Opinion
No. 2:17-CV-54-D
05-11-2018
ADAM L. PERRY, Plaintiff, v. WILLIAM EARL BRITT, Defendant.
ORDER
On October 6, 2017, Adam L. Perry ("Perry" or "plaintiff"), proceeding pro se, applied for a "preliminary and/or permanent injunction" in Perquimans County Superior Court against Senior United States District Judge William Earl Britt [D.E. 13-2]. On September 28, 2015, the United States removed the action from Perquimans County Superior Court to this court pursuant to 28 U.S.C. § 1442(a)(3). On June 3, 2016, this court dismissed the action for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim. See Perry v. Britt, No. 2:15-CV-37-D, 2016 WL 3187289 (E.D.N.C. June 3, 2016) (unpublished) ("Perry II"), aff'd, 678 F. App'x 101 (4th Cir. 2017) (per curiam) (unpublished), cert. denied, 138 S. Ct. 303 (2017); see also Notice of Removal [D.E. 1] 1.
According to Perry, the state court ordered the parties to "appear to the court in perquimans county north Carolina for injunction relief hearing on October 30th 2017[.]" Pl.'s Mot. Contempt [D.E. 6-2] 1; cf. Gov't's Mot. Dismiss, Exs. 2 [D.E. 15-2] (Oct. 27, 2017 letter acknowledging receipt of court calendar), 3 [D.E. 15-3] (Nov. 13, 2017 state court order noting that the state court "calendared [the case] for review at a Civil Administrative Session"). When Judge Britt did not appear at the hearing, Perry filed a "motion for contempt of court" [D.E. 6-2]. That motion cites both the state court docket number for Perry II, and the state court docket number for an earlier case which was removed to federal court pursuant to 28 U.S.C. § 1441 on April 3, 2013, and which Judge Britt dismissed on April 23, 2014. See Perry v. Lench Mob Records, No. 2:13-CV-00022-BR, 2014 WL 1631823 (E.D.N.C. Apr. 23, 2014) (unpublished) ("Perry I"), aff'd sub nom. Perry v. Entm't One, 583 F. App'x 293 (4th Cir. 2014) (per curiam) (unpublished).
On November 16, 2017, the United States removed the contempt motion to this court [D.E. 1] as a new civil action and filed a notice of related case, citing Perry II [D.E. 3]. On November 30, 2017, Perry filed a "motion for demand of trial" [D.E. 11]. On December 20, 2017, the United States moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1), (5), and (6) [D.E. 14]. On January 2, 2018, Perry responded in opposition [D.E. 17]. On April 13, 2018, Perry filed a document indicating his belief that "senior Judge Tillet of perquimans county of his own honorable accord has requested and docketed a hearing and the hearing has been set on May 7th 2018 at 10.00am at court room #A. at the Perquimans county court house . . . in regards on plaintiff motion default„motion remand„motion to amend and contempt of court filed at the Perquimans County Court Of Justice[.]" [D.E. 18] 1; cf. Gov't's Mot. Dismiss, Ex. 3 [D.E. 15-3] (Nov. 13, 2017 state court order signed by Judge Tillet indicating that "[n]o further action shall be taken and proceeding shall be closed unless and until the case is remanded.").
The notice of removal the government filed on September 28, 2015, in Perry II deprived the state court of any jurisdiction to consider Perry's October 6, 2017 application for injunction or November 8, 2017 contempt motion filed in the same case. 28 U.S.C. § 1446(d); see Fenton v. Dudley, 761 F.3d 770, 772 (7th Cir. 2014); Ackerman v. ExxonMobil Corp., 734 F.3d 237, 249 (4th Cir. 2013); State of South Carolina v. Moore, 447 F.2d 1067, 1073 (4th Cir. 1971); Holmes v. AC & S, Inc., 388 F. Supp. 2d 663, 667 (E.D. Va. 2004). Thus, Perry's state-court filings made post- removal are nullities. See Allen v. Nationwide Mut. Ins., No. 2:17-CV-561, 2017 WL 4985517, at *2 (S.D. Ohio Nov. 2, 2017) (unpublished), report and recommendation adopted, 2018 WL 276810 (S.D. Ohio Jan. 3, 2018) (unpublished); Yuan v. U.S. Holdings, LLP, No. 5:10-CV-1251 (NAM/ATB), 2011 WL 3649598, at *1 (N.D.N.Y. Aug. 18, 2011) (unpublished); Dunigan v. Countrywide Home Loans, Inc., No. 1:08-CV-3735-CC, 2009 WL 10698799, at *3 (N.D. Ga. Sept. 10, 2009) (unpublished); Fischman v. Fischman, 470 F. Supp. 980, 984 (E.D. Pa. 1979).
Perry's application for an injunction against Judge Britt simply attempts to relitigate issues he unsuccessfully argued in Perry I and Perry II. Thus, the court denies the motion. The court denies the remaining motions as moot.
In sum, the court DENIES the pending motions [D.E. 6, 11, 13, 14]. The clerk shall close the case.
SO ORDERED. This 11 day of May 2018.
/s/_________
JAMES C. DEVER III
Chief United States District Judge