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Draper v. Muy Pizza Southeast LLC

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

April 27, 2018

CEDRICK EURON DRAPER, Plaintiff,
v.
MUY PIZZA SOUTHEAST LLC d/b/a PIZZA HUT, Defendant.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge .

         Plaintiff Cedrick Euron Draper (“Plaintiff”), proceeding pro se, filed two applications to proceed in forma pauperis in this Court on March 15, 2018. The accompanying Complaints represented Plaintiff's sixth and seventh attempts to sue his former employer. I denied both applications pursuant 28 U.S.C. § 1915, as his action had been dismissed with prejudice on a prior occasion and he had been instructed not to re-file the action. He ignored my instructions, so I issued an Order to Show Cause why he should not be sanctioned and enjoined from further filings in this Court. [ECF No. 4.] Plaintiff appeared before me on April 19, 2018, and was provided an opportunity to be heard. After careful review and consideration, and for the reasons stated herein, Plaintiff will be sanctioned pursuant to Rule 11 and enjoined from further filings in this district for two years unless he prepays the applicable filing fee.

         I. BACKGROUND

         Plaintiff has a history of litigation against every perceived injustice he faces. His first foray into federal practice began with a Complaint and application to proceed without prepaying fees or costs, commonly referred to as an application to proceed in forma pauperis (“IFP application”), filed on March 30, 2017. Draper v. Muy Pizza Hut Southeast LLC, et al., No. 4:17cv00018 (W.D. Va. 2017) (Kiser, J.). I denied his IFP application because the proposed complaint was facially deficient. Nevertheless, I permitted him the opportunity to pay the filing fee if he wished to proceed. At Plaintiff's request, I granted him an extension to pay the filing fee. While awaiting payment, Plaintiff submitted the following motions and pleadings: Motion for Deferral Fee Processing; Motion for Actions Within the Process of a Legal Compulsory/Permissive Joinder for Additional Defendants to Appear to Process Within the Case Filing Upon U.S. District Court Complaint Facts & Information; Amended Complaint; Motion to Grant EM/ECF Access; Motion for Reconsideration on his IFP application; Motion for Leave to File a Second Amended Complaint; Motion to Amend Caption Information of the Defendant Information; Motion to Amend Caption Information of the Main Plaintiff v Defendant Information; Brief/Memorandum re: Discrimination; Motion to Amend Defendants Last Names Upon Discovery of Information; Motion to Amend/Correct Defendant's Name; Notice of Current Financial Circumstances; Motion to Amend First Amended Amount of the Amended Complaint; Motion to Amend Amended Complaint's Exhibits and Attachments; Brief/Memorandum as to Virginia Employment Commissioner Hearing; and Additional Evidence.[1] Eventually, Plaintiff tendered a check to the clerk. That check was ultimately returned by Plaintiff's bank for insufficient funds. Because the filing fee was not paid, Plaintiff's action was dismissed. He then filed a Motion to Re-Open the Case, two letters regarding the unpaid filing fee, Additional Evidence, a Motion to Reconsider my Order denying his Motion to Re-Open the Case, and a Notice of Intent. His Notice of Intent stated: “Plaintiff will refile unless consideration of information released is not a reflection of proceeding with the new evidence and the initial amended complaint from beginning filed complaint.” Id. [ECF No. 40].

         On June 23, 2017, Plaintiff tried his suit again. See Draper v. Muy Pizza Hut Southeast LLC, et al., No. 4:17cv00042 (W.D. Va. 2017) (Kiser, J.). Again, his IFP application was denied, but he was given the opportunity to pay the filing fee. After filing a Motion for Reconsideration, Motion to Amend Plaintiff's Name, Motion Requesting Another Judge Oversee the Case, Additional Evidence, Amended Complaint, Motion for Extension of Time to Pay Fee, Motion to File a Second Amended Complaint, and Motion for Pretrial Conference, Plaintiff filed a Notice of Voluntary Dismissal. The case was accordingly dismissed.

         For his third attempt, Draper v. Muy Pizza Southeast LLC, et al., No. 4:17cv00056 (W.D. Va. 2017) (Kiser, J.), Plaintiff filed a Complaint, IFP application, Notice of Appearance, Notice of Filing Motion for Joinder and Supporting Memorandum, Motion for Joinder, and Additional Evidence on August 14-15, 2017. Because he had delayed in filing his Complaint (not counting the time his prior actions had been pending), more than ninety (90) days had elapsed since he received his Notice of Right to Sue from the Equal Opportunity Employment Commission. Accordingly, I denied Plaintiff's IFP application and dismissed his case because the applicable statute of limitations had run.

         Plaintiff's fourth and fifth attempts were filed four days later, on August 18, 2017, against “Muy Pizza Southeast LLC” as opposed to “Muy Pizza Hut Southeast LLC.” See Draper v. Muy Pizza Southeast LLC, et al., No. 4:17cv00061 (W.D. Va. 2017) (Kiser, J.); Draper v. Muy Pizza Southeast LLC, et al., No. 4L17cv00062 (W.D. Va. 2017) (Kiser, J.). In both cases, I granted Plaintiff's IFP application but dismissed the actions with prejudice because Plaintiff had failed to correct the flaws of his prior filings and the statute of limitations barred his actions. I also stated in my Orders: “Plaintiff may not re-file this action.” He was also advised, “[A]ny future filings in any case in this court must comply with Federal Rule of Civil Procedure 11. Those that do not may result in monetary sanctions against Plaintiff.” Undeterred, Plaintiff attempted a sixth and seventh action against his former employer on March 15, 2018. See Draper v. Muy Pizza Southeast LLC, No. 4:18cv00012 (W.D. Va. 2018) (Kiser, J.); Draper v. Muy Pizza Southeast LLC, No. 4:18cv00013 (W.D. Va. 2018) (Kiser, J.). IFP applications in both cases were denied. In case number 4:18cv00012, after his IFP application was denied, Plaintiff filed the following: Additional Evidence; Motion to Seal Answer to Order; Motion to Quash; Motion to Amend Misnomer of Complaint; Motion to Reopen Case; and an Informal Bill of Exception. He then appealed the denial of his Motion to Reopen the Case. In case number 4:18cv00013, I issued the present Show Cause Order.

         In response to the dismissal of case number 4:18cv00012, Plaintiff sued this Court. Draper v. United States District Court for the Western District of Virginia Danville Division, No. 4:18cv00017 (W.D. Va. 2018) (Kiser, J.). I denied his IFP application and dismissed his action.

         But it seems that Pizza Hut is not the only employer with whom Plaintiff has issues. In August of 2017, Plaintiff filed three actions against Virginia Mirror Company. The first, filed August 14, was accompanied by a Notice of Appearance, a Notice of Filing Motion for Joinder and Supporting Memorandum, a Motion for Joinder, an Affidavit in Support of his Motion for Joinder, and Additional Evidence. See Draper v. Virginia Mirror Co., et al., No. 4:17cv00057 (W.D. Va. 2017) (Kiser, J.). After his action was dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim (due to a lack of jurisdiction over the alleged causes of action), Plaintiff filed an Amended Complaint without leave of the Court. His second and third cases against Virginia Mirror were filed on August 18. See Draper v. Virginia Mirror Co., et al., No. 4:17cv00063 (W.D. Va. 2017) (Kiser, J.); Draper v. Virginia Mirror Co., et al., No. 4:17cv00064 (W.D. Va. 2017) (Kiser, J.). Both cases were dismissed for lack of jurisdiction, and Plaintiff was again advised about potential sanctions under Rule 11.

         New River Valley Pizza, LLC, also came into Plaintiff's crosshairs. He has filed three suits against it. See Draper v. New River Valley Pizza, LLC, et al., No. 7:17cv00380 (W.D. Va. Aug. 15, 2017) (Urbanski, J.); Draper v. New River Valley Pizza, LLC, et al., No. 7:17cv00382 (W.D. Va. Aug. 16, 2017) (Urbanski, J.); Draper v. New River Valley Pizza, LLC, et al., No. 7:18cv00111 (W.D. Va. Aug. 15, 2017) (Conrad, J.). The first two were dismissed for lack of jurisdiction; the third remains pending.

         March of 2018 brought three more lawsuits against one defendant. See Draper v. TMC Finance LLC, No. 6:18cv00035 (W.D. Va. Mar. 15, 2018) (Moon, J.) (dismissed as frivolous); Draper v. TMC Finance LLC, No. 6:18cv00036 (W.D. Va. Mar. 16, 2018) (Moon, J.) (ruling on IFP pending); Draper v. TMC Finance LLC, No. 6:18cv00037 (W.D. Va. Mar. 16, 2018) (Moon, J.) (dismissed as frivolous).

         In addition to the above-referenced cases, Plaintiff filed several other lawsuits.[2] His case against Geico was transferred to the Eastern District of Virginia. Draper v. Geico Secure Insurance Company, No. 4:18cv00014 (W.D. Va. Mar. 15, 2018) (Kiser, J.). When a his two cases against the United States Postal Service were removed to federal court from the Charlottesville General District Court, see Draper v. United States Postal Serv., No. 3:18cv00009 (W.D. Va. Feb. 12, 2018) (Conrad, J.), Draper v. United States Postal Serv., No. 3:18cv00010 (W.D. Va. Feb. 12, 2018) (Conrad, J.), he sued the Charlottesville General District Court for violating the Administrative Procedures Act. Draper v. Charlottesville General District Court, No. 3:18cv00022 (W.D. Va. Apr. 2, 2018) (Conrad, J.) (ruling on IFP pending).

         Other cases include: Draper v. Pinkerton Chevrolet-Lynchburg, No. 6:18cv00049 (W.D. Va. Apr. 3, 2018) (Moon, J.) (dismissed as frivolous), Draper v. Adecco USA, Inc., No. 6:18cv00050 (W.D. Va. Apr. 3, 2018) (Moon, J.) (dismissed as frivolous); Draper v. Skaff, No. 7:18cv00159 (W.D. Va. Apr. 9, 2018) (Urbanski, J.) (dismissed for lack of jurisdiction); and Draper v. Henry County General District Court and Halifax County General District Court, No. 4:18cv00021 (W.D. Va. Apr. 16, 2018) (Kiser, J.) (dismissed as frivolous).

         To date, Plaintiff has filed 26 cases in the Western District of Virginia. Eighteen have been dismissed by the court; five remain pending; two were voluntarily dismissed by Plaintiff; and one was transferred to another court.

         As a result of his refusal to comply with this court's directions and his abuse of the IFP statute, I issued an Order to Show Cause as to why he should not be sanctioned and enjoined from further filings in this court. I set the matter for a hearing on April 19, 2018, at which time Plaintiff appeared and presented his argument. This matter is now ripe for disposition.

         II. DISCUSSION

         a. Rule 11 Sanctions

          Federal Rule of Civil Procedure 11 authorizes sanctions against a party, even an unrepresented one, who files a frivolous pleading. “[A]n argument constitutes a frivolous legal position for Rule 11 sanctions if, under the objective standard of reasonableness, it is clear . . . that there is no chance of success and no reasonable argument to extend, modify, or reverse the law as it stands.” Morley v. Ciba-Geigy Corp., 66 F.3d 21, 25 (2nd Cir. 1995) (quoting Caisse Nationale de Credit Agricole-CNCA, New York Branch v. Valcorp, Inc., 28 F.3d 259, 264 (2nd Cir. 1994)). This objective standard “requires no bad faith or otherwise culpable state of mind.” In re Farhid, 171 B.R. 94 (N.D. Cal. 1994) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46- 48 (1991)). The application of Rule 11 must be made in conjunction with and to further the rule's central purpose: “to deter baseless filings in the District Courts and thus . . . streamline the administration and procedures of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990).

         Turning to Plaintiff's various actions against Muy Pizza Hut Southeast LLC, it is important to consider his allegations in each action. In his first case, Plaintiff alleged:

Verbal and Non-verbal communications methods within the General Manager's management performance upon my working position with the Ridgeway Virginia store single-handily separate my individual placement physically and mentally on the count of several events to distinguish an ...

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