Carton v. Wells Fargo Bank New Mexico N A

Filing 21

MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo adopting 20 REPORT AND RECOMMENDATIONS. (kg)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ALYSSA CARTON,
Plaintiff,
v.

CIV 17-0037 KG/SCY

CARROLL VENTURES, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Courtyard NM, LLC’s Response/Objections
to Proposed Findings of Fact and Recommended Disposition, Doc. 22, filed July 24, 2017 in
Carton v. Courtyard NM, LLC, 17cv39 SCY/LF (“Objections”). For the reasons stated below,
the Court will ADOPT the recommendations in the Proposed Findings of Fact and
Recommended Disposition and SUSTAIN the Objections in part.
Background
Attorney Sharon Pomeranz filed 99 cases on behalf of Plaintiff Alyssa Carton, who
suffers from spina bifida and requires the use of a wheelchair. See Proposed Findings of Fact
and Recommended Disposition at 1, Doc. 39, filed July 10, 2017 (“PFRD”). The Complaints,
which are identical except for the names of the Defendants, the addresses of Defendants’ PPAs,
and the specific alleged ADA violations at each PPA, allege that each Defendant owns and/or
operates a place of public accommodation (“PPA”) which violates the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and related regulations. See PFRD at 2.

Plaintiff is proceeding in forma pauperis (“IFP”) in all but two of the cases.1 The statute
governing proceedings in forma pauperis states: “Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous or malicious.” 28 U.S.C. § 1915(e)(2). The Court
entered an Order of Reference designating United States Chief Magistrate Judge Karen B.
Molzen to conduct a hearing and to submit an analysis, including findings of fact and
recommended disposition. See Doc. 20, filed April 14, 2017. Judge Molzen held a hearing on
May 1, 2017, to determine whether Plaintiff’s cases are frivolous or malicious, but despite the
Court’s Order setting the hearing, Plaintiff did not attend. See Doc. 7, filed April 17, 2017.
Plaintiff’s Attorney, Ms. Pomeranz, attended the May 1, 2017, hearing and answered questions
from the Court and from defense counsel. Judge Molzen held a second hearing on May 11,
2017, at which both Ms. Carton and Ms. Pomeranz answered questions from the Court and from
some of the defense counsel.
Chief United States Magistrate Judge Molzen’s PFRD
After providing a brief background, Judge Molzen set forth the legal standard regarding
dismissal of a case as frivolous or malicious:
“A complaint is frivolous if ‘it lacks an arguable basis either in law or in fact.’”
Fogle v. Infante, 595 Fed.Appx. 807, 809 (10th Cir. 2014) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)).
Dismissal as malicious is appropriate if the court determines that
the action was filed in “an attempt to vex, injure or harass the
defendant.” Deutsch v. United States, 67 F.3d 1080, 1086 (3d
Cir.1995); see Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir.
2003) (although “ ‘malicious' ... is sometimes treated as a synonym
for ‘frivolous,’ ... [it] is more usefully construed as intended to
harass”). To make this determination, the court “must ... engage in
1

The Court denied Plaintiff’s IFP motions in Carton v. Carroll Ventures, Inc,. 01cv37 KG/SCY,
and in Carton v. Aryavart, Inc., 17cv210 SCY/WPL (now closed).
2

a subjective inquiry into the litigant's motivations at the time of the
filing of the lawsuit.” Deutsch, 67 F.3d at 1086. An action may be
adjudged malicious if it “is plainly abusive of the judicial process.”
Abdul–Akbar v. Dep't of Corr., 910 F.Supp. 986, 999 (D. Del.
1995), aff'd, 111 F.3d 125 (3d Cir. 1997) (unpublished). And
“repetitious litigation of virtually identical causes of action”
supports a finding of malice. McWilliams v. Colorado, 121 F.3d
573, 574 (10th Cir. 1997) (internal quotation marks omitted).
Rosiere v. United States, 673 F.App’x 834 (10th Cir. 2016). See also Black’s Law
Dictionary 1101 (10th ed. 2014) (“Malicious” means “substantially certain to
cause injury” or “without just cause or excuse”); Hernandez v. Earney, 558
F.Supp. 1256 (W.D.Tex. 1983) (complaint that demonstrated that purpose of
action was extortion was “malicious”); Green v. Jenkins, 80 F.R.D. 686
(W.D.Mo. 1978) (actions initiated in bad faith for purposes of harassment were
malicious); Spencer v. Rhodes, 656 F.Supp. 458 (E.D.N.C. 1987) (in determining
whether pro se complaint should be dismissed as malicious, judge may consider
not only printed words, but circumstances of history that surrounds filing, tone of
allegations, and whether probative facts vital to life of lawsuit have been alleged).
PFRD at 3.

After a lengthy and detailed discussion2 of Ms. Carton’s testimony and Ms.

Pomeranz’s statements, see PFRD at 4-27, Judge Molzen made the following recommendations:
The Court therefore proposes that the remaining pending actions, listed
below, be dismissed as malicious pursuant to 28 U.S.C. § 1915(e)(2). The Court
also recommends that the cases be dismissed with prejudice as both Ms. Carton
and Attorney Pomeranz have requested. See Transcript –2nd Hrg at 94:12–95:05.
With the dismissal of the cases, the full amount of remaining court filing fees for
these cases will be due for payment to the Clerk of Court.
Finally, some Defendants have requested that dismissal be conditioned on
the payment of attorney fees and costs in defending these actions and potentially
sanctions. Some other Defendants indicated that they have filed, or intend to file,
a counterclaim for malicious abuse of process. Those issues were not referred to
me by Chief Judge Armijo and are therefore not addressed herein.
Nonetheless, I recommend that the Court retain jurisdiction for addressing
such requests and impose a deadline for Defendants to file those motions. Any
such motions should identify the person(s) or entity against which fees and costs
are sought, the amount sought, an affidavit in support of the request, and a
memorandum brief with case law in support of the request. If Chief Judge Armijo
agrees with this recommendation, the Court proposes that such motions and
memoranda be filed in the individual case in which the defendant has been sued
2

The Discussion is not summarized here because there were no objections to Judge Molzen’s
Discussion.
3

and that a notice of such filing be directed to my chambers staff at
[e-mail].
PFRD at 27-28.
Objections to the PFRD
Courtyard NM, LLC, (“Courtyard”) was the only defendant to file a response/objections
to the PFRD. See Doc. 22 in Carton v. Courtyard NM, LLC, 17cv39 SCY/LF (“Objections”).
“Courtyard requests that the Order dismissing the cases not rely upon the request of Ms.
Carton (or her attorney) to dismiss the cases.”

Objections at 1.

Courtyard asserts that

agreements Ms. Carton and Ms. Pomeranz entered into with Litigation Management and
Financial Services, Inc. (“LMFS”) “call into question the apparent authority of Ms. Carton and
her attorney to request dismissal of the cases” and that “a dismissal relying upon Ms. Carton’s or
her attorney’s requests may subject the defendants to further litigation.”

Objections at 2.

Courtyard contends that “[i]f instead the Court simply dismisses the cases based upon a finding
that they are malicious or frivolous, the authority of Ms. Carton and her attorney to request
dismissal need not be relevant or relied upon.” Objections at 2. Courtyard also requests that the
Court retain jurisdiction of the cases for a short period to allow Defendants to file amended
counterclaims and/or third-party claims related to recovery of their expenses.
The Court will dismiss with prejudice Ms. Carton’s claims against all Defendants in all of
the remaining pending cases listed below as malicious pursuant to the statute governing
proceedings in forma pauperis, 28 U.S.C. 1915(e)(2).3 Plaintiff and her attorney do not dispute

3

Dismissal of Ms. Carton’s claims includes her claims in Carton v. Carroll Ventures, Inc,.
01cv37 KG/SCY, where the Court denied her motion to proceed in forma pauperis. See Mallard
v. United States Dist. Court, 490 U.S. 296, 307-08 (1989) (“Statutory provisions may simply
codify existing rights or powers. Section 1915(d), for example, authorizes courts to dismiss a
‘frivolous or malicious’ action, but there is little doubt they would have power to do so even in
4

Judge Molzen’s findings that “these cases were filed in bad faith primarily for the purpose of
coercing settlements,” “some of the allegations [in the Complaints] going to Ms. Carton’s status
as a ‘customer’ or ‘tester’ were untrue,” “the Court was misled into believing that Plaintiff
Carton lacked the resources to pay the required filing fees,” it “appears that Attorney Pomeranz
made little effort to ensure that the factual contentions in the Complaints had evidentiary
support,” “Attorney Pomeranz also made little effort, if any, to assure that Ms. Carton agreed
with the written allegations filed with the Court,” and “Attorney Pomeranz and LMFS prepared
and filed the IFP applications on Ms. Carton’s behalf knowing, but failing to disclose to the
Court, that Ms. Carton indeed had the ability to pay the filing fees through her agreement with
LMFS.” PFRD at 12, 13, 14, 25, 26,
Defendants shall have three weeks from entry of this Order to file counterclaims,
amended counterclaims and motions for attorney fees and costs. Any motions for attorney fees
and costs in defending these actions and sanctions shall identify the person(s) or entity against
which fees and costs are sought, the amount sought, an affidavit in support of the request, and a
memorandum brief with case law in support of the request. Such motions and memoranda shall
be filed in the individual case in which the defendant has been sued and a notice of such filing
shall be directed to Judge Molzen’s chambers staff at [e-mail].
The Court reminds Ms. Carton that the full amount of remaining Court fees are due for
payment to the Clerk of Court. The remaining Court fees due as of October 6, 2017, total

the absence of this statutory provision”). The Court also denied Ms. Carton’s motion to proceed
in forma pauperis in Carton v. Aryavart, Inc., 17cv210 SCY/WPL, which is now closed.

5

$38,300.00.4 Payment of the remaining fees shall be made within three weeks of entry of this
Order.
Courtyard also “requests a finding that LMFS was not a necessary and indispensable
party to any of the cases filed by Ms. Carton, and specifically the Court’s proceedings relating to
Ms. Carton’s in forma pauperis request in the Carton v. Carroll Ventures, Inc. proceedings
arising from the 28 U.S.C. § 1915(e)(2) hearing.”

Objections at 2.

The Court will deny

Courtyard’s request because Courtyard does not offer any argument or cite any legal authority to
support its request. See D.N.M.LR-Civ. 7.1(a) (a motion must state with particularity the
grounds for the relief sought).
IT IS ORDERED that:
(i) Plaintiff’s claims against Defendants in the cases listed below are DISMISSED with
prejudice;
(ii) Defendants, if they choose to file counterclaims, amended counterclaims and motions
for attorney fees and costs, shall have three weeks from entry of this Order to file those
documents;
(iii) Payment of the remaining filing fees shall be made within three weeks of entry of
this Order.
(iv) the Clerk of the Court file this Order in each of the following cases:
1:17-cv-00037-KG-SCY

Carton v. Carroll Ventures Inc.

1:17-cv-00038-KBM-JHR

Carton v. Cole MT Albuquerque (San Mateo) NM LLC

1:17-cv-00039-SCY-LF

Carton v. Courtyard NM LLC

1:17-cv-00040-KK-SCY

Carton v. HDY LLC

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The fee for instituting any civil action, suit or proceeding in this Court is $400.00, which is
comprised of the $350.00 filing fee, see 28 U.S.C. 1914(a), and a $50.00 administrative fee. Ms.
Carton has filed 99 cases resulting in a total of $39,600.00 in Court fees. The Court has received
payments totaling $1,300.00.
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1:17-cv-00041-SCY-JHR

Carton v. Roshni

1:17-cv-00043-SCY-KBM

Carton v. Laxmi Management LLC

1:17-cv-00044-LF-KK

Carton v. LBC Company, LLC

1:17-cv-00046-SCY-KBM

Carton v. San Mateo/Indian School, Inc.

1:17-cv-00047-KK-JHR

Carton v. Spilca Nicolae & Mariana

1:17-cv-00048-JHR-SCY

Carton v. Spirit Master Funding, LLC

1:17-cv-00058-SCY-KK

Carton v. Autozone Stores LLC

1:17-cv-00063-JHR-SCY

Carton v. Cole AB Albuquerque NM, LLC

1:17-cv-00073-JHR-SCY

Carton v. Market Center East Retail Property, Inc.

1:17-cv-00075-JHR-CG

Carton v. Miller Family Real Estate, LLC

1:17-cv-00077-KK-WPL

Carton v. Pacific Realty, CO

1:17-cv-00078-KK-LF

Carton v. Q Market Center, LLC

1:17-cv-00080-LF-KK

Carton v. Realty Income, Corporation

1:17-cv-00082-KK-KBM

Carton v. Brunetto et al

1:17-cv-00083-LF-JHR

Carton v. Southwest Capital Projects, LLC

1:17-cv-00084-SCY-KBM

Carton v. Westland Properties, LLC

1:17-cv-00085-GJF-KBM

Carton v. Zia Trust, Inc.

1:17-cv-00153-JHR-KK

Carton v. B+H Investments, LLC

1:17-cv-00154-GBW-KK

Carton v. Fair Plaza, Inc

1:17-cv-00156-SCY-LF

Carton v. Hayman Nurseries, LLC

1:17-cv-00159-SMV-LF

Carton v. Kawips New Mexico, LLC

1:17-cv-00160-GJF-LF

Carton v. LNU, et al

1:17-cv-00161-LF-KBM

Carton v. M & E New Mexico Property, LLC

1:17-cv-00162-JHR-LF

Carton v. Monarch Land, LLC

1:17-cv-00163-KK-WPL

Carton v. Montgomery-Juan Tabo Properties, LLC

1:17-cv-00164-SCY-JHR

Carton v. New Mexico Bank & Trust

1:17-cv-00165-JHR-LF

Carton v. Pacific Bistro Partnership

1:17-cv-00166-KBM-KK

Carton v. Pizza Hut of America LLC

1:17-cv-00167-SCY-LF

Carton v. Jaramillo, et al

1:17-cv-00170-KBM-KK

Carton v. Starlight Investments, LLC

1:17-cv-00173-RB-SCY

Carton v. Three J's, Limited Partnership
7

1:17-cv-00174-KK-KBM

Carton v. Tulsi Group, LLC

1:17-cv-00211-JHR-GJF

Carton v. Autozone Stores, LLC

1:17-cv-00215-KK-KBM

Carton v. Circle K Stores, Inc.

1:17-cv-00218-KBM-LF

Carton v. Circle K Stores, Inc.

1:17-cv-00223-SCY-KK

Carton v. M & S Properties, LLC

1:17-cv-00224-KK-LF

Carton v. Medlock-New Mexico Properties, LLC

1:17-cv-00225-KBM-KK

Carton v. Ling, et al.

1:17-cv-00227-KBM-JHR

Carton v. Tachung Investment Company

1:17-cv-00228-LF-KK

Carton v. Up Your Alley, LLC

1:17-cv-00229-KK-KBM

Carton v. Wells Fargo Bank New Mexico N A

1:17-cv-00293-SCY-JHR

Carton v. 9613, LLC

1:17-cv-00294-SCY-LF

Carton v. Albertson's LLC

1:17-cv-00295-LF-KBM

Carton v. Amerco Real Estate Company

1:17-cv-00297-SCY-KK

Carton v. Conquistadores, Inc.

1:17-cv-00298-SCY-KK

Carton v. D.W. Investments, Inc.

1:17-cv-00299-LF-SCY

Carton v. LNU et al

1:17-cv-00300-KK-JHR

Carton v. Zhao et al

1:17-cv-00301-KK-JHR

Carton v. Eubank 3801, LLC

1:17-cv-00302-KBM-KK

Carton v. Family Medicine, P.C.

1:17-cv-00303-LF-KBM

Carton v. Fu Yuang, LLC

1:17-cv-00304-LF-CG

Carton v. LNU, et al.

1:17-cv-00305-KK-SCY

Carton v. LNU

1:17-cv-00306-KK-KBM

Carton v. LNU

1:17-cv-00308-KK-KBM

Carton v. Masada Limited Company

1:17-cv-00309-GJF-LF

Carton v. Palo Alto, Inc.

1:17-cv-00310-LF-KBM

Carton v. Quality Jeep Limited Partnership

1:17-cv-00311-SMV-KK

Carton v. Scottsdale Village, LLC

1:17-cv-00313-LF-WPL

Carton v. Starbucks Coffee Company

1:17-cv-00314-CG-SCY

Carton v. Trimari Holdings, LLC

1:17-cv-00315-KK-KBM

Carton v. U.S. Bank National Association.

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_________________________________________
THE HONORABLE M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE

9