Opinion
C/A 6:24-cv-04383-DCC-KFM
10-15-2024
Clyde Lewis La Count, Plaintiff, v. Latrice Hudgens, All Occupants, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge
Ms. Hudgens, proceeding pro se and in forma pauperis, purported to remove the present action from the Greenville County Magistrate Court (doc. 1), asserting that a federal question arises from an eviction action against her for non-payment of rent. The docket number for the state court action was Case No. 2024cv2310101161 (id.). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
BACKGROUND
This case arises from a state eviction action (2024cv2310101161) filed against Ms. Hudgens by the plaintiff Clyde Lewis La Count (“the Eviction Action”). See Greenville County Public Index, https://publicindex.sccourts.org/GreenvillePublicIndex/ PISearch.aspx (enter 2024cv2310101161) (last visited October 10, 2024). A writ of ejectment was issued in the state eviction action on August 12, 2024, the same day Ms. Hudgens purported to remove the eviction action to this court (doc. 1). See Greenville County Public Index (enter 2024cv2310101161) (last visited October 10, 2024). In the notice of removal, Ms. Hudgens alleges that the Eviction Action should be removed to this court because Cylde Lewis La Count is trying to collect a debt in violation of the Fair Debt Collection Practices Act (“FDCPA”) (doc. 1). Ms. Hudgens maintains that these alleged violations give rise to federal jurisdiction, thus, making this action removable. As explained below, the undersigned disagrees.
LITIGATION & PROCEDURAL HISTORY
On January 27, 2020, in a prior eviction removal filed by Ms. Hudgens, the Honorable Donald C. Coggins, Jr., United States District Judge, issued an order sanctioning Ms. Hudgens $400.00 based on her proclivity for filing frivolous actions in this court by removing eviction actions from the state court. See Hudgens v. Greenleaf Mgmt., C/A No. 6:19-cv-03593-DCC, 2020 WL 419491, at *2 (D.S.C. Jan. 27, 2020). Specifically, Judge Coggins noted:
[i]n the event [Ms. Hudgens] attempts to file another action in this Court before complying with this Order, the Clerk of Court is authorized to assign civil action numbers (for docket control purposes). The assigned Magistrate Judge is authorized to either (1) direct [Ms. Hudgens] to pay the sanctions amount OR (2) certify that the action is not frivolous.Id. Here, Ms. Hudgens has once again purported to remove her eviction action to this court (see doc. 1). By order dated August 14, 2024, Ms. Hudgens was informed that in order for this case to proceed she was required to pay the outstanding sanctions (or submit proof that the sanctions had been satisfied) (doc. 7 at 1-2). The order also noted that the notice of removal in the instant action was “all but identical to the [frivolous] ones filed in her prior case[s];” thus, pursuant to Judge Coggins' order, the case was frivolous and would be subject to dismissal unless Ms. Hudgens paid the sanctions (Id. (citing Hudgens, 2020 WL 419491, at *1 n.1)). The order also reminded Ms. Hudgens to notify the clerk in writing of any change of address and warned that failure to keep her address updated with the court may lead to dismissal of the case (Id. at 2). Ms. Hudgens did not respond to the August 14, 2024, order, so on September 10, 2024, a second order was issued informing Ms. Hudgens that her case was not in proper form (doc. 11). Ms. Hudgens was instructed for a second time that her case would be subject to dismissal if she failed to pay the sanctions (Id. at 1-2). The order also reminded Ms. Hudgens to notify the clerk in writing of any change of address and warned that failure to keep her address updated with the court may lead to dismissal of the case (Id. at 2). Despite the opportunities outlined above, Ms. Hudgens has not paid the sanctions ordered by Judge Coggins or otherwise respond to the proper form orders.
STANDARD OF REVIEW
Ms. Hudgens filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). As a pro se litigant, Ms. Hudgen's 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 (2007) (per curiam). The requirement of liberal construction, however, 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).
DISCUSSION
Rule 41
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added).
In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the party;
(2) the amount of prejudice caused by the delay;
(3) the history of the party in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite two opportunities, Ms. Hudgens has failed to comply with Judge Coggins' January 27, 2020, order. In doing so, Ms. Hudgens has failed to comply with the court's orders in this case dated August 14, 2024, and September 10, 2024 (docs. 7; 11). Each order warned Ms. Hudgens of the consequences of failing to comply with the orders' instructions, including the dismissal of the case pursuant to Fed.R.Civ.P. 41(b) (docs. 7 at 1-2; 11 at 1). Despite these warnings, Ms. Hudgens has not complied with or responded to the court's orders. Accordingly, as Ms. Hudgens has failed to comply with multiple court orders and has been previously warned that such failures could result in dismissal of this action, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
Subject Matter Jurisdiction
Under 28 U.S.C. § 1441(a), “a civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants.” The burden of demonstrating jurisdiction - and the propriety of removal, however, rests with the removing party. See Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir. 2004). In determining federal question jurisdiction, the complaint controls. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). As noted, it appears that Ms. Hudgens purports to remove the Eviction Action to this court based upon Federal Question jurisdiction (see doc. 1). However, as noted above, the writ of ejectment appears to have been issued in the Eviction Action prior to the filing of this case. See Greenville County Public Index (enter 2024cv2310101161) (last visited October 10, 2024). As such, it appears that this court cannot accept Ms. Hudgen's purported removal because the Eviction Action is not currently pending. See Rome v. Everbank, C/A No. 2:13-cv-01819-CWH, 2013 WL 4505415, at *1, *10 (D.S.C. Aug. 22, 2013) (denying the plaintiff's purported removal of a state foreclosure action where final judgment had been entered in the state foreclosure action prior to the notice of removal).
Moreover, even had the Eviction Action been pending, the instant matter would be subject to dismissal for lack of subject matter jurisdiction. “The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Since federal courts have limited subject matter jurisdiction, there is no presumption that the court has jurisdiction. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 337 (1895)). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, “and to dismiss the action if no such ground appears.” Bulldog Trucking, 147 F.3d at 352; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Although Ms. Hudgens purported to remove the instant matter, because the Eviction Action is closed (and shows no record of Ms. Hudgens' notice of removal), dismissal rather than remand is recommended.
Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Federal question jurisdiction, as alleged herein, arises when the case arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. In her notice of removal, Ms. Hudgens alleges that federal question jurisdiction exists over this eviction action because this case involves violations of the FDCPA. However, the Eviction Action involves the collection of rent - and nothing in the Eviction Action suggests that the state proceedings arose out of the Constitution, laws, or treaties of the United States (see docs. 1; 1-1). Further, Ms. Hudgens cannot manufacture federal question jurisdiction in the present matter by referencing the FDCPA. See Gully v. First Natl Bank, 299 U.S. 109 (1936) (noting that “[t]he basis of federal question jurisdiction [ ] must appear upon the face of the state court complaint, and it cannot be supplied by reference to the answer or petition”); In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 585 (4th Cir. 2006) (noting that “actions in which [state court] defendants merely claim a substantive federal defense to a state law claim do not raise a federal question”). Accordingly, this court lacks subject matter jurisdiction over this action; thus, it should be dismissed.
Frivolous Filings
Of note, this is the fourth time Ms. Hudgens has sought to remove an eviction action in which she was named the defendant, and her notice of removal is all but identical to the ones filed in her prior cases. See Hudgens v. Greenleaf Mgmt., C/A No. 6:19-cv-03593-DCC, at doc. 1 (D.S.C.); Hudgens v. L&R Props., C/A No. 6:19-cv-00791-BHH, at doc. 1 (D.S.C.); Hudgens v. Crescent Landing Apartments, C/A No. 6:18-cv-856-AMQ, at doc. 1 (D.S.C.). In the prior cases, Ms. Hudgens, who proceeded in forma pauperis, was informed that the court lacked subject matter jurisdiction over her eviction proceeding and her case was remanded. Hudgens, C/A No. 6:19-cv-03593-DCC, 2020 WL 419491; Hudgens v. L&R Props., C/A No. 6:19-cv-00791-BHH, at doc. 11; Hudgens v. Crescent Landing Apartments, C/A No. 6:18-cv-0856-AMQ, at docs. 6; 11; 16. Indeed, as noted above, in the last action filed by Ms. Hudgens, Judge Coggins sanctioned her for her proclivity for filing frivolous actions in this court by removing eviction actions from the state court. Hudgens, 2020 WL 419491, at *2.
Despite the dismissal of her prior actions - and the imposition of money sanctions - Ms. Hudgens returns to this court asserting the same type of claim that was rejected previously. The screening of Ms. Hudgens's case requires the court to expend additional judicial resources in order to repeatedly inform Ms. Hudgens that the court lacks subject matter jurisdiction over her claims. Federal courts may issue prefiling restrictions when vexatious conduct hinders the court from fulfilling its constitutional duty. Cromer v. Kraf Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004) (published). This “drastic remedy must be used sparingly” to ensure “constitutional guarantees of due process of law and access to the courts.” Id. The factors for consideration in determining whether to enter a prefiling injunction include (1) the party's history of litigation, particularly whether she has filed vexatious, harassing or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party's filings; and (4) the adequacy of alternative sanctions. Id. at 818 (internal citations omitted). If a court finds a prefiling injunction is warranted based on the four Cromer factors, the injunction must be “narrowly tailored to fit the specific circumstances at issue.” Id. Additionally, a litigant is entitled to notice and an opportunity to be heard prior to the imposition of a prefiling injunction. Id. at 819-20. As outlined above, the four factors weigh against Ms. Hudgens based on her proclivity for filing frivolous actions in this court by removing eviction actions from the state court. Further, the previous imposition of money sanctions has had not prevented Ms. Hudgens from continuing to file frivolous actions in this court.
Accordingly, in light of the Cromer factors, the undersigned recommends that the following prefiling restrictions be imposed on Ms. Hudgens:
1. For any future non-habeas actions or notices of removal filed by Ms. Hudgens, Ms. Hudgens is required to submit the full filing fee to the Clerk of Court at the time of her initial filing. If a filing by Ms. Hudgens is not accompanied by a full filing fee, the Clerk of Court is authorized to assign civil action numbers (for docket control purposes) and the assigned United States Magistrate Judge will forward the case to the assigned United States District Judge for an order of dismissal or a sua sponte order remanding the matter.
2. These filing restrictions do not apply to any criminal case in which Ms. Hudgens is named as a defendant.
3. Ms. Hudgens may file a motion to modify or rescind the order imposing these restrictions no earlier than two years from the date of its entry.
This report and recommendation provides notice to Ms. Hudgens of the recommendation that prefiling restrictions be entered and provides her an opportunity to be heard regarding the imposition of a prefiling injunction.
RECOMMENDATION
In light of Ms. Hudgens' failure to pay the sanctions ordered by Judge Coggins and based on the closed status of the Eviction Action, the undersigned recommends the District Court dismiss this action without prejudice and without issuance and service of process pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Should the United States District Judge assigned to this case adopt this recommendation, IT IS FURTHER RECOMMENDED that an order restricting Ms. Hudgens' ability to file additional actions in this district be entered as set forth above.
Based upon the foregoing, in accordance with the notice rule articulated in Cromer, this Report and Recommendation is NOTICE to Ms. Hudgens that the undersigned has recommended that prefiling restrictions be entered against her. Ms.
Hudgens is directed that specific written objections to this recommendation must be filed within fourteen (14) days of the date of service of this Report and Recommendation.
IT IS SO RECOMMENDED.
Ms. Hudgens' attention is directed to the important notice on the last 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, Room 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).