Wake County Human Services v. Davis

Filing 36

ORDER REMANDING this action to the Wake County District Court and denying as moot 28 Motion; denying as moot 29 Motion Pursuant to Rule 29; denying as moot 32 Motion for Recusal; denying as moot 5 Motion to Strike; denying as moot 6 Mo tion for Extension of Time; denying as moot 8 Motion to Change Venue; denying as moot 10 Motion for Extension of Time to File Response regarding 20 MEMORANDUM AND RECOMMENDATIONS regarding 18 MOTION for Leave to Proceed in forma pauperi s filed by William Scott Davis, Jr.; denying as moot 11 Motion for pretrial conference; denying as moot 13 Motion for Extension of Time; denying as moot 14 Motion to Appoint Counsel; denying as moot 15 Motion for Leave to File; denying as moot 16 Motion for Summary Judgment; adopting Report and Recommendations regarding 20 Memorandum and Recommendations; denying as moot 22 Motion to Change Venue; denying as moot 22 Motion to Amend; denying as moot 23 Motion to Change Venue. Signed by Senior Judge James C. Fox on 3/3/2014. Copy sent to the defendant via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-3-F
WAKE COUNTY HUMAN SERVICES,
Plaintiff,
v.

WILLIAM SCOTT DAVIS, JR.,
Defendant.

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ORDER

This matter is before the court on the Memorandum and Recommendation [DE-20] ("M&R")
issued by United States Magistrate Judge James E. Gates. Therein, Judge Gates recommends that
this action be remanded to the Wake County District Court pursuant to 28 U.S.C. § 1447(c), and that
pending motions in this action be dismissed as moot. For the reasons stated below, the court accepts
the recommendation set forth in the M&R, and ORDERS that this case be remanded to the Wake
County District Court, and that all pending motions are denied as moot.
I. BACKGROUND
This action was opened in this court on July 5, 2012, when Defendant filed a Notice of
Removal [DE-l] of a child support action (Case No. 08CV10411018) filed against him by Wake
County Human Services ("WCHS") in January 2008 in the North Carolina General Court of Justice,
District Court Division, Wake County (hereinafter, "Wake County District Court"). As detailed in
the M&R, Defendant has filed numerous motions in this action, and WCHS has filed one. See M&R
[DE-20] p. 1 n.2.
In the Order andM&R [DE-20] filed on January 13,2014, Judge Gates allowed Defendant's
Motion for Leave to Proceed in forma pauperis [DE-18], but recommended, after conducting a

frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), that this action be remanded to state court.
Judge Gates recounted Davis' history of frivolous and vexatious filings in this court, the District
Court for the Eastern District ofVirginia, and the courts of the State ofNorth Carolina, and opined
that the current action could be subject to dismissal as malicious. M&R [DE-20] pp. 2-5, 7. Judge
Gates did not reach the issue, however, instead recommending that this action be remanded because
the court lacks subject matter jurisdiction over this case. Id. p. 7.
Specifically, Judge Gates observed that "[a] requirement for removal of a case from state
court is that the federal district court have original jurisdiction over the case," and that "[a] case that
is improperly removed is subject to remand to the state court from which it came." Id. p. 7 (citing
28 U.S.C. § 1441(a) and§ 1447(c)). Judge Gates then found that the application of the domestic
relations abstention doctrine, see Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir. 1980), precludes this
court from having subject matter jurisdiction over this action-an action concerning child support.
M&R [DE-13] pp. 7-8.
The filing of the M&R set off a flurry of activity by Defendant, consistent with his history
of vexatious filing in this court and others. The various motions and documents filed by Defendant
include: (1) motion to change venue and motion to amend removal notice [DE-22]; (2) motion for
change of venue [DE-23]; (3) three notices of appeal to the undersigned [DE-24, DE-26; DE-27];
(4) a motion for relief pursuant to Rule 58 [DE-28]; (5) a motion for relief pursuant to Rule 59 [DE29]; (6) an objection to the M&R [DE-30]; (7) a motion for recusal as to Judge Gates [DE-32], and
(8) another objection to the M&R [DE-33]. Defendant also has filed notices of appeal directed to
the Fourth Circuit Court of Appeals [DE-31; 34; 35].

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II. JURISDICTION TO CONSIDER M&R AND PENDING MOTIONS

Before reaching the M&R and the various pending motions, the court first addresses the
impact, if any, ofDefendant's filing ofnotices of appeal directed to the Fourth Circuit. Generally,
the filing of a notice of appeal "confers jurisdiction on the courts of appeals and divests the district
court of control over those aspects of the case involved in the appeal." Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56,58 (1982) (citation omitted). There are exceptions to this general

rule, however, and it is well-settled that a "district court does not lose jurisdiction when the litigant
takes an appeal from an unappealable order." United States v. Jones, 367 F. App'x. 482, 484 (4th
Cir. 2010) (citing Griggs, 459 U.S. at 58); see also United States v. Rodgers, 101 F.3d 247,251-52
(2d Cir. 1996); Ruby v. Secretary of United States Navy, 365 F.2d 385,389 (9th Cir. 1966); Woods
v. Attorney General of Maryland, Civil Action No. WDQ-12-1260, 2012 WL 6042834, at *2 (D.

Md. Dec. 3, 2012) (ruling on the petitioner's habeas corpus petition even though petitioner had
appealed court's earlier denial of motion to recuse because an "order denying recusal is not an
appealable interlocutory or collateral order").
Here, Defendant's notices of appeal directed to the Fourth Circuit [DE-31; DE-34] indicate
that is appealing the M&R [DE-20] and a decision of this court "entered in this action on the 27th
day of January, 2014." See Notice of Appeal [DE-34]. He also asserts he is appealing "all Orders,
Memorandums [sic] and Opinions. In re 5:14-CV-0003-F." See Notice of Appeal [DE-35].
There is no order in the record of this action which was entered on January 27, 2014;
therefore, the notice of appeal at Docket Entry 34is a nullity. The M&R, the subject ofthe notice
at Docket Entry 31, is of course not a "final decision." See 28 U.S.C. § 1291. Nor is any other order
preceding the instant one. Nor do any of these orders constitute an "appealable interlocutory or

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collateral order." See United States v. Parker, 428 F. App'x 260 (4th Cir. 2011) (per curiam)
(explaining that an appeal from a district court order denying a motion to recuse or disqualify was
not an "appealable" order); see also 28 U.S.C. § 1292. Accordingly, because Defendant has taken
an appeal from either non-existent or unappealable orders, this court is not divested of jurisdiction
over this action. Jones, 267 F. App'x at 484.

III. DISCUSSION
A district court may "designate a magistrate judge to submit ... proposed findings of fact and
recommendations for the disposition of a variety of motions." 28 U.S.C. § 636(b)(1)(B). The court
then must "make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Upon review
of the record, "the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." Id
The court has reviewed the M&R and the record in this case, including (but not limited to)
each of the documents filed by Defendant in response to the M&R. There is no federal question
presented in this action; therefore, the only proper basis for jurisdiction in this court would be
diversity jurisdiction. Even if the court assumes that the amount in controversy requirement is
satisfied, the court nevertheless agrees with Judge Gates that the application ofthe domestic relations
exception is appropriate. The action Defendant seeks to remove concerns whether Defendant should
be ordered to pay child support, a matter over which this court does not have authority to rule. See

Cole v. Cole, 633 F.2d 1083, 1088 (4th Cir. 1980) (explaining that the types of actions that "fall
directly into the specialized category of true domestic relations cases" include "divorce, alimony,
child custody and support"). Nothing in the voluminous filings by Defendant changes this analysis.

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Indeed, only two ofDefendant's filings, the motions filed pursuant to Rules 58 and 59 [DE-28; DE29] address the domestic relations exception. The main case he relies on therein, Lloyd v. Loeffler,
694 F.2d 489 (7th Cir. 1982), is easily distinguishable from the record here. In Lloyd, the Seventh
Circuit Court of Appeals determined that the domestic relations exception did not apply to an action
for tortious interference with custody of a child. Jd at 490. Here, however, Defendant seeks to
remove a case which, at bottom, concerns a determination of child support. Consequently, the court
finds that it does not have subject matter jurisdiction over this action.
Accordingly, after a de novo review, the court finds that this court has no original jurisdiction
over this action as required by the removal statute, 28 U.S.C. § 1441(a). Remand of this action is
therefore appropriate pursuant to 28 U.S.C. § 1447(c).

IV. CONCLUSION
For the foregoing reasons, the court accepts the M&R [DE-20]. Because this court does not
have original jurisdiction over this action, the court ORDERS that the action be remanded to the
Wake County District Court. All other pending motions are DENIED as moot.
SO ORDERED
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This the___!___:__ day of March, 2014.

~MESC.FOX
Senior United States District Judge

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