Opinion
Civil Action No. 3:O1-CV-0376-M
March 29, 2002
ORDER ACCEPTING CONCLUSIONS AND RECOMMENDATION OF UNITED UNITED STATES MAGISTRATE JUDGE
The Conclusions and Recommendation of United States Magistrate Judge Paul D. Stickney, filed on March 7, 2002, are before the Court for consideration. Plaintiffs have filed objections that, although untimely, have been considered by the Court. In considering Plaintiffs' objections, the Court has reviewed de novo the Conclusions and Recommendation of the Magistrate Judge. The Court finds that Plaintiffs' objections should be overruled. In particular, the Court overrules Plaintiffs' objection to the Magistrate Judge's Recommendation that the Court deny Plaintiffs' Motion for Default, as the Court finds that insufficient evidence exists on the record to support a default judgment against any Defendant. Furthermore, Plaintiffs did not request an Entry of Default from the Clerk of Court, as required by Federal Rule of Civil Procedure 55(a).
The Court notes that, in Plaintiffs' objections, as well as in several of their other filings, Plaintiffs have utilized language that is disrespectful and abusive to the Magistrate Judge and to this Court. Although the Court has ignored this language in considering and resolving Plaintiffs' claims, such language is highly inappropriate and Plaintiffs should attempt to avoid the use of such language in their future filings with this or any other court.
In Plaintiffs' objections, they argue that they provided all Defendants with actual notice of the lawsuit by sending Defendants a copy of the Amended Complaint and summons; however, Plaintiffs have filed with the Court no proof of the date on which service was made, or to whom service was made. Moreover, although Plaintiffs argue that Defendants are in default because Plaintiffs never received certain Defendants' Answers and/or Motions to Dismiss, the Court notes that many Defendants have represented to the Court that they have attempted to serve Plaintiffs with a copy of their filings via certified mail to the address indicated on Plaintiffs' pleadings, but the copies were sent back, marked "unclaimed." See, e.g., Amended Certificate of Service Giving Notice of Defendants' Service to Plaintiffs Returned Unclaimed, filed October 1, 2001.
The Court also overrules Plaintiffs' objection that they did not elect to have the Amended Complaint filed on July 6, 2001 treated as their Complaint in the case. On October 30, 2001, the Court, after noting that Plaintiffs' July 6, 2001 Complaint appeared to be incomplete, ordered Plaintiffs to file a complete copy of the July 6 Complaint with the Court by November 9, 2001. On November 9, 2001, Plaintiffs filed a Response to the Court's October 30 Order in which they stated that they "do not feel at this time that it is in their best interest to file any more amended pleadings . . . [as each] defendant was clearly provided with the standard requirement of providing them with enough information so that they could clearly be placed on notice that they were being sued . . . ." In response to this filing, the Court ordered Plaintiffs to submit a complete copy of the July 6 Complaint by December 28, 2001 or show cause why the Court should not sanction Plaintiffs for failing to follow the Court's October 30 Order. On December 28, 2001, Plaintiffs submitted a complete" copy of their Complaint, which was identical to the Amended Complaint filed by Plaintiffs on July 6, 2001. Thus, the Court concluded from this submission that "Plaintiffs apparently are willing to have the Court treat the July 6, 2001 filing as their complete Complaint." See Order of January 9, 2002. Thus, Plaintiffs' assertion that they did not indicate to the Court that the July 6, 2001 filing was to be their Complaint is incorrect. Although Plaintiffs argue that the July 6 Complaint Plaintiffs filed with the Court is the "chopped-down version" of the true Complaint, which Plaintiffs allege they served on all Defendants in this case, the Court must make determinations based on the copy of the Complaint Plaintiffs filed with the Court, not copies that were purportedly served on Defendants but were not filed with the Court.
These and all other objections are thus overruled. In accordance with the Magistrate Judge's Recommendation, the Court DENIES Plaintiffs' Motion for Default Judgment, filed on November 1, 2001. Furthermore, the Court finds that Plaintiffs' claims against the following individuals are DISMISSED without prejudice, as the only mention of the individuals is in the Complaint's caption and/or within the Complaint's description of the parties (with no corresponding allegations of wrongdoing): Tawana Marshall; Rob Colwell; Della Jackson; R. Miller; Linda C. Groves; Alex C. Stevenson III; George F. McElreath; Thomas B. Young; Thomas J. Tierney; L. Leslie Ledger; Sara B. McKinney; Charles Pittman; Titus County Government; City of Mount Pleasant, Texas; Bill Adair; United States Magistrate Judge Jerry W. Cavancau; United States Magistrate Judge John F. Forster, Jr.; Ricky Poole; Justice of the Peace Eva Laing Walker; Andy Dunklin; David Carter; David Dodgen; Rufus Pollard; Dinah Ragsdale; Charles A. Christopher; Thomas Thomas; Scott Hogue; Bill Wilde; Donald Marshall; Johnnie Smith; Mary Durgin; Glenn Henderson; Paul Austin; Mark Parsons; Michael Lacenski; Douglas K. Gastorf; Jerry W. Bishop; Deanna Elaine Day; Tonda Curry; Charles C. Bailey; Jeff Milslagle; Floyd Garrett (Garrett O. Floyd); James Helgeson; Stacy Jackson; Jeanne Paxton; Eva Monts (Montes); Tom Beasley; Douglas F. Henderson; Beverly Roberts; Rick McCalley (Richard McCauley); Hughie Pugh; Patti Watson; Locke, Liddell Sapp; Noel M. Bilitz; Mike Huckabee; and Larry Allen Levick.
Although the Magistrate Judge did not include this party on the list of those Defendants against whom Plaintiffs proffered no allegations, the Court finds that it is proper to include it on that list, as no allegations exist against it in the body of the Complaint.
Id.
Id,; see also Order and Notice of July 16, 2001 (invalidating the summons issued for Governor Huckabee and Mr. Levick because their names were only listed within the caption, and not the body, of Plaintiffs' last-filed Complaint).
Id.
Furthermore, the Court finds that, in accordance with the Magistrate Judge's Conclusions and Recommendation, Plaintiffs' claims against the following individuals should be DISMISSED with prejudice, as Plaintiffs' claims are legally untenable: Judge Harold C. Abramson; Paul E. Coggins; Daniel Brauweiler; William T. Neary; James M. Mendez; Danny A. Defenbaugh; Mike Bradford; United States Magistrate Judge Harry W. McKee; Mark Grobmyer; James F. Dowden; Buck C. Gibson; Dan P. Lain; Lain, Faulkner Co.; Kent Poynor; Richard D. Kinkade; Dallas Morning News; Bill Lodge; Ralph Jay Harpley; Carol Lincoln; Charlie Daniels; David B. Kaufman; Lynley Arnett; Don Casabier; Dean Casabier; Franklin R. "Mick" Mickelson; F. Clint Broden; Robert Reagan; Jerome Kearney; Walmart Stores; Charles Schwab Co.; and Gerard, Singer Levick.
Although the Magistrate Judge found that Judge Abramson and Mr. Coggins were only mentioned in the caption to the Complaint, this Court finds that Plaintiffs also made certain allegations against these individuals within the body of the Complaint, and therefore the Court accepts the Magistrate Judge's Recommendation that the Court grant these Defendants' Motions to Dismiss and finds that the dismissal is with prejudice to reassertion of the claims Plaintiffs have alleged against these Defendants.
Id.
Id.
Id.