BYRD v. HOPSON, Civil No. 1:02CV212 (W.D.N.C. 7/30/2003)

• Court: U.S. District Court — Western District of North Carolina
• Writing for the Court: Lacy Thornburg
• Decision Date: 30 July 2003
• Docket Number: Civil No. 1:02CV212.
• Citation: BYRD v. HOPSON, Civil No. 1:02CV212 (W.D.N.C. 7/30/2003) (W.D. N.C. 2003)
• Parties: BETTY R. BYRD, Plaintiff, v. JACK HOPSON; BARBARA HOPSON; CYNTHIA HOPSON; HOLGER C. NELSON; KENNETH R. FOX, in his individual capacity and as Sheriff of Mitchell County; and DONALD STREET, in his individual capacity and as Deputy Sheriff of Mitchell County, Defendants.

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BETTY R. BYRD, Plaintiff, v. JACK HOPSON; BARBARA HOPSON; CYNTHIA HOPSON; HOLGER C. NELSON; KENNETH R. FOX, in his individual capacity and as Sheriff of Mitchell County; and DONALD STREET, in his individual capacity and as Deputy Sheriff of Mitchell County, Defendants.

Civil No. 1:02CV212.

United States District Court, W.D. North Carolina, Asheville Division.

July 30, 2003.

MEMORANDUM OF OPINION AND ORDER OF SANCTIONS

LACY THORNBURG, District Judge.

THIS MATTER came before the Court on June 30, 2003, for a hearing on the issue of sanctions to be imposed against the Plaintiff Betty R. Byrd, her attorney, William Isaac Diggs (Diggs), and/or the law firm of Diggs, Danielson, L.L.C. Having considered the arguments of counsel and the subsequent submissions, the Court enters the following order of sanctions.

I. SCOPE OF SANCTIONS

It is first noted that, in addition to the Defendants' motions for sanctions, the Court also gave notice to Byrd and her attorneys of specific conduct which it considered to be potentially sanctionable. See Order to Show Cause, filed May 23, 2003, at 2-4. In addition, Diggs was notified that the Court was considering applying the provisions of 28 U.S.C. § 1927 to him personally. Id., at 4. The Defendants have also requested sanctions pursuant to (1) the Court's inherent authority; (2) Fed.R.Civ.P. 11; (3) 28 U.S.C. § 1927; (4) 42 U.S.C. § 1988; and (5) an award of costs in addition to sanctions. At the conclusion of the hearing, the attorneys and parties were provided an additional opportunity to make filings in response to the oral arguments and in support of their various positions.

II. SANCTIONABLE CONDUCT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 11(C)(1)(B)

The Court's Order to Show Cause listed specific instances of conduct to which response was required. Those instances, and the responses thereto, will be addressed sequentially.

(1) Allegations in the course of this litigation through responses to discovery and deposition testimony that videotapes and photographs existed showing Defendant Cynthia Hopson engaged in sexual conduct with Plaintiff's husband despite the ruling of a state court judge that, as a matter of law, Plaintiff had admitted no such evidence existed and she had made such allegations in order "to worry" the Defendant Cynthia Hopson.

The provisions of Rule 11 do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37. Fed.R.Civ.P. 11(d). The Court's review of the record discloses that, with the exception of Diggs' response to the Order to Show Cause, the allegations relating to these pictures and videotapes occurred during depositions and in response to Defendants' motion for a protective order pursuant to Rule 26. As a result, sanctions for this conduct will not be imposed pursuant to Rule 11. However, as stated below, this conduct will be sanctioned on other grounds.

(2) Initiating and continuing this action after the previous court had ruled against Byrd.

Diggs responded to this ground by arguing that the claims brought in this action could not have been litigated in the state court alienation of affections case and, therefore, are not subject to issue preclusion.¹ However, the Court's purpose in notifying Diggs of this ground for potential Rule 11 sanctions had nothing to do with issue preclusion or res judicata. Rather, the question is whether, by filing this action and continuing its prosecution, Diggs and Byrd (1) presented signed documents to the Court for any improper purpose, such as to harass; (2) presented claims alleged in the complaint which were not warranted by existing law or by a nonfrivolous argument for the extension thereof;² and/or (3) presented claims for which there was no evidentiary support both in the complaint and subsequently filed documents. The latter two points will be discussed below; however, the Court finds that the initiation and continuation of this lawsuit were done with the specific intention to harass and pursue a personal vendetta.

Diggs argues that the conspiracy against Byrd continued well after the state court action was dismissed and the allegations of this complaint were intended to include those subsequent facts.

Based on information provided by Plaintiff and her witnesses, the undersigned filed a case alleging that the defendants engaged in a conspiracy which included acts committed by them in furtherance of the conspiracy which arose or expanded after November 8, 2001 [the date the state court action was dismissed]. While some of the acts committed prior to November 8, 2001 were predicate acts for a civil RICO claim (the attempted murder of May 1, 2000, for example), . . . the conspiracy and pattern of racketeering activity continued up until this action was filed.

William Isaac Diggs' Return to Order to Show Cause, filed June 30, 2003, at 7.³

In the Memorandum and Opinion, filed May 23, 2003, the undersigned noted that "[d]uring the pendency of the state court action, Byrd did not amend her complaint to add allegations made in this action." Memorandum of Opinion, filed May 23, 2003, at 19. Diggs responds that Byrd told her previous attorney about the incidents and he failed to amend that complaint. Diggs' Return to Order to Show Cause, at 11-12.

The claims based on facts occurring after the initial state court filing do not support federal claims which could have been filed in good faith. Thus, it is not surprising that Byrd's previous attorney refused to add such claims and allegations by amendment or to bring a federal lawsuit. "Filing a complaint in federal court is no trifling undertaking." Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002). "One of the fundamental purposes of Rule 11 is to `reduce frivolous claims, defenses or motions and to deter costly meritless maneuvers, . . . [thereby] avoid[ing] delay and unnecessary expense in litigation.'" Id. (quoting Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir. 1986)). "In this case, there is no question that [Byrd and Diggs] filed the instant suit with the specific intent of circumventing [the state] Court's dismissal of [their] earlier suit." John Akridge Co. v. Travelers Companies, 944 F. Supp. 33, 34 (D.D.C. 1996), aff'd, 1997 WL 411654 (D.C. Cir. 1997). Indeed, the procedural history of this case discloses a motive to harass. See, e.g., Markwell v. County of Bexar, 878 F.2d 899, 903 (5th Cir. 1989).

North Carolina Superior Court Judge Michael E. Helms dismissed the state court action for criminal conversation and alienation of affections, Byrd v. Hopson, 570 S.E.2d 499 (2002), on November 8, 2001. In his decision, Judge Helms noted that Plaintiff had not only accused Cynthia Hopson (Cynthia) of having an affair with her husband, but had retained a private investigator who installed surveillance devices in Cynthia's home without her knowledge. Exhibit A, Order of Judge Michael Helms, entered November 6, 2001, attached to Affidavit of Michele Duncan, attached to Cynthia Hopson's Motion for Summary Judgment, filed April 4, 2003, at 49. Plaintiff then advised Cynthia that the investigator had taken video tapes and photographs of Cynthia and Plaintiff's husband having sexual intercourse. Id. Plaintiff threatened to send copies of these items to Cynthia's church and to her mother. Id.

When [Cynthia] told [Plaintiff's messenger, Debbie Campbell,] that there could not possibly be such photographs or video tapes in existence as the acts which Ms. Campbell had described had not occurred[,] Ms. Campbell replied with language referencing that the private detective retained by the Plaintiff was very skilled in his profession.

Id.

In Request for Production of Documents 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 20, 26, and 28[,] [Cynthia] sought the production of photographs, video tapes, and audio tapes from either [Byrd], [Byrd's] counsel, or the private detective retained by [Byrd]. [Byrd] told [Cynthia's] mother of the existence of such photographs. . . . [Byrd's] response in the Request for Production of Documents was that neither [Byrd], her counsel, nor the [private] detective had any photographs or audio tapes such as had been described. When the Court inquired as to why it had taken the Plaintiff almost six months from the Request For Production of Documents to advise the Defendant that no such photographs, video tapes or audio tapes existed no satisfactory response was given by the Plaintiff [Byrd] to the Court. Further, when the Court inquired of the Plaintiff [Byrd] as to why the Plaintiff [Byrd] had told [Cynthia] lies and untrue statements about the existence of the photographs, video tapes, and audio tapes[,] the response was that the Plaintiff [Byrd] wanted to "worry [Cynthia]."

Id., at 56-57 (emphasis added). It is clear from the language used by Judge Helms that he concluded a private investigator had illegally surveilled Cynthia's apartment and created images purporting to be sexual conduct when in fact, such was not the case. Id. at 49 ("Ms. Campbell replied with language referencing that the private detective retained by the Plaintiff was very skilled in his profession."). It is equally clear from his order that he concluded Cynthia had been threatened with nonexistent evidence.

On November 28, 2001, Byrd's previous attorney moved for leave to withdraw from representation noting that he could not continue as her attorney without violating North Carolina Revised Rule of Professional Conduct 3.3 concerning candor with the court.⁴ He also noted that Byrd had already retained other counsel (Diggs), and her file had been forwarded to that attorney. On December 5, 2001, Diggs filed a notice of appeal from Judge Helms' Order dismissing the case. As such, he is charged with knowledge of the contents of that Order, including Judge Helms' finding of fact that Byrd had lied about the existence of evidence in order to...