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Duru v. Mitchell

United States District Court, District of Columbia

January 31, 2018

ROSE DURU, Plaintiff,
v.
KAREN MITCHELL, et al., Defendants.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS United States District Judge

         This matter is now before the Court on several motions to dismiss, Dkt. 2; Dkt. 5; Dkt. 8; Dkt. 12; Dkt. 15; Dkt. 19, as well as several motions for an injunction barring Plaintiff Rose Duru from filing further lawsuits against the movants without leave of Court, Dkt. 8; Dkt. 12; Dkt. 15; Dkt. 19. For the reasons that follow, the Court will GRANT the motions to dismiss, will sua sponte DISMISS the claims against other Defendants who have not been served, and will DENY the motions for vexatious litigant injunctions without prejudice.

         I. BACKGROUND

         Plaintiff Rose Duru, proceeding pro se, filed this action against nearly thirty Defendants in March 2017. Dkt. 1. Her claims, although difficult to discern, appear to arise out of a financial dispute that led to a separate action, filed in the U.S. District Court for the Northern District of Texas in 2015, against several of the Defendants in this proceeding.

         Twelve Defendants filed a total of six motions to dismiss, asserting various defenses including lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service of process, and failure to state a claim. See Dkt. 2 (Sessions, Fishman, Nation & Israel, LLP); Dkt. 5 (Northern Trust Company); Dkt. 8 (Health Corporation of America, Inc.); Dkt. 12 (Randall Constantine and Mazursky Constantine LLC); Dkt. 15 (Geoffrey Beckham, Melinda Louie, Charles Schwab, and Charles Schwab & Co., Inc.); Dkt. 19 (David Clouston, Leslye Moseley, and Christopher Richie). Several of these Defendants further moved that the Court declare Duru a vexatious litigant and enjoin her from filing further lawsuits against them without leave of Court. See Dkt. 8 at 6; Dkt. 12-1 at 6; Dkt. 16 at 10-11; Dkt. 20 at 10-11. These motions are now before the Court.

         Because Duru is proceeding pro se, the Court advised her that “[f]ail[ing] to respond” to the motions to dismiss could result in the Court “granting the motions . . . and dismissing her [c]omplaint.” Dkt. 21 at 1; see Dkt. 11; Dkt. 13. Duru was further notified that if she “fail[ed] to address any particular argument raised in the . . . motions [to dismiss], that argument [could] be treated as conceded.” Dkt. 21 at 2. In addition, the Court informed Duru that she was “entitled to be heard in opposition” to Defendants on the vexatious litigant issue, described the relevant factors, and advised her to “specifically address th[ose] factors.” Id. Duru did not respond to the pending motions to dismiss and, instead, filed more than twenty motions for default judgments. See Dkt. 48 at 2 n.3 (listing the relevant docket entries); see, e.g., Dkt. 22.

         On October 21, 2017, the Court denied Duru's motions for default judgments because, among other defects, Duru had failed to demonstrate that the summons and complaint were served in accordance with Rule 4. See Dkt. 48 at 2. The Court summarized the requirements of Rule 4 and attached a copy of the Rule to its order. Id. at 2, 5-8. The Court also noted that “it is far from clear that the Court possesses personal jurisdiction over many, or most, of the Defendants” because “most of the Defendants and many, if not all, of the events giving rise to this suit have no connection to the District of Columbia.” Id. at 3. Concerns about lack of personal jurisdiction and insufficient service, however, did not apply to eleven Defendants who “waived” these defenses by failing to raise them in their motions to dismiss. Id. at 3 n.4 (citing Fed.R.Civ.P. 12(b)(1)(B)); see Dkt. 5; Dkt. 8; Dkt. 12; Dkt. 15; Dkt. 20. The Court explained that it “possesse[d] personal jurisdiction” over these eleven Defendants and that “Duru need not make further efforts to serve them.” Dkt. 48 at 3 n.4.

         As to the remaining Defendants, the Court, “out of an abundance of caution, grant[ed] Duru a final opportunity to effect service” even though the deadline to serve had elapsed several months earlier. Id. at 3. The Court also ordered Duru to “show cause . . . why each Defendant served should not be dismissed for lack of personal jurisdiction.” Id. at 4. Finally, the Court emphasized that “fail[ing] to comply with any aspect” of its order “w[ould] result in the dismissal of her corresponding claim or claims without prejudice.” Id. The deadline for Duru to effect service and show cause was November 9, 2017. Id. Shortly after the Court issued the order, a copy was mailed to Duru at her address of record. Two days later, the Court received a notice of change of address from Duru. See Dkt. 49. Because Duru might not have received the Court's order before moving to her current address, the Court extended her deadline to serve and show cause to December 8, 2017, and directed the Clerk of Court to mail the Court's previous order as well as the order extending Duru's deadline to Duru at her updated address. See Minute Order (Nov. 13, 2017). As of the date of this memorandum opinion, the Court has not received a response from Duru.

         II. ANALYSIS

         A. Service of Process

         As the Court explained in its earlier order, Duru has failed to demonstrate that she effected service on several Defendants in accordance with Rule 4. Dkt. 48 at 2; see Fed. R. Civ. P. 4. In particular, the “Certificate of Service” and delivery receipts attached to her motions for default judgments are inadequate proof of service because service must be accomplished by a non-party. See Fed. R. Civ. P. 4(c)(2). Despite an additional opportunity to effect service, moreover, Duru has failed to file adequate proof of service with the Court or, indeed, to respond in any way to the Court's order. Accordingly, Duru's claims against all Defendants who have not waived the defense of insufficient service of process will be DISMISSED from this action without prejudice.[1] In addition, the Court will GRANT the motion to dismiss filed by Sessions, Fishman, Nathan & Israel, LLP, Dkt. 2, for insufficient service of process.

         B. Motions To Dismiss

         The five remaining motions to dismiss raise numerous bases for dismissal pursuant to Rule 12. Despite multiple warnings from the Court, Duru has failed to respond to any of those motions. In addition, she has not met her burden of establishing that the Court has subject matter jurisdiction. And the complaint does not allege facts sufficient to satisfy Rules 8 and 12. For these reasons, the Court will GRANT the motions to dismiss and will DISMISS the remaining claims in this action without prejudice.

         Duru has failed to respond to Defendants' motions to dismiss. The first three motions were filed within a week of each other in April 2017. See Dkt. 2; Dkt. 5; Dkt. 8. Shortly thereafter, the Court advised Duru that, if she failed to respond, the motions could be “treated as conceded” and her complaint dismissed. Dkt. 11 (citing Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988); Local Civil Rule 7(b)). A fourth motion was filed at the end of May. Dkt. 12. The Court issued a second order reminding Duru of the consequences of failing to respond to the pending motions to dismiss. Dkt. 13. Two additional sets of Defendants filed two more motions to dismiss in early June, bringing the total to six. See Dkt. 15; Dkt. 19. The Court, once again, informed Duru that she needed to “file a brief in opposition to the pending motions to dismiss” and ordered her to do so by July 5, 2017. Dkt. 21 at 2. As noted, Duru failed to respond, instead opting to file more than twenty premature motions for default judgments. See, e.g., Dkt. 22. She also filed a notice of appeal due to “gross delay in rendering judgment” in connection with these motions. Dkt. 41 at ...


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