McCoy v. McCormick

Decision Date15 February 2023
Docket NumberCivil Action 22-443-BAJ-RLB
PartiesLYDIA MCCOY v. LORRAINE MCCORMICK, ET AL.
CourtU.S. District Court — Middle District of Louisiana
NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact conclusions of law and recommendations therein. Failure to file written objections to the proposed findings conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. BOURGEOIS, JR.. UNITED STATES MAGISTRATE JUDGE.

Before the Court is Plaintiff's Motion for Declaratory Relief and Preliminary Injunction (R. Doc. 42). The motion is opposed. (R. Docs. 82, 83).

Also before the Court are Gina Lee's Motion to Dismiss (R. Doc. 58); Judge Steven Tureau's Second Motion to Dismiss (R. Doc. 66); the Louisiana Court of Appeal's Motion to Dismiss (R. Doc. 73), and Bridget Hanna, Jill Lambert, and June Julien's Motion to Dismiss (R. Doc. 75). Plaintiff filed an untimely response memorandum addressing these motions. (R. Doc. 98). The defendants filed reply memoranda. (R. Docs. 100, 101).

Also before the Court are David Conachen's Motion to Set Aside Entry of Default (R. Doc. 91) and Motion for Extension of Time to File Responsive Pleadings (R. Doc. 92). The motions are opposed. (R. Doc. 96).

Also before the Court is David Conachen's Motion to Dismiss for Insufficient Service of Process (R. Doc. 99). The deadline for filing an opposition has expired. LR 7(f).

Also before the Court is Plaintiff's Motion for Entry of Default against Scott McCormick, Lorraine McCormick, and Joseph McCoy. (R. Doc. 94). The deadline for filing an opposition has expired. LR 7(f).

I. Background
A. Procedural History

On January 28, 2022, Lydia McCoy (Plaintiff), who is proceeding pro se, filed this civil rights action in the U.S. District Court for the District of Oregon against several individual Louisiana residents: Lorraine McCormick (L. McCormick); Judge Steven Tureau (“Judge Tureau”); Jill Lambert (“Lambert”); June Julien (“Julien”); Bridget Hanna (“Hanna”); Scott McCormick (S. McCormick); Joseph McCoy (J. McCoy); and David Conachen (“Conachen”). Plaintiff then filed an Amended Complaint naming the following as additional defendants: Michele Robicheaux (“Robicheaux”); Gina Lee (“Lee”); the Louisiana Court of Appeal for the First Circuit (“First Circuit”); the Louisiana Supreme Court; and the fictitious entities Does 1 through 20 (collectively, “Does”). (R. Doc. 18, “Am. Compl.”). Plaintiff alleges that these defendants violated federal and state law in connection with a divorce proceeding in Louisiana state court.

On July 5, 2022, the action was transferred to the U.S. District Court for the Middle District of Louisiana pursuant to 28 U.S.C. § 1406(a). (R. Doc. 52).

At the time of transfer, the following motions remained pending: S. McCormick, L. McCormick, and J. McCoy's Motion to Dismiss (R. Doc. 29); Judge Tureau's Motion to Dismiss (R. Doc. 30); Plaintiff's Motion to Extend Time to Serve Defendants (R. Doc. 32); Plaintiff's Motion to Strike Defendants' Motion to Dismiss ECF 29 (R. Doc. 33); Lambert, Julien, and Hanna's Motion to Dismiss (R. Doc. 35); Plaintiff's Motion to Extend Time to File Opposition to ECF 29 (R. Doc. 36); Plaintiff's Motion to Strike Defendants' Motion to Dismiss ECF 30 (R. Doc. 37); Plaintiff's Motion to Extend Time to File Opposition to ECF 30 (R. Doc. 38); Plaintiff's Motion for Declaratory Relief and Preliminary Injunction (R. Doc. 42); and Lee's Motion for Extension of Time to File Responsive Pleadings (R. Doc. 54).

After transfer, the Court denied the defendants' motions to dismiss without prejudice to refile to the extent any arguments had not been made moot by the transfer of this action, and provided Plaintiff with additional time to serve the remaining defendants. (R. Doc. 61). By denying the pending motions to dismiss, the Court narrowed the issues to be presented, and effectively provided Plaintiff with an extension of her deadlines to oppose the dispositive relief sought by the defendants. Given that the deadline to oppose Plaintiff's Motion for Declaratory Relief and Preliminary Injunction (R. Doc. 42) was stayed prior to removal, the Court set a deadline for the defendants to file any opposition to that motion. (R. Doc. 72).

Four motions to dismiss address the merits of Plaintiff's claims: Lee's Motion to Dismiss (R. Doc. 58); Judge Tureau's Motion to Dismiss (R. Doc. 66); the First Circuit's Motion to Dismiss (R. Doc. 73), and Hanna, Lambert, and Julien's Motion to Dismiss (R. Doc. 75). The Court has stayed discovery given the immunity defenses raised by the defendants. (R. Doc. 80).

Plaintiff moved for entry of default as to Conachen. (R. Doc. 86). The Clerk entered default given that Conachen had not made an appearance. (R. Doc. 89). Conachen has since filed Motion to Set Aside Default (R. Doc. 91); Motion for Extension of Time to File Answer (R. Doc. 92); and Motion to Dismiss for Insufficient Service of Process (R. Doc. 99).

Plaintiff also moved for entry of default as to S. McCormick, L. McCormick, and J. McCoy. (R. Doc. 87). The Clerk denied entry of default given that these defendants had filed a motion to dismiss prior to transfer. (R. Doc. 90). Plaintiff has again moved for Entry of Default as to S. McCormick, L. McCormick, and J. McCoy. (R. Doc. 94).

B. Nature of Plaintiff's Claims

Plaintiff's allegations arise out of divorce proceedings between Plaintiff and J. McCoy brought in the 23rd Judicial District Court in Gonzales, Louisiana. Plaintiff alleges that all of the named Defendants have corruptly engaged in a pattern of simulation of the court proceedings, record falsification, racketeering, dishonesty, and deception to deprive Plaintiff of her constitutional rights because of her national and ethnic origin, nationality, and gender.” (Am. Compl. ¶ 51). Plaintiff seeks recovery under various federal statutes (18 U.S.C. § 1962(b), (c), (d);[1] 42 U.S.C. § 1983; 42 U.S.C. § 1985; and 15 U.S.C. § 1125(a)(1)(A)) and state law (intentional and/or negligent infliction of emotional distress; ORS 165.080; and ORS 165.100). (Am. Compl. ¶¶ 54-102). Plaintiff prays for compensatory damages, an award of expenses, attorney's fees, as well as declaratory and injunctive relief. (Am. Compl., Request for Relief, at 30-33). Plaintiff specifically alleges that she is suing the defendants “in their individual capacities.” (Am. Compl. ¶ 4).

Plaintiff alleges that Conachen, her attorney at the divorce proceedings,[2] conspired with J. McCoy and his counsel at the divorce proceedings, S. McCormick and L. McCormick (collectively, the “McCormicks”), “by not using evidence that Plaintiff provided, not calling [L. McCormick] out on its fraud, falsification of evidence, and insults of Plaintiff.” (Am. Compl. ¶ 10). Plaintiff alleges that the McCormicks hired a “corrupt” expert to submit a lower than fair market valuation of the McCoys' home; the “corrupt” Judge Pro Tempore Jerome Barbera then denied Plaintiff's motion to compel discovery; and the “corrupt” Judge Pro Tempore Jerome Emile St. Pierre excluded the foregoing common property from the proceedings altogether and held a trial on the merits during a 15-minute Zoom meeting. (Am. Compl. ¶¶ 12-23).[3] Plaintiff alleges that the McCormicks falsely promised to “settle” the claims by “repeatedly” trying “to trick” her with “the dirty scheme of stealing the plaintiff's funds.” (Am. Compl. ¶ 30). Plaintiff also alleges that the J. McCoy and the McCormicks “corruptly gave bribes and other forms of recompenses to the corrupt ‘public officials' for criminal violating the law and ‘allowing' McCoy to ‘save' a large sum of money by stealing it from Plaintiff.” (Am. Compl. ¶ 61).

Plaintiff further alleges that Hanna, Julien, Lambart, and Robicheaux (collectively, the “Clerk-Defendants)[4] failed to properly mail the final judgment to Plaintiff's address in Oregon. (Am. Compl. ¶ 24). Plaintiff asserts that the “clerks Hanna, Julien, and Robicheaux returned the notice of appeal unfiled” because Plaintiff had not paid the associated filing fee and there was a dispute between herself and the Clerk's office as to whether her status as a pauper also applied to her appeal of the trial court's decision. (Am. Compl. ¶ 25). Plaintiff also alleges that the ClerkDefendants sent “extortion attempts” demanding payments and tried to dismiss Plaintiff's appeal as “abandoned.” (Am. Compl. ¶¶ 26-28). Notwithstanding Plaintiff's allegations of “fraud, intimidation, threats, [and] claims that are contrary to the existing law and facts in the record,” Plaintiff admits “the clerk finally lodged the ‘appeal record.' (Am. Compl. ¶ 29).

Plaintiff also asserts that the Clerk-Defendants improperly prepared a record for appeal that was “shockingly falsified altered, and tampered with” because twenty exhibits in support of her claims, as well as hearing transcripts, were not included, and certain exhibits “were altered, partially blackened, or unnumbered.” (Am. Compl. ¶¶ 31-32). Plaintiff indicates that her motion to complete the record was considered and denied by the trial court. (Am. Compl. ¶¶ 33-35). Plaintiff states that [t]he...

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