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Nasser v. Waller

United States District Court, W.D. Virginia, Harrisonburg Division

March 7, 2017

MS. LAUREN W. WALLER, ESQUIRE, et al., Defendants.


          Elizabeth K. Dillon United States District Judge.

         In this lawsuit, plaintiff Michael J. Nasser, proceeding pro se, alleges that the defendants' actions during the course of a state court lawsuit litigated in the Circuit Court of Frederick County, Virginia (the State Lawsuit), violated his federal right to due process. The defendants in the instant case are: (1) the opposing party in the State Lawsuit, Neustar Localeze, formerly known as Amacai Information Corporation (Neustar); (2) Neustar's counsel, Lauren W. Waller; and (3) the circuit court judge that presided over the latter portion of the State Lawsuit, the Honorable Randolph Bryant. Nasser's complaint before this court contains eighteen counts, and nearly all of them are titled as violations of the rules of professional conduct or violations of the canons of judicial conduct. But he also references 42 U.S.C. § 1983, and his overarching claim appears to be that the defendants conspired to deny him due process.

         There are four motions pending before the court and addressed herein. Neustar and Waller jointly filed both a motion to dismiss and a motion for summary judgment (Dkt. Nos. 7, 27). Judge Bryant has filed a separate motion to dismiss (Dkt. No. 12), and Nasser has filed his own motion for summary judgment (Dkt. No. 19). The motions have been fully briefed and were argued before the court. As discussed in more detail below, the court concludes that, in large part, Mr. Nasser's claims are based on a fundamental misunderstanding of the meaning and significance of one of the state court's orders. His claims fail as a matter of law, both because they are premised on this mistaken understanding and for additional reasons, as well. For these reasons, the court will grant the defendants' motions to dismiss and will deny both motions for summary judgment as moot.

         I. BACKGROUND

         A. The State Lawsuit

         In July 2014, Nasser filed the State Lawsuit against Neustar, asserting claims of negligent and intentional infliction of emotional distress and a nuisance claim. All of the claims were based on Nasser's allegation that Neustar published on the internet Nasser's address and phone number, incorrectly identifying them as contact information for Comcast. According to Nasser, Neustar was served with the state lawsuit on November 14, 2014. (Pl.'s Resp. to Waller's & Neustar's Mot. for Summ. J. 1 & n.1, Dkt. No. 31.) Neustar was represented by Waller in that suit, and the Honorable Clifford Athey, Jr. was the original judge assigned to the case.

         In response to Nasser's state court complaint, Neustar filed a demurrer. After a hearing, Judge Athey sustained the demurrer as to both emotional distress claims and overruled it as to the nuisance claim in Count III, thereby allowing that claim to go forward. He entered a written order to that effect dated March 6, 2015. (Demurrer Order, Dkt. No. 1-7.)[1] The three-page Demurrer Order is titled simply as “Order” and contains a section titled “Statement of Material Facts, ” another section titled “Conclusions of Law, ” and a third titled “Decision.” (Id.) The order is clear that the court was ruling on a demurrer and that it was overruling it only as to the nuisance claim. In particular, the court stated that “[f]urther evidence is required by the fact finder to determine whether the acts complained of may have constituted a private nuisance.” (Id. at 3.) In the final paragraph of the order, Judge Athey directed the clerk “to send a copy of this Final Order to counsel of record, and the Plaintiff . . . .” (Id.) Nasser points repeatedly to the fact that the court used the language “Final Order” in that sentence and contends that it means that the order was a final order that concluded the case. By focusing on this language, however, Nasser misunderstands the nature of a ruling on a demurrer and also ignores the fact that the order nowhere says it is a judgment being entered in Nasser's favor or that it is otherwise disposing of the case.

         As the Supreme Court of Virginia has explained, “[a] final order is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.” Daniels v. Truck & Equip. Corp., 139 S.E.2d 31, 35 (Va. 1964) (citations omitted). The Demurrer Order, however, noted only that the demurrer was denied as to the nuisance claim and even included statements in its analysis stating that further proceedings were needed, such as, “Further evidence is required by the fact finder to determine whether the acts complained of may have constituted a private nuisance.” (Demurrer Order 3.) Thus, it is plain that the order did not dispose of the whole case.

         Furthermore, the mere fact that Judge Athey used the term “final order” in his direction to the clerk to provide copies, did not transform the order into a final, appealable order such that the circuit court would be deprived of jurisdiction after twenty-one days had passed, as Nasser contends. Virginia courts have repeatedly noted that an order is not final if it does not dispose of the whole subject of the suit, even if it is self-described as “final.” See, e.g., Andersen v. Andersen, 2008 WL 5054702, at *2 & n.1 (Va. Ct. App. Dec. 2, 2008) (noting that “[i]t does not matter that the order declares itself to be final; it must be so in fact” and collecting Virginia authority so holding), copy attached at Dkt. No. 8-3; Brown v. Josey, 2011 WL 1542995, at *2-3 (Va. Ct. App. April 26, 2011), copy attached at Dkt. No. 8-4. The substance of the Demurrer Order here clearly did not grant judgment for either party and simply held that the nuisance claim was not subject to demurrer. It certainly did not dispose of the entirety of the suit such that it could be considered a “final order.”

         Despite this authority, Nasser has seized upon the “final order” language both in the State Lawsuit and before this court. He offers two slightly different arguments as to the significance of the order, but both flow from his premise that it was a “final order.” First, he argues that judgment was entered in his favor as a result of that order. (See Pl's Mot. in Opp'n to Waller & Neustar's Mot. to Dismiss 5-6, Dkt. No. 20.) He contends that the court lost jurisdiction to act on any other matter in the State Lawsuit when twenty-one days had passed from the date of the Demurrer Order, pursuant to Virginia Supreme Court Rule 1:1, [2] particularly because Neustar did not timely object to that order. (Id.; Pl.'s Mot. for Summ. J. 5, Dkt. No. 19.)

         In his related, second argument, Nasser contends that Neustar was in default twenty-one days after entry of the Demurrer Order, and thereafter lost all entitlement to trial. Nasser relies on two Virginia Supreme Court Rules that he claims show Neustar defaulted and that the case was effectively over, and jurisdiction lost, on March 28, 2015. First, he points to Rule 3:8(b), which generally requires the defendant to file an answer within twenty-one days after the entry of an order overruling all demurrers, “or within such shorter or longer time as the court may prescribe.” Here, it is undisputed that Neustar did not file an answer responding to the entire complaint within that twenty-one-day period.[3] Second, he points to Rule 3:19, which governs default. That rule states that a “defendant who fails timely to file a responsive pleading as prescribed in Rule 3:8 is in default” and that a “defendant in default is deemed to have waived any right to trial on the issues.” Va. Sup. Ct. R. 3:19.

         Based on these rules, Nasser argues that the State Lawsuit “was over on March 28, 2015, ” twenty-one days after entry of the Demurrer Order, when Neustar had not filed an answer. He posits that no trial could be had after that time because Neustar was deemed to have waived it. Later in the State Lawsuit, [4] Nasser filed a motion for default judgment, contending that Neustar had failed to timely file an answer after the ruling on demurrer. But fifteen days before he filed that motion, Neustar's counsel had already tendered an answer. Also, shortly after the motion for default judgment was filed, Neustar's counsel filed a motion to expand the time for the filing of the answer. Nasser appeared and argued in opposition to that motion. But Judge Bryant granted the motion and deemed Neustar's answer timely filed, thereby curing any default. Because the late filing had been accepted-and as Judge Bryant repeatedly tried to explain to Nasser-defendant was not in default. Thus, the nuisance claim had to be tried for Nasser to be entitled to judgment in his favor. Judge Bryant also repeatedly explained to Nasser that the simple reference to a “final order” was not dispositive; instead, the substance of the order made clear that the nuisance claim remained viable and that the other two claims were dismissed. Nasser contends, though, that Judge Bryant was without jurisdiction to take any other action in the case, including allowing the late-filed answer. (Pl.'s Mot. for Summ. J. 6.) He acknowledges a Virginia circuit court judge has the discretion to grant an extension of time to file a late answer, [5] but contends that, after twenty-one days, Judge Athey's order was final, and thus that Judge Bryant had no jurisdiction to enter such an order. For the reasons already discussed, however, his assertions about the lack of jurisdiction are simply incorrect.

         Nasser filed the complaint in this court on May 24, 2016. The following month, on June 13, 2016, Nasser's trial in the State Lawsuit took place. He did not appear for the trial, and Judge Bryant granted Neustar's motion to dismiss the case with prejudice. Judge Bryant also required that Nasser pay for the cost of the jury for the first day in the amount of $630.00. A final judgment order was entered on June 24, 2016 (Final Judgment Order, Dkt. No. 19-1, at 11- 14), and Nasser had thirty days from that date to file a petition for appeal, which he did not do. He filed an objection to the final judgment, though, reiterating his same basic argument that Judge Bryant lacked jurisdiction to enter it. (Objection, Dkt. No. 19-1, at 15-17.)

         B. Nasser's Federal Complaint

         On May 24, 2016, while the State Lawsuit remained pending, Nasser filed his complaint in this case. It lists eighteen different counts, each of which asserts a violation of either a rule of professional conduct or a judicial ethical canon. The court construes his complaint liberally and notes that, although not listed as a separate count, he cites to 42 U.S.C. § 1983 and is also alleging an overarching conspiracy to deprive him of his constitutional due process rights. He contends that defendants conspired to defraud him of a judgment award, and conspired to extort money from him when Ms. Waller requested sanctions for Nasser's failure to respond to discovery and Judge Bryant “allow[ed] her to file discovery when she was in default and had not standing before the court.” (Compl. ¶ 78, Dkt. No. 1.) Nasser also alleges that all actions taken by Waller, Neustar, and Judge Bryant were fraudulent and part of a conspiracy to deprive him of the $400, 000 he contends he was owed as a result of the first “final order, ” i.e., the Demurrer Order, and the subsequent default of Neustar.[6] The court construes this as a civil conspiracy claim brought pursuant to 42 U.S.C. § 1985.

         Nasser seeks monetary and injunctive relief. His complaint references different damages amounts in different places, but his final prayer for relief seeks damages in the amount of $1 million in compensatory damages and $3 million in punitive damages against all three defendants.


         A. The Rooker-Feldman Doctrine Does Not Deprive the ...

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