Carr v. Hitchins, Senter, Lellam and Petit, P.A. et al

Filing 37

ORDER denying 36 Motion to Vacate 34 Order on Memorandum and Recommendations, Order on Motion to Dismiss,,,,,, 35 Clerk's Judgment. Signed by District Judge Robert J. Conrad, Jr on 10/19/15. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-532-RJC-DSC
LINDA N. CARR,
Plaintiff,
v.
W.R. STARKEY MORTGAGE, LLP, et al.,
Defendants.

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ORDER

THIS MATTER comes before the Court on Plaintiff Linda N. Carr’s (“Plaintiff”)
Motion to Vacate Judgment and Order on Memorandum and Recommendation (the “Motion”).
(Doc. No. 36).
I.

BACKGROUND
Plaintiff filed her Complaint in this action on September 26, 2014, which contained a

series of allegations that taken in the aggregate challenge the validity of a promissory note
Plaintiff executed to purchase real property. (Doc. No. 1). The property had been subject to
foreclosure, and the North Carolina Superior Court, Mecklenburg County, issued a final order
dismissing Plaintiff’s appeal of the Order of Foreclosure and allowing the foreclosure sale to
proceed. (Doc. No. 19-9). The defendants each filed Motions to Dismiss Plaintiff’s Complaint.
(Doc. Nos. 18, 23, 30). On February 4, 2015, the Magistrate Judge entered a Memorandum and
Recommendation (“M&R”) recommending that the defendants’ Motions to Dismiss be granted
and the Complaint be dismissed with prejudice. After a thorough and sound evaluation of the
evidence, the Magistrate Judge determined that Plaintiff’s Complaint was barred by the RookerFeldman doctrine which prohibits actions attacking state court judgments in federal court. No

party filed objections to the M&R, and after a full and careful review of the M&R, this Court
entered its Order adopting the M&R, granting the defendants’ Motions to Dismiss, and
dismissing Plaintiff’s Complaint with prejudice (the “Order”) on May 19, 2015. (Doc. No. 34).
Plaintiff did not appeal the Order; however, on June 18, 2015, Plaintiff filed the instant Motion
to Vacate. (Doc. No. 36). No defendant has filed objections to Plaintiff’s Motion and the time
for doing so has expired. The Motion is ripe for adjudication.
II.

DISCUSSION
Pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff requests that the Court vacate

its Order and the final judgment in this case. Plaintiff alleges that the Court has perpetrated a
fraud by entering its Order dismissing her Complaint.
Rule 60(b)(3) of the Federal Rules of Civil Procedure provides that “the court may
relieve a party or its legal representative from a final judgment, order, or proceeding for . . . fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” The United States Court of Appeals for the Fourth Circuit has “set forth three
factors that a moving party must establish to prevail on a Rule 60(b)(3) motion: (1) the moving
party must have a meritorious defense; (2) the moving party must prove misconduct by clear and
convincing evidence; and (3) the misconduct prevented the moving party from fully presenting
its case.” Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994) (citing Square Constr. Co. v.
Washington Metro. Area Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981)). “After proof of these
elements, ‘the court must balance the competing policies favoring the finality of judgments and
justice being done in view of all the facts, to determine within its discretion, whether relief is
appropriate in each case.’” Id. (quoting Square Constr. Co., 657 F.2d at 71). Rule 60(b)
provides an extraordinary remedy that can be invoked only upon a showing of exceptional

circumstances. McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991)
(quoting Compton v. Alton Steamship Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979)).
Plaintiff’s Motion fails on each element. Through her Complaint in federal court,
Plaintiff sought to attack the state court’s order allowing the foreclosure proceeding. Such a
claim is clearly barred by the Rooker-Feldman doctrine, and Plaintiff has offered no meritorious
defense. Next, Plaintiff has not provided any evidence of misconduct, much less clear and
convincing evidence. Finally, Plaintiff was given every procedural opportunity to prosecute her
case, and she was not prevented from fully doing so. Consequently, the Court must deny
Plaintiff’s Motion.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Vacate Judgment and

Order on Memorandum and Recommendation, (Doc. No. 36), is DENIED.
Signed: October 19, 2015