Williams v. Ertz et al

Filing 8

MEMORANDUM AND ORDER - Plaintiff shall have until June 10, 2013, to clearly state a claim upon which relief may be granted against Defendants in accordance with this Memorandum and Order. If Plaintiff fails to file a second amended complaint, Pla intiff's claims against Defendants will be dismissed without further notice. In the event that Plaintiff files a second amended complaint, Plaintiff shall restate the allegations from her prior Complaints (filing nos. 1 and 7 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for amended complai nt on June 10, 2013. The Clerk of the court is directed to send Plaintiff a copy of the Pro Se Civil Complaint Form. Plaintiff shall keep the court informed of her current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party with Complaint Form)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARCHBISHOP JOCITA C.
WILLIAMS, PHD.D.D.,

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Plaintiff,
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v.
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TIMOTHY R. ERTZ, and FIDELITY )
NATIONAL TITLE GROUP,
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Defendants.
)

8:12CV433

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. For the reasons discussed
below, the court will provide Plaintiff with an opportunity to file a second amended
complaint.
BACKGROUND
On December 19, 2012, Plaintiff filed her original Complaint in this matter.
(Filing No. 1.) Thereafter, the court conducted an initial review of Plaintiff’s claims
and concluded that Plaintiff had failed to allege sufficient facts to state a claim
against the named Defendants. (Filing No. 6.) However, the court gave Plaintiff
until March 18, 2013, to file an amended complaint. (Id.)
On March 22, 2013, Plaintiff filed an Amended Complaint. (Filing No. 7.) In
her Amended Complaint, Plaintiff alleges that Vicki Blaggs (“Blaggs”), an Escrow
Manager at Ticor Title, was formerly employed by Land America Title Insurance
Company (“Land America”). (Id. at CM/ECF p. 4.) During Blaggs’ employment
with Land America, she acted as Plaintiff’s agent during the sale of Plaintiff’s home
located at 1321 Colt Circle, in Castle Rock, Colorado. (Id.) Plaintiff alleges Blaggs
owed Plaintiff various duties and breached those duties by conspiring with Carolyn

Ginsler (“Ginsler”), Vicki Dillard Crow, and Thadus Jackson to commit mortgage
fraud. (Id. at CM/ECF pp. 2-4.) More specifically, Blaggs allowed Plaintiff’s closing
check to be forged, failed to follow industry practices and procedures, and gave
Plaintiff’s money to the buyer’s agent, Ginsler. (Id.; Filing No. 1 at CM/ECF p. 3.)
Plaintiff states that “Land America” is responsible for Blaggs’ actions and asks the
court to award her monetary damages in the amount of “Five Million Dollars.”
(Filing No. 7 at CM/ECF p. 4.)
Although Plaintiff arguably asserts claims against Blaggs and Land America,
she does not name them as defendants in this matter. (Id. at CM/ECF p. 1; Filing No.
1.) Rather, she names Timothy R. Ertz (“Ertz”) and Fidelity National Title Group
(“Fidelity National Title”). (Filing No. 1.) Plaintiff makes no allegations against
Ertz. (Filing Nos. 1 and 7.) However, she does state that the “Five Million Dollars”
she requests is not “Fidelity National Title[’s]” money and that “[t]hey have no right
to refuse [her] claim.” (Filing No. 7 at CM/ECF p. 4.)
DISCUSSION
Liberally construed, Plaintiff may be trying to allege a negligence claim against
Land America. She states that Blaggs was employed by Land America and that Land
America is responsible for Blaggs’ actions. (Id. at CM/ECF pp. 1-4.) However,
Plaintiff did not name Land America as a Defendant in this matter, did not describe
where Land America is located, and did not clearly describe how much money she
lost as a result of Land America’s negligence.
Plaintiff may also be trying to allege a breach of contract claim against Fidelity
National Title for failing to pay an insurance claim. Indeed, her original Complaint
references a claim number “430239.” (Filing No. 1 at CM/ECF p. 1.) However,

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Plaintiff has not described how Fidelity National Title fits in with the rest of her
allegations.1
In short, Plaintiff has not alleged sufficient facts to state a claim upon which
relief may be granted. Out of an abundance of caution, the court will provide Plaintiff
with one more opportunity to file an amended complaint that sufficiently describes
her claims against Defendants. Plaintiff should be mindful to clearly identify who she
is suing by naming them as a defendant in the caption of the complaint. Plaintiff
should also clearly describe where each Defendant resides and why she is suing each
Defendant. Plaintiff should also clearly allege how much of her money Blaggs gave
to Ginsler. Failure to consolidate all claims into one document will result in the
abandonment of claims. If Plaintiff fails to file a second amended complaint in
accordance with this Memorandum and Order, Plaintiff’s claims against Defendants
will be dismissed without prejudice without further notice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until June 10, 2013, to clearly state a claim upon
which relief may be granted against Defendants in accordance with this Memorandum
and Order. If Plaintiff fails to file a second amended complaint, Plaintiff’s claims
against Defendants will be dismissed without further notice.
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As the court previously informed Plaintiff in its February 22, 2013,
Memorandum and Order, to the extent she seeks prosecution of Defendants for
“criminal acts” taken during the sale of her home, such relief is not available because
the “authority to initiate a criminal complaint rests exclusively with state and federal
prosecutors.” See Mercer v. Lexington Fayette Urban Cnty. Gov’t., No. 94-6645,
1995 WL 222178, at *1 (6th Cir. Apr. 13, 1995) (unpublished order); see also
Parkhurst v. Tabor, 569 F.3d 861, 867 (8th Cir. 2009) (quoting 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.”)).
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2.
In the event that Plaintiff files a second amended complaint, Plaintiff
shall restate the allegations from her prior Complaints (filing nos. 1 and 7) and any
new allegations. Failure to consolidate all claims into one document may result in the
abandonment of claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on June
10, 2013.
4.
The Clerk of the court is directed to send Plaintiff a copy of the Pro Se
Civil Complaint Form.
5.
Plaintiff shall keep the court informed of her current address at all times
while this case is pending. Failure to do so may result in dismissal without further
notice.
DATED this 14th day of May, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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