Depew v. LNV Corporation
Filing
17
RULING granting 4 Motion to Dismiss and 5 Motion to Dissolve TRO. This case is dismissed with prejudice. Judgment shall be entered accordingly. Signed by Judge Shelly D. Dick on 9/17/2014. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CAMMY SHARI DEPEW
CIVIL ACTION NO.
VERSUS
14-284-SDD-RLB
LNV CORPORATION
RULING
This matter is before the Court on the Motion to Dismiss or, Alternatively, Motion for
More Definite Statement1 and the Motion to Dissolve TRO2 by Defendant, LNV Corporation
(“LNV”). Plaintiff, Cammy Shari Depew (“Plaintiff”) has opposed both motions.3 For the
reasons which follow, the Court will grant both motions.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Previous Proceeding
A review of Plaintiff’s previous case filed in this Court is relevant to the Court’s
decision in the current matter. On August 27, 2013, Plaintiff filed a Complaint in this Court
against LNV and ten other defendants, alleging a plethora of federal and state law claims4
1
Rec. Doc. No. 4.
2
Rec. Doc. No. 5.
3
Rec. Doc. Nos. 7 & 8.
4
Civil Action No. 13-350-SDD-SCR, Rec. Doc. No. 1, p. 4, ¶ B reads: “18 U.S.C. § 63 et seq., (Mail
Fraud and Other Fraud Offenses); 18 U.S.C. § 1961 et seq., (Racketeer Influenced and Corrupt Organizations
Act); 12 U.S.C. § 27 et seq., (Real Estate Settlement Procedures Act); 15 U.S.C. § 1601 et seq., (Consumer
Credit Protection and Truth in Lending Acts); 18 U.S.C. § 47 et seq. (Fraud and False Statements); 18 U.S.C.
§ 1348 et seq. (Securities and Commodities Fraud); 15 U.S.C. § 77a, et seq., (Securities Act of 1933); 18
U.S.C. Chapter 11, et seq., (Bribery, Graft, and Conflicts of Interest); 42 U.S.C. § 3601 et seq.,(Fair Housing
Act); 15 U.S.C. § 1691 et seq., (Equal Credit Opportunity Act); Fifth and Fourteenth Amendments to the United
States Constitution; LA CC Art 2003 (Obligee in Bad Faith); LA RS 14:123(Perjury); LA RS 9:5646 (Sale of
immovable property by domestic or foreign corporation or unincorporated association)”.
Doc 2060
1
relating to disputes with various mortgage companies and lenders which she claims led to
the alleged “wrongful eviction” from her home, which was eventually sold at a Sheriff’s Sale.
Plaintiff filed a Motion for Restraining Order, which the Court denied for the stated reasons.5
Plaintiff filed a Notice of Appeal, which the Court treated as a Motion for Reconsideration
and again denied the requested relief.6 However, contrary to Plaintiff’s mistaken assertion
in her memorandum, this appeal was sent to the Fifth Circuit. The Mandate of the Fifth
Circuit dismissed the appeal for lack of jurisdiction on March 28, 2014.7 As the Defendants
were served,8 they filed Motions to Dismiss for Failure to State a Claim and Alternatively,
Motions for More Definite Statement. Plaintiff failed to oppose each and every motion
within the twenty-one (21) day time period provided by Local Rule 7.4. Thus, the Court
entered Rulings9 in each instance for her failure to oppose and, upon the Court’s finding
that the motions had merit, the Court dismissed Plaintiff’s claims without prejudice,
reserving her right for fourteen (14) days, following each Ruling, to move for leave of Court
to explain the failure to oppose and provide the Court with an opposition. Each Ruling also
advised that, if no motion was filed within fourteen days, the dismissal was converted to a
dismissal with prejudice. Plaintiff never requested extensions of time to respond to these
motions and failed to submit anything to the Court in opposition to these motions. As such,
each Ruling was converted to a dismissal with prejudice.
5
Civil Action No. 13-350-SDD-SCR, Rec. Doc. No. 8.
6
Id., Rec. Doc. No. 11.
7
Id., Rec. Doc. No. 49.
8
Some defendants were never served.
9
Civil Action No. 13-350-SDD-SCR, Rec. Doc. Nos. 37 (2/7/14), 38 (2/14/17), 45 (3/17/14), & 51
(4/17/14).
Doc 2060
2
On April 11, 2014, apparently now satisfied with the relief she received from the
state court on the matter, Plaintiff filed a Motion to Withdraw her case, seeking a dismissal
without prejudice.10 The Court granted the dismissal of Plaintiff’s case; however, the Court
dismissed her case in its entirety with prejudice for very specific reasons. Particularly, the
Court held that Plaintiff had failed to prosecute her case, failed to comply with the Federal
Rules of Civil Procedure, the Local Rules of Court, and notably, failed to comply with a
Show Cause Order of February 14, 2014, issued by the Magistrate Judge.11
The Court specifically found that: “The record before the Court shows Plaintiff is not
entitled to a dismissal without prejudice based on her clear lack of respect for the Court’s
orders and lack of compliance with the Federal and Local Rules.”12 The Court noted in this
final Ruling that it declined to exercise supplemental jurisdiction over Plaintiff’s state law
claims; thus, those claims were dismissed without prejudice. Judgment was entered in
favor of the Defendants and this case was closed.
B.
Current Proceeding
On April 14, 2014, Plaintiff filed a new Petition13 in the 23rd Judicial District Court for
the Parish of Ascension, State of Louisiana, stating claims against LNV on the same or
similar grounds as set forth in the prior proceeding in this Court. Some of the claims in this
Petition were not alleged in Plaintiff’s federal Complaint (at least in the manner the claims
were styled); yet, many claims in the Petition were identical to those in the federal
10
Id., Rec. Doc. No. 50, p. 2, ¶ 14.
11
Id., Rec. Doc. No. 52.
12
Id.
13
Rec. Doc. No. 1-1.
Doc 2060
3
Complaint. LNV removed the case to this Court on May 8, 2014. Now before the Court are
LNV’s motions to dismiss this case on the grounds of res judicata and judicial estoppel, and
to dissolve the temporary restraining order (“TRO”) issued by the state court for its lack of
compliance with Louisiana statutory requirements. The Court turns to a discussion of these
motions.
1.
Motion to Dismiss
The primary bases for LNV’s Motion to Dismiss are that Plaintiff’s claims are barred
by res judicata based on prior decisions of both this Court and Louisiana state courts, and
that Plaintiff’s claims are barred by judicial estoppel based on her sworn representations
to the Bankruptcy Court that she had no outstanding claims against any party. LNV also
argues that Plaintiff failed to state a claim upon which relief may be granted on the several
specific causes of action alleged in the Petition; however, because the Court finds that all
of Plaintiff’s claims are barred by res judicata and judicial estoppel, only these will be
discussed.14
a.
Res Judicata
To the extent any of the claims in this matter are the same as those asserted in Civil
Action 13-560-SDD-SCR, the Court finds that they are barred by res judicata. Plaintiff fails
to explain why this doctrine does not apply to claims brought in her federal Complaint,
stating only that she was denied her Motion to Withdraw without prejudice “mainly due to
me not responding to Motions filed by defendants timely.” Plaintiff then complains about
her pro se status and not receiving pleadings on the day they were filed based on the delay
14
The Court holds in the alternative that Plaintiff has failed to state a claim on the particular claims
set forth by LNV. Plaintiff’s Opposition provides no legal basis or challenge to counter LNV’s arguments.
Doc 2060
4
in the postal service. The Court is not persuaded by the Plaintiff’s excuses for her failure
to prosecute the previous case.
First, Plaintiff states that she did not respond to the Defendants’ motions timely. In
fact, Plaintiff did not respond to the Defendants’ motions at all. As set forth above,
notwithstanding the obvious delay between the date of the Rulings and the date of postal
service delivery, Plaintiff was given fourteen days to challenge or respond to each Ruling
on February 2, 1014; February 14, 2014; March 17, 2014; and April 17, 2014. At no time
did Plaintiff notify the Court that she received the Rulings with insufficient time to respond.
Similarly, Plaintiff ignored the February 14, 2014 Order to Show Cause by the Magistrate
Judge which ordered Plaintiff to submit a written response detailing why she had failed to
serve certain Defendants in accordance with Rule 4(m) of the Federal Rules of Civil
Procedure.
The Court is not persuaded that the Plaintiff did not receive notice of the
Court’s previous Rulings and Order to Show Cause before filing her Motion to Withdraw on
April 11, 2014. The record reflects that Plaintiff clearly knew how to file documents and
how to access the Court when doing so was in her interests.
Plaintiff claims that the dismissal of her federal case “was not on the merits but on
my failure to respond timely.”15 This is incorrect. As to each Ruling, the Court expressly
concluded that “the Court finds that the Motion has merit”. The Fifth Circuit has clearly held
that: “Although there has not been an adjudication on the merits in the sense of a weighing
of facts, there remains the fact that a dismissal with prejudice is deemed an adjudication
15
Doc 2060
Rec. Doc. No. 8, p. 5.
5
on the merits for the purposes of res judicata.”16 The Court clearly dismissed Plaintiff’s
previous case with prejudice as outlined above and for the reasons stated in the final
Ruling.17
Additionally, with respect to Plaintiff’s assertion that her pro se status entitled her to
more lenient treatment by the Court, the Court would simply note as follows:
A pro se litigant is not exempt from compliance with relevant rules of
procedural and substantive law. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.
1981). A pro se litigant who fails to comply with procedural rules has the
burden of establishing excusable neglect, which is a strict standard requiring
proof of more than mere ignorance. Birl, 660 F.2d at 593.18
Plaintiff chose to file her action against eleven Defendants and chose to represent herself.
The Court is without authority to provide Plaintiff with legal advice; in fact, it is prohibited
from doing so. Had Plaintiff filed a motion for an extension of time to respond to any filings
in this matter or communicated to the Court that she needed additional time, the Court
would have considered and granted such a request. However, Plaintiff was, and is, clearly
responsible for prosecuting her case and complying with procedural and substantive rules
as set forth above. Any claims to the contrary are without merit.
b.
Judicial Estoppel
LNV also moves to dismiss all claims in the Petition because Plaintiff is judicially
estopped from asserting claims that were clearly known but not disclosed to the Bankruptcy
Court in her filings.
16
Dean v. Riser, 240 F.3d 505, 509 (5th Cir. 2001), citing Anthony v. Marion County General Hospital,
617 F.2d 1164, 1169-70 (5th Cir.1980).
17
Civil Action No. 13-350-SDD-SCR, Rec. Doc. No. 52.
18
Bruge v. Astrue, No. 12-370-SSV-SS, 2013 WL 654650, at *1 (E.D. La. Jan. 14, 2013); see also
Beard v. Experian Information Solutions, Inc., No. 06-10333, 214 F. App’x 459, 462 (5th Cir. Jan. 19, 2007).
Doc 2060
6
The doctrine of judicial estoppel is equitable in nature and can be invoked by a court
to prevent a party from asserting a position in a legal proceeding that is inconsistent with
a position taken in a previous proceeding.19 The aim of the doctrine is to “protect the
integrity of the judicial process.”20 “Because the doctrine [of judicial estoppel] is intended
to protect the judicial system, rather than the litigants, detrimental reliance by the opponent
of the party against whom the doctrine is applied is not necessary.”21 Moreover, “‘the
integrity of the bankruptcy system depends on full and honest disclosure by debtors of all
of their assets.’”22 Both the Fifth Circuit and Louisiana district courts have routinely held
that judicial estoppel precludes plaintiffs from asserting causes of action that were not
disclosed in their bankruptcy proceedings.23
Plaintiff filed a Chapter 7 Voluntary Petition with the United States Bankruptcy Court
for the Middle District of Louisiana, Docket No. 12-11614. The Court takes judicial notice
of the documents filed in this record.24 Plaintiff signed this Petition under penalty of perjury,
declaring that she had read the schedules and that they were true and correct to the best
19
Love v. Tyson Foods, Inc., 677 F.3d 258, 261 (5th Cir. 2012), citing Reed v. City of Arlington, 650
F.3d 571, 573–74 (5th Cir. 2011) (en banc).
20
Id., quoting New Hampshire v. Maine, 532 U.S. 742, 749–50, 121 S.Ct. 1808, 149 L.Ed.2d 968
(2001) (citation and internal quotation marks omitted).
21
Id., quoting In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999).
22
Id., quoting Coastal Plains, 179 F.3d at 208 (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 104
(S.D.N.Y. 1996)).
23
See Coastal Plains, 179 F.3d at 208; Henry v. Kan. City S. Ry. Co., No. 10-0469, 2010 WL
3613795, at *5 (W.D. La. Sep. 8, 2010); Young v. Town of Greenwood, No. 08-602, 2009 WL 1924192, at *4
(W.D. La. Jun. 26, 2009); In re W. Delta Oil Co., No. 01-1163, 2002 WL 1963317, at *5 (E.D. La. Aug. 21,
2002).
24
See Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir. 1994)(“In deciding a 12(b)(6) motion to
dismiss, a court may permissibly refer to matters of public record.”).
Doc 2060
7
of her knowledge, information, and belief. In the schedule which required the petitioner to
disclose any “contingent and unliquidated claims of every nature, including tax refunds,
counterclaims of the debtor, and rights to setoff claims,” Plaintiff checked the response
“None.”25 Thus, LNV is correct that Plaintiff denied the existence of any claims against it
as of November 19, 2012, the date she signed her declaration.
It is abundantly clear from a review of Plaintiff’s allegations in this matter and the
previous case that Plaintiff was aware of her potential claims against LNV at the time of the
bankruptcy filings. Plaintiff is now asserting a legal position that is inconsistent with the
position she took in a previous legal proceeding. It matters not that Plaintiff did not
complete the bankruptcy. Plaintiff’s only argument in opposition to the application of judicial
estoppel is that LNV’s claims are “inaccurate and misleading.”26 Plaintiff also states she
“did not go into detail of the claims because it did not go any further than the initial fill in the
blank forms... .”27 This does not explain why Plaintiff marked “None” in response to the
question about any pending claims, counterclaims, or offsets against any party. Plaintiff
further fails to cite any law or jurisprudence in support of her position or that would run
counter to that relied on by LNV.
Thus, under the doctrine of judicial estoppel, all claims in this matter not already
barred by res judicata, are barred and dismissed with prejudice.
25
No. 12-11614, Rec. Doc. No. 11, p. 5.
26
Rec. Doc. No. 8, p. 6.
27
Id.
Doc 2060
8
2.
Motion to Dissolve TRO
LNV has also moved pursuant to Rule 65(b)(4) of the Federal Rules of Civil
Procedure to dissolve the TRO issued by the state court before removal to federal court.
LNV contends the terms of the TRO violate Louisiana law in several ways. First, LNV
contends that the TRO’s language rendering it operable “until this case is fully adjudicated”
violates Louisiana Code of Civil Procedure article 3604, which requires that a TRO “shall
expire by its terms within such time after entry, not to exceed ten days, as the court
prescribes.” Second, LNV argues that the TRO was granted without notice and a hearing
but does not state why, in violation of article 3604(A), which requires that a TRO “shall state
why the order was granted without notice and hearing.” Third, the TRO fails to state the
date and hour of its issuance which is also required under article 3604. Finally, the TRO
is not supported by any record evidence of “the efforts which have been made to give
notice [to LNV] or the reasons supporting [Plaintiff’s] claim that notice should not be
required.”28
Plaintiff’s Opposition merely rehashes her allegations against the parties in all of her
cases in state and federal court. Nothing in the Opposition challenges or counters LNV’s
claim that the TRO is legally deficient in the ways described.
Under 28 U.S.C. § 1450, the TRO entered by the state court remains in effect until
dissolved or modified by the district court. 28 U.S.C. § 1450 states that “[w]henever any
action is removed from a state court to a district court of the United States ... [a]ll
injunctions, orders, and other proceedings had in such action shall remain in full force and
28
Doc 2060
La. Code Civ. Proc. art. 3604(A)(2).
9
effect until dissolved or modified by the district court.” The statute facilitates the federal
court's taking the case up “where the state court left it off.”29 The federal court accepts the
case in its current posture “as though everything done in state court had in fact been done
in the federal court.”30
“[I]t is well established that the state court order becomes
federalized insofar as federal, rather than state, procedure governs the manner of its
enforcement as well as supplies whatever policy justification that might support its
continuance.”31 Because this case was timely removed, this Court has the authority to
dissolve the TRO.32
Upon review of the Petition, the order granting the TRO, the memoranda, and the
law, the Court finds that the TRO issued by the state court should be dissolved. All of the
procedural defects alleged by LNV are present in the TRO, and Plaintiff has failed to argue
or present evidence to the contrary. Furthermore, this TRO was granted on the same
factual basis presented by Plaintiff when she applied for a TRO in this Court in her previous
federal case. This Court denied that request twice because Plaintiff failed to satisfy the
standard under the Federal Rules of Civil Procedure for the granting of a TRO.33
29
Granny Goose Food, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437, 94 S.Ct. 1113, 1123,
39 L.Ed.2d 435 (1974)( quoting Duncan v. Gegan, 101 U.S. (11 Otto) 810, 812, 25 L.Ed. 875 (1882)).
30
Nissho–Twai American Corporation v. Kline, 845 F.2d 1300, 1303 (5th Cir.1988)( quoting Savell
v. Southern Ry., 93 F.2d 377, 379 (5th Cir.1937)).
31
Nissho–Iwai, 845 F.2d at 1303; Granny Goose Foods, 415 U.S. at 438–41, 94 S.Ct. at 1123–25.
32
See 28 U.S.C. § 1450.
33
Civil Action No. 13-350-SDD-SCR, Rec. Doc. Nos. 8 & 11.
Doc 2060
10
III.
CONCLUSION
For the reasons set forth above, Defendant LNV Corporation’s Motion to Dismiss34
is GRANTED, and the Motion to Dissolve TRO35 is GRANTED. This case is dismissed with
prejudice.
Judgment shall be entered accordingly.
Signed in Baton Rouge, Louisiana, on September 17, 2014.
S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
34
Rec. Doc. No. 4.
35
Rec. Doc. No. 5.
Doc 2060
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?