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Rogers v. Johnson-Norman

July 18, 2007


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Following pro se plaintiff Virgil Rogers's failure to appear at a status conference on June 7, 2007, defendant Karen Johnson-Norman moved to dismiss this case pursuant to Federal Rule of Civil Procedure 41(b). In light of plaintiff's history of dilatory behavior and harassing tactics, Magistrate Judge Deborah A. Robinson, to whom the case had been referred for management of discovery, recommended that defendant's motion be granted. See Rogers v. Johnson-Norman, No. 06-01186, Rep. & Rec. (D.D.C. June 7, 2007). For the reasons set forth herein, the Court will adopt the recommendation and dismiss this case with prejudice.


I. Plaintiff's History of Stalking Defendant

Plaintiff and defendant were involved in a romantic relationship from approximately 1998 to 2000. Rogers v. Johnson-Norman, 466 F. Supp. 2d 162, 165 (D.D.C. 2006). Once the relationship ended, defendant complained to law enforcement on multiple occasions that she had received unwanted contact from plaintiff. Id. In March 2001, plaintiff was convicted in D.C. Superior Court of attempted stalking and ordered to stay away from defendant. Id. at 166.

After defendant began receiving harassing, anonymous letters, plaintiff was again charged with stalking in D.C. Superior Court in 2003. Id. Although plaintiff was acquitted by a jury, Judge Lynn Leibovitz subsequently held a hearing on defendant's request for a civil protection order. Id. Applying a preponderance of the evidence standard, Judge Leibovitz found that plaintiff had sent the letters. Id. She further found that the letters were "obsessive" and that plaintiff had "acted intentionally, willfully and with malice" in a successful "effort to cause emotional distress" to defendant. (Def.'s Mot. to Dismiss for Failure to State a Claim upon Which Relief May Be Granted ["Def.'s Mot. to Dismiss"] Ex. E at 15, 18.) "Each of the letters include[d] multiple-page, single-spaced, extremely repetitive excoriations of Ms. Johnson-Norman for having done things to the writer [that] were objectionable to him." (Id. at 13.) One letter stated that the writer would "always be defiant and arrogant as hell" and that defendant "should not expect it to go away now." (Id. Ex. A at 3.)

Judge Leibovitz issued a civil protection order barring plaintiff from going within one hundred yards of defendant, her husband, her children, her parents, her siblings, her home, her workplace, or her church for one year. Rogers, 466 F. Supp. 2d at 166. Plaintiff unsuccessfully appealed the order to the D.C. Court of Appeals. Id. at 167.

While that appeal was pending, defendant sought an extension of the protection order. Id. at 168. Plaintiff did not appear at the extension hearing that was held on October 28, 2004. Id. Based on the testimony of defendant and a Court Services and Offender Supervision Agency officer, Judge Robert Rigsby found good cause to believe that plaintiff had committed or threatened an intrafamily offense. Id. Judge Rigsby thus extended the protective order through October 28, 2005. Id.

II. Civil Lawsuits brought by Plaintiff

The first lawsuit filed by plaintiff was brought in 2001 in the Eastern District of Virginia. Defendant counterclaimed against plaintiff, and the parties ultimately settled at the end of 2002. Rogers v. Johnson-Norman, No. 01-01924 (E.D. Va.).

The instant case commenced with plaintiff's filing a complaint in the Eastern District of California on June 13, 2005. (See Compl.) The complaint generally focused on plaintiff's arrest and prosecution for attempted stalking, and it named as defendants not only Johnson-Norman, but also the District of Columbia, the Metropolitan Police Department of the District of Columbia, and several assistant United States attorneys ("AUSAs"). (Id. at 1.) On June 20, 2006, after the District of Columbia settled and the claims against the AUSAs were dismissed, the case against Johnson-Norman was transferred to this Court on June 20, 2006. (See Am. Compl. ¶ 1.)

After the case was transferred, plaintiff filed an amended complaint on September 20, 2006. The amended complaint added a count for violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., claiming that in April 2004 defendant had used her position as an employee of Wells Fargo to obtain plaintiff's credit report illegally. (Id. ¶¶ 44-51.) On December 20, 2006, this Court dismissed all other counts of the complaint for failure to state claims upon which relief could be granted. Rogers, 466 F. Supp. 2d at 162. The Court relied primarily on collateral estoppel, explaining that plaintiff could not relitigate the veracity of defendant's charges of stalking and harassment. Id. at 168-74.

On the count that remains, plaintiff has indicated that he does not intend to seek more than the one thousand-dollar statutory minimum, as provided for by 15 U.S.C. § 1681n(a)(1)(B). (Def.'s Second Mot. to Compel Attach. E at 1) ("[S]ince damages have not been accurately determined as of the date of this correspondence, damages may therefore be deemed to be limited to those allowable by statute.").

Not surprisingly, even though only one limited claim has survived, the course of the proceedings has mirrored the tortured relationship of these parties. First, plaintiff's discovery responses reflect his obstinance and raise a serious question as to his motivations for prosecuting this claim. In response to document requests, plaintiff produced only one letter that he sent to Wells Fargo on January 26, 2006 (id. Attach. D), even though that letter references a January 9, 2006 letter from plaintiff to Wells Fargo and a January 16, 2006 letter in response. (Id.) Although plaintiff has produced neither of these letters, he appears not to deny that he has a copy of at least one of the letters. (Id. Attach. A ΒΆ 3.) In addition, although it appears that plaintiff's key evidence in support of his claim is a July 14, 2005 credit report prepared by Experian, he produced only one page of the twenty-two page report and that page was heavily redacted. (Def.'s Mot. for Spoliation Sanctions Attach. B.) Nonetheless, ...

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