Collins v. Volz et al
Filing
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ORDER denying 10 Motion in Opposition of Court Order of May 4, 2012-"Extension of Time to Answer", construed as a Motion to Reconsider; withdrawing 12 & 13 Motions for Sanctions; denying 14 Motion for Dis closure; withdrawing 15 Motion for Sanctions; denying 16 Motion for Recusal; granting 29 & 30 Motions to Withdraw Doc. 12 & Doc. 13; denying 31 Ex Parte Motion & 32 second Ex Parte Motion; granting in part and denying in part Pltf' ;s 23 Notice of Refusal to Proceed before a Magistrate Judge and 33 Motion: Refusal to Consent to Proceed before a Magistrate Judge; FURTHER ORDERED on or before 21 days from entry of this Order, Pltf may file Response to Defts' Motion to Dismiss; on or before 14 days from filing of Response by Pltf, Defts may file a Reply Brief. (see Order for further details) Signed by District Judge Martin Reidinger on 6/28/12. (Pro se litigant served by US Mail.)(ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12cv45
DEANNA KAY COLLINS,
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Plaintiff,
vs.
KAREN C. VOLZ,
TRAVIS VOLZ and
CHRISTOPHER R. STEWART,
Defendants.
ORDER
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THIS MATTER is before the Court on the following:
1.
The Plaintiff’s Motion in Opposition of Court Order of May 4, 2012“Extension of Time to Answer” [Doc. 10];
2.
The Plaintiff’s Motion to Sanction/Reprimand Defendants for Delaying
or Obstructing Legal Proceedings [Doc. 12];
3.
The Plaintiff’s Motion to Sanction/Reprimand Defendants’ Legal Counsel
for Failure to Serve Motion upon Plaintiff [Doc. 13];
4.
The Plaintiff’s Motion for Disclosure of Defendant’s Current Mailing
Address [Doc. 14];
5.
The Plaintiff’s Motion to Sanction/Reprimand Defendants’ Legal Counsel
for Failure to Serve Motion upon Plaintiff [Doc. 15];
6.
The Plaintiff’s Motion of Recusal [Doc. 16];
7.
The Plaintiff’s Notice of Refusal to Proceed before a Magistrate Judge
[Doc. 23];
8.
The Plaintiff’s Motion for Withdrawal of Doc. 12 [Doc. 29];
9.
The Plaintiff’s Motion for Withdrawal of Doc. 13 [Doc. 30];
10.
The Plaintiff’s Ex Parte Motion [Doc. 31];
11.
The Plaintiff’s second Ex Parte Motion [Doc. 32];
12.
The Plaintiff’s Motion: Refusal to Consent to Proceed before a
Magistrate Judge [Doc. 33]; and
13.
The Defendants’ Motion to Dismiss [Doc. 35].
PROCEDURAL HISTORY
The Plaintiff Deanna Kay Collins (Collins), who is proceeding pro se,
initiated this action on March 7, 2012 alleging that the Defendants are
infringing a copyright as to which she is a claimant. [Doc. 1]. Collins alleges
that a sound recording made by her father and embodied in a Promotional CD
has been copyrighted and that she owns the copyright. [Id.]. She alleges that
the recording as well as other “copyrightable materials,” consisting of
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photographs contained within an album, have been “adversely possessed” by
the Defendants and that the recording was sold at an estate auction. [Id.].
The causes of action alleged in the Complaint are for replevin, conversion,
and copyright infringement. [Id.].
The Defendants have moved to dismiss the Complaint for failure to state
claims upon which relief may be granted. [Doc. 35]. In that motion, it is
disclosed that the personal property at issue was in the possession of Collins’
brother, Carey Kent Stewart, at the time of his death.1 [Doc. 36]. Defendant
Karen Volz is Collins’ niece, Defendant Travis Volz is the husband of Karen
Volz, and Defendant Chris Stewart is Collins’ nephew. [Id.].
The time within which Collins must respond to the Motion to Dismiss has
not yet expired. The Court therefore will rule on the pending motions and
provide notice to Collins of the burden she must carry in responding to that
motion.
DISCUSSION
The Plaintiff’s Motion in Opposition of Court Order of May 4, 2012“Extension of Time to Answer” [Doc. 10].
On May 4, 2012, counsel for the Defendants moved for an extension of
time within which to answer or otherwise respond to the Complaint. [Doc. 5].
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Collins has made the same allegation in her Complaint. [Doc. 1].
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On that same date, Magistrate Judge Dennis L. Howell granted the motion
and provided the Defendants with an extension through June 6, 2012 to
answer or otherwise respond. [Doc. 6]. Collins promptly filed a motion which
she characterized as being in opposition to the Magistrate Judge’s Order
granting an extension of time. [Doc. 11]. In that motion, Collins stated that the
Defendants’ attorney had failed to serve her with a copy of the motion
requesting additional time. [Id.].
Collins did acknowledge, however, that
defense counsel had telephoned to ask for her consent to the motion. [Id.].
She also contended that the Defendants have had ample notice that Collins
would initiate this lawsuit and argued that any further delay would be an
injustice to her. [Id.].
The Court construes this pro se motion as one for reconsideration of the
Magistrate Judge’s Order granting the extension of time. Fed.R.Civ.P. 72(a).
In response to Collins’ motion, defense counsel acknowledged that Collins
may not have received the motion due to a clerical error. [Doc. 19]. Counsel
also explained that the omission was remedied. [Doc. 19]. Moreover, Collins
was aware of the motion because defense counsel telephoned Collins in an
attempt to obtain her consent to the extension, an action which is not required
under the Rules of Practice and Procedure of the United States District Court
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for the Western District of North Carolina. L.Cv.R. 7.1(B) (consultation not
required where moving represented and non-moving party unrepresented or
when motion is for extension of time within which to respond to complaint).
It is a common practice for this Court to allow parties additional time
within which to file responsive pleadings, especially at an early stage of the
litigation.
Even though the Plaintiff may be unfamiliar with the ordinary
practices of this Court, her objection to such a minor extension is
unnecessarily litigious. The Court would strongly encourage Plaintiff not to
pursue this action from such a posture. In light of the ordinary practice of this
Court regarding such motions and Plaintiff’s posture regarding this matter, the
Court will in its discretion deny the motion to reconsider.
The Plaintiff’s Motion to Sanction/Reprimand Defendants for Delaying or
Obstructing Legal Proceedings [Doc. 12] and the Plaintiff’s Motion for
Withdrawal of Doc. 12 [Doc. 29].
The Plaintiff’s Motion to Sanction/Reprimand Defendants’ Legal Counsel
for Failure to Serve Motion upon Plaintiff [Doc. 13]; Plaintiff’s Motion to
Sanction/Reprimand Defendants’ Legal Counsel for Failure to Serve
Motion upon Plaintiff [Doc. 15] and the Plaintiff’s Motion for Withdrawal
of Doc. 13 & Doc. 15 [Doc. 30].
On the same date that Collins filed her motion to reconsider the
Magistrate Judge’s Order, she also filed two other motions: one seeking
sanctions against the Defendants for delaying and/or obstructing justice and
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another seeking sanctions against defense counsel for failing to serve her.
[Doc. 12; Doc. 13].
On May 17, 2012, Collins renewed her motion for
sanctions against defense counsel for failing to properly serve a copy of the
motion for an extension of time. [Doc. 15].
On June 6, 2012, Collins requested that she be allowed to withdraw
these motions. [Doc. 29; Doc. 30]. One of the motions, she acknowledged,
was filed too early. [Doc. 29].
The second motion, she admitted, was
rendered unnecessary when defense counsel discovered that the wrong zip
code had been used to serve the motion for an extension of time. [Doc. 30].
The motion was received but after Collins had already moved for sanctions.
[Id.]. The Court will allow the withdrawal of these motions.
The Plaintiff’s Motion for Disclosure of Defendant’s Current Mailing
Address [Doc. 14].
In this motion, Collins claims that her process servers had difficulty
locating the current address for Defendant Travis Volz. [Doc. 14]. She claims
that she needs his current address so that in the future she will be able to
serve him with a judgment. [Id.]. Collins nonetheless acknowledges that
Volz’s attorney can provide his address “for any/all future legal proceedings.”
[Id.].
Defendant Travis Volz has appeared in the action through counsel.
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Since Travis Volz is represented by counsel, Collins, who proceeds pro se, is
prohibited from making direct contact with him just as an attorney would be so
prohibited. Collins may only confer with Travis Volz, or any other Defendant,
through counsel. The motion is denied.
The Plaintiff’s Motion of Recusal [Doc. 16].
On May 18, 2012, Collins moved for the recusal of Magistrate Judge
Howell from this case. In support of that motion, Collins cites the fact that the
Magistrate Judge granted the Defendants an extension of time within which
to answer or otherwise plead before she had the opportunity to oppose the
same. She also cites his failure to rule on her four pending motions,
addressed above, as evidence of his bias against her.
It is first noted that at the time Collins filed this motion for recusal, the
time within which the Defendants could respond to her four motions had not
yet expired. It is thus quite expected that the Magistrate Judge had not
addressed the motions. Moreover, Collins requested permission to withdraw
two of those pending motions, the motions for sanctions against the
Defendants and their attorney.
A judge “shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. §455(a). “The inquiry
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is whether a reasonable person would have a reasonable basis for
questioning the judge’s impartiality[.]” In re Beard, 811 F.2d 818, 827 (4th Cir.
1987). When a motion seeking disqualification is filed, a judge is not required
to accept the allegations contained therein as true. Id. A presiding judge is
also not required to recuse himself because of “unsupported, irrational or
highly tenuous speculation.” United States v. Cherry, 330 F.3d 658, 665 (4 th
Cir. 2003) (internal quotation and citation omitted). The issue is whether
another with knowledge of all the circumstances would reasonably question
the judge’s impartiality. Id. (citing Beard, 811 F.2d at 827).
Plaintiff has articulated no basis for Judge Howell to recuse. The fact
that he had not yet ruled upon motions that were not yet ripe for determination
would be expected - and required - of all judges with regard to all motions. As
such, the allegations made by Collins constitute “unsupported, irrational [and]
highly tenuous speculation.” Cherry, 330 F.3d at 665. Collins’ motion to
recuse Magistrate Judge Howell is denied.
The Plaintiff’s Notice of Refusal to Proceed before a Magistrate Judge
[Doc. 23] and Motion: Refusal to Consent to Proceed before a Magistrate
Judge [Doc. 33].
In these two filings, Collins complains that she has not been presented
with two forms: the Notice of Availability of a Magistrate Judge to Exercise
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Jurisdiction and the Joint Stipulation of Consent to Exercise of Jurisdiction by
a United States Magistrate Judge. L.Cv.R. 73.1. In order to remedy that
purported defect, Collins has filed these two pleadings in which she states her
refusal to the exercise of jurisdiction by Magistrate Judge Howell. Collins also
reiterates her displeasure with the Magistrate Judge’s failure to rule on her
motions and states that he should be recused.
No party is required to consent to the jurisdiction of a United States
Magistrate Judge to handle the entire case instead of having the case
presided over by an Article III District Court Judge. A party may not, however,
refuse the statutory provisions of 28 U.S.C. § 636(b) or the Standing Orders
of Designation of this Court pursuant to which pre-trial and non-dispositive
matters are assigned to Magistrate Judge Howell. Nor may a party refuse the
designation of the Magistrate Judge to consider dispositive motions and to
submit recommendations for their dispositions. To the extent these pleadings
may be considered motions, they are denied.
The Plaintiff’s two ex parte motions [Doc. 31; Doc. 32].
Collins has made two filings which she characterized as ex parte and
she did not attach a certificate showing that these filings have been served on
the Defendants’ counsel. [Doc. 31; Doc. 32]. “[I]n the absence of a justifiable
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reason for an ex parte exchange, a party cannot communicate with the Court
confidentially.” Fifth Third Bank v. Apostolic Life Cathedral, 2010 WL 1664905
**2 (S.D.W.Va. 2010). No such reason is apparent from the face of these
pleadings and the Court will not allow their consideration in an ex parte
manner.
Although Collins proceeds in a pro se capacity, she is “responsible for
and required to comply with the Local Rules of Procedure for the United
States District Court for the [Western District of North Carolina] and the
Federal Rules of Civil Procedure, when filing papers with and/or appearing
before this Court.” Id. To that end, absent prior permission to seal a pleading,
Collins may not communicate with the Court without serving a copy of any
such communication on the Defendants’ attorney. The two filings, Doc. 31
and Doc. 32, to the extent they may be considered motions, are denied.
Notice to the Plaintiff regarding Rule 11.
In this case, which has been pending for only three months, Collins has
filed twelve pleadings all of which are at great variance from the ordinary
practice before this Court. Although Collins proceeds pro se, she remains
subject to the protocol of Rule 11 of the Federal Rules of Civil Procedure
which provides in pertinent part:
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By presenting to the court a pleading, written motion, or other
paper – whether by signing, filing, submitting, or later advocating
it -- an ... unrepresented party certifies that to the best of the
person's knowledge, information and belief, formed after an
inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support ... ; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
Fed.R.Civ.P. 11(b).
Collins is therefore cautioned that all future filings need to be in
conformity with the law and with reasonable adherence to the practice
expected before this Court. Frivolous filings cannot be allowed.
Notice to the Plaintiff regarding the Defendants’ Motion to Dismiss.
The Defendants have moved to dismiss Plaintiff’s action pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state claims upon which
relief may be granted. [Doc. 35]. Because the Plaintiff is proceeding pro se,
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the Court will provide instruction as to her obligation to respond to the motion
and the time within which to do so. Roseboro v. Garrison, 528 F.2d 309 (4 th
Cir. 1975). The Plaintiff is cautioned that failure to respond to the pending
motion will result in its being granted in which case all claims will be dismissed
with prejudice.
The Plaintiff is notified that she must show that she has made sufficient
allegations in the Complaint to support causes of action against the
Defendants which are recognized by law.
To survive a Rule 12(b) motion, “[f]actual allegations must be
strong enough to raise a right to relief above the speculative level”
and have “enough facts to state a claim to relief that is plausible
on its face.” [T]he court “need not accept the [plaintiff’s] legal
conclusions drawn from the facts,” nor need it “accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.”
Philips v. Pitt County Memorial Hospital, 572 F.3d 176, 179-80 (4 th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)) (other citations omitted).
The Plaintiff is therefore advised that the Complaint must contain factual
matter which, if accepted as true, would “state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (citing Twombly, supra.). A claim is facially plausible
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when a plaintiff pleads sufficient factual content to allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id.
The Plaintiff is also advised that, in ruling on this motion, the Court may
take judicial notice of matters of public record. Philips, 572 F.3d at 179-80.
It may consider documents attached to the Complaint as well as those
attached to the Motion to Dismiss. Id.
Finally, the Plaintiff is advised that her Response must be filed on or
before twenty-one (21) days from entry of this Order and that it must also be
served on the Defendant. The Plaintiff must include a Certificate of Service
indicating the manner and date on which she served the Defendant.
ORDER
IT IS, THEREFORE, ORDERED as follows:
1.
The Plaintiff’s Motion in Opposition of Court Order of May 4, 2012“Extension of Time to Answer” [Doc. 10], which is construed as a Motion
to Reconsider, is hereby DENIED;
2.
The Plaintiff’s Motion to Sanction/Reprimand Defendants for Delaying
or Obstructing Legal Proceedings [Doc. 12] is hereby deemed
WITHDRAWN;
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3.
The Plaintiff’s Motion to Sanction/Reprimand Defendants’ Legal Counsel
for Failure to Serve Motion upon Plaintiff [Doc. 13] is hereby deemed
WITHDRAWN;
4.
The Plaintiff’s Motion for Disclosure of Defendant’s Current Mailing
Address [Doc. 14] is hereby DENIED;
5.
The Plaintiff’s Motion to Sanction/Reprimand Defendants’ Legal Counsel
for Failure to Serve Motion upon Plaintiff [Doc. 15] is hereby deemed
WITHDRAWN;
6.
The Plaintiff’s Motion of Recusal [Doc. 16] is hereby DENIED;
7.
The Plaintiff’s Motion for Withdrawal of Doc. 12 [Doc. 29] is hereby
GRANTED;
8.
The Plaintiff’s Motion for Withdrawal of Doc. 13 [Doc. 30] is hereby
GRANTED;
9.
The Plaintiff’s Ex Parte Motion [Doc. 31] is hereby DENIED;
10.
The Plaintiff’s second Ex Parte Motion [Doc. 32] is hereby DENIED;
11.
The Plaintiff’s Notice of Refusal to Consent to Proceed before a
Magistrate Judge [Doc. 23] and Motion: Refusal to Consent to Proceed
before a Magistrate Judge [Doc. 33] are hereby ALLOWED in part, but
only to the extent that these documents are taken as a statement by the
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Plaintiff that she does not agree to the jurisdiction of the Magistrate
Judge over this full case. These motions are otherwise DENIED in that
certain portions of these case are and will be referred to the Magistrate
Judge pursuant to §636 and the standing orders of this Court.
IT IS FURTHER ORDERED that on or before twenty-one (21) days from
entry of this Order, the Plaintiff may file Response to the Defendants’ Motion
to Dismiss which may not exceed twenty-five (25) double-spaced pages in
size fourteen (14) font. The Plaintiff must include a Certificate of Service
indicating the manner and date on which she served the Defendants with any
such response. The Plaintiff is hereby placed on notice that failure to file
response in accordance with this Order may result in the dismissal of this
action without further notice.
IT IS FURTHER ORDERED that on or before fourteen (14) days from
the filing of Response by the Plaintiff, the Defendants may file a Reply Brief
not to exceed ten (10) pages.
IT IS FURTHER ORDERED that no filings other than those prescribed
by this Order may be made by either party pending the resolution of the
Motion to Dismiss absent prior permission granted by the Court.
permission should not be lightly sought.
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Such
Signed: June 28, 2012
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