Archie v. Elnora et al
Filing
45
MEMORANDUM AND ORDER DENYING 39 and 40 motions regarding perjury and obstruction of justice, DENYING 41 motion to dismiss and GRANTING Defendant 21 days to file a response or answer to Plaintiff's second amended complaint (c/m to Plaintiff and Defendant 12/21/15 sat). Signed by Judge Deborah K. Chasanow on 12/21/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NITA B. ARCHIE
:
v.
:
Civil Action No. DKC 14-0330
:
LAWONNE ELENORA AGER BOOKER
:
MEMORANDUM OPINION AND ORDER
Presently pending and ready for resolution in this fraud
action is a motion to dismiss filed by Defendant LaWonne Elenora
Ager Booker.
(ECF No. 41).
Also pending are motions regarding
perjury (ECF No. 39) and obstruction of justice (ECF No. 40)
filed by Plaintiff Nita B. Archie (“Plaintiff”).
rules, no hearing being deemed necessary.
The court now
Local Rule 105.6.
For the following reasons, Defendant Booker’s motion to dismiss
will be denied and Plaintiff’s motions will be denied.
I.
Background
A.
Factual Background
Plaintiff alleges that Defendant LaWonne Booker and others
defrauded Plaintiff and stole her identity in connection with a
mortgage scheme.
According to Plaintiff, the defendant along
with others operated To God Be The Glory Financial Services,
Inc. (“TGBTG”), a company located in Prince George’s County,
Maryland, specializing in tax preparation, financial literacy,
certified
housing
elimination.
“for
counseling,
and
(ECF No. 5, at 2-3).
fraudulent,
false
debt
consolidation
and
Plaintiff brings this action
statements
[initiated]
by
Defendants
unbeknownst to Plaintiff” and “[i]dentity theft [initiated] by
Defendants
falsifying
residence.”
(Id.
Plaintiff’s
at
7).
primary,
Plaintiff
true
seeks
.
.
.
compensatory,
cumulative, and punitive damages in the amount of three million
dollars and injunctive relief.
B.
(Id. at 10).
Procedural Background
In light of Plaintiff’s indigent status, the United States
Marshal has been available to effect service of process.
See
Fed.R.Civ.P.
the
Marshal
form,
4(c)(3).
Plaintiff
listing
address for service.
incorrectly
completed
Defendant
and
returned
LaWonne
Booker’s
The Marshal attempted but failed to effect
service at the address provided.
(ECF No. 17, at 1).
Once
again, Plaintiff provided a completed Marshal form for Defendant
LaWonne Booker, and the court directed the Marshal to effectuate
service of process.
(ECF No. 21).
On August 5, 2014, the
Marshal indicated that Defendant LaWonne Booker was served via
certified mail on July 20, 2014.
(ECF No. 24).
However, the
“green card” attached as proof of service demonstrated that the
Marshal did not serve Defendant LaWonne Booker by restricted
delivery, certified mail as directed by the court.
The court
again directed the Marshal to effectuate service of process.
2
(ECF No. 33).
Defendant LaWonne Booker provided official notice
to the court of her address at PO Box 6321, Largo, Maryland
20792.
(ECF
35).1
No.
The
court
re-issued
Defendant LaWonne Booker on January 13, 2015.
a
summons
for
(ECF No. 38).
On March 4, 2015, Plaintiff filed two additional motions: a
motion regarding perjury (ECF No. 39); and a motion regarding
obstruction
LaWonne
improper
of
Booker
justice
(ECF
No.
(“Defendant”)
service
and
40).
filed
because
the
On
a
May
motion
to
motion
styled
as
“Plaintiff’s
Defendant
dismiss
above-captioned
against a corporation rather than an individual.
Plaintiff’s
1,
for
case
was
(ECF No. 41).
Reply
to
Deny
Defendants’ Motion as per Rule 12(b)(5) and Defendants’ Abscond;
Plaintiffs Request for Default Judgment” will be construed as
Plaintiff’s
dismiss.
II.
response
in
opposition
to
Defendant’s
motion
to
(ECF No. 44).
Analysis
Plaintiff’s pending motions regarding perjury (ECF No. 39)
and
obstruction
of
justice
Fed.R.Civ.P. 7(b)(1).
proper
motion,
which
(ECF
No.
40)
do
not
conform
to
Rule 7 describes the requirements for a
are
that
the
motion
“state
with
particularity the grounds for seeking the order” and “state the
1
In addition, the business entity located at the address
erroneously
provided
by
Plaintiff
filed
correspondence
“requesting that this court strike every document . . . being
served [at] this address.” (ECF No. 37).
3
relief sought.”
Fed.R.Civ.P. 7(b)(1)(B) and (C).
The court
previously denied motions filed by Plaintiff on these grounds.
(ECF No. 33, at 2).
In the two pending motions, Plaintiff
largely repeats allegations and requests for relief found in the
second amended complaint.2
Accordingly, Plaintiff’s duplicative
filings styled as “Motion Perjury” and “Motion Obstruction of
Justice” will be denied.
Defendant
moves
to
dismiss
Plaintiff’s
second
amended
complaint on several grounds: the instant action is one against
a corporation rather than an individual; an incorrect spelling
of
Defendant’s
name
appeared
on
documentation; and improper service.
Plaintiff’s
second
amended
complaint
fraud against Defendant, an individual.
7).
service
of
(ECF No. 41).
includes
process
First,
allegations
of
(ECF No. 5, at 3-4, 6-
Defendant argues that Plaintiff “has never provided any
2
Plaintiff also raises the matter of Defendant’s mailing
address and asserts that “Defendant committed perjury [by]
providing the Court with direct evidence to the nefarious,
fraudulent concern of Defendant. P.O. Box 6321, Largo, MD 20792
is a false, false, false address.” (ECF No. 39, at 2). Factual
disputes are common in litigation, and it is not the province of
the court to make such credibility determinations.
Plaintiff
has not substantiated any contention that Defendant willfully
provided a false address, but, even if she had, it is beyond the
court’s purview in this civil matter to provide relief under
criminal statutes.
See United States v. Batchelder, 442 U.S.
114, 124 (1979) (“Whether to prosecute and what charge to file
or bring before a grand jury are decisions that generally rest
in the prosecutor’s discretion.”).
The same reasoning applies
to Plaintiff’s assertion that Defendant “obstructed justice by,
through, and with comingled companies.” (ECF No. 40, at 2).
4
factual
evidence
corporation.”
is
not
[Defendant]
(ECF No. 41).
required
supporting
that
her
to
supply
claims.
has
engage[d]
in
being
a
At this stage, however, Plaintiff
the
court
Furthermore,
with
courts
factual
evidence
generally
should
hold pro se pleadings “to less stringent standards than formal
pleadings drafted by lawyers.”
Haines v. Kerner, 404 U.S. 519,
520 (1972).
In
addition,
spelling
Federal
and
Rules
Defendant
improper
of
moves
service.
Civil
to
Under
Procedure,
a
dismiss
Rule
for
12(b)(5)
defendant
dismiss for insufficient service of process.
incorrect
may
of
the
move
to
If service is
contested, the plaintiff “bears the burden of establishing its
validity” pursuant to Rule 4.
O’Meara v. Waters, 464 F.Supp.2d
474, 476 (D.Md. 2006); Fed.R.Civ.P. 4.
Even so, insufficient
service of process does not always necessitate dismissal.
See,
e.g., Pugh v. E.E.O.C., DKC–13–02862, 2014 WL 2964415, at *3
(D.Md. June 30, 2014).
“Generally, when service of process
gives the defendant actual notice of the pending action, the
courts
may
construe
Rule
4
liberally
to
effect
process and uphold the jurisdiction of the court.”
service
of
Id. (citing
Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963)).
When
actual notice is provided, “failure to strictly comply with Rule
4 may not invalidate the service of process; however, plain
requirements for the means of effecting service of process may
5
not be ignored.”
Id. (citing Armco, Inc. v. Penrod–Stauffer
Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)).
Rule
12(b) provides that, before submitting a responsive pleading, a
defendant may move to dismiss a complaint for “(4) insufficient
process”
or
“(5)
insufficient
service
of
process.”
“An
objection under Rule 12(b)(4) concerns the form of the process
rather than the manner or method of its service,” and a “Rule
12(b)(5) motion is the proper vehicle for challenging the mode
of
delivery
or
complaint.”
the
lack
of
delivery
of
the
summons
and
Wright & Miller, 5B Federal Practice and Procedure
§ 1353 (3d ed.) (footnote omitted).
To the extent that Defendant moves to dismiss under Rule
12(b)(4) due to a spelling error, Defendant’s motion will be
denied.
Here,
subsequent
Elenora
the
filings
Ager
second
amended
correctly
Booker.
complaint
identify
Although
the
and
Defendant
initial
Plaintiff’s
as
LaWonne
case
caption
contained a misspelling, the docket now reflects the full and
correct names for Plaintiff and Defendant.
Defendant has had
notice of the claims against her, and errors on the docket have
been corrected as confusion concerning identities of the parties
dissipated.3
Similarly, to the extent that Defendant moves to
3
On April 25, 2014, the clerk was directed to amend the
docket to reflect LaWonne Elenora Ager Booker as the lead
defendant.
At the same time, the court corrected the initial
6
dismiss under Rule 12(b)(5) for insufficient service of process,
Defendant’s motion will be denied.
As noted above, the court
re-issued a summons for Defendant LaWonne Booker on January 13,
2015.
(ECF No. 38).
The summons reflected the address provided
by Defendant when Defendant first moved to dismiss: “Please note
the correct address for LaWonne Ager is PO Box 6321 Largo MD
20792.”
(ECF No. 11).4
In the pending motion to dismiss,
Defendant asserts: “Once again the address is PO Box 6321 LARGO
MD 20721.”
(ECF No. 41).
Defendant cannot continue to adjust
her mailing address and escape service of process.
the
court
denies
Defendant’s
motion
to
dismiss
Accordingly,
for
improper
service.
III. Conclusion
Based on the foregoing, it is this 21st day of December,
2015, by the United States District Court for the District of
Maryland, ORDERED that:
mistake and dismissed
(ECF No. 6).
the
complaint
4
as
against
Ager
Booker.
Using the “Look Up a ZIP Code” feature on the United
States Postal Service website, the correct ZIP code for PO Box
6321 in Largo, Maryland, appears to be 20792-6321.
Look Up a
ZIP
Code,
USPS,
https://tools.usps.com/go/ZipLookup
ResultsAction!input.action?resultMode=1&companyName=&address1=PO
+Box+6321&address2=&city=Largo&state=MD&urbanCode=&postalCode=&z
ip= (last visited Dec. 21, 2015).
7
1.
Plaintiff Nita B. Archie’s motions regarding perjury
(ECF No. 39) and obstruction of justice (ECF No. 40) BE, and the
same hereby ARE, DENIED;
2.
Defendant
LaWonne
Elenora
Ager
Booker’s
motion
to
dismiss (ECF No. 41) BE, and the same hereby IS, DENIED;
3.
Defendant
IS
GRANTED
twenty-one
(21)
days
from
the
date of this order to file a response or answer to Plaintiff’s
second amended complaint; and
4.
The
clerk
will
transmit
copies
of
this
memorandum
opinion and order directly to the parties.
/s/
DEBORAH K. CHASANOW
United States District Judge
8
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?