COVINGTON v. ABSOLUTE COLLECTION SERVICE

Filing 13

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 6/4/2013; RECOMMENDED that this action be dismissed under Federal Rule of Civil Procedure 41(b). (Sheets, Jamie)

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

JAMILA COVINGTON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ABSOLUTE COLLECTION SERVICE,
Defendant.

1:12CV811

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge sua sponte to address Plaintiff’s failure to
comply with court orders.
should

dismiss

this

For the reasons that follow, the Court

case

pursuant

to

Federal

Rule

of

Civil

Procedure 41(b).
BACKGROUND
This case began when Plaintiff (or someone using Plaintiff’s
name) filed a pro se Complaint (Docket Entry 2), along with an
Application
Application”)

for

Leave

(Docket

to

Proceed

In

Entry

1).

The

Forma

Pauperis

Complaint

(“IFP

contains

a

“PRELIMINARY STATEMENT,” which describes the case as “an action for
damages brought for damages for violations of the Fair Debt
Collection Practices Act (FDCPA) 15 U.S.C. §1692 et seq.; and for
damages for violations of the Fair Credit Reporting Act (FCRA) 15
U.S.C. §1681 et seq[.]”

(Docket Entry 2 at 1.)

It further

identifies Defendant as “a North Carolina Corporation, authorized
to do business in North Carolina.”

(Id. (emphasis added).)

After Plaintiff amended her IFP Application (Docket Entry 4),
the Court (per the undersigned Magistrate Judge) granted her pauper
status and ordered that she had to “prepar[e] and deliver[] to the
Clerk[]

the

correct

summons

for

service

on

each

defendant,

including the correct address and the name and title of the
individual to be served on behalf of a corporation . . . .”
(Docket Entry 5 at 1 (emphasis added).)
Court

promptly

mailed

to

Plaintiff)

That Order (which the
further

warned

that

a

“[f]ailure to prepare and deliver said summons within 15 days
. . . shall result in this case being dismissed without further
notice.”

(Id.; see also Docket Entry dated Aug. 16, 2012.)

The

summons form provided by (or by someone on behalf of) Plaintiff
(apparently, given the date of its docketing, prior to her receipt
of the foregoing Order)1 lacked the name and title of an individual
to receive service on behalf of Defendant.
1.)

(See Docket Entry 6 at

The United States Marshals Service mailed that summons as

completed.

(See Docket Entry 8.)

Despite the fact that, by then, Plaintiff would have received
the Court’s Order informing her of her obligation to provide a
summons form with a name and title of an individual to receive

1

The Court often receives completed summons forms along with
the initial case-opening documents, such as complaints and pauper
applications.
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service of process for Defendant, Plaintiff (or someone acting in
her name) then filed a Request for Clerks [sic] Entry of Default
based on the insufficient service of the defective summons she had
provided.

(Docket Entry 9.)

The Clerk denied that request on the

ground that, “[a]lthough Plaintiff’s Complaint (Doc. #2) states
that

Defendant

[documentation

is

a

North

regarding

Carolina

service

of

Corporation,
the

summons

neither

the

submitted

by

Plaintiff] nor the Request for Clerk’s Entry of Default show that
service

was

Defendant.”

made

upon

an

officer,

(Docket Entry 10 at 1.)

that Denial to Plaintiff.

director

or

agent

of

the

The Court promptly mailed

(See Docket Entry dated Oct. 10, 2012.)

The undersigned Magistrate Judge took note of the insufficient
summons submitted by (or on behalf of) Plaintiff, as well as the
fact that her Complaint shared a number of unusual similarities of
form and substance with other complaints filed in this Court,
including: 1) stating, under the heading “JURISDICTION AND VENUE,”
that “jurisdiction of this Court is conferred by 15 U.S.C. §1681p”
and that “[v]enue is proper in this Circuit pursuant to 28 U.S.C.
§1391b”; 2) setting forth virtually identical sections (including
as to content, format, style, and even typographical/scrivener
errors) entitled “COUNT I,” “COUNT II,” “15 U.S.C 1681b,” and
“COUNT III”; and 3) listing on the signature page an e-mail address
consisting of the respective plaintiff’s first and last name
(strung together as one term) appended to “[e-mail]” (or,

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in one case, “[e-mail]”).

(Compare Docket Entry 2, with

Wiggins v. Credit Mgmt., No. 1:11CV1093, Docket Entry 2; Wiggins v.
Firstpoint

Collections

Res.,

No.

1:12CV451,

Docket

Entry

2;

Ferguson v. North Carolina Dep’t of Health & Human Servs., No.
1:12CV493, Docket Entry 2; Golden v. Firstpoint Collection Serv.,
No. 1:12CV875, Docket Entry 2; Shamberger v. Firstpoint Collection
Serv., No. 1:12CV876, Docket Entry 2; Golden v. Absolute Collection
Servs.,

No.

1:12CV956,

Docket

Entry

2;

Durham

v.

Absolute

Collection Servs., No. 1:12CV957, Docket Entry 2; Grant v. Absolute
Collection Servs., No. 1:12CV958, Docket Entry 2; Ferguson v.
Absolute Collection Serv., No. 1:12CV1023, Docket Entry 2; Golden
v.

NCO

Fin.

Sys.,

No.

1:12CV1097,

Docket

Entry

2;

James

v.

Firstpoint Collection Serv., No. 1:12CV1098, Docket Entry 2; and
Durham v. National Credit Sys., No. 1:12CV1099, Docket Entry 2.)
Given the foregoing circumstances, the undersigned Magistrate
Judge set this case for a status conference and placed 13 other
similar cases on for hearings/status conferences on the same
calendar.

(See Docket Entry 11.)

Plaintiff did not appear as

directed.

(See Docket Entry dated Nov. 26, 2012.)

Indeed, only

one of the plaintiffs from the other similar cases noticed for
proceedings on that date appeared and he denied preparing, signing,
or filing any documents in his case (or authorizing anyone else to
take such action), but did acknowledge that he had talked to
someone he knew only as “Mussa” about improving his credit record.

-4-

(See Grant, No. 1:12CV958, Docket Entry dated Nov. 26, 2012.)2
Shortly after failing to appear at the status conference, Plaintiff
(or someone acting on her behalf) submitted an Amended Complaint
(Docket Entry 12), along with a second summons form with the
additional line “ATTN: CHIEF LEGAL OFFICER,” but again without a
name of an individual to receive service on behalf of Defendant
(Docket Entry 12-1 at 1), despite the fact that Plaintiff long
since would have received a clear directive from the Court of that
requirement and the consequences of failing to comply.
DISCUSSION
“The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and this
authority includes the power to order dismissal of an action for
failure to comply with court orders.

Fed. R. Civ. P. 41(b).”

Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).

Plaintiff

disobeyed the Court’s Orders to submit a properly-completed summons
form and to appear at a status conference.

These circumstances

warrant dismissal under Federal Rule of Civil Procedure 41(b).
In making this recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.”

Id.

Generally, before dismissing an action under

Federal Rule of Civil Procedure 41(b), a court should consider:

2

The Clerk maintains an
proceedings from that calendar.
-5-

audio-recording

of

all

the

“(i) the degree of personal responsibility of the plaintiff;
(ii) the amount of prejudice caused the defendant; (iii) the
existence of a history of deliberately proceeding in a dilatory
fashion; and (iv) the existence of a sanction less drastic than
dismissal.”

Id.

In this case, Plaintiff (or whoever improperly

filed this case in her name) bears sole responsibility for the
instant

non-compliance,

the

conduct

(and

inaction)

at

issue

prejudiced Defendant by delaying the litigation unduly (and thus
depriving Defendant of the opportunity to defend against this
apparent sham lawsuit while memories remained freshest and before
the possible loss of key documents), the record reflects a pattern
of dilatory conduct by Plaintiff (or whoever filed this case in her
name), and no other sanction appears feasible or sufficient.
As

to

that

last

point,

the

Court

(per

the

undersigned

Magistrate Judge) specifically warned Plaintiff that her failure to
submit a timely, properly-completed summons form could result in
dismissal of this case.

“In view of th[at] warning, the [Court]

ha[s] little alternative to dismissal. Any other course would have
[the effect of] plac[ing] the credibility of the [C]ourt in doubt
and invit[ing] abuse.”

Id.

IT IS THEREFORE RECOMMENDED that this action be dismissed
under Federal Rule of Civil Procedure 41(b).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 4, 2013
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