McHaffie v. Wells Fargo Bank NA et al, No. 3:2010cv00103 - Document 21 (M.D. Ga. 2011)
Court Description: ORDER granting 9 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 06/02/2011 (ajp) ***
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McHaffie v. Wells Fargo Bank NA et al Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION * RACHEL LEIGH McHAFFIE, * Plaintiff, vs. * WELLS FARGO BANK, N.A., JOHN STUMPF, HOWARD I. ATKINS, McCALLA RAYMER, LLC, TONYA NOLAN, and MELODY R. JONES, * CASE NO. 3:10-CV-103 (CDL) * * * Defendants. O R D E R Defendant Tonya summary judgment. Nolan (“Nolan”) has filed a motion for Plaintiff’s claims against Nolan arise from her conduct as a clerk for the Walton County Magistrate Court during a dispossessory proceeding against Plaintiff in that court after the foreclosure and sale of Plaintiff’s home. For the following reasons, Nolan’s Motion for Summary Judgment (ECF No. 9) is granted. SUMMARY JUDGMENT STANDARD Summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Civ. P. 56(a). Fed. R. In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, Dockets.Justia.com the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party’s favor. 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby, Inc., A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id. BACKGROUND In support of her motion for summary judgment and as required by Local Rule 56, Nolan filed a statement of material facts to which she contends there is no genuine dispute. Def. Nolan’s Mot. for Summ. J. [hereinafter Nolan’s Mot. for Summ. J.] Attach. 2, Def. Nolan’s Statement of Material Facts Upon Which There Exists No Genuine Issue to be Tried, ECF No. 9-2 [hereinafter Nolan’s Statement of Material Facts]. She supported each statement of fact with a specific citation to the record. See generally id. Since Plaintiff is proceeding pro se, the Court informed Plaintiff of the importance of responding to Nolan’s motion for summary judgment, including the statement of undisputed material facts, and consequences of failing to respond. of Right to Respond, ECF No. 10. Court’s notice and failed to warned of the Order Notifying Plaintiff Plaintiff did not heed the respond 2 Plaintiff to Nolan’s motion and statement of material facts. Therefore, pursuant to Local Rule 56, those facts are now deemed admitted. Although those facts are M.D. Ga. R. 56. admitted, Nolan “continues to shoulder the initial burden of production in demonstrating the absence of any genuine [dispute] of material fact, and the court must satisfy discharged.” 2008). itself that the burden has been satisfactorily Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. The Court must review the movant’s citations to the record to “determine if there is, indeed, no genuine [dispute] of material fact.” Id. at 1269. Based on the Court’s review of Nolan’s statement of material facts and record citations, viewed in the light most favorable to Plaintiff, the facts for purposes of summary judgment are as follows. Wells Fargo Bank, N.A. (“Wells Fargo”), also named as a Defendant in this action, filed a dispossessory action against Plaintiff in the Magistrate Court of Walton County, Georgia. Nolan’s Mot. Magistrate for Summ. Court File J. Ex. A 89-90, Pt. 5, Affidavit Certified for Copy Summons of of Dispossessory & Petition for Writ of Possession, ECF No. 9-7. Wells Fargo claimed that Plaintiff was a tenant at sufferance because her home had previously been sold in a foreclosure sale. Id. In connection with the dispossessory action, Nolan—as clerk for the Walton County Magistrate Court—signed a notice and summons directed to Plaintiff, notifying her of the need to file 3 an answer to the dispossessory receipt of service. Certified Copy of action within seven days of Nolan’s Mot. for Summ. J. Ex. A Pt. 5, Magistrate Court File 90-91, Notice and Summons, ECF No. 9-7 [hereinafter Notice and Summons]. The notice and summons form signed by Nolan also contained a writ of possession that was left blank and not signed by the magistrate judge or by Nolan. Id. at 91. dispossessory action. Plaintiff filed an answer to the Nolan’s Mot. for Summ. J. Ex. A Pts. 1-5, Certified Copy of Magistrate Court File 4-88, Def. McHaffie’s Answer to Writ of Possession, ECF Nos. 9-3, 9-4, 9-5, 9-6 & 9-7. The magistrate court set a hearing date for a bench trial and issued a notice of the hearing. Nolan’s Mot. for Summ. J. Ex. A Pt. 1, Certified Copy of Magistrate Court File 3, Notice of Hearing, ECF No. 9-3. possession against The magistrate judge executed a writ of Plaintiff, commanding that full and possession of the premises be delivered to Wells Fargo. quiet Nolan’s Mot. for Summ. J. Ex. A Pt. 1, Certified Copy of Magistrate Court File 2, Writ of Possession, ECF No. 9-3 [hereinafter Writ of Possession]. Superior Court. Plaintiff Nolan’s appealed Mot. for to the Summ. J. Walton Ex. A County Pt. 1, Certified Copy of Magistrate Court File 1, Notice of Appeal, ECF No. 9-3. After Wells Fargo initiated the dispossessory action, but before the magistrate judge signed 4 the writ of possession, Plaintiff filed this action in the Superior Court of Walton County, Georgia. Notice of Removal [hereinafter Notice of Removal] Ex. A Pts. 1-2, Superior Court Pleadings, Compl., ECF Nos. 1-1 & 1-2 [hereinafter Compl.]; Notice of Removal Ex. A Part 2 (Corrected), Superior Court Pleadings, Compl., ECF No. 1-6 [hereinafter Corrected Compl.].1 the action to this Court. Nolan subsequently removed Notice of Removal. DISCUSSION The Court notes at the outset that Plaintiff’s Complaint is a typical “shotgun pleading.” It is difficult to decipher which claims are made against which Defendants. Notwithstanding the obstacles posed by Plaintiff’s deficient pleading, the Court has struggled to evaluate Plaintiff’s claims for summary judgment purposes. the Before scrutinizing the merits of Plaintiff’s claims, Court preliminarily addresses its subject matter improper because jurisdiction. I. Removal Jurisdiction Plaintiff alleges that removal was Plaintiff did not consent to the removal by signing the notice of removal. See Special Appearance 1 By Pl. to Challenge The pleadings filed in superior court include a “corrected” second half of Plaintiff’s Complaint, which is almost identical to the original Complaint, except that Plaintiff has crossed out some of her claims in the corrected Complaint and included additional exhibits. The Court will cite to the corrected version for claims asserted in the second half of the Complaint unless otherwise noted. 5 Jurisdiction of This Honorable Ct., ECF No. 16. is without merit. The non-removing party’s signature is not required on the notice of removal. the signature of This argument the attorney The procedures only require for the defendant filing the notice of removal. See 28 U.S.C. § 1446(a) (“A defendant or defendants to State desiring court shall file remove in any the civil district action . . . from court of the a United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure”); Fed. R. Civ. P. 11(a) (“Every 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.”). attorney properly signed the notice of removal. Removal 5. Therefore, no procedural Nolan’s See Notice of irregularities regarding removal of this action to federal court. occurred Moreover, the Court is satisfied that some of Plaintiff’s alleged claims arguably arise under federal law, and therefore, the Court has subject matter jurisdiction over 28 U.S.C. § 1331; 28 U.S.C. § 1367(a). this action. Accordingly, the Court next addresses whether summary judgment is appropriate. 6 See II. Plaintiff’s Constitutional Claims2 Plaintiff claims that service of the writ of possession on her violated her Fifth and Seventh Amendment Rights. Compl. 48 ¶ 52. These claims, along with Corrected several others asserted by Plaintiff, are based on the factual premise that Nolan executed a writ of possession commanding the sheriff’s office to deliver full and quiet possession of Plaintiff’s home to Wells Fargo. See e.g., Compl. 4 (claiming “the Writ of Possession was not signed by a Magistrate Judge but by Clerk Walton County Magistrate Court.”). This factual however, is refuted by the evidence in the record. premise, Nolan signed the notice and summons for the dispossessory action, advising Plaintiff of the need to file an answer within seven days of receipt of service. See Notice and Summons. The writ of possession that was included on the same form as the notice and summons was left blank and not signed by Nolan. See id. The writ of possession commanding the sheriff’s office to deliver full and quiet possession of Plaintiff’s home to Wells Fargo was executed by the magistrate judge and not by Nolan. Possession. See Writ of In fact, the writ of possession was not issued 2 Plaintiff’s claims are so factually deficient that the Court finds it more efficient to simply dispose of them based on an absence of a factual dispute rather than unnecessarily expand the scope of this Order to include an erudite (and lengthy) legal discussion as to whether Plaintiff has satisfied the elements of a claim that must be asserted pursuant to 42 U.S.C. § 1983 and whether Nolan would be entitled to qualified immunity as to any such claims. 7 until after this action was filed against Nolan. See Compl. (filed on November 12, 2010); Writ of Possession (executed by the Walton County Magistrate Judge on November 22, 2010). The only act attributable to Nolan is that she signed the notice and summons. It is therefore undisputed that Nolan did not execute or serve a writ of possession on Plaintiff. Accordingly, the undisputed facts do not support Plaintiff’s claim against Nolan, and summary judgment is required as to Plaintiff’s Fifth and Seventh Amendment claims. III. Plaintiff’s Claim Under 18 U.S.C. § 3571 Plaintiff makes a confusing claim that Nolan, as a county employee involved in allegedly unconstitutional actions, violated her oath of office, which oath somehow constitutes a quid pro quo contract. As stated by Plaintiff, “[i]f a person fails to abide by the terms of the Oath of Contract they are subject to the penalties and remedies for Br[e]ach of Contract under 18 U.S.C. § 3571 actionable at $250,000.00 per violation.” Compl. 18 ¶ 6. Plaintiff’s claim has no merit. Section 3571 clearly application entitled has no here, and Nolan is to summary judgment as to that claim. IV. Plaintiff’s Claim Under 5 U.S.C. § 7311 Plaintiff claims that “officers of the Court . . . embracing unconstitutional ‘Writs of Possession’ are advocating the overthrow of our 8 constitutional form of government; and are in violation Corrected Compl. 47 ¶ 50. of 5 U.S.C.[] § 7311.” According to 5 U.S.C. § 7311, an individual that advocates the overthrow of our constitutional form of government cannot hold a position in the government of the United States. record, Court, Nolan is does Government, not and 5 U.S.C. § 7311. 5 U.S.C. § 7311(1). a clerk hold with a the position therefore, cannot Accordingly, As demonstrated by the Walton County with the be in Plaintiff’s Magistrate United States violation claim fails as of a matter of law. V. Plaintiff’s Fraud Claims Plaintiff contends that issuance of a writ of possession “fraudulently by a Clerk removing home owners from their homes constitute[s] fraud and involved Sheriffs and their deputies in a criminal activity in violation of Georgia Residential Mortgage Fraud Act, a RICO issue.” Compl. 45-46 ¶ 46.3 Plaintiff further claims that “the issuance of a ‘Writ of Possession’ based upon the filing of Security Deed without submitting original Note with wet ink signatures and title page into evidence constitutes ‘Bad Faith’ . . . , which is actual 3 or constructive fraud.” The Court notes that Plaintiff appears to have abandoned this claim by crossing it out in her “corrected” Complaint. See Corrected Compl. 45-46. The Court, in an abundance of caution, will address Plaintiff’s argument because Plaintiff’s Complaint alleges fraud multiple times based on the issuance of the writ of possession. See Compl. 4; Corrected Compl. 47 ¶ 49. 9 Corrected Compl. 47 ¶ 49. claims under the Plaintiff appears to be asserting Georgia Residential Mortgage Fraud Act, O.C.G.A. § 16-8-100 et seq. and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., based on Nolan’s alleged issuance of a writ of possession. As previously explained, the writ of possession was issued by the magistrate judge and not by Nolan. Therefore, the undisputed facts simply do not support Plaintiff’s legal theory even if it were found to be cognizable. Accordingly, Nolan is entitled to summary judgment on Plaintiff’s fraud and RICO claims. VI. Plaintiff’s Claims Against “Complicit Defendants” Finally, Plaintiff brings numerous allegations Wells Fargo and “complicit defendants.” against Even if some type of theory of liability could be manufactured based upon alleged “complicity,” the undisputed factual record discloses no evidence that Nolan was in any way “complicit” with Wells Fargo. The only act undisputed Accordingly, attributable evidence, Nolan to was is Nolan, signing entitled as the to demonstrated notice summary and by the summons. judgment on Plaintiff’s “complicity” claims. To the extent that Plaintiff asserts additional claims against Nolan based upon her signing the notice and summons, the Court finds that Plaintiff has failed actions give rise to any cognizable claim. 10 to show how Nolan’s Therefore, Nolan is granted summary judgment as to all claims asserted against her by Plaintiff. CONCLUSION Based on the foregoing, Nolan’s Motion for Summary Judgment (ECF No. 9) is granted. IT IS SO ORDERED, this 2nd day of June, 2011. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 11
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