Mitchelle Art 89 Trust v. Astor Alt, LLC et al
Filing
26
OPINION AND ORDER OVERRULING 24 Objections; ADOPTING 20 Final Report and Recommendation and DISMISSING this action; DENYING AS MOOT 4 Motion to Amend, 6 Motion to Strike, 22 Motion to Compel, 23 Motion to Compel, 3 Motion to Dismiss, 7 Motion to Dismiss for Failure to State a Claim and 9 Motion to Stay Discovery. Signed by Judge William S. Duffey, Jr on 7/15/2015. (adg)
I.
BACKGROUND
On December 22, 2014, Plaintiff filed its complaint [1.1-1.2 at 2] in the
Superior Court of DeKalb County, Georgia. Plaintiff purports to be represented in
this action by Ronnie Consuello Arnold (“Arnold”) and Michelle Jones (“Jones”),
the executrix and trustee, respectively, of Mitchelle Art 89 Trust. Arnold and
Jones are not plaintiffs in this action, and they are not attorneys and are not
authorized to practice law in this Court.2 It is difficult, if not impossible, to discern
what claims for relief Plaintiff seeks to assert and against whom it seeks to bring
these unspecified claims. Plaintiff appears to assert claims for wrongful
foreclosure, declaratory relief, and quiet title to real property located at 3752
Ozmer Court, Decatur, Georgia 30034 (the “Property”).3
On February 17, 2015, PNC removed the DeKalb County action to this
Court based diversity of citizenship.4 (Notice of Removal [1]).
2
The Court notes that this action appears to be the latest in a series of filings
by Arnold and Jones to challenge foreclosure of the Property. See Mitchell Art 89
Trust, et al. v. PNC Bank, et al., No. 1:14-cv-880 (N.D. Ga.) (removed from
Superior Court of DeKalb County on March 27, 2014; dismissed on May 12, 2014,
for failure to obey the Court’s order directing plaintiffs to respond to defendant’s
motions to dismiss).
3
The Complaint lists Jones as a “Third Party Intervener” to this action.
4
Plaintiff lists multiple “Defendants” in the caption of the Complaint,
including Astor Alt. LLC, PNC, McCalla Raymer, and Brandywine Homes
Georgia, LLC. PNC argues in its Notice of Removal that these “Defendants” have
been fraudulently joined to defeat diversity jurisdiction.
2
On March 18, 2015, Magistrate Judge Baverman issued an order (“March
18th Order”) [8] directing Plaintiff, and the Trustee, to appear through an attorney
or show cause, in writing, within twenty-one days of the March 18th Order, why
this action should not be dismissed. Magistrate Judge Baverman found that,
because Plaintiff is a trust, Plaintiff is required, under 28 U.S.C. § 1654, to be
represented by an attorney. Magistrate Judge Baverman further advised Plaintiff
that failure to comply with the Court’s March 18th Order would result in dismissal
of this action.
On April 10, 2015, apparently in response to the Court’s March 18th Order,
Plaintiff filed—again through Arnold and Jones—a document entitled “Plaintiff’s
Motion to Show Cause/Object to and Strike Court Order Defendants . . . Motion to
Dismiss Motion to Stay Discovery and Pretrial Deadlines and Order and
Memorandum of Law” [15], which the Court construes as Plaintiff’s Response to
the Court’s March 18th Order. Plaintiff’s Response is nonsensical, convoluted and
conclusory, and fails to even address the basis for the Court’s March 18th Order—
that Plaintiff, as a trust, is required under 28 U.S.C. § 1654, to be represented by
counsel. Plaintiff appears to argue instead that, under Rule 17 of the Federal Rules
of Civil Procedure, the Trust is properly represented because Arnold, as executrix,
3
is a real party in interest and has suffered an injury-in-fact, and Jones has the
capacity to sue on behalf of the Trust.
On June 10, 2015, the Magistrate Judge recommended that this action be
dismissed without prejudice because Plaintiff failed to comply with the Court’s
March 18th Order. The Magistrate Judge found that Plaintiff’s Response presented
no explanation for Plaintiff’s failure to retain counsel.
On June 22, 2015, Plaintiff filed its “objections” to the R&R.
II.
DISCUSSION
A.
Standard of Review
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). 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). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
4
Plaintiff’s “Objections” are incoherent. They do not address the Magistrate
Judge’s reasons for dismissing Plaintiff’s Complaint and instead consist of
rambling allegations that are nearly impossible to discern.5 See Marsden v. Moore,
847 F.2d 1536, 1548 (11th Cir. 1988) (“Parties filing objections to a magistrate’s
report and recommendation must specifically identify those findings objected to.
Frivolous, conclusive, or general objections need not be considered by the district
court.”). These are not valid objections and the Court will not consider them. The
Court reviews the R&R for plain error.
B.
Analysis
The Magistrate Judge found that Plaintiff is a trust and, under 28 U.S.C.
§ 1654, is therefore required to be represented by counsel. Because Arnold and
Jones are not attorneys and are not authorized to practice law in this Court, they
cannot represent the Trust in this action.6 See 28 U.S.C. § 1654; Jacox v. Dep’t of
Defense, No. 5:06-cv-182 (HL), 2007 WL 118102, at *2 (M.D. Ga. Jan. 10, 2007)
5
For example, Plaintiff asserts that “Alan J. Baverman, United States
Magistrate Judge’ is bias and acting beyond the scope or in excess or legal power
or authority vacate the Bench as Judge and move to the role of representative for
the Defendants.” (Obj. at 14).
6
A trustee, though authorized by Fed. R. Civ. P. 17(a) to bring suit on behalf
of the trust, cannot litigate pro se. C.E. Pope Equity Trust v. United States, 818
F.2d 696, 697 (9th Cir. 1987) (“[A trustee] cannot be viewed as a ‘party’
conducting his ‘own case personally.’”). Jones’s status as Trustee does not allow
her to litigate this case pro se on behalf of the Trust.
5
(“28 U.S.C. § 1654 requires pro se litigants to conduct their own cases personally
and does not authorize nonlawyers to conduct cases on behalf of individuals.”); see
also Michel v. United States, 519 F.3d 1267, 1270 (11th Cir. 2008) (citing
Gonzalez v. Wyatt, 157 F.3d 1016 (5th Cir. 1977)) (“A party cannot be represented
by a nonlawyer, so a pleading signed by a nonlawyer on behalf of another is null”);
Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (“A
nonlawyer . . . has no right to represent another entity, i.e., a trust, in a court of the
United States.”). The Court finds no plain error in the Magistrate Judge’s finding
that Plaintiff is required to be represented by counsel and Arnold and Jones may
not represent Plaintiff in this action.
Plaintiff failed to comply with the Court’s March 18th Order, after being
advised that it was required to be represented by counsel and admonished that
failure to appear by counsel would result in dismissal of this action. Local Rule
41.3 authorizes the Court to dismiss a case for want of prosecution for failure to
obey a lawful order of the Court. See LR 41.3(a)(2), NDGa. The Magistrate Judge
recommended that this action be dismissed pursuant to Local Rule 41.3, and the
Court finds no plain error in these findings or recommendation.7
7
Having dismissed this action for failure to comply with the Court’s March
18th Order, Plaintiff’s Motion to Correct Name [4], Motion to Strike [6], and
6
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Objections [24] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [20] is ADOPTED and this action is
DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Correct Name [4],
Motion to Strike [6], and Motions to Compel [22, 23], and Defendant McCalla
Raymer and PNC’s Motions to Dismiss [3, 7] and McCalla Raymer’s Motion to
Stay Discovery [9] are DENIED AS MOOT.
SO ORDERED this 15th day of July, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
Motions to Compel [22, 23], and Defendants’ Motions to Dismiss [3, 7] and
McCalla Raymer’s Motion to Stay Discovery [9], are denied as moot.
7
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