Wake County Human Services v. Davis
Filing
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ORDER REMANDING this matter to the Wake County District Court and denying as moot 24 Motion Pursuant to Rule 58; denying as moot 25 Motion Pursuant to Rule 59; denying as moot 27 Motion for Recusal; denying as moot 5 Motion for Extension of Time; denying as moot 6 Motion to Change Venue; denying as moot 8 Motion for Extension of Time; denying as moot 9 Motion to Appoint Counsel; denying as moot 10 Motion for Leave to File; adopting Report and Recommendations regarding 13 Memorandum and Recommendations; denying as moot 16 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-4-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 [D E-13] ("M&R")
issued by United States Magistrate Judge James E. Gates. Therein, Judge Gates recommends that
this action be remanded to theWake County District Court pursuant to 28 U .S.C. § 144 7(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 when Defendant filed a Notice of Removal [DE-l] of
a juvenile action (Case No. 07 JT705) filed against him by Wake County Human Services ("WCHS")
on May 26, 2009 in the North Carolina General Court of Justice, District Court Division, Wake
County (hereinafter, the "Wake County District Court"). 1 Consistent with the practice in this district,
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Although Defendant did not include with the Notice of Removal copies of any complaint,
petition, or other filings from the state court action, the court takes judicial notice that Case No. 07JT705
was an action brought by the Wake County Human Services alleging that J.F.D., the biological daughter
of Defendant, was neglected. During the course of those proceedings, Defendant's parental rights were
terminated. See In re J.D., No. COAl0-422, 207 N.C. App. 377, 699 S.E.2d 686, 2010 WL 3860605
(N.C. Ct. App. Oct. 5, 2010); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.
1989) (explaining that a federal court may take judicial notice of proceedings other courts, especially if
the case was designated as a miscellaneous case because Defendant neither filed a filing fee nor filed
a motion for leave to proceed in forma pauperis. The miscellaneous case was assigned to Judge
Gates.
A few weeks after Defendant filed the Notice of Removal, he filed a Motion for Leave to
Proceed in forma pauperis [D E-4]. Defendant also filed a series of motions [DE-5; D E-6; DE-7; DE8; DE-9; DE-l 0] over the next several months. Subsequently, the Clerk of Court issued a
Reassignment Order [DE-12], stating that because Defendant had filed a motion to proceed in forma
pauperis, the case was converted to a civil case, and assigned to a district judge. The case was
randomly reassigned to the undersigned, and Judge Gates remained the assigned magistrate judge.
See January 6, 2014, Order [DE-12].
Judge Gates then issued an Order and M&R [DE-13] which was filed on January 13, 2014,
allowing Defendant's Motion for Leave to Proceed in forma pauperis [DE-4], but recommending,
after conducting a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), that the 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 of Virginia, and the courts of the State of
North Carolina, and opined that the current action could be subject to dismissal as malicious. M&R
[DE-13] 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. !d. 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." !d. p. 7 (citing
those proceedings directly relate to the matter pending before the federal court).
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28 U.S.C. § 1441(a) and§ 1447(c)). Judge Gates then found that the application ofthe 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-a state juvenile proceeding. 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. In an order filed on January 27,2014 [DE-21], the court
denied Defendant's various "appeals" but allowed his motion for an extension of time to file an
objection to the M&R, and set February 13, 2014 as the deadline for doing so. Defendant responded
by filing his objection [DE-22]; a memorandum in support of his objection [DE-23]; a motion
pursuant to Rule 58 [DE-24]; a motion pursuant to Rule 59 [DE-25]; another notice of appeal to
undersigned [DE-26]; a motion for recusal as to Judge Gates [DE-27]; another objection [DE-28],
and two more notices of appeal directed to the Fourth Circuit Court of Appeals [DE-30; DE-32].
II. JURISDICTION TO CONSIDER M&R AND PENDING MOTIONS
Before reaching the M&R and Defendant's various pending motions, the court first addresses
the impact, if any, ofDefendant's filing of a notice of appeal [DE-30] 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);
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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 first notice of appeal directed to the Fourth Circuit [DE-30] indicates he
is appealing this court's order filed on January 27, 2014 [DE-21]. Again, that order denied
Defendant's various "appeals" and also allowed his motion for extension of time. With regard to
the appeals, the court found no error in an reassignment order [DE-12] issued by the Clerk of Court
converting the action to a civil case and assigning to the undersigned. The court also found that there
was no basis for the undersigned to recuse. The second notice of appeal [DE-32] states that
Defendant is appealing "all Orders, Memorandums [sic] and Opinions. In re 5:14-cv-0004-F
including the 01/27/2014 Order."
The January 27, 2014, Order [DE-21] is not a "final decision." See 28 U.S.C. § 1291. Nor
is it an "appealable interlocutory or 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. Nor is any other
order preceding the instant one. Accordingly, because Defendant "has taken an appeal from an
unappealable order," 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)(l)(B). The court
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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 Defendants seeks to remove concerns the custody of his
biological daughter, a matter over which this court does not have authority to rule. See Cole v. Cole,
633 F.2d 1083, 1087 (4th Cir. 1980) ("[T]he district courts hve no original diversity jurisdiction to
grant a divorce, to award alimony, to determine child custody, or to decree visitation."). Nothing in
the voluminous filings by Defendant changes this analysis. Indeed, only two of Defendant's filings,
the motions filed pursuant to Rules 58 and 59 [DE-24; DE-25] address the domestic relations
exception. The main case he relies on therein, Lloyd v. Loejjler, 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. Id at 490. Here, however, Defendant seeks to remove a case which, at
bottom, concerns a determination of custody of a child. Accordingly, the court finds that it does not
have subject matter jurisdiction over this action.
Alternatively, the court concludes that in the current posture of the juvenile proceeding-i.e.,
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one that is closed in state court-this court cannot exercise jurisdiction over what is essentially an
appeal from state court. See District of Columbia Court ofAppeals v. Feldman, 460 U.S. 462, 476
(1983) ("Review of [state-court] determinations can be obtained only in [the Supreme Court].").
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-13]. 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
J
This the_}__.:__ day of March, 2014.
J(#MES C. FOX
Senior United States District Judge
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