United States District Court, E.D. Virginia, Norfolk Division
December 22, 2014.
Michael Scott, Plaintiff, Pro se, Virginia Beach, VA.
A. Scott, Plaintiff, Pro se, Virginia Beach, VA.
Samuel I. White, P.C., Wells Fargo Bank, N.A., DLJ Mortgage
Capital, Inc., GE Mortgage Services, LLC, Wells Fargo Home
Mortgage, Inc., doing business as America's Servicing
Company, USA Bank, N.A., Defendants: Matthew James Carr,
Richard Johan Conrod, Jr., Stanley G. Barr, Jr., LEAD
ATTORNEYS, Kaufman & Canoles PC, Norfolk, VA; Christy Lee
Murphy, Kaufman & Canoles PC (Norfolk), Norfolk, VA.
OPINION & ORDER
A. Jackson, United States District Judge.
matter comes before the Court on Plaintiffs' Motion for
Relief from Judgment Under Federal Rules of Civil Procedure
58 & 60. Mot. for Relief from J. Under Fed.R.Civ.P. 58 & 60.
ECF No. 27. In bringing the motion, Plaintiffs challenge the
validity of two of this Court's orders: the June 5, 2009
Order denying their Motion for Relief from Judgment Under
Federal Rules of Civil Procedure 59, and the March 14, 2008
Order dismissing their Complaint. Plaintiffs seek one of two
remedies from this Court:
1. Enter a written order dismissing the action and a written
order disposing of the Rule 59 Motion; or
2. Vacate the Order and Judgment dismissing the Complaint and
enter an order remanding the case to the Circuit Court of the
City of Virginia Beach.
Michael Scott has brought nearly 30 duplicative and baseless
actions in this Court, many of which focus on the foreclosure
of two properties in Virginia Beach. He has brought suits
against nearly everyone that did anything even remotely
connected to these foreclosures. None of his efforts have
succeeded. Plaintiffs have also sued at least two judges, who
in presiding over Plaintiffs' myriad of baseless eases,
found it necessary to impose pre-filing injunctions against
Scott in an effort to alleviate the strain he exerts upon the
court system. To date, five pre-filing injunctions have been
entered against Scott.
the reasons set forth below, Plaintiffs' motion is
GRANTED IN PART.
PROCEDURAL AND FACTUAL HISTORY
have filed a series of civil actions in this Court and the
courts of the Commonwealth of Virginia related to the
foreclosure of two properties Plaintiffs formerly owned on
Zephyr Court (" Zephyr property" or " Mortgage
1" ) and Longmont Road (" Longmont property"
or " Mortgage 2" ) in Virginia Beach. To put the
instant matter in proper context, the Court briefly reviews
the details of just two of those suits: Scott v.
Wells Fargo & Co., et al, 326 F.Supp.2d 709 (E.D.Va.
2003) (hereinafter " Suit 789" or " No.
2:02cv789" ) and Scott v. Wells Fargo Home Mortgage,
Inc., et al, No. 2:03cv786 (hereinafter " Suit
786" or " No. 2:03cv786" ).
filed suit on October 4, 2002, alleging federal claims and
state claims regarding the foreclosures of the Zephyr
property (" Mortgage 1" ) and Longmont property
(" Mortgage 2" ). Specifically, Plaintiffs raised
federal claims under the Truth in Lending Act ("
TILA" ), the Racketeer Influenced and Corrupt
Organizations Act (" RICO" ), The Sherman Act, the
Fair Debt Collection Practices Act (" FDCPA" ), and
the Bankruptcy Code. Plaintiffs raised state and common law
claims under the Virginia Consumer Protection Act ("
VCPA" ), breach of contract, tortious interference,
breach of fiduciary duty and trust, trover, conversion,
actual and/or constructive fraud, deceit and
misrepresentation, and usury.
January 14, 2003 this Court granted summary judgment for the
defendants and stated that Plaintiffs' TILA claim was
without merit to both mortgages (for the Longmont and the
Zephyr properties), Scott 326 F.Supp.2d at 716.
Similarly, the Court stated summary judgment was proper on
both properties as to the FDCPA claim. Id. at 718.
After concluding that Plaintiffs failed to establish federal
question jurisdiction and having granted summary judgment
against Plaintiffs " on several of Plaintiffs'
federal claims," the Court found that Plaintiffs'
remaining claims " were supported by alternative state
law theories of recovery." Id. at 720.
Accordingly, the Court found that it lacked subject matter
jurisdiction to entertain the suit and " decline[d] to
exercise supplemental jurisdiction on those same
Court concluded that opinion with the warning:
" Plaintiff is CAUTIONED that the Court's dismissal
of this action with prejudice is a final decision on the
merits, for the doctrine of res judicata bars any further
prosecution of this action or any new case arising out of
the same transaction or occurrence, or common
nucleus of operative facts as those asserted
Id. (emphasis added). The United States Court of
Appeals for the Fourth Circuit (" Fourth Circuit" )
affirmed the Court's ruling. Scott v. Wells Fargo &
Co., et al,
67 Fed.Appx. 238 (4th Cir. 2003) (per curiam).
filed suit on November 6, 2003, alleging many of the same
federal and state claims regarding the foreclosure of the
Zephyr property and the seizure of the property.
Specifically, Plaintiffs raised federal claims under FDCPA,
the Fair Credit Reporting Act (" FCRA" ), the
Administrative Procedures Act (" APA" ), National
Housing Act (" NHA" ), the Civil Rights Act, 42
U.S.C. § 1983, and the 4th, 13th and 14th amendments of
the U.S. Constitution. They raised state and common law
claims of economic duress, abuse of process, tortious
interference with contractual relations, trespass, libel and
slander, rescission of contract, breach of fiduciary duty and
trust, unjust enrichment, actual and/or constructive fraud,
deceit and misrepresentation, unauthorized use of name,
insulting words, and violations of the VCPA, the Virginia
Fraudulent Conveyance Law, Virginia Unlawful Detainer Law,
and Article I of the Virginia Constitution.
December 15, 2004, the Court granted summary judgment for the
defendants on the federal claims. In its decision, this Court
noted that Plaintiffs, impeded by a pre-filing injunction to
bring their action in state court, included federal claims in
their complaint in an effort to create jurisdiction before
the Court. The Court also reminded Plaintiffs that res
judicata was a bar to their claims. It stated:
To the extent that Plaintiffs continue to attack the validity
of any previous notes or deeds of trust, despite repeated
rulings by the Court that the validity of those
transactions have been long since settled under res
judicata, the Court admonishes Plaintiffs that such claims
are frivolous and will not be further tolerated by the
No. 2:03cv786, 9, ECF No. 102 (emphasis added). Finding that
it did not have original jurisdiction over the remaining
claims, the Court dismissed the state claims for lack of
subject matter jurisdiction and stated that they should be
raised by Plaintiffs in the courts of the Commonwealth of
Virginia. Id. at 19.
the seriousness of Plaintiff Michael Scott's conduct, the
Court issued a pre-filing injunction. On July 29, 2005,
finding this Court failed to give Plaintiffs notice of its
intent to issue the pre-filing injunction and an opportunity
to respond as required by Cromer v. Kraft Foods N. Am.,
Inc., 390 F.3d 812, 819 (4th Cir. 2004), the Fourth
Circuit vacated the pre-filing injunction and remanded on
that point alone. Scott v. Wells Fargo Home Mortg.,
Inc., 143 Fed.Appx. 525, 526 (4th Cir. 2005) (per
curiam). The Fourth Circuit affirmed " all the [other]
orders issued by the district court in th[at] case."
on August 4, 2005, this Court issued a notice to Plaintiffs
indicating the Court's intent to issue a pre-filing
injunction. The Court gave Plaintiffs fifteen (15) days to
respond. Plaintiffs failed to respond within the given
August 23, 2005, Plaintiffs requested an additional three
weeks to respond without providing just cause for such a
request. In an order dated August 31, 2005, and filed
September 2, 2005, this Court denied Plaintiffs' request
and issued the pre-filing injunction which requires
Plaintiffs to request leave to file suit and outlines a
series of procedural steps that must be followed in order for
said request to be granted.
terms of this Court's August 31, 2005 pre-filing
injunction apply to any federal court litigation which:
(1) is brought against any of the following Defendants --
Wells Fargo Home Mortgage, Inc., G.E. Mortgage Services,
L.L.C., Samuel I. White, P.C., Carolyn B. Leen, or Samuel I.
(2) touches on any matter raised before the Court in this
matter or in Scott v. Wells Fargo Home Mortg., Inc.,
326 F.Supp.2d 709 (E.D. Va. 2003).
February 8, 2008, in Virginia Beach Circuit Court, Plaintiffs
filed yet another Complaint against the same defendants they
had sued in this Court previously -- Samuel I. White, P.C.,
DLJ Mortgage Capital, Inc., Wells Fargo Bank, NA, GE Mortgage
Services, LLC, Wells Fargo Home Mortgage, Inc., and U.S.
Bank. Notice of Removal, Ex. 1 at 8-9, ECF No. 1. As to the
Longmont property, Michael Scott once again recycled familiar
allegations: federal violations of FDCPA, FCRA, TILA and Real
Estate Settlement Procedures Act (" RESPA" ) and
numerous state claims including negligent and intentional
infliction of emotional distress, breach of fiduciary duty,
voidance of foreclosure, defamation, insulting words,
unauthorized use of name, usury, breach of contract, tortious
interference with contract, and unjust enrichment.
Id. at 9. Several state claims regarding the Zephyr
property were raised by Terry Scott. Id. at 20-21.
February 25, 2008, Defendants filed a Notice of Removal,
CL08-0737. ECF No. 1. On March 4, 2008, Defendants filed a
Motion to Dismiss with supporting memorandum, ECF Nos. 2 & 3.
On March 10, Plaintiffs filed a Motion to Remand. ECF No. 6.
On March 14, 2008, this Court granted Defendant's Motion
to Dismiss Plaintiffs' Complaint because it violated the
Court's pre-filing injunction. ECF No. 10. The Clerk
mailed copies of the Order to Plaintiffs on the same day.
Also on March 14, 2008, the Clerk filed the Judgment and
mailed copies to Plaintiffs.
March 18, 2008, Plaintiffs filed a Motion to Supplement
Motion for Preliminary Injunction. ECF No. 12. On March 19,
2008, Plaintiffs filed a Motion for Relief
from Judgment. ECF No. 13. Though not expressly stated
therein, Plaintiffs now contend the motion was made pursuant
to Rule 59. Mem. in Supp. of Mot. for Relief Under
Fed.R.Civ.P. Under 58 & 60 " hereinafter Mem. in
Support" , 3. ECF No. 27. A motion under Rule 59,
however, is put forth to request a new trial or that a
judgment be altered or amended. A motion for relief from
judgment is properly filed under Rule 60. In any case, the
Court denied Plaintiffs' motion by Text Order dated June
5, 2009, because Plaintiff failed to offer a meritorious
reason to grant relief from the Court's judgment. On June
5, 2009, by a separate Text Order, the Court denied
Plaintiffs Motion to Supplement Motion for Preliminary
Injunction because the motion was filed after the Court had
dismissed the Complaint on March 14, 2008.
interim, Plaintiffs did not fade away into the night. As
evidenced by their conduct in other cases before this Court,
Plaintiffs' litigiousness only increased. In response, on
October 14, 2011, in Scott v. U.S. Bank, NA, No.
2:09cv516, this Court ordered that all future actions filed
by Plaintiffs in this Court be subject to pre-filing review.
Scott v. U.S. Bank, NA, 2011 WL 10618730 *3 (E.D.
Va. Oct. 13, 2011) (finding such action necessary as "
Plaintiff has attempted to circumvent the Court's
pre-filing injunction ... and with this action has filed a
baseless Amended Complaint and motion after baseless motion
in what is clearly an attempt to vex and harass the
Defendants and this Court." ). The Fourth Circuit
Court's decision. Scott v. U.S. Bank NA, 473
Fed. App'x 269 (4th Cir. 2012) (per curiam).
November 15, 2013, more than four years after this
Court's June 5, 2009 Order, the Clerk received a letter
from Plaintiffs inquiring about the status of their motion.
ECF No. 14. On November 26, 2013, the Clerk sent Plaintiffs a
form letter entitled " Notice Regarding Text Only
Orders" and a copy of the docket sheet which indicated
that the motion had been denied. ECF No. 15. One day prior,
on November 25, 2013, Plaintiffs filed a Notice of Appeal.
Pls.' Notice of Appeal, ECF No. 16. The Notice of Appeal
contained a Certificate of Service, signed by Michael Scott,
which stated that Scott mailed a copy of the Notice of Appeal
to counsel for one of the defendants on November 23, 2013.
Id. at 2. On March 13, 2014, the Fourth Circuit
dismissed Plaintiffs' appeal for lack of jurisdiction
because the Notice of Appeal was not timely filed. ECF No.
2, 2014, Plaintiffs filed the instant Motion and supporting
memorandum. ECF Nos. 26 & 27.
pleadings of a pro se plaintiff must be construed
liberally by courts. T. W. v. Hanover Cnty Pub.
Schools, 900 F.Supp.2d 659, 663 (E.D.Va. 2012) (citing
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
167 L.Ed.2d 1081 (2007)). However, the Court is not permitted
to act as the litigant's advocate and construct legal
arguments that the plaintiff has not made. Id.
(citing Brock v. Carroll, 107 F.3d 241, 242-43 (4th
Cir. 1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)). With this
standard in mind, the Court reviews the grounds raised by
Plaintiffs in seeking relief.
Validity of the Court's June 5, 2009 Order
The Court's Order Did Not Comply with the Federal Rules
of Civil Procedure
argue that this Court failed to comply with Federal Rule of
Civil Procedure 58 when it did not enter judgment on a
separate document. Plaintiffs contend this action denied them
due process and blocked their right to appeal by the Fourth
Circuit. Plaintiffs' argument is misplaced. A motion for
relief from judgment pursuant to Rule 59, does not require a
separate document. See Fed.R.Civ.P. 58(a)(4). Though
Plaintiffs cite Rule 58, they do so incompletely. Rule 58
states, in relevant part:
(a) Separate Document. Every judgment and amended judgment
must be set out in a separate document, but a separate
document is not required for ...