Stevens v. Calvary Chapel of Twin Falls, Inc.

Filing 22

IT IS ORDERED that Plaintiff shall have THIRTY (30) DAYS from entry of this order to withdraw her frivolous Complaint and associated motions and voluntarily dismiss this case. Signed by Judge Sam Sparks. (dm)

F L EL
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IN THE UNITED STATES DISTRICT CQj%
FOR THE WESTERN DISTRICT OF TE
AUSTIN DIVISION

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DEBORAH STEVENS, Trustee for Central
Texas Liberty Media Holdings,
Plaintiff,
V.

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A-i 5-CV-257-SS

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CALVARY CHAPEL OF TWIN FALLS,
INC., an Idaho Corporation,
Defendant.

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BE IT REMEMBERED on this day the Court reviewed the file in the above-styled case,
and specifically Plaintiff Deborah Stevens' Complaint [Dkt. #1], Defendant Calvary Chapel of

Twin Falls, Inc. ("Calvary Chapel")'s Motion to Dismiss [Dkt. #121, Plaintiffs Motion for Entry

of Default against Calvary Chapel [Dkt. #141 and Motion for Default Judgment [Dkt. #15],
Calvary Chapel's Response to the Motions for Entry of Default and Default Judgment [Dkt.
#17], Plaintiffs Motion for Extension of Time to File Reply to Response to Motion for Entry of

Default and Default Judgment and Extension of Time to File Response to Motion to Dismiss
[Dkt. #18], Plaintiffs Response to Motion to Dismiss [Dkt. #19], Plaintiffs Reply in support of

the Motion for Default Judgment [#20], and Plaintiffs Motion to Amend Complaint [#21].

Plaintiffs Complaint and her proposed Amended Complaint both revolve around her
contention that Calvary Chapel, an organization she admits is licensed by the FCC to broadcast
on frequency 90.1 FM, has conspired with the FCC to "steal" this radio frequency from Plaintiff.
[Dkt. #1] at 1.' Plaintiff asserts this Court has federal question jurisdiction, diversity jurisdiction,

and even admiralty jurisdiction over her claim. Id. at 4-5.

Plaintiffs Amended Complaint is substantively similar to her Complaint, but seeks to join the FCC and
various officials as defendants in order to assert a direct challenge to the FCC's regulations concerning radio
1

I

Plaintiff is well aware from this Court's prior orders in this case, as well as her extensive
prior history of litigating the issue of whether she can broadcast on frequency 90.1 FM without
an FCC

license,2

that these claimed jurisdictional foundations are nonsense. "Federal law gives

the court of appeals

exclusive jurisdiction

to review all final orders of the FCC." Order of April

7, 2015 [Dkt. #8] at 4 (emphasis added) (citing 47 U.S.C. § 402(a); 28 U.S.C. § 2342(1)). This

Court has no jurisdiction to determine whether the FCC properly licensed Calvary Chapel to

broadcast on frequency 90.1 FM. Id. Furthermore, three lawsuits before this Court and one
appeal before the Fifth Circuit (affirming this Court's decision) have uniformly resulted in the

frequency licensing. See generally [Dkt. #2 11. Plaintiff's proposed Amended Complaint is futile because it does
not cure the fatal deficiencies in her claims. Joining the FCC to this suit alleging FCC misconduct may satisfy the
basic requirement that all necessary parties participate in the suit, FED. R. CIV. P. 19, but it does nothing to cure the
fact, discussed in detail below, that this Court has no jurisdiction over Plaintiff's complaints against the FCC and has
already unfavorably adjudicated Plaintiff's claimed right to use 90.1 FM without an FCC license on multiple
occasions.
2

This case is not Stevens's first lawsuit with this Court. In 2009, she was one of four plaintiffs to sue an agent
of the Federal Communications Commission (FCC). See Kelton v. Lee, No. 1 :09-CV-9 1 8-SS (W.D. Tex. 2009)
(First Lawsuit). The FCC had previously contacted each of the plaintiffs to notify them that the radio signals
transmitting from their residences in Austin, Texas, on frequency 90.1 MHZ exceeded the limits for non-licensed
operation in violation of federal law. See Order of Jan. 26, 2010 [#9] at 1-4, First Lawsuit. The plaintiffs responded
by suing the FCC agent who signed the notification letters, seeking to enjoin him from "exerting or purporting to act
in the name of and in the authority of the FCC (until such time as he proves up his agency for the FCC), and to
enjoin the FCC from preventing Plaintiffs from engaging in the broadcasting of radio communications within the
borders of the state of Texas, until such time as the FCC demonstrates actual harm to interstate commerce due to
Plaintiffs' acts." Id. at 7-8. The Court dismissed the lawsuit for lack of subject matter jurisdiction and cautioned the
plaintiffs to read and review Rule 11 before filing any other lawsuits. Id. at 11.

Subsequently, on December 20, 2010, the FCC filed an enforcement action against the Stevenses (both Deborah and
Jerry) in this Court pursuant to 47 U.S.C. § 504(a). See United States v. Stevens, No. 1: l0-CV-964-SS (W.D. Tex.
2010) (Second Lawsuit). The Stevenses raised various legal challenges to enforcement of the forfeiture order, which
this Court determined it lacked jurisdiction to consider. Based on the undisputed facts, this Court entered a final
judgment in the amount of $10,000 in favor of the United States on June 23, 2011. The Fifth Circuit affirmed.
United States v. Stevens, 691 F.3d 620 (5th Cir. 2012).
On January 7, 2014, the Stevenses filed a habeas corpus petition, arguing they were in "custody" or subject to
"restraint" because the Government was attempting to enforce this Court's judgment and collect the $10,000 it was
owed. See Stevens v. Wheeler, No. l:14-CV-13-SS (W.D. Tex. 2013) (Third Lawsuit). The Court determined: "This
action is wholly frivolous, has no basis in law (or, so far as the Court can tell, in reality), and was plainly filed for
purposes of delay and harassment." Order of Jan. 10, 2014 [#3] at 2, Third Lawsuit. The Court, pursuant to Rule II,
ordered the Stevenses to withdraw their frivolous application and voluntarily dismiss the case within twenty-one
days or incur possible sanctions. Id. The Stevenses did not comply, and the Court ordered, in addition to the
underlying judgment, the United States have judgment of and be authorized to collect fees and costs in sanctions of
$1,268.01 plus interest. Order of Mar. 18, 2014 [#10] at 1, Third Lawsuit. The Court dismissed the case with
prejudice. Id. at 2.

unequivocal holding that Plaintiff does not have the right to broadcast any signal in excess of
250 microvolts per meter at a distance of three meters on frequency 90.1 FM without a license
from the FCC. See note 2, supra; see also 40 C.F.R.

§

15.239.

That Plaintiff now attempts to assert a nonexistent ownership interest in 90.1 FM as a

"Trustee" instead of as an individual,3 suing a licensee of the FCC instead of the FCC itself, does
not destroy the res judicata effect of these prior rulings. Test Masters Educational Services

v.

Singh, et al. 428 F. 3d 559, 571 (5th Cir. 2005) (resjudicata applies where parties are the same or

in privily with the parties to the prior suit). This is a suit between Deborah Stevens, who has
sued in the past to enjoin the FCC licensing requirements and to obtain the right to unlicensed

use of 90.1 FM on multiple occasions, and Calvary Chapel, a licensee of the FCC, the defendant

whom Stevens has previously sued in this very court over these very issues. See id. This lawsuit
marks the fourth time Plaintiff has asked this Court to issue rulings concerning FCC actions that
are entirely beyond its jurisdiction. See note 2, supra. This case marks the fourth time Plaintiff

has attempted to claim some ownership of the frequency 90.1 FM in defiance of FCC licensing

regulations, and in complete disregard of the proper administrative and legal channels for

bringing challenges to those regulations. Id.
Even more important to the Court's analysis, this is the second time Plaintiff has
attempted an "end run" around the procedural and jurisdictional challenges to her claims by

dragging a private party into litigation as a defendant in furtherance of her crusade against the

FCC licensing regulations.

Id.

Previously, she sued an individual FCC agent who was

The Court specifically notes that, to the extent Plaintiff purports to represent the interests of a Trust, she is not
a lawyer and caimot provide pro se representation of any interests but her own. See In re Liberty Trust Co., 130
B.R. 467, 468 (W.D. Tex. 1991) (finding the right to appear prose is personal and rejecting a non-lawyer trustee's
argument that he could appear on behalf of the trust) (citing G.E. Pope Equity Trust v. United States, 818 F.2d 696
(9th Cir. 1987)).
C]

performing his official duties. Id. She is now suing an organization she admits is licensed by the
FCC to use frequency 90.1 FM. Compi. [Dkt. #1] at 1, 6. Plaintiff has made it abundantly clear
she "hasn't even started good on the pleadings" in this case. {Dkt. #19] at 3. She anticipates

remanda

pleading amendments, discovery, appeals, and

long, expensive, and ultimately

abusive litigation process for Calvary Chapel, whom Plaintiff has only alleged obtained and
made use of an FCC license to broadcast on 90.1 FM. Compl. [Dkt. #1] at 1, 6.

Plaintiff's specific intent to abuse the litigation process to harass, burden, and impose
unnecessary costs on Calvary Chapel is demonstrated by her Motion for Default Judgment [Dkt.
#20]. Plaintiff moved for default based on an alleged lack of timely service of Calvary Chapel's

Motion to Dismiss.

[Dkt. #14, 15].

Calvary Chapel responded that it had in fact timely

responded and had attempted to serve Plaintiff at the address on file with the Court, but it was
informed by the U.S. Postal Service that "no such number" exists. [Dkt. #17] at 2. On receiving
notice that the Motion to Dismiss was undeliverable, Defendants incurred the time and expense

of performing a background check on Plaintiff to find a valid address for her, and re-served her
at this address.

See

Response [Dkt. #17], at 5-6.

The apparently nonexistent address on the Certificate of Service for Calvary Chapel's

Motion to Dismiss is "1516 South Lamar, No. 112, Austin, TX, 78704," id. at 16. This is the
address that appears in Plaintiff's signature block on the Complaint [Dkt. #1] and at Exhibits P104, P-lOS, P-l06, P-108, attached by Plaintiff to her Original Complaint as evidence of

correspondence with Calvary Chapel regarding 90.1 FM. Id. It is also the address that Plaintiff
includes in her signature block in her Reply in support of her Motion for Default Judgment.
[Dkt. #20] at 2. In that Reply, "Plaintiff in no way withdraws her Motion regarding default.

Whether Service is

part

and parcel of the timely response is at issue. . .." Id. Plaintiff makes no

ri

attempt to explain why Defendants' attempt to accomplish service at 1516 South Lamar, No.
112, Austin, TX, 78704, the address she herself has held out in the record on multiple occasions,

was improper, nor does she address well-settled law that an entry of default and a default

judgment are not appropriate when a Defendant has timely filed a Motion to Dismiss.

See FED.

R. Civ. P. 55; FED. R. Civ. P. 12.

Plaintiff's Complaint, Motion for Entry of Default, Motion for Default Judgment, and
Motion for Leave to File Amended Complaint are without any arguable basis in law and are
therefore entirely frivolous.

See Kingery

v.

Hale, 73

F. App'x 755, 755 (5th Cir. 2003) ("A

complaint is frivolous if it lacks an arguable basis either in law or in fact."). Because Plaintiff is
well aware the District Court is not a proper court in which to challenge FCC licensing rules, her

suit against the FCC-licensed user of the frequency 90.1 FM has no proper purpose and

represents only harassment and undue burden to the licensee. The Court therefore issues the

following order pursuant to Federal Rule of Civil Procedure 11:
IT IS ORDERED that Plaintiff shall have THIRTY (30) DAYS from entry of this order
to withdraw her frivolous Complaint and associated motions and voluntarily dismiss this case. If

Plaintiff does not comply, strong sanctions may issue, including but not limited to monetary
sanctions and an order declaring Plaintiff a vexatious litigant and barring Plaintiff from making
any further filings or bringing any new lawsuit in the Western District of Texas without first

seeking leave of court.
Signed this the .2

day of

Jti-t.c-

,2015.

SAM SPARKS
UNITED STATES DISTRICT JUDGE
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