GILES v. PHOENIX RECOVERY GROUP INC et al
Filing
84
ORDER denying 80 Motion to Set Aside Judgment; denying 81 Amended Motion. Plaintiff is HEREBY ORDERED to APPEAR before this Courtin Macon, Georgia on Thursday, November 1, 2012 at 10:00 AM and SHOW CAUSEwhy he should not be sanctioned for persistently filing frivolous motions in this case. Ordered by Judge C. Ashley Royal on 10/24/12 (lap) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
:
ADOLFUS O’BRYAN GILES,
:
:
Plaintiff,
:
v.
:
:
PHOENIX RECOVERY GROUP INC.,
:
as assignee of Sears National Bank,
:
BRIDGERS, PETERS, KLEBER,
:
ATTORNEYS AT LAW, DANIEL F.
:
BRIDGERS, and SEARS ROEBUCK AND
:
CO.,
:
:
Defendants.
:
__________________________________________
CIVIL CASE NO.
3:12‐CV‐65 (CAR)
ORDER DENYING PLAINTIFF’S THIRD MOTION TO
SET ASIDE JUDGMENT AND PRIOR ORDERS
Currently before the Court is pro se Plaintiff Adolfus O’Bryan Giles’s Third
Motion to Set Aside Judgment [Doc. 80], a virtually identical Amended Motion [Doc.
81] with a Memorandum in Support [Doc. 82] thereof, and finally, an Amendment to his
Amended Motion and Memorandum [Doc. 83]. Upon due consideration of the
Plaintiff’s requests, prior actions in this Court, and relevant legal authority, Plaintiff’s
Motion is again DENIED.
Plaintiff filed his initial complaint in this case on May 18, 2012, alleging claims
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and
the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq. Specifically, Plaintiff
alleged that, in 2005, he received information from Defendants for the purpose of
collecting a debt involving a Sears credit card. Plaintiff further alleged that he
attempted to dispute the debt, but that a judgment was entered against him in state
court for the amount of the debt. In the span of a few months, Plaintiff amended this
complaint four times.1 Defendants then moved to dismiss Plaintiff’s claims, and the
Court entered an order dismissing Plaintiff’s action for both insufficient service of
process and for failure to state a claim upon which relief could be granted. Plaintiff
filed a notice of appeal on August 22, 2012, with an accompanying motion to proceed in
forma pauperis on appeal pursuant to 28 U.S.C. § 1915.
With his action pending appeal, Plaintiff simultaneously moved this Court to set
aside its judgment and honor his request for a jury trial. His motion was summarily
denied in the order that followed on September 7, 2012. Therein, the Court pronounced
that Plaintiff failed to state a valid basis for setting aside judgment because Plaintiff
merely reasserted the same arguments from his response to the Defendants’ motions to
dismiss. One month later, the Court reiterated this exact explanation in an order
denying Plaintiff’s second motion to set aside, which he filed only three days after the
Court’s previous decision.
Now, in his Third Motion, accompanying Amendment, Memorandum in
Support thereof, and Amendment to the first Amendment and Memorandum, Plaintiff
1 [Docs. 11, 16, 22, 61].
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purports to detail “additional mistakes, inadvertences, surprises, excusable negects
[sic], or other reasons that justifies [sic] relief to assist in the Judgment or Order to be Set
Aside.”2 Unfortunately, the only “new” feature of his Third Motion is Plaintiff’s
attempt to recharacterize his purported action under the Fair Debt Collection Practices
Act (“FDCPA”)3 or the Fair Credit Reporting Act (“FCRA”)4 as a “tort.”5 The remainder
of the Third Motion corrects inconsequential stylistic or grammatical errors and
provides yet another recitation of the arguments Plaintiff exhausted in his prior motions
and responses to Defendants’ motions to dismiss. As this Court explained on two prior
occasions,6 Plaintiff fails to state a valid basis for setting aside the Court’s judgment.
Accordingly, his Third Motion is DENIED.
The Court concludes that, if left unchecked, Plaintiff will likely “repeat this
Motion infinite [sic]” as he threatened in another case earlier this year.7 Although pro se
litigants are held to a more lenient standard than formally trained lawyers, Plaintiff
cannot flagrantly disregard the Federal Rules of Civil Procedure and impair this Court’s
2 [Docs. 80 at 2 and 81 at 2‐3].
3 15 U.S.C. § 1692, et seq.
4 15 U.S.C. § 1681, et seq.
5 [Doc. 80 at 6].
6 See Giles v. Phoenix Recovery Grp. Inc., No. 3:12‐CV‐65 (CAR), Doc. 76 (Sep. 7, 2012) (denying
first motion to set aside judgment); id. at Doc. 79 (Oct. 15, 2012) (denying second motion to set
aside judgment filed on September 10, 2012, and warning of possible future sanctions).
7 Giles v. Wal‐Mart Stores East, L.P., No. 3:11‐CV‐164 (CAR) [hereinafter Giles III], Doc. 33 at 4
(Mar. 8, 2012).
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ability to carry out its Article III functions.8 The Court is not persuaded by Plaintiff’s
insubstantial assurances he is acting in “good [f]aith” when submitting these repetitive
motions and amendments.9 Plaintiff has consistently employed abusive filing practices
in this Court,10 and his present misconduct speaks louder than his declarations of good
intent.
Therefore, Plaintiff is HEREBY ORDERED TO APPEAR before this Court in
Macon, Georgia on Thursday, November 1, 2012 at 10:00 AM and SHOW CAUSE why
he should not be sanctioned for his frivolous filings in this particular case. On that date,
Plaintiff will also account for his vexatious filing history in Giles v. Capitol One Bank, et
al., No. 3:12‐CV‐70 (CAR) and Giles v. Wal‐Mart Stores East, L.P., No. 3:11‐CV‐164 (CAR).
Pending Plaintiff’s explanation, the Court will determine if additional regulations are
necessary to deter his future misconduct in accordance with the All Writs Act, 28 U.S.C.
§ 1651(a).11
8 See Giles v. Wal‐Mart Distrib. Ctr., 359 F. App’x 91, 93 (11th Cir. 2008).
9 [Doc. 83 at 6]; see Giles v. Capitol One, No. 5‐12‐cv‐70 (CAR), Doc. 54 (Sep. 7, 2012) (denying first
motion to set aside judgment); id. at Doc. 58 (Oct. 23, 2012) (denying second motion to set aside
judgment filed on September 10, 2012, and warning of possible future sanctions).
10 See, e.g., Giles v. Wal‐Mart Stores East, L.P., No. 3:10‐CV‐42 (CDL), 2010 WL 4397008, at *4‐5
(M.D. Ga. Nov. 1, 2010) (forewarning Plaintiff of future sanctions for failure to comply with the
Federal Rules of Civil Procedure); Giles III, 2012 WL 385152, at *3 (M.D. Ga. Feb. 6, 2012)
(imposing sanctions); Phoenix Recovery Grp. Inc., No. 3:12‐CV‐65 (CAR), Doc. 79 (Sep. 7, 2012)
(forewarning Plaintiff of future sanctions for abusive filing practices).
11 See Miller v. Donald, 541 F.3d 1091 (11th Cir. 2010); Smith v. Fla. Dept. of Corr., 369 F. App’x 36
(11th Cir. 2010).
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Conclusion
For the foregoing reasons, and in accordance with the Court’s previous Orders
[Docs. 76 and 79], Plaintiff’s Third Motion to Set Aside Judgment [Docs. 80, 81, 82, and
83] is DENIED. Further, Plaintiff is HEREBY ORDERED to APPEAR before this Court
in Macon, Georgia on Thursday, November 1, 2012 at 10:00 AM and SHOW CAUSE
why he should not be sanctioned for persistently filing frivolous motions in this case.
SO ORDERED, this 24th day of October, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
BBP/lmh
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