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Scott v. White

United States District Court, E.D. Virginia, Norfolk Division

December 23, 2014

MICHAEL SCOTT, pro se, TERRY SCOTT, pro se, Plaintiffs,
SAMUEL I. WHITE, P.C., et al., Defendants

         Decided December 22, 2014.

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          Michael Scott, Plaintiff, Pro se, Virginia Beach, VA.

         Terry A. Scott, Plaintiff, Pro se, Virginia Beach, VA.

         For 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.

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         Raymond A. Jackson, United States District Judge.

         This 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.

         Plaintiff 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.[1]

Page 668

          For the reasons set forth below, Plaintiffs' motion is GRANTED IN PART.


         Plaintiffs 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" ).

         A. Suit 789

         Plaintiffs 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.

         On 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 grounds." Id.

         This 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 herein."

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,

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67 Fed.Appx. 238 (4th Cir. 2003) (per curiam).

         B. Suit 786

         Plaintiffs 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.

         On 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 Court.

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.

         Underscoring 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." Id.

         Consequently, 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 timeframe.

         On 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.

         The 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,

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L.L.C., Samuel I. White, P.C., Carolyn B. Leen, or Samuel I. White; or
(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).

         On 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.

         On 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.

         On March 18, 2008, Plaintiffs filed a Motion to Supplement Motion for Preliminary Injunction. ECF No. 12. On March 19, 2008,[2] 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.

         In the 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 affirmed this

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Court's decision. Scott v. U.S. Bank NA, 473 Fed. App'x 269 (4th Cir. 2012) (per curiam).

         On 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. 21.

         On July 2, 2014, Plaintiffs filed the instant Motion and supporting memorandum. ECF Nos. 26 & 27.


         The 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.


         A. Validity of the Court's June 5, 2009 Order

         1. The Court's Order Did Not Comply with the Federal Rules of Civil Procedure

         Plaintiffs 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:

Entering Judgment
(a) Separate Document. Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for ...

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