Watts v. Turnbach et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/12/2014. (JLC)
2014 May-12 PM 01:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ROGER W. WATTS, JR., as Trustee )
for Bethlehem Management,
) Case No.: 4:14-CV-0175-VEH
JAMES E. TURNBACH, et al.,
Plaintiff Roger W. Watts, Jr. (“Mr. Watts”) is representing himself in this
action. (Doc. 1). This matter is before the court on the objections (Doc. 16) of Mr.
Watts to Magistrate Judge John H. England, III’s report and recommendation (the
“R&R”) (Doc. 15),1 which proposes that Defendants’ Motion To Dismiss (Doc. 7)
(the “Dismissal Motion”) be granted and that Mr. Watts’s lawsuit be dismissed
without prejudice for lack of subject matter jurisdiction. (Doc. 15 at 7).
Defendants’ Dismissal Motion and supporting brief were all filed on February
The parties have not consented to the jurisdiction of the magistrate judge.
Therefore, in accordance with 28 U.S.C. § 636(b), the magistrate judge entered a
report and recommendation.
17, 2014. (Docs. 7, 8). Mr. Watts filed a response and affidavit in opposition to the
Dismissal Motion on March 3, 2014. (Docs. 12, 13).
The R&R was entered on April 11, 2014. (Doc. 15). Mr. Watts’s objections
were filed on April 22, 2014. (Doc. 16). This case was randomly reassigned to the
undersigned judge on May 1, 2014. (Doc. 17). The matter, therefore, is now under
submission, and for the reasons explained below, the court OVERRULES Mr.
Watts’s objections, and ACCEPTS the Magistrate Judge England’s R&R as
minimally modified below.
Additionally, the court DENIES Defendants’ Motion for Rule 11 Sanctions
(Doc. 10) (the “Sanctions Motion”) filed on February 28, 2014, and TERMS as
MOOT Mr. Watts’s Objection Motion To Quash and Dismiss Unrecognized
Respondent(s) Motion for Rule 11 Sanctions (Doc. 14) (the “Objection”), filed on
March 12, 2014, for the reasons discussed below.
Subject Matter Jurisdiction Dismissal Standard
As the Eleventh Circuit has explained the standard on motions to dismiss for
lack of subject matter jurisdiction:
Attacks on subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1) come in two forms. “Facial attacks” on the complaint “require[
] the court merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Menchaca
v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449
U.S. 953, 101 S. Ct. 358, 66 L. Ed. 2d 217 (1980) (citing Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).
“Factual attacks,” on the other hand, challenge “the existence of subject
matter jurisdiction in fact, irrespective of the pleadings, and matters
outside the pleadings, such as testimony and affidavits, are considered.”
These two forms of attack differ substantially. On a facial attack,
a plaintiff is afforded safeguards similar to those provided in opposing
a Rule 12(b)(6) motion-the court must consider the allegations of the
complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.),
cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1981). But
when the attack is factual,
the trial court may proceed as it never could under 12(b)(6)
or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1)
motion is the trial court’s jurisdiction-its very power to
hear the case-there is substantial authority that the trial
court is free to weigh the evidence and satisfy itself as to
the existence of its power to hear the case. In short, no
presumptive truthfulness attaches to plaintiff's allegations,
and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits
of jurisdictional claims.
Id. at 412-13 (quoting Mortensen, 549 F.2d at 891).
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Here, the
jurisdictional attack by Defendants is facial.
District Court Review of Report and Recommendation
After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982)
(quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other
grounds by Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).2
The district judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep.
No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin.
News 6162, 6163). In contrast, those portions of the R&R to which no objection is
made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F. App’x 781,
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit
decisions issued before October 1, 1981, as well as all decisions issued after that date
by a Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d
33, 34 (11th Cir. 1982); see also United States v. Schultz, 565 F.3d 1353, 1361 n.4
(11th Cir. 2009) (discussing the continuing validity of Nettles).
784 (11th Cir. 2006).3
“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation
marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003)). It is incumbent upon the parties to timely raise any objections that they may
have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the issue,
even if such matter was presented at the magistrate judge level. See, e.g., United
States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the issue
of not being convicted of a qualifying offense before the magistrate judge, he did not
raise this issue in his appeal to the district court. Thus, this argument has been waived
or abandoned by his failure to raise it on appeal to the district court.”). However, the
Macort dealt only with the standard of review to be applied to a magistrate’s
factual findings, but the Supreme Court has held that there is no reason for the district
court to apply a different standard to a magistrate’s legal conclusions. Thomas v. Arn,
474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Thus, district courts in
this circuit have routinely applied a clear-error standard to both. See Tauber v.
Barnhart, 438 F. Supp. 2d 1366, 1373-74 (N.D. Ga. 2006) (collecting cases). This is
to be contrasted with the standard of review on appeal, which distinguishes between
the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a
magistrate’s findings of fact are adopted by the district court without objection, they
are reviewed on appeal under a plain-error standard, but questions of law remain
subject to de novo review).
district judge has discretion to consider or to decline to consider arguments that were
not raised before the magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th
Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(“Thus, we answer the question left open in Stephens and hold that a district court has
discretion to decline to consider a party’s argument when that argument was not first
presented to the magistrate judge.”).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n.8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge’s consideration of the matter and
would not help to relieve the workload of the district court.” Williams, 557 F.3d at
1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)).
Motions Addressed by the R&R
The R&R correctly recognizes that federal courts are judicial bodies of limited
power and are precluded from acting “beyond [their] constitutional or statutory grant
of subject-matter jurisdiction.” (Doc. 15 at 5 (citing Smith v. GTE Corp., 236 F.3d
1292, 1299 (11th Cir. 2001)). The R&R recommends that a jurisdictional dismissal
of Mr. Watts’s action is appropriate because neither diversity jurisdiction, as
bestowed by 28 U.S.C. § 1332, nor federal question jurisdiction, as delineated by 28
U.S.C. § 1331 is present. (Doc. 15 at 5-7).
The court has studied Mr. Watts’s objections (Doc. 16) and nothing contained
in them specifically contests or otherwise brings into question the thorough
jurisdictional analysis conducted by Magistrate Judge England. Further, the court
agrees with the contents of the R&R and concludes that Mr. Watts’s dispute is due
to be dismissed without prejudice for lack of subject matter jurisdiction. Relatedly,
the court further determines that Mr. Watts’s separately filed Motion for Entry of
Default by the Clerk of Court (Doc. 4) (the “Default Motion”), which is discussed in
the R&R but never expressly addressed in the form of a recommended ruling is, in the
absence of any authority for this court to exercise jurisdiction, due to be termed as
Defendants’ Sanctions Motion and Mr. Watts’s Objection
Defendants’ Sanctions Motion seeks reasonable costs and attorneys’ fees and
injunctive relief preventing Mr. Watts “from making any further filing in this Court,
or in any other federal or state court related to the Defendants without prior
permission from the Court.” (Doc. 10). Defendants’ brief in support asserts Mr.
Watts’s claim is a frivolous one regarding a fictitious judgment based on Sovereign
Citizen principles and therefore supports sanctions under Rule 11. In response, Mr.
Watts filed a document titled “Objection Motion to Quash and Dismiss Unrecognized
Respondent(s) Motion for Rule 11 Sanctions,” (Doc. 14), which continues the similar
statements to previous filings and does not specifically address any of the
Under Rule 11, “[i]f, after notice and a reasonable opportunity to respond, the
court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation.” Fed. R. Civ. P. 11(c)(1). “A sanction imposed under
this rule must be limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated. The sanction may include
nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion
and warranted for effective deterrence, an order directing payment to the movant of
part or all of the reasonable attorney’s fees and other expenses directly resulting from
the violation.” Id.(c)(4).
“In this circuit, a court confronted with a motion for Rule 11 sanctions first
determines whether the party’s claims are objectively frivolous—in view of the facts
or law—and then, if they are, whether the person who signed the pleadings should
have been aware that they were frivolous; that is, whether he would have been aware
had he made a reasonable inquiry.” Worldwide Primates, Inc. v. McGreal, 87 F.3d
1252, 1254 (11th Cir. 1996). Although pro se plaintiffs are not protected from
sanctions under Rule 11, see Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988),
the Eleventh Circuit has been somewhat reluctant to impose them except in certain
situations where, for example, the litigant was an attorney or had already been
advised of the meritlessness of his claims by the court or prior adverse litigation. See
United States v. Morse, 532 F.3d 1130, 1133 (11th Cir. 2008).
The Eleventh Circuit has also held “[f]ederal courts have both the inherent
power and the constitutional obligation to protect their jurisdiction from conduct
which impairs their ability to carry out Article III functions.” Procup v. Strickland,
792 F.2d 1069, 1073 (11th Cir. 1986).4 The discretion to do so is broad, “[t]he only
restrictions this Circuit has placed upon injunctions designed to protect against
A finding of absence of jurisdiction does not deprive the district court of the
power to impose such sanctions. See Procup v. Strickland, 792 F.2d 1069, 1073-74
(11th Cir. 1986) (“The fact that [Mr. Watts]’s complaint in this case may have failed
to state a justiciable federal claim is of no impact on the court’s power to enter
injunctive relief against such a recalcitrant litigant. The court has a responsibility to
prevent single litigants from unnecessarily encroaching on the judicial machinery
needed by others. Were a frivolous lawsuit a bar to the court's inherent jurisdiction,
the court would be powerless to act upon even a flood of frivolous lawsuits which
threatened to bring judicial business to a standstill.”).
abusive and vexatious litigation [being] that a litigant cannot be completely
foreclosed from any access to the court.” Martin–Trigona v. Shaw, 986 F.2d 1384,
1387 (11th Cir. 1993).
Unlike with a traditional injunction, requiring the movant to show four
elements, courts dealing with injunctions prohibiting further vexatious litigation have
adopted standards more suitable to the situations in which these injunctions arise. “In
making the determination whether the litigant’s conduct is sufficient to justify the
entry of what is referred to as a Martin–Trigona injunction to stop continued
vexatious litigation . . . , it is sufficient to show a history of litigation entailing
vexation, harassment, and needless burden on the courts and their supporting
personnel.” In re Dicks, 306 B.R. 700, 705-06 (Bankr. M.D. Fla. 2004) (citing
Martin–Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993). To support a request
for a Martin-Trigona injunction, “the movant must show: (1) the litigant’s history of
litigation and in particular whether it entailed vexatious, harassing or duplicative
lawsuits, (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have
an objective, good-faith expectation of prevailing, (3) whether the litigant is
represented by counsel, (4) whether the litigant has caused needless expense to other
parties or has posed an unnecessary burden on the courts and their personnel, and (5)
whether other sanctions would be adequate to protect the courts and other parties.”
Id. (citing Ray v. Lowder, No. 5:02–CV–316–OC–10GRJ, 2003 WL 22384806, at *2
(M.D. Fla. Aug. 29, 2003)).
It certainly seems Mr. Watts may be on the first steps of a trail of frivolous and
vexatious litigation directed at Defendants. He has filed the present suit without
stating a claim of any sort, much less an arguably viable one. (See Doc. 1). According
to Defendant’s contentions, it is also in violation of an injunction imposed by the
Circuit Court of Etowah County, Alabama. (Doc. 15 at 2 n.4).5 Defendants have also
referred to a second filing in the Superior Court of Lamar County, Georgia.6 (Doc. 11
at 2). However, this history of lawsuits is not nearly as extensive as others found to
warrant this extreme sanction. See Shell v. U.S. Dep’t Of Hous. And Urban Dev., 355
F. App’x 300, 308 (11th Cir. 2009) (listing seven cases in five years and 34 motions,
including 12 motion for reconsideration and three interlocutory appeals); Procup v.
Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986) (relying on facts in Procup v.
Strickland, 567 F. Supp. 146, 148 (M.D. Fla. 1983), listing, among others, 176 cases
filed in a single federal district); In re Martin-Trigona, 737 F.2d 1254, 1259 (2d Cir.
1984) (“Martin-Trigona is known to have filed over 250 civil actions, appeals, and
If Mr. Watts has violated that injunction, Defendants may seek to have that
court enforce its order, through contempt proceedings or otherwise.
A few days after filing this suit, Mr. Watts also attempted to domesticate
what purports to be a $1,005,000,000 foreign judgment against Defendants in the
Northern District of Georgia. See Bethlem Management v. Turnbach, Warren,
Roberts & Lloyd, P.C., No. 1:14-mi-00010-UNA (N.D. Ga. 2014).
other matters throughout the United States . . . .”). But see Ray, 2003 WL 22384806,
at *2-3 (imposing a Martin-Trigona injunction not for multiple lawsuits but for “a
history—at least with regard to [this one IRS Notice of Levy]—of filing harassing
and duplicative papers”).
Mr. Watts is not an attorney, and, because it appears Mr. Watts had never
previously filed suit in federal court, he may have believed his suit has legal merit in
the federal forum. He also appears to believe his “claim” is valid, and there is no
indication that he was informed otherwise prior to filing this action by either the court
or a prior adverse litigation. It is also not clear at this time that he has a bad-faith
motive. Although Mr. Watts has imposed some needless expense on Defendants and
some burden on the court as well, his conduct has not yet reached a level to overcome
the reluctance in this Circuit to imposing sanctions on a pro se litigant. While Mr.
Watts’s claims are objectively frivolous, sanctions are not appropriate under these
Although the court has determined that sanctions are not appropriate as the
circumstances currently stand, Mr. Watts should be aware that, if he attempts to relitigate this matter by filing yet another suit in federal court, he may subject himself
to sanctions in the future. Such sanctions in this court could take the form of
monetary sanctions or injunctive relief directing the clerk to not accept any future
case filings by Mr. Watts without first obtaining prior leave of court.
Accordingly, it is ORDERED that Defendants’ Sanctions Motion is DENIED.
Further, because the court has, at this time, declined to enter any sanctions against
Mr. Watts for his filings, his Objection to Defendants’ Sanction Motion is due to be
TERMED as MOOT.
For the reasons set out above, the court OVERRULES Mr. Watts’s objections
and ACCEPTS the R&R as modified slightly herein. Accordingly, Defendants’
Dismissal Motion (Doc. 7) is due to be GRANTED on jurisdictional grounds.
Additionally, Mr. Watts’s Default Motion (Doc. 4) is due to be TERMED as MOOT.
Further, Defendants’ Sanctions Motion (Doc. 10) is DENIED and Mr. Watts’s
related Objection (Doc. 14) is TERMED as MOOT. Finally, the court will enter a
separate order of dismissal consistent with this memorandum opinion.
DONE and ORDERED this the 12th day of May, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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