BANK OF AMERICA INCORPORATED, et al v. CAMPBELL, et al

Filing 28

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 5/30/12, that the Petition for Removal (Docket Entry 1 ), Verified Protective Answer (Docket Entry 3 ), Amended Petition for Removal (Docket Entry 5 ), Amended Verified Protec tive Answer (Docket Entry 6 ), Motion for Judicial Notice (Docket Entry 23 ), and Responses (Docket Entries 24 , 25 ) are STRICKEN for failure to comply with this Court's Local Rule 83.1(c)(1) and Federal Rule of Civil Procedure 11(a). FUR THER that, in light of the striking of the purported removal notices and this Court's lack of subject matter jurisdiction, this case is REMANDED to the General Court of Justice, Superior Court Division, Guilford County, North Carolina. FURTHER that, in light of the remand of this case to state court based on the striking of the purported removal notices and the lack of subject matter jurisdiction, as well as the striking of other filings purportedly made on behalf of the Campbells, the Cle rk's Office shall TERMINATE AS MOOT the Motion to Remand to State Court (Docket Entry 10 ), Motion to Dismiss Counterclaims for Lack of Jurisdiction and Failure to State a Claim (Docket Entry 12 ), and Motion to Strike (Docket Entry 26 ). FU RTHER that this Order is STAYED for 21 days because "[a] party may serve and file objections to the [O]rder within 14 days after being served with a copy. A party may not assign as error a defect in the [O]rder not timely objected to. The dist rict judge in the case must consider timely objections and modify or set aside any part of the [O]rder that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). If any party files a timely objection to this Order, the 21day stay s hall continue in effect until further order of the Court, but, absent any timely objection, at the end of the 21day period, the Clerk's Office shall send a certified copy of this Order to the Clerk of the General Court of Justice, Superior Court Division, Guilford County, North Carolina. (Law, Trina)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BANK OF AMERICA INCORPORATED
and TRUSTEE SERVICES OF
CAROLINA LLC,
Plaintiffs and
Counter Defendants,
v.
JIMMY TAYLOR CAMPBELL and
JOYCE OSBORNE CAMPBELL,
Defendants and
Counter Claimants.

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1:12CV269

MEMORANDUM OPINION AND ORDER
This case comes before the Court on a Motion for Judicial
Notice (Docket Entry 23) purportedly filed on behalf of Jimmy
Taylor Campbell and Joyce Osborne Campbell (“the Campbells”), as
well as a Motion to Remand to State Court (Docket Entry 10),
Motion to Dismiss Counterclaims for Lack of Jurisdiction and
Failure to State a Claim (Docket Entry 12), and Motion to Strike
(Docket Entry 26), all filed by Bank of America, N.A., which has
identified itself (rather than Bank of America Incorporated and/or
Trustee Services of Carolina LLC) as the actual party who filed the
state court action that the Campbells purportedly removed to this
Court.

For the reasons that follow, the Court will strike the

instant Motion for Judicial Notice (Docket Entry 23), as well as
the Petition for Removal (Docket Entry 1) and Amended Petition for

Removal (Docket Entry 5) by which the Campbells purportedly brought
this case to this Court, the Verified Protective Answer (Docket
Entry 3) and Amended Verified Protective Answer (Docket Entry 6) in
which the Campbells purportedly asserted counterclaims in this
case, and the Campbells’ purported responses (Docket Entries 24,
25) to the instant Motions to Remand and to Dismiss Counterclaims
(Docket Entries 10, 12).

As a result, the Court will remand this

case to state court and will direct the Clerk’s Office to terminate
all remaining motions as moot.1
BACKGROUND
This case first came to the attention of the Court upon the
referral of a document entitled “Motion for Extension of Time”
(Docket Entry 17).

(See Docket Entry dated Apr. 30, 2012.)

The

Court promptly struck that Motion (which purported to request an
extension of time for the Campbells to respond to the instant
Motions to Remand and to Dismiss Counterclaims (see Docket Entry 17
at 1)), because it did not comply with Federal Rule of Civil
Procedure 11(a), in that the only signature thereon appeared to be
that of “Anthony Clay Campbell,” who neither said Motion nor the
Docket identified as an attorney for the Campbells with authority

1

For reasons stated in William E. Smith Trucking, Inc. v.
Rush Trucking Ctrs. of N.C., Inc., No. 1:11CV887, 2012 WL 214155,
at *2-6 (M.D.N.C. Jan. 24, 2012) (unpublished), the undersigned
United States Magistrate Judge opts to enter an order rather than
a recommendation regarding remand.
2

to appear in this Court.
2, 3.)2

(See Docket Caption; Docket Entry 21 at

In addition, because a review of the other filings

purportedly made on the Campbells’ behalf, including the Petition
for Removal, Verified Protective Answer, Amended Petition for
Removal, and Amended Verified Protective Answer, revealed that all
bore signatures not of the Campbells but only of “Anthony Clay
Campbell” (see Docket Entries 1, 3, 5, 6),3 the Court noticed a
hearing.

(See Docket Entry 18.)

The day after the entry of the Court’s foregoing Order
striking the Motion for Extension of Time, a second “Motion for
Extension of Time” (Docket Entry 22) was filed that differed from
the first only in that it bore the apparent signature of “Anthony

2

That signature rested over the type-written words: “Anthony
Clay Campbell, a living man, real party in interest[,] Grantor,
Beneficiary and Secured Party Creditor, PRO SE[,] Authorized Agent
and Power of Attorney-in-Fact for legal Person, JIMMY TAYLOR
CAMPBELL AND JOYCE OSBORNE CAMPBELL.”
(Docket Entry 17 at 2
(capitalization as in original).)
3

In the first two of these filings, the signature in the name
of “Anthony Clay Campbell” appears beside the hand-written words
“executing POA” and above the type-written words: “Anthony Clay
Campbell, a living man, real party in interest[,] Grantor,
Beneficiary and Secured Party Creditor, PRO SE[,] Authorized Agent
and Power of Attorney-in-Fact for legal Person, JIMMY TAYLOR
CAMPBELL AND JOYCE OSBORNE CAMPBELL.”
(Docket Entry 1 at 4, 5
(capitalization as in original); Docket Entry 3 at 5, 6
(capitalization as in original).)
In the last two of these
filings, the apparent signature of “Anthony Clay Campbell” rests
above the type-written names of the Campbells, as well as
additional language that seems to identify “Anthony Clay Campbell”
as their “Authorized Agent and Power of Attorney-in-Fact.” (Docket
Entry 5 at 5, 6; Docket Entry 6 at 5, 6.)
3

Clay Campbell” on two pages rather than one (compare Docket Entry
17 with Docket Entry 22).

The Court struck that Motion by Text

Order (again for failure to comply with Federal Rule of Civil
Procedure 11(a)).

(Docket Entry dated May 9, 2012.)

Five days

later, the instant Motion for Judicial Notice (Docket Entry 23) was
filed with signatures once more only of “Anthony Clay Campbell,”
but with the hand-written phrase “executing POA” placed beside said
signatures and the Campbells’ type-written names placed below the
signature

line

(id.

at

1,

2).

On

the

same

day,

documents

constituting apparent responses to the instant Motions to Remand
and

to

Dismiss

Counterclaims

were

filed,

with

signatures

by

“Anthony Clay Campbell” beside the phrase “executing POA” and above
a

description

of

“Anthony

Clay

Campbell”

as,

inter

alia,

“Authorized Agent and Power of Attorney-in-Fact for legal Person,
JIMMY TAYLOR CAMPBELL AND JOYCE OSBORNE CAMPBELL.”

(Docket Entry

24 at 1, 11, 12 (capitalization as in original); Docket Entry 25 at
1, 9, 10 (capitalization as in original).)
Strike was filed a week later.

The instant Motion to

(Docket Entry 26.)

The Court thereafter held the previously-noticed hearing in
this case.

(See Docket Entry dated May 29, 2012.)

The Campbells

failed to appear, but an individual who identified himself in opencourt as Anthony Clay Campbell attempted to address the Court on
behalf of the Campbells.

(See id.)

4

After confirming that Anthony

Clay Campbell did not claim to be an attorney authorized to
practice law in this Court, the Court declined to hear further from
him.

(See id.)

The Court then stated on the record that it would

strike all filings purportedly made on behalf of the Campbells that
lacked their signatures, would remand the case to state court, and
would treat all other pending motions as moot.

(See id.)

DISCUSSION
“Litigants in civil and criminal actions and parties in
bankruptcy proceedings before this Court, except parties appearing
pro se, must be represented by at least one attorney who is a
member of the bar of this Court.”

M.D.N.C. LR 83.1(c)(1);4 see

also M.D.N.C. LR 83.4(a) (“If . . . a party fails to comply with a
local rule of this Court, the Court may impose sanctions . . . as
are just under the circumstances of the case, including . . . an
order striking out pleadings . . . .”).

In other words:

“An

individual unquestionably has the right to litigate his own claims
in federal court . . ., however, [that right] does not create a
coordinate right to litigate for others.”

Myers v. Loudoun Cnty.

Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005) (emphasis in original)
4

Consistent with this requirement, the Federal Rules of Civil
Procedure mandate that “[e]very pleading, written motion, and other
paper must be signed by at least one attorney of record in the
attorney’s name—or by a party personally if the party is
unrepresented.” Fed. R. Civ. P. 11(a). Moreover, “[t]he court
must strike an unsigned paper unless the omission is promptly
corrected after being called to the attorney’s or party’s
attention.” Id.
5

(citing, inter alia, 28 U.S.C. § 1654). “The reasoning behind this
rule is two-fold: it protects the rights of those before the court
and jealously guards the judiciary’s authority to govern those who
practice in its courtrooms.”
In

light

of

the

Id. (internal citations omitted).

foregoing,

well-established

principle,

district courts in this Circuit uniformly have precluded nonattorneys from litigating matters in the name of others based on
claimed authority from some form of “power-of-attorney.”

See

Securities & Exch. Comm’n v. White, No. 8:11-944-HMH-KFM, 2011 WL
1544202, at *3-4 (D.S.C. Apr. 22, 2011) (unpublished) (“Mrs. White
argues that a General Durable Power of Attorney signed by the
movant gives her authority to act on the movant’s behalf.
White is mistaken. . . .
cannot

represent

[the

Mrs.

[Mrs. White], who is not any attorney,
movant]

citations omitted)); Haddock

in

federal

court.”

(internal

v. Tribute Props., No. 4:09CV80FL,

2010 WL 1525691, at *2 (E.D.N.C. Apr. 15, 2010) (unpublished)
(“Plaintiff contends that the filings signed by her sister including the motion for appointment of counsel - should not be
stricken from the record because her sister had been given power of
attorney under North Carolina law to act on plaintiff’s behalf at
the time of those filings.

Even so, while a power of attorney may

have conferred certain decision-making rights under state law, it
does not allow plaintiff’s sister to litigate pro se on her behalf

6

in federal court. Therefore it would not be improper to strike the
motion to appoint counsel from the docket.” (internal brackets,
citations, ellipses, and quotation marks omitted)), aff’d, 390 Fed.
Appx. 239 (4th Cir. 2010); Smith v. County of Pickens, No. 8:0801916-RBH,

2008

WL

4200595,

at

*2

(D.S.C.

Sept.

8,

2008)

(unpublished) (“The court will assume that Blanch Wertz does have
a full and complete power of attorney effective under South
Carolina law which gives her the right to assert the legal rights
of Danny Rayburn Smith.

However, the Court may still inquire into

whether Wertz may litigate pro se the legal rights of Smith.

It

seems clear that Wertz, a non-attorney, may not do so.” (internal
footnote omitted)); Umstead v. Chase Manhattan Mortg. Corp., No.
7:04CV747, 2005 WL 2233554, at *2 (W.D. Va. Sept. 13, 2005)
(unpublished) (ruling that, despite possessing a power of attorney,
“M. Umstead, as a lay person without a license to practice, cannot
represent J. Umstead in this action”).
“It follows from the rule prohibiting lay representation that
any pleadings filed through lay representation must be disregarded
as a nullity.”

Umstead, 2005 WL 2233554, at *2.5

As a result,

Anthony Clay Campbell’s attempt to invoke this Court’s subject

5

This conclusion renders moot the instant Motion to Dismiss
Counterclaims.
See Umstead, 2005 WL 2233554, at *2 (“Because
. . . J. Umstead’s claims are void ab initio, the defendants’
motion to dismiss pertaining to J. Umstead’s claims is moot because
there are no claims to consider.”).
7

matter jurisdiction fails for lack of standing.

See Penland Fin.

Servs., Inc. v. Select Fin. Servs., LLC, No. 6:08-3864-HMH-WMC,
2008 WL 5279638, at *3 (D.S.C. Dec. 18, 2008) (unpublished)
(“[B]ecause Charles Penland may not litigate pro se the rights of
the corporation, he lacks standing to bring this action; and,
therefore, this court does not have subject matter jurisdiction
over this action.”), aff’d, 315 Fed. Appx. 456 (4th Cir. 2009);
Smith, 2008 WL 4200595, at *2 (“If Wertz may not litigate pro se
the rights of Smith, then it appears that Wertz lacks standing to
bring this action; and, therefore, this Court does not have subject
matter jurisdiction over this action.”).

In the context of a

removed case, this determination requires remand to state court.
See Smith, 2008 WL 4200595, at *1, 3.
CONCLUSION
Documents purportedly filed on the Campbells’ behalf by nonattorney Anthony Clay Campbell without their signatures have no
effect regardless of any claimed “power-of-attorney” possessed by
Anthony Clay Campbell.

The Campbells have received more than fair

notice of this issue and have failed to take curative action.
Instead,

the

Campbells

have

shown

their

unwillingness

to

participate in this case by failing to appear at a hearing ordered
by the Court.

Under these circumstances, the Court must treat the

removal notices and other filings signed in the name of Anthony

8

Clay Campbell as void and must remand this case to state court.
IT IS THEREFORE ORDERED that the Petition for Removal (Docket
Entry 1), Verified Protective Answer (Docket Entry 3), Amended
Petition for Removal (Docket Entry 5), Amended Verified Protective
Answer (Docket Entry 6), Motion for Judicial Notice (Docket Entry
23), and Responses (Docket Entries 24, 25) are STRICKEN for failure
to comply with this Court’s Local Rule 83.1(c)(1) and Federal Rule
of Civil Procedure 11(a).
IT IS FURTHER ORDERED that, in light of the striking of the
purported removal notices and this Court’s lack of subject matter
jurisdiction, this case is

REMANDED

to the General Court of

Justice, Superior Court Division, Guilford County, North Carolina.
IT IS FURTHER ORDERED that, in light of the remand of this
case to state court based on the striking of the purported removal
notices and the lack of subject matter jurisdiction, as well as the
striking of other filings purportedly made on behalf of the
Campbells, the Clerk’s Office shall TERMINATE AS MOOT the Motion to
Remand

to

State

Court

(Docket

Entry

10),

Motion

to

Dismiss

Counterclaims for Lack of Jurisdiction and Failure to State a Claim
(Docket Entry 12), and Motion to Strike (Docket Entry 26).
IT IS FURTHER ORDERED that this Order is STAYED for 21 days
because “[a] party may serve and file objections to the [O]rder
within 14 days after being served with a copy.
9

A party may not

assign as error a defect in the [O]rder not timely objected to.
The district judge in the case must consider timely objections and
modify or set aside any part of the [O]rder that is clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a).

If any

party files a timely objection to this Order, the 21–day stay shall
continue in effect until further order of the Court, but, absent
any timely objection, at the end of the 21–day period, the Clerk’s
Office shall send a certified copy of this Order to the Clerk of
the General Court of Justice, Superior Court Division, Guilford
County, North Carolina.
This the 30th day of May, 2012.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

10