Boutwell, et al v. Walker, et al (MAG+)

Filing 8

ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE directing: that the 2 motion to proceed in forma pauperis be and is hereby GRANTEED; that this case be DISMISSED without prejudice for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted; that on or before April 16, 2013, the parties may file objections to this Recommendation. Signed by Honorable Judge Charles S. Coody on 4/2/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PAMELA J BOUTWELL
and
REDBOW NLN,
Plaintiffs,
v.
J. CLARK WALKER, et al.,
Defendants.

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CIVIL ACT. NO. 2:13cv170-MHT
(WO)

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Currently pending is the motion to proceed in forma pauperis filed by the Plaintiffs.
(Doc. 2). Upon consideration of the motion, it is
ORDERED that the motion to proceed in forma pauperis (Doc. 2) be and is hereby
GRANTED.
On March 19, 2013, the pro se Plaintiffs, Pamela J. Boutwell and Redbow Nln, filed
this action to enforce and/or clarify the terms of a consent order that was entered by the
United States Bankruptcy Court for the Middle District of Alabama. Upon review of the
complaint, the court concludes that dismissal of this case prior to service of process is
appropriate under 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3).
Standard of Review
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994). This court is “‘empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’and which have been
entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject matter
jurisdiction sua sponte “at the earliest possible stage in the proceedings.” Id. at 410.
Moreover, when a litigant is allowed to proceed in forma pauperis in this court, the
court will screen the litigant’s complaint in accordance with the provisions of 28 U.S.C. §
1915(e)(2)(B), which is not restricted to prisoner complaints. Troville v. Venz, 303 F.3d
1256, 1260 (11th Cir. 2002) (“find[ing] no error in the district court’s dismissal of the
complaint” of a nonprisoner proceeding in forma pauperis under 28 U.S.C. §
1915(e)(2)(B)(ii)).1 Section 1915(e)(2) requires a district court to dismiss the complaint of
a party proceeding in forma pauperis whenever the court determines that the complaint is
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary damages from a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2)(B)(i)-(iii). A claim is subject to dismissal as frivolous if it is “without arguable
merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

1

Troville was filed by a civilly committed detainee, and the Eleventh Circuit held that the plaintiff
was not a “prisoner” within the meaning of 28 U.S.C. § 1915. Troville, 303 F.3d at1258, 1260; see
also Brown v. Johnson, 387 F.3d 1344, 1348 (2004) (“[T] he defendants correctly explain that Troville did
not involve a prisoner.”).

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The standards that govern a dismissal under Federal Rule of Civil Procedure 12(b)(6)
apply to dismissal for failure to state a claim upon which relief can be granted under 28
U.S.C. §1915(e)(2)(B)(ii). Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008). A
complaint may be dismissed under Rule 12(b)(6) if the facts as pled do not state a claim for
relief that is plausible on its face. See Ashcroft v. Iqbal, 129 S.Ct. at 1950 (explaining “only
a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 561-62, 570 (2007); see also Erickson v. Pardus, 551 U.S.
89, 93 (2007) (applying Twombly to a pro se complaint). In Twombly, the Supreme Court
emphasized that a complaint “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Factual allegations in a complaint need not be detailed but “must be enough to raise a right
to relief above the speculative level on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at 555 (internal citations and emphasis omitted).
In evaluating pro se claims, a court must construe the pleadings liberally and hold
them to a less stringent standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d
1157, 1160 (11th Cir. 2003); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
Procedural History and the Plaintiffs’ Complaint
A.

Bankruptcy Proceedings.
On June 15, 2009, Pamela Boutwell and Redbow Nln (“the Plaintiffs”) filed a Chapter

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13 bankruptcy petition in the United States Bankruptcy Court for the Middle District of
Alabama. See In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala., filed June 15,
2009).2 The Plaintiffs’ bankruptcy plan included a monthly payment of $286.00 on a secured
debt to Chrysler Financial Services Americas LLC (“Chrysler Financial”). (Doc. 33, In re
Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
On January 15, 2010, the bankruptcy court entered an order confirming the Plaintiffs’
bankruptcy plan. (Doc. 34, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
On September 17, 2012, in the bankruptcy case, the Plaintiffs, represented by attorney
J. Clarke Walker, filed a motion to substitute collateral, in which the Plaintiffs alleged:
1. The debtors filed for relief under the Chapter 13 Bankruptcy Code on June
15, 2009.
2. Chrysler Financial has an allowed secured claim, secured by a 2006 Chrysler
PT Cruiser, which is listed in the debtors’ schedules as having a value of
$6,015.00 and a claim amount of $13,361.97.
3. Due to recent flooding, the Chrysler PT Cruiser was destroyed and rendered
a total loss by Geico, the debtors’ insurance company.
4. Geico has agreed to pay $5,407.07 to the debtors for the value of the
vehicle.
5. The debtors propose to use the insurance proceeds to purchase a
replacement vehicle of equal or greater value. Said vehicle will provide
necessary means of transportation for the debtors.

2

The court has reviewed, and takes judicial notice of, the public record in In re Redbow Nln, Case
No. 09-11165 (Bankr. M.D. Ala., filed June 15, 2009). See Universal Express, Inc. v. U.S. SEC, 177 Fed.
App’x 52, 53 (11th Cir. 2006) (stating that a court may take judicial notice of public records (citing Bryant
v. Avado Brands, Inc., 187 F.3d 1271, 1277–78, 1280 (11th Cir. 1999)).

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6. The debtors’ confirmed Plan provides for payment of Chrysler Financial’s
secured claim in full. The debtors assert that they will be able to make all Plan
payments if they are allowed to purchase a replacement vehicle with the
insurance proceeds.
(Doc. 38, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
On September 28, 2012, TD Auto Finance, LLC (“TDAF”) filed objections to the
Plaintiffs’ motion to substitute collateral, stating:
TD Auto Finance LLC (“TDAF”), successor to Chrysler Financial Services
Americas LLC, by counsel, states as follows for its Objection to the Motion
to Substitute Collateral by Redbow Nln and Pamela Jo Boutwell (the
“Debtor(s)”).
1. On June 15, 2009, the debtor(s) filed a petition for relief under Chapter 13
of the Bankruptcy Code, 11 U.S.C. §301 et seq., and an order for relief was
entered thereon. Curtis C. Reding is the standing Chapter 13 Trustee herein
(the “Trustee”).
2. TDAF is a secured creditor of the debtor(s), Redbow Nln and Pamela Jo
Boutwell, having a lien on a 2006 Chrysler PT Cruiser, VIN #
3A4FY48B26T313184 (the “Vehicle”), which secures repayment of amounts
owed by the debtor(s) under a certain Retail Installment (the “Contract”) dated
December 22, 2006.
3. Debtor has filed a Motion to permit substitution of collateral on September
17, 2012 but failed to specify that TDAF would be able to inspect the vehicle
prior to substitution and be able to approve the replacement vehicle selected.
4. The contractual balance owing to TDAF is $11,694.73 WHEREFORE, the
above premises considered, TDAF prays:
1. The order regarding Debtor’s Motion to Substitute Collateral
require that TDAF be allowed to inspect the vehicle prior to
substitute and be given a right of approval regarding the
replacement vehicle.
2. For such other and further relief to which it may be entitled.
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(Doc. 39, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
On October 5, 2012, the Plaintiffs filed the following reply (signed by their thenattorney J. Clarke Walker) to TDAF’s objection:
1. On September 28, 2012, TDAF filed an objection to the Debtors’ Motion to
Substitute Collateral requesting that TDAF be allowed to inspect and approve
the replacement vehicle prior to substitution.
2. The debtors have no objection to TDAF’s request to inspect and approve the
replacement vehicle prior to substitution of the same.
WHEREFORE, the debtors request this Honorable Court enter an Order
granting Debtor’s Motion to Substitute Collateral allowing TDAF to inspect
the replacement vehicle prior to the substitution of its collateral.
(Doc. 42, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
On October 16, 2012, the bankruptcy court entered a consent order conditionally
granting the Plaintiffs’ motion to substitute collateral, which stated, in full:
This matter comes before this Court for consideration of the Motion to
Substitute Collateral filed on behalf of the Debtors Redbow NLN and Pamela
Boutwell, and the Objection filed by TD Auto Finance LLC, “TDAF”, and
after consideration of the Pleadings and the representations of the Parties;
IT IS ORDERED that the Motion be and is hereby conditionally granted. The
Debtors’ 2006 Chrysler PT Cruiser, VIN 3A4FY48B26T313184 shall be
substituted by a vehicle which has a fair market value that equals or exceeds
the value of the former vehicle; TDAF shall be allowed to inspect the proposed
vehicle to be substituted for the 2006 Chrysler PT Cruiser and may refuse to
accept certain vehicles that fall below a reasonable value; The Debtors shall
provide proof of full coverage insurance on the replacement vehicle, with
deductibles for comprehensive and collision not to exceed $500.00 each; and
the Debtors shall take all steps necessary and execute all documentation as
required to ensure that TDAF has a valid perfected first priority lien in and to
the substituted vehicle and TDAF is authorized to perfect its interest in
accordance with non-bankruptcy law.
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(Doc. 43, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
On March 26, 2012, Michael D. Brock, Esq., Plaintiff’s counsel of record in the
bankruptcy case, filed a motion to withdraw as counsel on grounds that the Plaintiffs had
filed the case now pending before this court, in which they named as Defendants J. Clarke
Walker, an associate at Brock’s firm, and Jessica Bulger, a legal assistant at the same firm.
(Doc. 43, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).
Mr. Brock’s motion to withdraw is currently pending in the bankruptcy court and is
set for a telephone hearing on April 24, 2013 at 9:00 a.m. (Doc. 48, In re Redbow Nln, Case
No. 09-11165 (Bankr. M.D. Ala.)).
B.

The District Court Complaint
On March 19, 2013, the Plaintiffs filed a complaint in this court against J. Clark

Walker (the attorney who signed their motion to substitute collateral and their reply in
support thereof in the bankruptcy case),3 Jessica Bulger (a legal assistant at Walker’s firm),4
Robert Fehse (TDAF’s attorney in the bankruptcy case),5 and TDAF (collectively, “the
Defendants”). (Doc. 1). The Plaintiffs also filed a “brief in support” of their complaint.
(Doc. 3). Construing the complaint and brief in the light most favorable to the Plaintiffs, the
Plaintiffs allege the following:

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(Docs. 38 & 42, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).

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(See Doc. 43, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).

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(See Doc. 39, In re Redbow Nln, Case No. 09-11165 (Bankr. M.D. Ala.)).

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– that the Plaintiffs’ vehicle, a 2006 PT Cruiser, was totaled in a flood;
– that the Plaintiffs have attempted to obtain a replacement vehicle in
accordance with the consent order entered in the bankruptcy case, which
requires that they obtain a vehicle which has a fair market value that equals or
exceeds the value of PT Cruiser, and provides that TDAF shall be allowed to
inspect the proposed replacement vehicle and may refuse to accept vehicles
that fall below a reasonable value (Doc. 43, In re Redbow Nln, Case No. 0911165 (Bankr. M.D. Ala.));
– that the Plaintiffs have been unable to obtain a car to replace their totaled PT
Cruiser because they are unable to comply with Defendants’ collective
demands that the Plaintiffs must spend at least the amount of the insurance
proceeds for the totaled car ($5,407.07), or more, on the replacement vehicle,
and finance a car if necessary to comply with this demand;
– TDAF and the other Defendants have not acted in accordance with the
consent order because they have rejected, or caused TDAF to reject, numerous
proposed replacement vehicles of a “reasonable value;” and
– by their conduct in handling Plaintiffs’ various replacement vehicle
proposals, the Defendants have caused the Plaintiffs and “several other
members of [their] family” “undue hardship, mental stress, financial burden,
undue pain and suffering, and loss of employment, and [loss of] enjoyment of
life.”
(Doc. 1; Doc. 3).
The Plaintiffs seek damages in the amount of $890,033.89. (Doc. 1 p. 3).
Discussion
“[F]ederal courts are courts of limited jurisdiction.” See Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994). This court is “‘empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’and which have been

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entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir.1994)). “A necessary corollary to the concept that a federal court is powerless
to act without jurisdiction is the equally unremarkable principle that a court should inquire
into whether it has subject matter jurisdiction at the earliest possible stage in the
proceedings.” Id. at 410.
Construed in the light most favorable to the Plaintiffs, the substantive right which the
Plaintiffs seek to enforce is the “right” to require the Defendants to comply with the terms
of a consent order entered in the bankruptcy court. They also seek to have the court impose
sanctions in the amount of $890,033.89 for the Defendants’ alleged failure to comply with
the consent order. The bankruptcy court, not this court, is the court with inherent, original
jurisdiction to enforce its consent order through sanctions or other means. See Alderwoods
Group, Inc., v. Garcia, 682 F.3d 958, 969-71 (11th Cir. 2012) (“[A] bankruptcy court
necessarily has power to enforce its own orders regarding its administration of the estate . .
. [T]he court that enters an injunctive order retains jurisdiction to enforce its order. In this
respect, a bankruptcy court is no different than any other federal court, which possesses the
inherent power to sanction contempt of its orders. . . . Other courts are without jurisdiction
to do so.”); see also In re Hardy, 97 F.3d 1384, 1389 (11th Cir. 1996) (holding that 11 U.S.C.
§ 105(a) “creates a statutory contempt power, distinct from the court’s inherent contempt
powers in bankruptcy proceedings”).

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The court notes that the Plaintiffs do not challenge the consent order itself; instead,
the Plaintiffs are merely alleging that the Defendants are in violation of the bankruptcy
court’s consent order, which they seek to enforce. (Doc. 1 (alleging that the parties “having
reached an agreement for Substitute of Collateral, with the [bankruptcy] Court accepting the
same, and entering a Court order on . . . 10/16/201[2], Defendants with total disregard to the
same . . . have willfully . . . prolong[ed] bringing said agreement to a satisfactory conclusion
in a timely manner” (sic)). Thus, the complaint cannot reasonably be construed as an attempt
to pursue a permissive appeal from an interlocutory order of the bankruptcy court pursuant
to 28 U.S.C. § 158(a)(3). See Fed. R. Bankr. P. 8001(b) (providing procedures for obtaining
permission for leave to appeal from an interlocutory order of a bankruptcy court pursuant to
§158(a)).
The complaint alleges no cause of action founded on federal constitutional or statutory
law, and diversity jurisdiction is lacking. See Lincoln Property Co. v. Roche, 546 U.S. 81,
89 (2005) (“The principal federal statute governing diversity jurisdiction, 28 U.S.C. § 1332,
gives federal district courts original jurisdiction of all civil actions ‘between . . . citizens of
different States’ where the amount in controversy exceeds $75,000. . . . Since Strawbridge
v. Curtiss,3 Cranch 267, 2 L.Ed. 435 (1806), we have read the statutory formulation ‘between
... citizens of different States’ to require complete diversity between all plaintiffs and all
defendants.”); Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (“Under the federal
question jurisdiction statute, 28 U.S.C. § 1331, a district court has subject matter jurisdiction

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over ‘all civil actions arising under the Constitution, laws, or treaties of the United States.’”).
Accordingly, the complaint does not state a claim upon which this court can grant
relief, and subject matter jurisdiction is lacking. Therefore, the case is due to be dismissed.
See 28 U.S.C. 1915(e)(2) (requiring a district court to dismiss the complaint of a party
proceeding in forma pauperis whenever the court determines that the complaint is frivolous
. . . [or] fails to state a claim upon which relief may be granted”); 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.”); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)
(“‘[W]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power
to declare the law, and when it ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the cause.” (quoting Ex parte McCardle, 74 U.S. (7
Wall.) 506, 514 (1868)).
Conclusion
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case
be DISMISSED without prejudice for lack of subject matter jurisdiction, and for failure to
state a claim upon which relief can be granted. 28 U.S.C. 1915(e)(2); Fed. R. Civ. P.
12(h)(3).
Further, it is
ORDERED that on or before April 16, 2013, the parties may file objections to this
Recommendation.

Any objections filed must specifically identify the findings in the

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Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive
or general objections will not be considered by the District Court. The parties are advised
that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge’s Recommendation shall bar the party from a de novo determination by the
District Court of issues covered in the Recommendation and shall bar the party from
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice.

Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d
33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en
banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981).
Done this 2nd day of April, 2013.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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