Opinion
No. 1:02-cv-367.
July 30, 2004
MEMORANDUM
Defendants Titlemax of Chattanooga, Titlemax of Birmingham, Alabama, Titlemax of Ft. Oglethorpe, Georgia, Nate Hood, Fred Butler, and Omar Shabazz (collectively "Titlemax defendants") move pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure for sanctions against plaintiff E. Alfred Bibbins ("Bibbins") for his failure or refusal to respond to requests for discovery and comply with court orders. The Titlemax defendants also move for the award of reasonable attorney's fees against Bibbins pursuant to Fed.R.Civ.P. 37(b)(2)(E) and 37(d). [Court File No. 34]. Defendants Chattanooga Police Department, Jerry Person, B. Kilgore, and Jimmy Dodson (collectively "CPD defendants") make a similar motion pursuant to Fed.R.Civ.P. 37 to impose sanctions on plaintiff Bibbins for the same reasons. [Court File No. 35]. The Titlemax defendants and CPD defendants move to dismiss Bibbins' complaint with prejudice.
The Court referred the motions to United States Magistrate Judge William B. Mitchell Carter for his report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The motions were set for a hearing before Magistrate Judge Carter on June 18, 2004. Bibbins was notified but did not appear at the hearing, either in person or by counsel. Bibbins had previously represented to Magistrate Judge Carter that Bibbins had retained attorney Daniel Collins to represent him. However, Daniel Collins has never entered a formal appearance in the record of this case as counsel for Bibbins, and Daniel Collins did not attend the hearing on June 18, 2004.
On June 30, 2004, Magistrate Judge Carter ordered Bibbins to show good cause why this suit should not be dismissed with prejudice due to Bibbins' failure to prosecute the case and his failure to comply with court orders and the Federal Rules of Civil Procedure. Bibbins was ordered to respond no later than July 15, 2004. [Court File No. 45]. Bibbins did not timely file a response to the show cause order.
On August 9, 2004, Magistrate Judge Carter filed his report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). [Court File No. 49]. Magistrate Judge Carter recommends: (1) the defendants' motions for sanctions [Court File Nos. 34, 35] be granted; (2) Bibbins' complaint be dismissed with prejudice; and (3) the Titlemax defendants be awarded reasonable attorney's fees against Bibbins in the amount of $784.00.
Bibbins has not timely filed any objection to the Magistrate Judge's report and recommendation under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). After reviewing the record, the Court agrees with and adopts the Magistrate Judge's report and recommendation in its entirety pursuant to 28 U.S.C. § 636(b)(1).
Fed.R.Civ.P. 37(b)(2)(C) and 37(d) provide that the Court may dismiss a civil action as a sanction for a party refusing to comply with court orders and discovery. In deciding to dismiss Bibbins' complaint under Rule 37(b)(2)(C) and 37(d), the Court has considered the following factors: (1) whether Bibbins' failure to comply is due to willfulness, bad faith, or fault; (2) whether the defendants have been prejudiced by Bibbins' misconduct; (3) whether Bibbins has been fairly warned that his failure to cooperate in discovery and failure to comply with court orders could lead to the dismissal of his complaint with prejudice; and (4) whether less drastic sanctions should be imposed or considered before dismissal is ordered. United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002); Knoll v. Am. Tel. Telegraph Co., 176 F.3d 359, 363 (6th Cir. 1999); Harmon v. CSX Transportation, Inc., 110 F.3d 364, 366-67 (6th Cir. 1997); Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir. 1988).
Each of these four factors clearly weigh in favor of dismissing Bibbins' complaint with prejudice. The Court finds that Bibbins' conduct is willful and in bad faith. Bibbins has been accorded every fair, reasonable opportunity to fulfill his discovery obligations but he has deliberately ignored, violated, and refused to comply with Court orders and the Federal Rules of Civil Procedure governing discovery. The burden is on Bibbins to show that his failure to comply is due to inability, not willfulness or bad faith, Reyes, 307 F.3d at 458, and Bibbins has not met this burden.
The defendants have been prejudiced by Bibbins' conduct. Bibbins was warned by Magistrate Judge Carter that his failure to comply could result in the dismissal of his complaint with prejudice. A lesser sanction would not be effective to motivate Bibbins to change his conduct and cooperate in discovery. Bibbins filed his complaint initiating the judicial process but he has willfully and in bad faith sought to thwart and impede the administration of justice by blatantly refusing to comply with Court orders and the rules of procedure governing discovery. Under these circumstances, the appropriate sanction is to dismiss the complaint. Defendants and this Court should not be required to waste any more time and resources on Bibbins' complaint.
Accordingly, an order will enter accepting and adopting the Magistrate Judge Carter's report and recommendation. The defendants' Rule 37 motions for sanctions [Court File Nos. 34, 35] will be GRANTED. Bibbins' complaint will be DISMISSED WITH PREJUDICE, and the Titlemax defendants will be awarded attorney's fees against Bibbins in the amount of $784.00.
This is not the first time that E. Alfred Bibbins a/k/a Edward A. Bibbins has abused the judicial process by filing a frivolous, vexatious civil action in this Court. Bibbins is a prolific pro se litigator. Appended to this memorandum opinion in an appendix is a list of numerous other civil lawsuits filed by Bibbins in this Court. The cases listed in the appendix were frivolous, vexatious, and/or filed by Bibbins primarily for the purpose of unjustifiably harassing the defendants. Bibbins has a long history and a well established pattern of consistently misusing and abusing the judicial process in bad faith by repeatedly bringing meritless lawsuits. Bibbins' course of misconduct has caused the judges of this Court to needlessly waste substantial time and valuable judicial resources to adjudicate a myriad of specious claims.
The Court has endeavored to patiently endure the onslaught of Bibbins' frequent and repeated bad faith litigation. There comes a point, however, when enough is enough. Bibbins' egregious misconduct, as exemplified in the instant case, cannot be tolerated or condoned. Bibbins will not be permitted to continue to engage in abusive, bad faith litigation unabated.
The Court has the inherent authority and discretion to fashion an appropriate sanction for Bibbins based on his history of bad faith litigation, including his failure to comply with court orders. Chambers v. NASCO, Inc., 501 U.S. 32, 43-50 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980); Youn v. Track, Inc., 324 F.3d 409, 420 (6th Cir. 2003); First Bank of Marietta v. Hartford Underwriters, Ins. Co., 307 F.3d 501, 511-25 (6th Cir. 2002). The Court's inherent power to control the litigants before it, to protect the orderly administration of justice, and to maintain the Court's integrity extends to a full range of litigation abuses. Chambers, 501 U.S. at 43-44; First Bank of Marietta, 307 F.3d at 512 n. 7; Mitan v. International Fidelity Ins. Co., 2001 WL 1216978, **6 (6th Cir. Oct. 3, 2001).
The Court will exercise its inherent authority by issuing an order to enjoin Bibbins from filing complaints and other pleadings in this United States District Court in any civil lawsuits or actions without first obtaining Court approval to do so. The Court will impose a pre-filing restriction on Bibbins. Before the Court permits Bibbins to file any more civil complaints or other civil pleadings of any kind in the United States District Court for the Eastern District of Tennessee, Bibbins shall be required to certify and make a preliminary showing that the tendered complaint or pleading is in good faith and it is not frivolous, vexatious, or being filed for an improper purpose such as harassment. Chance v. Todd, 2003 WL 22114024 (6th Cir. Sept. 10, 2003); Marbly v. Kay, 2000 WL 1827783 (6th Cir. Dec. 8, 2000); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir. 1987); see also Tropf v. Fidelity National Title Insurance Co., 289 F.3d 929, 940-43 (6th Cir. 2002); Hawkins v. Czarnecki, 2002 WL 1869309 (6th Cir. Aug. 13, 2002); Callihan v. Commonwealth of Kentucky, 2002 WL 1301664 (6th Cir. June 12, 2002); Mitan, 2001 WL 1216978; Siller v. Haas, 2001 WL 1298980 (6th Cir. Aug. 7, 2001); Atchison v. Farrell, 2000 WL 1359651 (6th Cir. Sept.15, 2000); Ortman v. Thomas, 99 F.3d 807 (6th Cir. 1996).
The imposition of a pre-filing restriction on Bibbins does not violate his rights under the First Amendment and the Fourteenth Amendment's Due Process and Equal Protection Clauses in the United States Constitution. Marbly, 2000 WL 1827783 at * 1; Futernick v. Sumpter Township, 207 F.3d 305, 314 (6th Cir. 2000) ( Fourteenth Amendment); Filipas, 835 F.2d at 1146 ( First Amendment).
Furthermore, because Bibbins has grossly abused the privilege of invoking the judicial process by filing numerous frivolous and vexatious lawsuits in bad faith, the Court will deny in forma pauper status to Bibbins in any and all civil lawsuits or actions he may seek to file in the United States District Court for the Eastern District of Tennessee . Atchison, 2000 WL 1359651; Boles v. Matthews, 1999 WL 183472, * 3 (6th Cir. March 15, 1999); Robinson v. Giavasis, 1997 WL 133298 (6th Cir. March 21, 1997); Reneer v. Sewell, 975 F.2d 258, 260-61 (6th Cir. 1992); Maxberry v. SEC, 879 F.2d 222, 224 (6th Cir. 1989). Bibbins will not be permitted to proceed in forma pauperis under 28 U.S.C. § 1915 in any cases, and he will be required to pay all applicable, standard filing fees.
A separate final judgment and order will enter.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA
E. ALFRED BIBBINS, ) ) Plaintiff, ) ) v. ) No. 1:02-cv-367 ) Edgar TITLEMAX OF CHATTANOOGA, TENNESSEE; ) TITLEMAX OF BIRMINGHAM, ALABAMA; ) TITLEMAX OF FT. OGLETHORPE, GEORGIA;) FRED BUTLER; NATE HOOD; ) GROSS CARETER, CARTER TOWING; ) OMAR SHABAZZ; CHATTANOOGA POLICE ) DEPARTMENT; JERRY PERSON; B. KILGORE) and JIMMY DODSON ) ) Defendants. ) )
APPENDIX TO MEMORANDUM OPINION
CIVIL ACTIONS FILED BY E. ALFRED BIBBINS a/k/a EDWARD A. BIBBINS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA
1. Edward A. Bibbins v. Nancy Cagle, Howard Carlton, Charles Christopher, Jerry W. Haston, R.G. Holston, and Dottie Wyatt, Case No. 1:91-cv-393
2. Edward A Bibbins v. Republic Parking System, The River City Company, James C. Berry, and William P. Sudderth, Case No. 1:93-cv-532
3. Edward A. Bibbins v. Arthur Grisham, Thomas Knight, P S School Supply, John B. Phillips, Wendy Phillips, Jerry Stephens, and Jim Stephens, Case No. 1:96-cv-336
4. E. Alfred Bibbins, et al. v. Chattanooga City School Board; Chattanooga City School Administration; Hamilton County School Board and Administration; Dr. Jesse Register, Superintendent; Hamilton County Commission; Chattanooga City Council; City of Chattanooga-Hamilton County Election Commission; Carolyn Jackson, Registrar at Large; Eugene Collins, City Attorney; and Chattanooga City Council Members Leamon Pierce, Yusef Hakeem, John Lively, Mai Bell Hurley, Marti Rutherford, Ron Swafford, David Crockett, Don Eaves, and Jack Hester, Case No. 1:97-cv-375
5. Edward A Bibbins and The Ministers and Laypersons Fellowship Church v. WNOO Radio Station, Annette Pete, Albert L. Smith, and Willis Broadcasting Company, Case No. 1:97-cv-510
6. E. Alfred Bibbins v. Paul Fink; WSGC FM Radio Station, Northshore Communications, Chattanooga Communications, North Georgia Radio Group, T.R. Gunn d/b/a T.R. Gunn Company, and Whitfield Investments, Case No. 1:98cv-47
7. E. Alfred Bibbins (Pastor) a/k/a Ed Owens (Host) Minister's and Layperson's Fellowship Church Chattanooga-Hamilton County, Citizens Review Board, Let's Talk Televison Show v. First Tennessee Bank, N.A., Frank Schriner, Angie Westbrook, WTCI Television Channel 45, Inc., Victor Hogstrom, and Bob Williams, Case No. 1:98-cv-384
8. E. Alfred Bibbins, Minister's and Layperson's Fellowship Church Chattanooga-Hamilton County, Citizens Review Board, and Let's Talk Televison Show v. T.R. Gunn d/b/a T.R. Gunn Company, Talk America Radio Network, Tom Star, Chris Rolle, and John Crohan, Case No. 1:98-cv-392
9. E. Alfred Bibbins, Let's Talk Televison Show and Productions, and Minister's and Layperson's Fellowship Church v. Erlanger Medical Center, Davis Lundy, Pat Charles, Dennis Pettigrew, Ervin Overton, and the Board of Directors, Case No. 1:98-cv-407
10. E. Alfred Bibbins v. Comcast Cablevision of the South, Inc., Billy Finley, National Aeronautics and Space Administration, Pat (first name only), Geoff Shook, TV-Guide, and Billy Thornton, Case No. 1:01-mc-747. District Court denied Bibbins' application for leave to proceed in forma pauperis. District Court's order affirmed on appeal by United States Court of Appeals for Sixth Circuit which observed that denial of in forma pauperis application was appropriate because Bibbins' claims lacked an arguable basis in the law, i.e. his claims were frivolous. Bibbins v. Comcast Cablevision of the South, Inc., 2002 WL 1842669 (6th Cir. August 12, 2002).
JEFFERSON-PILOT LIFE ) INSURANCE COMPANY, ) ) Plaintiff/Counter-Defendant, ) ) v. ) No. 1:03-cv-401 ) Edgar AMY GLENN HARRIS, ) ) Defendant/Counter-Claimant. )
JUDGMENT
For the reasons stated in the accompanying memorandum, Jefferson-Pilot Life Insurance Company's motion for summary judgment is GRANTED. Accordingly, the Court DECLARES pursuant to 28 U.S.C. § 2201, the application for life insurance signed by James Massengale on April 22, 2003, which named Amy Glenn Harris as his beneficiary, did not mature into an enforceable contract for life insurance prior to James Massengale's death, nor did James Massengale satisfy the terms of the conditional receipt which, if completed, would have provided interim coverage.
Amy Glenn Harris's counterclaim against Jefferson-Pilot Life Insurance Company asserting that the company is liable to her in the amount of $300,000 under the same policy is necessarily resolved by the Court's decision regarding the plaintiff's motion for summary judgment. Therefore, Amy Glenn Harris's counterclaim is DISMISSED. Each party shall bear their own costs.
This is a Final Judgment. The Clerk of Court shall close the case.
SO ORDERED.