Opinion
2:22-cv-02964-RMG-MGB
02-02-2023
Vanessa Richardson El, Plaintiff, v. Hutchens Law Firm; John Kay; Ashley Stanley; Mikell Scarborough; Kristin Graziano; Michael Miller; Jessica Wigley; Donald W. Beatty; Henry McMaster; LoanCare, LLC; Newrez LLC; New Res. Corp.; and Ditech Financial LLC, Defendants.
ORDER AND REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
The instant action challenges the foreclosure and sale of certain property located at 1143 Hamlin Road, Mount Pleasant, South Carolina, 29466 (the “Property”), allegedly owned by Plaintiff Vanessa Richardson El (“Plaintiff”).(Dkt. No. 1.) More specifically, the Complaint contends that Defendants “attempted to take advantage of [Plaintiff's] documented medical disability as a means to . . . steal her private property through coercion and fraud.” (Id. at 11.) The Complaint seeks a permanent injunction and $9 billion in damages for the “unlawful seizure” of Plaintiff's Property. (Id.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review this case and submit findings and recommendations to the assigned United States District Judge. For the reasons discussed below, the undersigned recommends that this action be summarily dismissed for lack of subject matter jurisdiction.
The undersigned takes judicial notice of the records filed in the underlying state foreclosure action, Case No. 2:17-CP-10-04109, before the Charleston County Court of Common Pleas. See https://jcmsweb.charlestoncounty.org/PublicIndex/?AspxAutoDetectCookieSupport=1; see also Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (explaining that a federal court may take judicial notice of the contents of its own records, as well as those records of other courts); Tisdale v. South Carolina Highway Patrol, No. 0:09-cv-1009-HFF-PJG, 2009 WL 1491409, at *1 n.1 (D.S.C. May 27, 2009), aff'd, 347 Fed.Appx. 965 (4th Cir. Aug. 27, 2009) (noting that the court may also take judicial notice of factual information located in postings on government web sites).
Upon reviewing the initial filings in this case, the undersigned noticed that while Plaintiff was proceeding pro se, she had not signed the Complaint or any of the other requisite filings. Rather, the pleading was apparently executed by Bakha Yawuti El (“Mr. El”) in his capacity as Plaintiff's “attorney-in-fact” pursuant to the terms of a “Durable Financial Power of Attorney” (“POA”) (Dkt. No. 1-3) filed with the Complaint.It is well-established, however, that while an individual “unquestionably has the right to litigate his own claims in federal court,” that right “does not create a coordinate right to litigate for others.” Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) (referencing 28 U.S.C. § 1654) (emphasis in original). Indeed, the legal competence of a layman is “clearly too limited to allow him to risk the rights of others.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). For that reason, district courts within this Circuit “uniformly have precluded non-attorneys from litigating matters in the name of others based on claimed authority from some form of ‘power-of-attorney.'” See Bank of Am. Inc. v. Campbell, No. 1:12-cv-269, 2012 WL 1951820, at *2 (M.D. N.C. May 30, 2012) (collecting cases); see also Jones v. Midland Funding LLC, No. 4:22-cv-3, 2022 WL 3924233, at *2-3 (E.D. Va. Aug. 29, 2022) (explaining that while a “power of attorney may confer certain decision-making rights under state law, . . . it does not allow [a plaintiff] to litigate pro se on behalf of [another] in federal court”) (internal citations omitted).
The undersigned makes no determinations regarding the validity of the POA at this time.
To hold otherwise would directly conflict with Rule 11 of the Federal Rules of Civil Procedure, which mandates that “[e]very pleading, written motion, and other paper . . . 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); see also General Order, In Re: Procedures in Civil Actions Filed by Non-Prisoner Pro Se Litigants, No. 3:07-mc-5015-JFA (D.S.C. Sept. 18, 2007) (requiring “a pleading with the plaintiff's original signature” for civil actions filed by a pro se litigant).
None of the initial filings in the instant action indicated that Mr. El was an attorney or licensed to practice law in South Carolina. Accordingly, the undersigned issued a proper form order explaining that Mr. El could not litigate pro se the legal rights of Plaintiff (Vanessa Richardson El)-even with the purported power of attorney-and the Court therefore lacked jurisdiction over this case. (Dkt. No. 13.) The undersigned also found that the Court likewise could not entertain the pending motions filed and signed by Mr. El on Plaintiff's behalf (see Dkt. No. 2, Motion for Leave to Proceed In Forma Pauperis; Dkt. No. 7, Motion for Copies at No Expense; and Dkt. No. 8, Motion for Permanent Injunction) and dismissed the same without prejudice. (See Dkt. No. 13 at 2 n.3.)
It appears that certain Defendants (specifically, LoanCare, LLC; Hutchens Law Firm; John Kay; and Ashley Stanley) filed objections to some of Mr. El's initial motions. (See Dkt. No. 11.) However, for the reasons stated above, Mr. El's motions were a nullity and, thus, any objections thereto were moot. In any event, Defendants' objections were premature because the Court had not yet authorized service of the Complaint. See General Order, In Re: Procedures in Civil Actions Filed by Non-Prisoner Pro Se Litigants, No. 3:07-mc-5015-JFA (D.S.C. Sept. 18, 2007) (requiring that all pro se complaints filed in the United States District Court for the District of South Carolina undergo an initial review process before proceeding with service of process).
Notwithstanding the above, under General Order, In Re: Procedures in Civil Actions Filed by Non-Prisoner Pro Se Litigants, No. 3:07-mc-5015-JFA (D.S.C. Sept. 18, 2007), the undersigned provided Plaintiff (Vanessa Richardson El) an opportunity to proceed with the instant case if she so desired by completing and refiling-either personally or through a licensed attorney-the requisite proper form documents, including: a complaint; an Application to Proceed Without Prepayment of Fees and Affidavit if necessary; a set of proposed service documents for each Defendant; and responses to the Court's Local Civil Rule 26.01 interrogatories. (See Dkt. No. 13 at 2-3, emphasizing that pro se filings must contain Plaintiff's original signature.) The undersigned warned Plaintiff that if she did not comply with the instructions within twenty-one days, plus three days for mail time, her case would be dismissed for lack of subject matter jurisdiction. (Id. at 3.)
Several weeks later, Mr. El filed a Motion for Extension of Time on Plaintiff's behalf, seeking an additional thirty days to file the aforementioned proper form documents. (Dkt. No. 17.) The motion, which did not offer any sort of explanation for the extension, contained only the signature of Mr. El; Plaintiff did not sign the filing. The undersigned therefore denied Mr. El's motion, reiterating that he did not have standing to file a motion or litigate on Plaintiff's behalf simply by virtue of the purported POA. (Dkt. No. 18.) In an abundance of caution, however, the undersigned gave Plaintiff another twenty-one days to bring her case into proper form and refile the necessary documents either personally or through legal counsel. The undersigned reminded Plaintiff that if she failed to comply with these instructions, her case would be dismissed for the reasons previously discussed. (Id.)
Despite the undersigned's order, Mr. El subsequently filed a second Motion for Extension of Time, seeking yet another thirty-day extension on Plaintiff's behalf “due to unforeseen circumstances.” (Dkt. No. 20.) He also filed a series of disorganized, somewhat incoherent supplemental documents (see Dkt. Nos. 21, 22, 23), including what appear to be records from the state foreclosure action involving Plaintiff's Property and various “affidavits” executed by Mr. El contesting the sale of the same.In addition to these filings, Mr. El submitted a flash drive that contains an audio recording from what he claims was the “deficiency hearing” in Plaintiff's foreclosure action, and a brief video in which an individual introduces himself as Defendant Hutchens Law Firm's bidding agent at the sale of Plaintiff's Property. Once again, none of these filings or submissions bear Plaintiff's signature or that of an attorney acting on her behalf; rather, Mr. El remains the only signatory on these documents, and there is still no evidence to suggest that he is licensed to practice law.
Although largely nonsensical, Mr. El's affidavits appear to allege copyright infringement, conflating such ownership with Plaintiff's purported property rights: “The land and property in question is protected under copyright ©AA222141 and the forementioned parties have been given notice that they are Infringers of Copyright per 17 USC 501.” (Dkt. No. 21-7 at 2.) Stripping away these distracting references, however, the affidavits lack any real factual and/or legal basis for applying copyright infringement to Defendants' alleged conduct, and the crux of this action remains the “unlawful seizure” and foreclosure of Plaintiff's property. (Id. at 2.)
As the undersigned has repeatedly explained, a layman like Mr. El lacks standing to litigate claims on behalf of others.(See Dkt. Nos. 13, 18.) “It follows from the rule prohibiting lay representation that any pleadings filed through lay representation must be disregarded as a nullity.” Umstead v. Chase Manhattan Mortg. Corp., No. 7:04-cv-747, 2005 WL 2233554, at *2 (W.D. Va. Sept. 13, 2005). Consequently, the undersigned finds that this Court lacks subject matter jurisdiction over the instant Complaint and therefore RECOMMENDS that this action be DISMISSED without prejudice at this time. See, e.g., Barnes v. D.S.S., No. 3:18-cv-1567-CMC-SVH, 2018 WL 3213624, at *2 (D.S.C. June 29, 2018) (dismissing claims for lack of subject matter jurisdiction where non-attorney attempted to litigate claims on behalf of another pursuant to the terms of a presumably “full and complete power of attorney”); Myers v. AT & T Corp., No. 2:13-cv-1432-RMG, 2013 WL 4823282, at *2 (D.S.C. Sept. 9, 2013) (finding that non-attorney lacked standing to assert claims on behalf of others regardless of guardianship status and therefore could not invoke district court's subject matter jurisdiction). For this same reason, the undersigned also ORDERS that Mr. El's second Motion for Extension of Time (Dkt. No. 20) be DISMISSED . In light of the foregoing, the Clerk of Court shall not issue the summons forms or forward this matter to the United States Marshal Service for service of process.
The undersigned notes that many of Mr. El's filings indicate that he may be attempting to circumvent the rules against lay representation based on Plaintiff's purported status as a “Moorish American” or “sovereign citizen.” (See, e.g., Dkt. No. 1 at 7; Dkt. No. 1-2 at 5; Dkt. No. 1-5; Dkt. No. 20 at 1; and Dkt. No. 21-7, bearing hallmarks of the Moorish National movement.) It is well-established, however, that any such claims are patently frivolous. See Mack v. Wells Fargo Fin. S.C., Inc., No. 2:19-cv-3335-SAL-BM, 2020 WL 1942342, at *3 (D.S.C. Mar. 30, 2020) (noting that the “Moorish Nation” is not a recognized sovereign state, and that “persons claiming to be Moor or Moorish-American are not immune from the laws and rules imposed by the United States or the individual states”), adopted, 2020 WL 1939069 (D.S.C. Apr. 22, 2020).
It is worth noting that even if this Court could entertain the Complaint and those challenges to the sale of Plaintiff's Property, such claims would likely be barred under the Rooker-Feldman doctrine, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), which prohibits a party losing in state court “from seeking what in substance would be appellate review of the state judgment in a United States district court.” See Am. Reliable Insurc. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003) (citing Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)); see also Davis v. Freedom Mortg. Corp., No. 1:22-cv-342-ADC, 2022 WL 2835705, at *4 (D. Md. July 20, 2022) (applying Rooker-Feldman to claims that relied “on the premise that the underlying foreclosure sale and award of possession were improper”); Boyd v. Simmons, No. 6:18-cv-576-BHH-JDA, 2018 WL 4999804, at *3 (D.S.C. Mar. 14, 2018) (dismissing plaintiff's claims under Rooker-Feldman where complaint challenged defendants' ability to secure a lien and judgment against plaintiff's property in state foreclosure proceedings), adopted, 2018 WL 4356579 (D.S.C. Sept. 13, 2018).
IT IS SO ORDERED AND RECOMMENDED.
Plaintiff's attention is directed to an important notice of 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. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).