were dismissed from this action-Renesha Tomlin, Deanna Robinson, and Brenda and Daniel Blue-ask that the court allow them to rejoin the lawsuit. See Mots. to Set Aside Judgment, D.E. 388; 496; 389; see also Order Dismissing Pls. at 8 (dismissing these individuals for failure to prosecute and failure to follow court orders). Federal Rule 60(b) authorizes a district court to grant relief from a final judgment “for five enumerated reasons or for ‘any other reason that justifies relief.'” Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011) (quoting Fed.R.Civ.P. 60(b)(6)). The Rule allows a party to “seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).
None of the Rule 60(b) considerations warrant reintroducing Tomlin, Robinson, or the Blues to this case. The court dismissed them for failure to prosecute and failure to comply with its orders in its January 6, 2023 Order. See Order Dismissing Pls. at 8. The following month, the court denied several motions to set aside its January 6, 2023 judgment from similarly situated former Plaintiffs. See Order Denying Various Mots. at 1-4. These motions are no different-for the same reasons laid out in its February 27, 2023 Order, the court should deny Tomlin's, Robinson's, and the Blues' motions to set aside its judgment dismissing them from this case (D.E. 388; 496; 389).
VIII. Conclusion
For the reasons discussed above:
• The court denies the motions filed at D.E. 393, 395, 396, 397, 398, 427, 439, 440, 495, 497, and 499;
• The court grants the motions to stay discovery until it resolves all pending motions to dismiss (D.E. 550 & 565);
• The court grants Glenda and Russ Cody's motion for an extension of time (D.E. 539) and considers their response to Governor Kelly's motion to dismiss timely filed;
• The court strikes Keona Bradley's motion for an extension of time (D.E. 503) and her response to Governor Kelly's motion to dismiss (D.E. 543). Bradley may submit a response-drafted and signed by her-no later than May 19, 2023;
• The court grants Federal Defendants' motion for an extension of time (D.E. 562)-they will have until May 19, 2023, to file a comprehensive response brief; and
• The undersigned recommends that the court deny the remaining motions to set aside its January 6, 2023 judgment (D.E. 388; 389; 496).
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.