Michael Demond Stubbs v. Bank of America Corporation et al

Filing 92

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 6/13/12. (dzs, ) (Main Document 92 replaced on 6/15/2012 with a text searchable version ) (dzs, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL DEMOND STUBBS,

)
)
Plaintiff,
)
)
) Civ. No. 08-108-SLR
v.
)
BANK OF AMERICA CORPORATION, )
)
et al.,
)
)
Defendants.

Michael Demond Stubbs, Picayune, Mississippi. Pro Se Plaintiff.
Denise Seastone Kraft and Aleine Michelle Porterfield, Esquires, DLA Piper LLP,
Wilmington, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

Dated: June \'~, 2012
Wilmington, Delaware

I. INTRODUCTION
Plaintiff Michael Demond Stubbs ("plaintiff'), who proceeds pro se, filed this civil
action on February 19, 2008. (D.I. 1) An amended complaint was filed on November
20, 2009. (D.I. 38) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the
reasons set forth below, the court will dismiss the complaint pursuant to Fed. R. Civ. P.
37 and for failure to prosecute.

II. BACKGROUND
The Public Access to Court Electronic Records ("PACER") website indicates that
plaintiff was an incarcerated individual within the Federal Bureau of Prisons ("BOP")
when he initiated this lawsuit. 1 (See United States v. Stubbs, Crim. No. 97-754-JGC-1
(N.D. Oh.)) Plaintiff was arrested on September 18, 1997, and it appears that he
remained in custody until his release from prison on April 9, 2010. 2 (/d. at D.l. 112, 747,
753) Plaintiff is currently on supervised release, having unsuccessfully sought to
transfer jurisdiction of his criminal case to the Southern District of Mississippi. (/d. at D. I.
753, 754) The post office box mailing address that plaintiff has provided to his
sentencing court is identical to the address he provided to this court upon the initiation of

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Piaintiff pled guilty to conspiring to distribute and to possess cocaine, cocaine
base, and marijuana for intended distribution; aiding and abetting an attempted murderfor-hire; and conspiring to use and carry firearms during and in relation to a drugtrafficking crime. Stubbs v. United States, No. 08-4563 (6th Cir. Oct. 20, 201 0). In 2005
he was resentenced to three concurrent terms of 185 months of imprisonment, to be
followed by five years of supervised released. /d.
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The court notes that plaintiffs "affidavit of obligation commercial lien" dated
August 6, 2007 is signed by three individuals, two of whom are, or were, inmates within
the BOP. (D. I. 38, attach. 14) ; see http://www.bop.gov/iloc2/Locatelnmate.jsp.

this lawsuit in 2008. In addition, plaintiffs signature in the instant case and in pleadings
he filed in his criminal case appears to be identical. At no time during this civil case,
while imprisoned, did plaintiff reference his status as an incarcerated individual.
Plaintiff filed the instant complaint naming two plaintiffs - himself and Jaycee
Development Limited Liability Company ("Jaycee"). (D.I. 1) James Crawford
("Crawford"), a managing member of Jaycee and a childhood friend of plaintiff, was
unaware that plaintiff had filed the lawsuit and that he had included Jaycee as a
defendant. (D.I. 6; D.l. 78, ex. A at 24, 32) Crawford did not authorize plaintiff to file a
lawsuit on Jaycee's behalf, and Jaycee was dismissed as a plaintiff after it failed to
retain counsel. (D. I. 7; D. I. 78, ex. A at 32-33)
The court dismissed the original complaint and gave plaintiff leave to amend.
Following amendment, defendants moved to dismiss the amended complaint. The court
dismissed all claims except for unlawful conversion, wrongful dishonor of a financial
instrument, and enforcement of a lien. (D.I. 53) Thereafter, the court entered a
scheduling order with a discovery deadline of January 13, 2012 and dispositive motion
deadline of February 13, 2012. (D.I. 54)
Presently before the court are defendants' motion to compel plaintiffs deposition
and motion for summary judgment and plaintiffs motion for summary judgment. (D. I.
65, 78, 83)

Ill. FAILURE TO PROSECUTE
The court turns to the issue of plaintiffs failure to prosecute, given that he refuses
to attend his deposition. Defendants move for an order to compel plaintiffs attendance

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at his deposition and/or to reserve the right to seek sanctions, including dismissal with
prejudice. (D.I. 65, 89)
Defendants scheduled plaintiffs deposition to take place on September 30, 2011,
in Wilmington, Delaware. Defendants did not have plaintiffs telephone number and in
the letter enclosed with the notice stated, "Currently, we do not have a telephone
number for you, therefore, if this date is not convenient for you, please contact us no
later than September 21, 2011 at 5:00pm. E.S.T. to provide dates of your availability so
that your deposition can take be taken before October 15, 2011." (D. I. 65, ex. A)
Defendants also asked plaintiff to provide his telephone number.
Plaintiff responded via email on September 21, 2011, that "there will be no verbal
agreements, so a phone number from the plaintiff will not be necessary nor provided.
Plaintiff do [sic] not conduct business over the phone." (/d. at ex. B) Plaintiff further
stated that in his view, "defendants waived their right to a defense, which includes but
[is] not limited to, the defendants' attorneys deposition the plaintiff. Therefore, the
deposition will not occur on September 30, 2011 or any other date .... " (/d.) In
addition, plaintiff filed an objection to the notice of his deposition and to the motion to
compel his deposition based upon his claim that defendants waived their right to a
defense. (D.I. 67, 70)
Rule 37 provides the court with the authority to dismiss a case for failure to
comply with a discovery order and for a party's failure to attend his own deposition. Fed.

R. Civ. P. 37(b), (d). In addition, pursuant to Fed. R. Civ. P. 41(b), a court may dismiss
an action "[f]or failure of the plaintiff to prosecute or to comply with [the Federal Rules] or

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any order of court .... " Although dismissal is an extreme sanction that should only be
used in limited circumstances, dismissal is appropriate if a party fails to prosecute the
action. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995).
The following six factors determine whether dismissal is warranted: (1) the extent
of the party's personal responsibility; (2) the prejudice to the adversary caused by the
failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness;
(4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of
sanctions other than dismissal, which entails an analysis of other sanctions; and (6) the
meritoriousness of the claim or defense. Pou/is v. State Farm Fire and Cas. Co., 747
F.2d 863, 868 (3d Cir. 1984); see also Emerson v. Thiel Col/., 296 F.3d 184, 190 (3d Cir.
2002); Huertas v. United States Dep't of Educ., 408 F. App'x 639 (3d Cir. 2010) (not
published).
The court must balance the factors and need not find that all of them weigh
against plaintiff to dismiss the action. Emerson, 296 F .3d at 190 (3d Cir. 2002).
Because dismissal for failure to prosecute involves a factual inquiry, it can be
appropriate even if some of the Pou/is factors are not satisfied. Hicks v. Feeney, 850
F.2d 152, 156 (3d Cir. 1988); Curtis T. Bedwell & Sons, Inc. v. International Fidelity Ins.
Co., 843 F.2d 683, 696 (3d Cir. 1988) (holding that not all Pou/is factors must weigh in
favor of dismissal).

IV. DISCUSSION
The court finds that the Poulis factors warrant dismissal of plaintiff's case. First,
as a prose litigant, plaintiff is solely responsible for prosecuting his claim. Hoxworth v.

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Blinder, Robinson & Co., 980 F.2d 912, 920 (3d Cir. 1992). The court notes that,
according to PACER, plaintiff is no novice to litigation, having filed numerous civil actions
and appeals while proceeding prose. See https://pcl.uscourts.gov.
Second, defendants are prejudiced by plaintiffs failure to prosecute. Prejudice
occurs when a plaintiffs failure to prosecute burdens defendants' ability to prepare for
trial. Ware v. Rodale Press, Inc., 322 F.3d 218, 222-23 (3d Cir. 2003). Plaintiffs refusal
to attend his deposition severely impedes defendants' ability to prepare a trial strategy.
In addition, on December 21, 2011, plaintiff failed to attend the deposition of Crawford,
an important fact witness. The same acts also lead to the conclusion that, as to the third
factor, there is a history of dilatoriness for plaintiffs refusal to participate in the discovery
process.
As to the fourth factor, the facts to date lead to a conclusion that plaintiff's failure
to prosecute is willful or in bad faith. Plaintiff filed this lawsuit yet he refuses to attend
his deposition. Indeed, the court finds specious plaintiffs position that defendants have
waived their defenses. Nor is there any justification for plaintiffs refusal to provide
defendants with his telephone number. See Poulis, 747 F.2d at 868 ("Willfulness
involves intentional or self-serving behavior."). For these reasons, the court finds
plaintiffs actions willful and in bad faith.
As to the fifth factor, plaintiff proceeds prose and, according to Crawford, plaintiff
has a lawn service and may be employed as a telecommunicator. (D. I. 78, ex. A at 38)
Given what appear to be limited resources, it is doubtful that monetary sanctions would
be effective.
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As to the sixth factor, the merits of the claim, defendants have provided evidence
that plaintiff engaged in a scheme to fraudulently obtain millions of dollars from
defendant Bank of America ("Bank of America"). Plaintiff approached Crawford, his
childhood friend, under the guise of investing in Jaycee, through the use of a "bonded
bill of exchange." ("BBOE"). (D. I. 78, ex. A at 25-31) However, when Crawford
presented the BBOE to the Bank of America, he was told that the BBOE was a fraud,
and Crawford had no further involvement with plaintiff. (/d. at 31-32) Moreover, after
wading through plaintiffs voluminous documents, the court finds no evidence to support
plaintiffs claims. (See D. I. 38, 87) Finally, the court takes judicial notice that plaintiff
has a history of meritless claims to judgment on liens that were allegedly filed and/or
reduced to judgment. See United States v. Stubbs, 2008 WL 3981457, at *1 (N.D. Oh.
Aug. 14, 2008) ("The defendant in this criminal case has filed a spurious motion for
summary judgment. ... Those liens are manifestly a nullity. There is no merit
whatsoever to plaintiffs motion for summary judgment.").
The court finds that the Pou/is factors weigh in favor of dismissal given plaintiffs:
(1) refusal to attend his deposition; (2) failure to attend the deposition of a fact witness;
and (3) refusal to provide defendants with his telephone number. Notably, plaintiff has a
history of meritless claims to judgment on liens filed and/or reduced to record. Finally,
the evidence of record indicates there is an unlikelihood of success on the merits of
plaintiffs claims.

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V. CONCLUSION
For the above reasons, the court will grant defendants' motion to compel and/or
to dismiss, and will dismiss the case pursuant to Fed. R. Civ. P. 37 and for failure to
prosecute. (0.1. 65, 89) The pending motions for summary judgment will be denied as
moot. (0.1. 78, 83)
An appropriate order will issue.

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