Lewis v. Kesterson et al

Filing 26

ORDER GRANTING 13 Defendants' Motion to Dismiss for Failure to State a Claim, and DENYING 19 Plaintiff's Motion to Strike. The clerk is directed to enter judgment accordingly and close this case. Signed by US District Judge Terrence W. Boyle on 10/2/2013. Counsel directed to read Order in its entirety for critical information. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:12-CV-352-BO

)
)
)
)
v.
)
DAVID EARL KESTERSON, FIRST
)
BANK, NEXSEN PRUET, PLLC, M. JAY )
DEVANEY, and BRIAN PEARCE,
)
Defendants.
)

DAVID DUANE LEWIS,
Plaintiff,

ORDER

This cause comes before the Court on defendants' motion to dismiss and plaintiffs motion
to strike defendants' motion to dismiss. The parties have filed their responses' and replies, and
the matters are ripe for ruling. For the reasons discussed below, defendants' motion to dismiss is
granted and plaintiffs motion to strike is denied.
BACKGROUND
Plaintiff filed this action prose seeking preliminary and permanent injunctive relief as
well as damages. Though the complaint is at times unclear and difficult to understand, plaintiffs
claims all appear to arise from foreclosure proceedings in Brunswick County and a related
proceeding in Montgomery County in which a deficiency judgment against plaintiff was obtained.
Plaintiff has alleged in the instant case claims for violations of the Fair Debt Collection Practices
Act, violations ofthe North Carolina Unfair and Deceptive Trade Practices Act, violations ofthe
Racketeering Influenced and Corrupt Organizations Act, violation of the Hobbs Act, and
intentional infliction of emotional and mental distress.
'The Court has construed plaintiffs motion to strike also as plaintiffs response in
opposition to defendants' motion to dismiss. Because plaintiff has proffered no basis for striking
defendant's motion, the motion to strike is denied.

DISCUSSION
Defendants contend that this Court lacks subject matter jurisdiction to consider the instant
complaint under both the application of res judicata as well as application ofthe Rooker-Feldman
doctrine, and the Court agrees.
Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion. Evans v. B.F Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment." Richmond,

Fredericksburg & Potomac R.R Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Under North Carolina law, applicable here in light of the two prior North Carolina state
court judgments, res judicata "bars the relitigation of any claims that were or could have been
raised in a prior proceeding between the same parties." Sartin v. Macik, 535 F. 3d 284, 287 (4th
Cir. 2008). In a filing entitled "Supplemental Complaint" filed in the deficiency action in
Montgomery County, plaintiff asserted that First Bank had engaged in unfair and deceptive trade
practices and fraud. Plaintiff's "Supplemental Complaint" was dismissed with prejudice [DE 144 at 55]. Accordingly, this Court is without jurisdiction to consider plaintiff's unfair and
deceptive trade practices and fraud claims as they have already been raised in a prior proceeding.
Moreover, the factual bases for plaintiff's remaining claims in the instant suit have already been
raised by plaintiff in the deficiency proceeding. For example, in the instant complaint plaintiff
contends that venue was improper in the deficiency action, Cmp.

2

~

22, and that Nexsen Pruet filed

the deficiency action as a willful and intentional violation of the Fair Debt Collections Practices
Act, Cmp. ~ 12; those same allegations were made in the Montgomery County deficiency action
[DE 14-4 at 20; 22]. Insofar as plaintiff has alleged in the instant complaint claims relating to the
state foreclosure and deficiency actions that were not specifically raised in those proceedings,
those claims are also barred as res judicata prevents litigants from attempting to relitigate those
claims that could have been brought, in addition to those claims that were actually litigated.
The doctrine of res judicata therefore prevents this Court from considering plaintiffs
claims in the instant dispute. Nor can plaintiff gain judicial review in this Court of the state court
judgments against him, as doing so would violate the Rooker-Feldman doctrine. See Sartin, 535
F.3d at 287 n.1 (Rooker-Feldman bars collateral attacks of state court judgment). Rooker-

Fedlman also prevents lower federal courts from considering those claims that are "inextricably
interwined" with the decisions ofthe state courts. Plyler v. Moore, 129 F.3d 728, 731 (4th Cir.
1997). All of plaintiffs claims raised in the instant complaint arise from and are inextricably
intertwined with the underlying state court judgments; for example, plaintiffs claims that
defendants bullied the state court into granting a deficiency judgment, Cmp.

~

17, and that

defendants acted in concert to intentionally strip plaintiff of real estate assets, Cmp.

~

18, are

necessarily intertwined with the underlying foreclosure and deficiency actions. For this Court to
decide in plaintiffs favor on any of his claims, it would be required to determine that the state
courts wrongly decided the issues before them, and this Court is barred from engaging in such
review. Plyer, 129 F.3d at 731; see also Squirek v. Law Offices ofSessoms & Rogers, No.
1:02CV00040, 2003 WL 21026580 (M.D.N.C. May 5, 2003) (applying Rooker-Feldman to bar
complaint by debtor-plaintiff which effectively challenged the prior state court proceedings

3

between the parties).
Finally, even construing plaintiffs prose complaint liberally, and assuming that plaintiff
has actually raised claims that he did not raise or have an opportunity to raise in the state court
proceedings or that are not inextricably intertwined with the state court proceedings, 2 plaintiff has
offered no more than conclusory statements and has failed to plead facially plausible claims. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Dismissal of plaintiffs complaint both for lack of subject matter jurisdiction and for
failure to state a claim is therefore appropriate. Fed. R. Civ. P. 12(b)(1), (6).
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss [DE 13] is GRANTED and
plaintiffs motion to strike [DE 19] is DENIED. The clerk is DIRECTED to enter judgment
accordingly and to close the file.

SO ORDERED, this.&__ day of October, 2013.

2

In considering defendants' motion to dismiss under 12(b)(6), the Court has included in
its review matters of public record relating to the two state court proceedings involving these
parties, and in so doing has not converted the matter from a motion to dismiss to one for
summary judgment. See Norfolk Fed. Of Business Dist. v. City ofNorfolk, 103 F3d 119 (4th Cir.
1996) (unpublished table decision).
4