ROBINSON v. SECTION 23 PROPOERTY OWNER'S ASSOCIATION, INC. et al
Filing
134
OPINION. Signed by Judge Noel L. Hillman on 1/22/2019. (rss, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALBERT ROBINSON,
1:16-cv-09384-NLH-JS
Plaintiff,
OPINION
v.
SECTION 23 PROPERTY OWNER'S
ASSOCIATION, INC., et al.,
Defendants.
APPEARANCES:
ALBERT ROBINSON
P.O. BOX 1961
SUWANEE, GA 30024
Plaintiff appearing pro se
GREGG DOUGLAS WEINSTOCK
VIGORITO, BARKER, PATTERSON, NICHOLS & PORTER LLP
300 GARDEN CITY PLAZA
SUITE 308
GARDEN CITY, NY 11 530
On behalf of Defendants Section 23, Property Owner's
Association, Inc., James Shaefer, John McNamara, Auto
Owners Insurance Co., The Law Firm of Henderson, Franklin,
Starnes & Holt, P.A., Richard Barton Akin, II, Michael Paul
Versnik, and Patricia Schaefer
DAVID JAMES MELVIN
FRESH LEGAL PERSPECTIVE, PL
6930 W. LINEBAUGH AVE
TAMPA, FL 33625
On behalf of Keathel Chauncey, Fresh Legal Perspective,
Ellie Teng, Scott Hundley, Zachary Heathcote, Suzanne
Barnhart, Bruce Emerson, Bonafide Properties, LLC, David
Melvin, and Chelsea Smith-Scott
GARY ROBERT SHENDELL
LINDSAY SAMANTHA KATZ
SHENDELL & POLLOCK P.L.
2700 N. MILITARY TRAIL
SUITE 150
BOCA RATON, FL 33431
On behalf of Defendants Curtright Collins Truitt and The
Law Firm of Curtright C. Truitt PA
STAN WISNIEWSKI
25164 MARION AVENUE
PUNTA GORDA, FL 33950
Defendant appearing pro se
STEVEN JOSEPH BUTCHER
1720 E C478
WEBSTER, FL 33597
Defendant appearing pro se
JAMIE ELAINE MILLER
1720 E C478
WEBSTER, FL 33597
Defendant appearing pro se
DEVIN CRAIG SHULER
18081 BRACKEN CIRCLE
PORT CHARLOTTE, FL 33948
Defendant appearing pro se
DAVID KEITH OAKS
P.O. BOX 473
LYNN, NC 28750-0473
Defendant appearing pro se
HILLMAN, District Judge
On December 18, 2018, this Court dismissed the complaint
filed by Plaintiff, Albert Robinson, appearing pro se, against
twenty-six individual and corporate defendants.
Plaintiff’s
claims related to the possession and ultimate foreclosure of his
mother’s home in Punta Gorda, Florida, where he and his family
resided, and his contention that all the defendants have
2
liability under the Racketeer Influenced Corrupt Organization
Act (RICO), among other claims.
(Docket No. 125.)
The Court determined that personal jurisdiction was lacking
over all the defendants in this Court.
(Id. at 19.)
In
deciding whether to transfer or dismiss Plaintiff’s case, the
Court assessed, pursuant to 28 U.S.C. § 1915(a)(1), whether
Plaintiff’s complaint, as well as his other essentially
identical cases pending before this Court, were frivolous or
malicious.
(Id. at 27.)
The Court also considered whether an
injunction prohibiting Plaintiff from litigating his claims
concerning the alleged money laundering and fraud scheme in this
District without first obtaining permission from this Court was
warranted.
(Id. at 28.)
On the first point, the Court determined to dismiss
Plaintiff’s complaint, rather than transfer his case to another
district.
In making that determination, the Court noted,
“Plaintiff has filed dozens of the same cases against a
repetitive and ever-growing list of defendants, with all those
cases being dismissed, primarily because of the venue Plaintiff
has chosen to bring his claims once he was barred from Florida
state court, which had fully adjudicated Plaintiff’s claims on
the merits.”
(Id.)
The Court dismissed Plaintiff’s claims
against all defendants with prejudice because, in addition to
their harassing nature, no amendment could cure their viability
3
in this Court.
On the second point, the Court provided
Plaintiff with 20 days to show cause as to why a litigation
preclusion order should not be entered against him.
(Id. at
29.)
Plaintiff timely filed a response to the Court’s Order.
(Docket No. 127.)
Plaintiff’s response reasserts his claims
against the defendants and reargues why personal jurisdiction
can be exercised over the defendants.
To the extent that the
Court construes Plaintiff’s submission as a motion for
reconsideration, 1 the Court will decline to reconsider its
1
A motion for reconsideration may be treated as a motion to
alter or amend judgment under Fed. R. Civ. P. 59(e), or as a
motion for relief from judgment or order under Fed. R. Civ. P.
60(b), or it may be filed pursuant to Local Civil Rule 7.1(i):
The purpose of a motion for reconsideration “is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Max's Seafood Cafe ex rel. Lou–Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A judgment may be
altered or amended only if the party seeking reconsideration
shows: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need
to correct a clear error of law or fact or to prevent manifest
injustice. Id. A motion for reconsideration may not be used to
re-litigate old matters or argue new matters that could have
been raised before the original decision was reached, P.
Schoenfeld Asset Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d
349, 352 (D.N.J. 2001), and mere disagreement with the Court
will not suffice to show that the Court overlooked relevant
facts or controlling law, United States v. Compaction Sys.
Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999), and should be
dealt with through the normal appellate process, S.C. ex rel.
C.C. v. Deptford Twp Bd. of Educ., 248 F. Supp. 2d 368, 381
(D.N.J. 2003); U.S. v. Tuerk, 317 F. App’x 251, 253 (3d Cir.
4
decision. 2
With regard to the Court’s intention to issue a
2009) (quoting Mayberry v. Maroney, 529 F.2d 332, 336 (3d Cir.
1976)) (stating that “relief under Rule 60(b) is
‘extraordinary,’ and ‘may only be invoked upon a showing of
exceptional circumstances'”).
2
In addition to his rearguments as to why personal jurisdiction
exists over the defendants, Plaintiff contends that the Court
should not have dismissed his claims for lack of personal
jurisdiction “with prejudice,” because such a determination is
not on the merits of his claims, and therefore his claims should
have been dismissed “without prejudice.” Plaintiff is generally
correct that a court’s assessment of personal jurisdiction does
not necessarily consider the merits of a plaintiff’s claims, but
that observation is only relevant to the doctrine of claim
preclusion, which the Court did not specifically consider, and
it is not relevant to whether the Court’s determination of the
issue of personal jurisdiction is final. See Prospect Funding
Holdings, LCC v. Breen, 2018 WL 734665, at *6 (D.N.J. 2018)
(quoting 18 Wright & Miller, Federal Practice & Procedure § 4432
(3d ed. 2016)) (“A judgment dismissing an action for want of
personal jurisdiction . . . may be clearly final and preclusive
on the jurisdiction issue, but it is not on the merits for
purposes of claim preclusion.”); Eason v. Linden Avionics, Inc.,
706 F. Supp. 311, 317 (D.N.J. 1989) (citing 18 Federal Practice
and Procedure § 4432 at 298) (“Under the doctrine of issue
preclusion, even a ‘non-merits judgment’ is conclusive as to
those matters actually adjudged, and thus “[w]hile a judgment
dismissing an action for lack of personal jurisdiction may not
be on the merits for purposes of claim preclusion, it may be
preclusive on the jurisdiction issue.”). Contrary to
Plaintiff’s argument, this Court is not prohibited from
dismissing claims with prejudice for lack of personal
jurisdiction, particularly when the dismissal of those claims is
also based on their frivolous and malicious nature. See Kennedy
v. Help at Home, LLC, 731 F. App’x 105, 108 (3d Cir. 2018)
(“Kennedy has not argued, either before the District Court or on
appeal, any other basis to support personal jurisdiction.
Because she has not identified an adequate basis for exercising
personal jurisdiction over Help at Home, dismissal with
prejudice was proper.”); Stampone v. Fopma, 2013 WL 5937428, at
*2 (D.N.J. 2013) (“There is no reasonable basis for haling
Defendants to federal court in New Jersey. As there is no
personal jurisdiction, this case is dismissed, with
prejudice.”); Veliz v. Americorp Builders, Inc., 2007 WL
5
litigation preclusion order against him, Plaintiff states that
he objects to the imposition of such an order “for the record”
as a part of his appeal of the Court’s dismissal of his case. 3
(Docket No. 127 at 11.)
In addition to his response to the Court’s Order to Show
Cause, Plaintiff has also filed a document styled, “Emergency
Stay and a request to be represented by the U.S. Attorney's
office pursuant to 25 U.S. CODE § 175 - UNITED STATES ATTORNEYS
TO REPRESENT INDIANS.”
(Docket No. 128.)
That statute
provides, “In all States and Territories where there are
1746248, at *4–5 (D.N.J. 2007) (dismissing the complaint with
prejudice for lack of personal jurisdiction); Magla Products,
L.L.C. v. Chambers, 2006 WL 2846274, at *6 (D.N.J. 2006) (same);
Fleming v. Chiesa, 2012 WL 2523076, at *4 (D.N.J. 2012)
(“Plaintiff's Complaint is frivolous and malicious and will be
dismissed with prejudice in accordance with 28 U.S.C. §
1915(e)(2).”); cf. Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.
1991) (“Under 28 U.S.C. § 1291[,] only final orders are
appealable. A final order is one that ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment. In general, this court has held that orders
dismissing complaints without prejudice are not final within the
meaning of Section 1291 because the plaintiff may cure the
deficiency and refile the complaint. If the plaintiff cannot
cure the defect that led to dismissal or elects to stand on the
dismissed complaint, however, we have held that the order of
dismissal is final and appealable.” (internal citations
omitted)).
3
Plaintiff submitted his response to the Court’s Order to Show
Cause on January 2, 2018. On January 7, 2018, Plaintiff filed a
notice of appeal with the Third Circuit Court of Appeals.
(Docket No. 129.) Despite Plaintiff’s appeal, this Court may
still address the outstanding issue of the litigation preclusion
order. See Fed. R. App. P. 4(a)(4).
6
reservations or allotted Indians the United States attorney
shall represent them in all suits at law and in equity.”
U.S.C. § 175.
25
Plaintiff claims that he is of Cherokee decent,
as his father was part of the Eastern Band of Cherokees that
remained in the state of Virginia.
Based on his Native American
heritage, Plaintiff has filed a request with the U.S. Attorney’s
Office in Tulsa, Oklahoma for representation in this case.
Plaintiff asks that this Court stay any further action in this
matter pending the response from the U.S. Attorney about his
request.
Plaintiff has advanced this position in previous
litigation, and his request has been denied each time.
In a
prior suit brought in this District in 2012 with mostly
unrelated claims, Plaintiff sought counsel under 25 U.S.C. §
175.
On appeal, the Third Circuit noted:
Robinson renews his argument that he should have been
represented below by the United States Attorney's Office
under 25 U.S.C. § 175. That statute, which has not been
amended since 1893, reads: “[i]n all States and Territories
where there are reservations or allotted Indians the United
States attorney shall represent them in all suits at law
and in equity.” We have not had occasion to address this
law in a published opinion. However, the unanimous weight
of authority suggests that the duty of representation
contained therein is discretionary, not mandatory. See
Mescalero Apache Tribe v. Martinez, 519 F.2d 479, 482 (10th
Cir. 1975); Siniscal v. United States, 208 F.2d 406, 410
(9th Cir. 1953). While Robinson claims Cherokee ancestry,
it is undeniable that this suit does not involve interests
particular to American Indians or Tribes in any way. Nor
does the discretionary duty of § 175 override the general
test for appointment of counsel under the in forma pauperis
7
statute, 28 U.S.C. § 1915(e)(1), under which we find no
independent abuse of discretion by the District Court. See
Tabron v. Grace, 6 F.3d 147, 155–57 (3d Cir. 1993)
(articulating factors to be used in deciding to appoint
counsel). Accordingly, appointment of counsel, either in
general or under § 175, was not required.
Robinson v. New Jersey Mercer County Vicinage-Family Div., 514
F. App’x 146, 151 (3d Cir. 2013).
More recently in Robinson v. Section 23 Property Owner’s
Association, Inc., 2017 WL 2779843 (M.D. Fla. June 27, 2017), a
case essentially identical to this one, Plaintiff requested the
appointment of an Assistant United States Attorney to represent
him pursuant to 25 U.S.C. § 175.
The Middle District of Florida
noted that it “has not located any Eleventh Circuit authority
addressing this law at all, let alone in the context of
appointment of counsel for an individual asserting the claims
similar to Plaintiff’s,” and it referred to the Third Circuit’s
discussion of the issue.
The Middle District of Florida
concluded that it was “not of the view that this lawsuit
involves interests particular to American Indians or Tribes,
and, therefore, declines to exercise its discretion in
appointing the United States Attorney to represent him.”
Robinson, 2017 WL 2779843, at *6.
This Court similarly finds that a stay of this matter is
not warranted while Plaintiff’s request for representation under
25 U.S.C. § 175 is being considered by the U.S. Attorney.
8
The Court therefore finds that there is no cause to delay
the entry of a litigation preclusion order against Plaintiff for
the reasons fully articulated in the Court’s December 18, 2018
Opinion.
In the interests of repose, finality of judgments,
protection of defendants from unwarranted harassment, and
concern for maintaining order in the court's dockets, as of
today, Plaintiff will be enjoined in this District from
litigating his claims concerning the money laundering and fraud
scheme alleged and as set forth in the Complaint in this matter
against any defendant he believes is liable for that scheme
without first obtaining permission from this Court.
A separate Order will be entered.
Date: January 22, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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