JMC PROPERTY GROUP, LLC et al v. FORTUNE COMPANIES, INC. et al
ORDER - In sum, Mr. Kimbrough has not provided a convincing argument for why this Court should reconsider the dismissal of his complaint. Therefore, the Motion to Correct Error is DENIED. Dkt. 10 . Mr. Kimbrough has not filed an amended complaint despite being given an extension of time to do so. Similarly, the deadline for JMC and Kipcor to find counsel to represent them has passed. Therefore, with no operative complaint, this case must be DISMISSED without prejudice for the reasons explain ed in the Screening Order, dkt. 6 , and in this Order. The motion for preliminary injunction is DENIED as moot. Dkt. 5 . Final judgment consistent with both Orders shall issue by separate entry. Copy to Mr. Kimbrough via US Mail. Signed by Judge James Patrick Hanlon on 5/18/2023. (KAA)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JMC PROPERTY GROUP, LLC,
KIPCOR 219 LLC,
FORTUNE COMPANIES, INC.,
WILLIAMS CHARLES MENGES JR,
THOMAS JOSEPH HILLIGOSS JR,
JEFFREY WALTER ELFTMAN,
DAVID JOSEPH JURKIEWICZ,
Joey Kimbrough alleges that Fortune Companies, Inc., and its attorneys
violated his due process rights by invoking Indiana Code § 34-9-1-1(c) in state
court foreclosure proceedings. Dkt. 1. The Court screened and dismissed the
complaint under its inherent authority and granted Mr. Kimbrough leave to file
an amended complaint. Dkt. 6. Mr. Kimbrough has filed a "Motion to Correct
Error" under Federal Rule of Civil Procedure 59. For the reasons that follow,
the motion is DENIED, dkt. , and this case is DISMISSED.
On March 14, 2023, the Court screened the complaint and concluded
that Mr. Kimbrough and the company-plaintiffs, JMC Property Group LLC and
Kipcor 219 LLC, could not proceed with this lawsuit for a number of reasons.
Among other issues, the Court found it lacked jurisdiction under Younger v.
Harris, 401 U.S. 37 (1971), and that Mr. Kimbrough could not represent the
company-plaintiffs because he is not a licensed attorney. See dkt. 6. The
Court gave JMC and Kipcor until April 10, 2023 in which to find counsel to
represent them in this matter. Id. at 7. The Court gave Mr. Kimbrough until
April 10, 2023, in which to file an amended complaint. Id. The Court also
warned Mr. Kimbrough that his repeated practice of seeking to represent other
individuals and companies "may result in monetary or other sanctions and
may result in referral of Mr. Kimbrough's practices to the Chief Judge for any
action she deems appropriate." Id. Mr. Kimbrough then sought an extension
of time to respond, which was granted, making the new deadline to comply May
9, 2023. Dkt. 8, dkt. 9.
Instead of filing an amended complaint or retaining counsel to represent
the company-plaintiffs, on May 9, Mr. Kimbrough filed a "Motion to Correct
Error". Dkt. 10.
B. Motion to Correct Error
Mr. Kimbrough asserts that his motion is filed under Federal Rule of
Civil Procedure 59. Dkt. 10. However, Rule 59 applies only when the Court
has entered judgment in a case. See Fed. R. Civ. P. 59(e). Here, the Court
dismissed the complaint but granted leave to file an amended complaint. Dkt.
6. Therefore, no judgment has been entered in this case and the motion is
DENIED. Dkt. . But even if the Court were to consider his arguments,
none have merit.
First, Mr. Kimbrough argues that the Court lacked authority to "dismiss
the complaint sua sponte for failure to state a claim" citing Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013). Dkt. 10 at 2. But in
Luevano the district court had dismissed the entire case at screening without
granting leave to amend. 722 F.3d at 1022–24. The Seventh Circuit held that
the proper procedure was to allow plaintiffs an opportunity to amend. Id. That
is exactly what the Court did here. See dkt. 6 at 7. It was Mr. Kimbrough's
decision to file an improper Rule 59 motion instead of an amended complaint.
Second, Mr. Kimbrough again raises the argument that Kipcor and JMC
should not be dismissed as plaintiffs even though they are not represented by a
licensed attorney. Dkt. 10 at 4–5. He argues there is "NO federal law or act of
Congress that directly grants attorneys a license to practice law" so the federal
court should not require company-plaintiffs to be represented by counsel. Id.
However, the Seventh Circuit has noted that "only an attorney" can represent s
company in federal court. DJM Logistics, Inc. v. FedEx Ground Package Sys.,
Inc., 39 F.4th 408, 415 (7th Cir. 2022). Mr. Kimbrough is not an attorney.
Therefore, the Court will not reconsider its decision to order Kipcor and JMC to
obtain counsel or face dismissal.
Third, Mr. Kimbrough argues the Court should not have dismissed the
complaint because it has federal question jurisdiction over it. Dkt. 10 at 3.
However, simply because a complaint may fall within the Court's subjectmatter jurisdiction does not always mean the complaint has properly stated a
claim or that the Court should not abstain from considering the claim for some
other reason. As relevant in this case, Younger instructs district courts to
"abstain from taking jurisdiction over federal constitutional claims that involve
or call into question ongoing state proceedings." FreeEats.com, Inc. v. Indiana,
502 F.3d 590, 595 (7th Cir. 2007). Here, Mr. Kimbrough has recently appealed
the decision in the underlying foreclosure case to the Indiana Court of Appeals,
so it appears the case is ongoing. See Kimbrough v. Fortune Companies, Inc.,
Case No. 23A-MF-01043 (filed May 10, 2023).
While Mr. Kimbrough is correct that abstention may not be necessary
when the underlying state action is not "judicial in nature", dkt. 10 at 5–6
(citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S.
423 (1982) and Kelm v. Hyatt, 44 F.3d 415 (6th Cir. 1995)1), he offers no
argument for why the underlying foreclosure suit and appeal are not "judicial
in nature." See Stroman Realty, Inc. v. Martinez, 505 F.3d 658, 662 (7th Cir.
2007) ("administrative proceedings are judicial in nature when they are
coercive, such as state enforcement proceedings."). Thus, Mr. Kimbrough has
not offered a compelling reason for the Court to reconsider its conclusion that
it should abstain under Younger. Dkt. 10 at 5.
Finally, Mr. Kimbrough cites Dennis v. Sparks, 449 U.S. 24 (1980), in
support of his argument that his § 1983 due process claim could proceed if
Defendants "acted in concert" with the state court to deny him the right to
represent Kipcor and JMC. Dkt. 10 at 6–7. But in Dennis, the Supreme Court
The Court notes that Mr. Kimbrough cites this as a Seventh Circuit case, dkt. 10 at
5, but the case was decided by the Sixth Circuit.
explained that "merely resorting to the courts and being on the winning side of
a lawsuit does not make a party a co–conspirator or a joint actor with the
judge." 449 U.S. at 28. Instead, the plaintiff was only able to proceed with a
court-action-related § 1983 claim because it alleged "that an official act of the
defendant judge was the product of a corrupt conspiracy involving bribery of
the judge." Id. Mr. Kimbrough has made no allegation of bribery or corruption
in this case. Dkt. 1. Therefore, the Court declines to reconsider its conclusion
that he has not alleged a § 1983 claim against Defendants.
* * *
In sum, Mr. Kimbrough has not provided a convincing argument for why
this Court should reconsider the dismissal of his complaint. Therefore, the
Motion to Correct Error is DENIED. Dkt. .
Mr. Kimbrough has not filed an amended complaint despite being given
an extension of time to do so. Similarly, the deadline for JMC and Kipcor to
find counsel to represent them has passed. Therefore, with no operative
complaint, this case must be DISMISSED without prejudice for the reasons
explained in the Screening Order, dkt. 6, and in this Order.
The motion for preliminary injunction is DENIED as moot. Dkt. .
Final judgment consistent with both Orders shall issue by separate
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