Dalenko v. Stephens et al, No. 5:2010cv00432 - Document 60 (E.D.N.C. 2011)
Court Description: ORDER denying 26 Motion for Sanctions - finding as moot 34 Motion to Accept Responses as Timely Filed - finding as moot 35 Motion to Strike - finding as moot 44 Motion to Strike - finding as moot 47 Motion for Entry of Default - denying [53 ] Motion for Sanctions - finding as moot 55 Motion for Entry of Default - finding as moot 56 Motion to Amend/Correct - granting 15 Motion to Dismiss - and granting 23 Motion to Dismiss for Lack of Prosecution - The clerk is directed to close this case. Signed by Senior Judge Malcolm J. Howard on 7/7/11. (Lee, L.)
Download PDF
<![CDATA[
Dalenko v. Stephens et al Doc. 60 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:10-CV-432-H CAROL DALENKO, Plaintiff, ORDER v. DONALD W. STEPHENS, et al., Defendants. This matter is before the court on the following motions: (1) Motion Stevens Jr.; to dismiss [DE #15] by defendant H. Hugh (2) Motion to dismiss [DE #23] by defendants Donald W. Stephens, William R. Pittman, Kenneth C. Titus, Barbara A. Jackson, James A. Wynn, Jr, and Robert N. Hunter, Jr. (collectively, the "judicial defendants"); Motion Stevens Jr.; (3) for Sanctions [DE #26] by defendant H. Hugh (4) Motion to Accept Responses as Timely Filed [DE #34] plaintiff Carol Dalenko; and, by (5) Motion to Strike [DE #35] by all defendants; Motion to strike defendant's motion to strike [DE #44] filed by plaintiff Carol Dalenko. Responses further and filings replies has have expired. been The filed, court and the also plaintiff filed an amended complaint on April 8, time notes 2011, for that and will Dockets.Justia.com address the issues Additionally, Jury" [DE #46] surrounding plaintiff filed a its filing "Notice to in this Exercise order. Right to on May 23, 2011. ' All these matters are ripe for adjudication. The court will not belabor the point with all the details of the long However, history of plaintiff's a brief background is necessary. complaint on October 8, served filings the judicial defendants defendants, judicial defendants with this Plaintiff filed her 2010 pursuant to 42 U.S.C. on January 31, her in a claims case 2011. arise court. out 1983 and § According to the actions by the of she brought before the Superior Court Division of North Carolina's General Court of Justice, and her appeal of orders issued in that case by the North Carolina Court of Appeals. The complaint stems from a related action, Dalenko v. News and Observer PUblishing Co, et al., No. 5:10-CV 184-H, in which the plaintiff, in May of 2004, filed a civil suit for libel and sought redress from the court alleging that The News and Observer defamatory article injured her published on May reputation by a 11, 2004. The false and News and 'It appears plaintiff believes she is entitled to a trial by jury on the issue of whether she had a right to file an amended complaint. Plaintiff appears to misunderstand what the Seventh Amendment Right to a trial by jury entails. If this case should need to be tried, then plaintiff shall have a right to a trial by jury, not by judge. However, a right to jury trial does not mean that plaintiff has a right to have a trial on each and every issue that arises in the case. 2 Observer moved to dismiss the complaint on the grounds that it was not accompanied by an attorney's certification and therefore did not comply with the gatekeeper order previously entered by the state dismiss court. was While under The News consideration and by Observer's the court, motion the plaintiff voluntarily dismissed the defamation suit on September 27, One year later, and Observer 2005. the plaintiff filed her suit against The News in state court, but this time accompanied complaint with a certification signed by local attorney, Hopper. to the Kevin The state trial court entered summary judgment in favor of The News and Observer and made other rulings adverse to the plaintiff Appeals in her affirmed libel the The suit. trial court North rUlings Carolina that Court were of properly before it and remanded the case for consideration of The News and Observer's Motion for Attorney fees. See Order of N.C. Ct. App. No. COA-1212 (July 7, 2009). On September 29, 2009, Judge Titus entered a default jUdgment in the amount of $98,260.40 against the plaintiff for The News and Observer's attorney fees and costs. day a motion Gatekeeper Observer. to find Order was the plaintiff filed by in civil attorneys for On that same contempt The of the News and Senior Resident Superior Court Judge Stephens issued an order requiring the plaintiff to appear and show cause as to 3 On November 3, why she should not be held in contempt. Judge Pittman found the plaintiff in civil 2009, contempt and sentenced her to thirty days in jail. In the light most favorable to the plaintiff, commenced the instant federal action alleging fraud, of property rights in the sum of $100,758.40, she has deprivation barred access to the courts and imprisonment to deter her from making a petition for redress, based on actions judicial officials and orders state civil action. taken on the part of entered in the above Plaintiff also seeks a jury various referenced trial for review of material facts in the related federal action, Dalenko v. News monetary and Observer damages from Publishing each Co., et al., defendant in 5:10-CV-184-H, the amount of $100,785.40, and the costs of attorney fees incurred. 2 Plaintiff's complaint purports to have this court review the actions and/or judgment of the state court, a role which is not within the jurisdiction of the federal district court. The appellate review of state-court decisions lies only within the state appellate Court, Ins. system and then in the united not with the federal district court. Co. v. Stillwell, 336 F.3d 311, 316 States Supreme American Reliable (4th Cir. 2003); Of course, any "review" of the related federal action can be done only through the appropriate appellate channels, not by filing a separate action in this court. 2 4 see also District of Columbia Court of Appeals v. 462, 476 (1983) ("Review of obtained only in fails to raise [state-court] claims independent with the state-court judgment and is, Rooker-Feldman doctrine. Indus. Corp., 544 U.S. Feldman doctrine bars Plaintiff's complaint of her dissatisfaction therefore, See Exxon Mobil Corp. 280, 284 federal 460 U.S. determinations can be [the Supreme Court]."). any Feldman, (2005) barred by the v. Saudi Basic (holding that jurisdiction where a Rooker party to a state-court action files suit in federal court complaining of an injury caused by the state-court jUdgment and seeking review and rej ection of that judgment); Hagerty v. 749 F.2d 217, 1984) 220 (5th Cir. Succession of Clement, (invoking the "well settled rule that a plaintiff may not seek a reversal of a state court judgment simply by casting his complaint in the form of a civil rights action"). The court has also reviewed plaintiff's purported amended complaint. amended The complaint court need was timely not decide filed whether within the plaintiff's time specified in Federal Rule of Civil Procedure 15 (a) court finds the amendments to be futile. complaint was timely, the 5 because the Even assuming that the Rooker-Feldman this matter. periods doctrine still bars Also before the court is defendant H. Hugh Stevens' motion for sanctions. time, but The court declines warns plaintiff that to grant sanctions at this continual system will result in sanctions, abuse of the court including but not limited to, monetary sanctions and a pre-filing injunction. CONCLUSION For the foregoing reasons, defendants' are GRANTED, and plaintiff's complaint amendments) is hereby DISMISSED motions (including her purported for lack Defendant's motion for sanctions is DENIED. to strike and all to dismiss other pending motions are of jurisdiction. Defendants' motion deemed moot. clerk is directed to close this case. This iff ~day of July 2011. Malcolm J Howard Senior United States District JUdge At Greenville, NC #26 6 The
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
