Lurea Hornbuckle v. Massachusetts Mutual Life Ins, et al

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UNPUBLISHED OPINION FILED. [10-10439 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 11/12/2010 [10-10439]

Lurea Hornbuckle v.Case: 10-10439 Document: al Massachusetts Mutual Life Ins, et 00511272097

Page: 1 Date Filed: 10/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 22, 2010 N o . 10-10439 S u m m a r y Calendar Lyle W. Cayce Clerk

L U R E A HORNBUCKLE P la in t if f -A p p e lla n t v. M A S S A C H U S E T T S MUTUAL LIFE INSURANCE CO; B A N K OF AMERICA NATIONAL ASSOCIATION D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:10-cv-00065-A

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 10-10439 Document: 00511272097 Page: 2 Date Filed: 10/22/2010

No. 10-10439 L u r e a Hornbuckle ("Hornbuckle"),1 proceeding pro se, appeals the district c o u r t's dismissal of her motion for a temporary or permanent injunction.2 T h o u g h neither the original motion nor her brief on appeal clarifies the precise n a t u r e of her claims, Hornbuckle essentially objects to the judicial foreclosure o f her property located in Arlington, Texas (the "property"). Hornbuckle has n a m e d Massachusetts Mutual Life Insurance Company and Bank of America N a tio n a l Association as defendants ("Defendants"). In their response to this motion, Defendants provided the district court w it h evidence that the instant case represents Hornbuckle's second attempt to e n jo in the judicial foreclosure of her property. On September 24, 2007,

H o r n b u c k l e brought suit in Texas state court, seeking damages and a decree e n jo in in g the foreclosure sale of the property. Defendants sought summary ju d g m e n t on all of Hornbuckle's claims, as well as on judicial foreclosure c o u n t e r c la im s they had raised in the action. On December 29, 2009, the court g r a n t e d summary judgment, dismissing Hornbuckle's claims with prejudice and g r a n t in g the relief requested by Defendants. Hornbuckle then appealed to the S e c o n d Court of Appeals of Texas. Hornbuckle then filed a second action in state court, which involves the s a m e parties and is related to the same subject matter as the first action. This s e c o n d case was then removed to the federal system and serves as the basis for t h is appeal.

Plaintiff Lurea Hornbuckle ("Lurea") purports to represent the estate of her deceased husband, William Hornbuckle, Sr. ("Estate"), in this action. For clarity, however, the court in this opinion will refer only to Lurea. The document is titled, "Plaintiffs Motion for Hearing and Subpoena Deces [sic] Tecum and Temporary Injunction or Permanent Injunction to Allow Courts Judgment or Order Substitute Trustee Notice of April 6, 2010 Sale of Plaintiffs Property is Deceptive Fraud and Defective No Lender."
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Case: 10-10439 Document: 00511272097 Page: 3 Date Filed: 10/22/2010

No. 10-10439 G iv e n the confusing nature of the allegations in the second petition, D e fe n d a n t s filed a Motion for More Definite Statement in order to obtain c la r ific a t io n of Hornbuckle's claims. The district court granted the motion, n o tin g that Hornbuckle's allegations were "vague, confusing, ambiguous, and in s u ffic ie n t to give defendants notice of the claims and causes of action against t h e m ." Hornbuckle then moved for a temporary or permanent injunction, which t h e district court denied. The district also dismissed with prejudice, sua sponte, a ll remaining claims raised by Hornbuckle in this case. The district court in d ic a te d that, after reviewing all of the documents submitted by Hornbuckle, it saw "no possible way for plaintiffs to prevail on their claims now before the c o u r t." The district court dismissed Hornbuckle's claims with prejudice.

Hornbuckle now appeals. A district court has inherent authority to dismiss a complaint sua sponte fo r failure to state a claim. Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5 t h Cir. 2006). The procedure employed in dismissing the claims, however, m u s t be fair, which generally means both notice and an opportunity to respond a r e required. Id. But if, under the circumstances, plaintiff has had a fair o p p o r t u n it y to make his case and had reason to know the deficiency of his a lle g a t io n s , the court may dismiss the claims without prior notice. See Lozano v . Ocwen Federal Bank, 489 F.3d 636, 643 (5th Cir. 2007). Such is the case here. The district court granted Defendants' motion for a More Definite S t a te m e n t after finding Hornbuckle's allegations to be "vague, confusing, a m b ig u o u s , and insufficient to give defendants notice of the claims and causes o f action against them." Hornbuckle did file a subsequent supplemental motion, b u t it was similarly deficient and failed to remedy the deep flaws in her initial p le a d in g s . Since Hornbuckle was on notice that the court regarded her

p le a d in g s as insufficient and had the opportunity to further clarify, the sua

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Case: 10-10439 Document: 00511272097 Page: 4 Date Filed: 10/22/2010

No. 10-10439 s p o n te dismissal of her claims was within the district court's discretion. Consequently, the district court did not err in dismissing her claims sua sponte. T h is court notes, moreover, that Hornbuckle's brief on appeal fails to c o m p ly with Federal Rule of Appellate Procedure 28, which dictates the format fo r appellate briefs. FED. R. APP. P. 28. Although this court liberally construes b r ie fs of pro se litigants, pro se parties must still brief the issues and reasonably c o m p ly with the standards of Rule 28 in order to preserve their arguments on a p p e a l. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Otherwise, the a p p e a l may be dismissed as frivolous. In this case, the brief is grossly nonc o m p lia n t with Rule 28, such that it fails even to put this court on notice of the i s s u e s on appeal. In particular, Hornbuckle's brief is wholly devoid of any r e fe r e n c e to the record; it fails to adequately cite authorities supporting its legal c o n t e n t io n s ; it fails to state the issues presented for review; it lacks a summary o f the argument; and it fails to state the applicable standard of review for each is s u e purportedly appealed. As a result, Hornbuckle has failed to preserve any a p p e a la b le issues for review. This appeal is rightly regarded as frivolous and, a s such, may be dismissed summarily. This court also warns Hornbuckle that repetitive filings of frivolous claims r e g a r d in g the same subject matter constitutes abuse of judicial process, for w h ic h a court may impose monetary sanctions. See FED. R. APP. P. 38; FED. R. C IV. P. 11. For this reason, Hornbuckle would be well advised to cease filing fr iv o lo u s claims in a multitude of courts against the same parties and regarding t h e same subject matter. For these reasons, we dismiss this appeal and affirm the district court's d is m is s a l of Hornbuckle's claims with prejudice. A F F IR M E D .

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