LAWSON et al v. ALLEGACY FEDERAL CREDIT UNION, et al

Filing 25

RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 10/16/09, that all claims of the Complaint should be dismissed with prejudice at this time. (Law, Trina)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

R O B E R T LAWSON, GLENDA L A W S O N , and ROBERT S. JOLLY, P la in ti ff s , v. A L L E G A C Y FEDERAL CREDIT U N I O N , SHAPIRO & INGLE, LLP, C L E R K OF COURT FOR STOKES C O U N T Y JASON LITTLE, A S S I S T A N T CLERK OF COURT F O R GUILFORD COUNTY TERRI N A N C E , and SUBSTITUTE T R U S T E E RICHARD P. McNEELY, D e f e n d a n t s.

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R E C O M M E N D A T I O N OF UNITED STATES MAGISTRATE JUDGE

T h i s matter comes before the Court on motions to dismiss filed by all Defendants. (D o c k e t Nos. 4, 17, and 19). Pro se Plaintiffs Robert Lawson, Glenda Lawson, and Robert Jo lly oppose the motions. For reasons set forth below, the Court finds that all motions to d is m is s should be granted and this action should be dismissed with prejudice. P la in tif f Robert Jolly has brought a series of pro se lawsuits in this court, joined by o th e r plaintiffs, all challenging foreclosure proceedings recently conducted in the state courts o f North Carolina. Five of these actions (1:08CV234, 1:08CV264, 1:08CV294, 1:08CV322,

a n d 1:08CV344) were consolidated by the Court for consideration, and final judgments d is m is s in g the actions with prejudice were entered on March 31 and April 15, 2009. The p e n d in g action is related to the consolidated actions and raises common issues of law. In d e e d , there is pending in this action a motion for consolidation with one of the consolidated a c tio n s (1:08CV234 ("'234" ), a motion which the Court would grant but for the fact that it h a s been mooted by the entry of the final judgment in the '234 case. F o r a general description of the background to this litigation, the Court incorporates in its entirety the Recommendation of United States Magistrate Judge filed by the u n d e rs ig n e d on March 13, 2009 in the consolidated actions. That Recommendation was a d o p te d by United States District Judge William L. Osteen, Jr., and formed the basis for the A p ril 15, 2009 Judgment. In the action now before the Court, Plaintiffs have once again sued D e f e n d a n ts Allegacy Federal Credit Union ("Allegacy") and Shapiro & Ingle, LLP (" S h a p iro " ), and have added Defendants "Clerk of Court for Stokes County Jason Tuttle," "A ssistan t Clerk of Court for Guilford County Terri Nance," and "Substitute Trustee Richard P . McNeely." In the Complaint, Plaintiffs describe what they believe to be irregularities and v io la tio n s of due process in state court proceedings which ultimately resulted in the f o re c lo s u re sale of property previously owned by the Lawson plaintiffs. (Docket No. 1, C o m p la in t ¶ 45.) Based on the procedures and results of the foreclosure action, Plaintiffs set

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o u t five asserted causes of action: (1) common law conspiracy; (2) conspiracy to defraud; (3) e x to rtio n ; (4) violation of due process; and (5) duress. (Id. at 14-16.) O n review of the motions to dismiss, the Court finds that Defendants Allegacy and S h a p iro are entitled to judgment without further discussion on the basis of the res judicata e f f e c t of the April 15, 2009 judgment in the consolidated actions. The '234 action was b ro u g h t by the Lawson plaintiffs and Robert Jolly, and Allegacy and Shapiro were the named D e f e n d a n ts . The issues raised in that litigation were identical or closely related to those p re s e n te d in this action. Plaintiffs are prohibited from splitting a cause of action or re -litig a tin g matters determined against them in the judgment of dismissal with prejudice in th e '234 action. T h e Complaint in this action against Defendants Allegacy and Shapiro would a d d itio n a lly be barred by the Rooker-Feldman doctrine. Plaintiffs' complaint in this action s e e k s collateral review of a state court judgment and essentially claims a wrongful judgment b y the state court. This Court has no jurisdiction over such a claim. See Exxon Mobil Corp. v . Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); Davani v. Virginia Dep't of Transp., 4 3 4 F.3d 712, 719 (4th Cir. 2006); Postma v. First Fed. Sav. & Loan of Sioux City, 74 F.3d 1 6 0 , 162 (8th Cir. 1996)(affirming subject matter dismissal pursuant to Rooker-Feldman b ec au se the federal action was essentially a prohibited appeal from a state foreclosure j u d g m e n t ).

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P lain tiff s' claims fare no better against the "Clerk" Defendants or the Substitute T ru s te e . While Plaintiffs allege a conspiracy of all Defendants, including the Clerks and the S u b stitute Trustee, they present no factual allegations that would support such a conclusory a lle g a tio n . See generally Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 553-57 (2007)(more is re q u ire d in pleading than labels and conclusions). Further, the Clerk Defendants are entitled to immunity from Plaintiffs' damage claims by reason of judicial immunity. See generally D e a n v. Shirer, 547 F.2d 227, 231 (4th Cir. 1976); Mireles v. Waco, 502 U.S. 9, 11 (1 9 9 1 )(ju d ic ia l immunity is not overcome by allegations of bad faith or malice); and Stump v . Sparkman, 435 U.S. 349 (1978)(judicial immunity is overcome only when actions taken a r e not in the judge's judicial capacity; whether an action is judicial turns on whether it is a f u n c tio n normally performed by a judge). The Clerks' discretionary decisions in state f o re c lo s u re proceedings are covered by immunity since Clerks of Superior Court are judicial o f f ic ia ls . N.C. Gen. Stat. §§ 7A-40 and 45-21.16. All of Plaintiffs' allegations against the C lerk Defendants arise from a contention that they erred in presiding over state foreclosure p roc ee d ing s and issuing orders. Plaintiffs argue in briefing that the actions of the Clerk D e f en d a n ts were outside the scope of their duties, but no alleged facts suggest this, and P la in tif f s' claims reduce to an assertion that the Clerk Defendants used incorrect procedures (v io la tiv e of due process) and reached incorrect decisions. To the extent Plaintiffs have re q u e ste d injunctive relief against these Defendants, that request is moot since the f o re c lo s u re sale and change of possession that Plaintiffs' sought to enjoin has now been -4-

c o m p lete d , as is shown by the pleadings of the parties. Moreover and as an additionally s u f f ic ie n t ground of decision, all the claims in this action against the Clerk Defendants and th e Substitute Trustee are fully barred by the Rooker-Feldman doctrine for reasons described above. In sum, Plaintiffs' claims in this action suffer the same pleading failures as those in th e related consolidated actions already dismissed by the Court. Additionally, the claims fail in light of Twombly and principles of res judicata, the Rooker-Feldman doctrine, and judicial im m u n ity. THEREFORE, IT IS RECOMMENDED that all claims of the Complaint s h o u ld be dismissed with prejudice at this time.

/s/ P. Trevor Sharp United States Magistrate Judge

Date: October 16, 2009

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