Raymond v. Ivest Props., LLC
| Decision Date | 23 April 2021 |
| Docket Number | SA-20-CV-00965-FB |
| Parties | CARLOS ANTONIO RAYMOND, Plaintiff, v. IVEST PROPERTIES, LLC, ABDELHAKIM RAF ATI, IN HIS OFFICIAL CAPACITY AS REGISTERED AGENT; LYDIA O'CONNEL, IN HER OFFICIAL CAPACITY AS BEXAR COUNTY COURT COORDINATOR, COURT 10; AND OTHER INDIVIDUALS AND COUNTY OFFICIALS, Defendants. |
| Court | U.S. District Court — Western District of Texas |
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns Plaintiff's Motion to Sanction and/or Admonishment of Counsel [#30] and Plaintiffs' Motion for Entry of (a) Default Judgment and (b) Reasonable Accommodation Pursuant to American with Disability Act [#48]. All dispositive pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Plaintiff's motions be DENIED.
This case challenges the legality of an eviction. Plaintiff Carlos Antonio Raymond, proceeding pro se, has sued various Defendants involved in the foreclosure of his property located at 8054 Silver Grove, San Antonio, Texas 78254. The property was allegedly sold at a foreclosure sale on January 7, 2020, and Plaintiff was thereafter evicted. After the foreclosure, there were various state court proceedings in which Plaintiff challenged the legality of judgment to deprive Plaintiff of possession of the property. By this lawsuit, Plaintiff challenges various actions of Defendants taken in conjunction with the foreclosure and eviction. Plaintiff accuses Defendant Ivest Properties and its attorney Robert Valdespino of failing to serve and provide notice of critical state court hearings that led to the ultimate determination on the status of his property. (Am. Compl. [#36] at ¶¶ 20-25.) Plaintiff contends that these actions were taken with an intent to deprive Plaintiff of the fair and equal opportunity to attend the hearing on the merits of his case. (Id.)
The allegations in this case also reference a federal lawsuit currently pending in this Court. See Raymond v. J.P. Morgan Chase Bank, 5:19-CV-00596-OLG-HJB. Plaintiff contends that Defendant Ivest Properties and Robert Valdespino have also purposefully concealed various procedural actions in that case and interfered with his ability to prosecute the suit. (Am. Compl. [#36] at ¶¶ 29-31.) Plaintiff's Amended Complaint is full of allegations accusing Mr. Valdespino of suspicious and deceptive behavior in connection with the state court litigation and federal lawsuit. (Id. at ¶¶ 29-47.)
Plaintiff's lawsuit alleges a violation of the Coronavirus Aid and Economic Security Act ("CARES Act"), violations of his right to procedural due process pursuant to 42 U.S.C. § 1983, federal civil conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), age and disability discrimination in violation of the Americans with Disabilities Act, and various other state-law causes of action.
Plaintiff has filed a motion for sanctions against Mr. Valdespino. The motion accuses Mr. Valdespino of "improperly and continuously sending legal messages, notices, and letter[s] to Plaintiff's personal e-mail, and via certified mail." The motion asks the Court to admonish Mr. Valdespino for violating the Texas Bar's standards for professional conduct.
The Court construes Plaintiff's motion as a motion for sanctions based on this Court's inherent power to issue sanctions. See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991); In re Stone, 986 F.2d 898, 902 (5th Cir. 1993). Rule 11 of the Federal Rules of Civil Procedure governs requests for sanctions for violations of Rule 11(b), which concerns violations by attorneys related to their affirmative duties in connection with the signing of pleadings, motions, and other papers. See Fed. R. Civ. P. 11(c) (). This rule does not appear to apply to the facts and circumstances of alleged misconduct described here. Nor does Plaintiff's motion fall under Rule 37, which gives courts the power to sanction parties for failure to obey an order to provide or permit discovery. See Fed. R. Civ. P. 37(b).
Plaintiff's motion does not contain any allegations that establish any basis for imposing sanctions against Mr. Valdespino or the party he represents, Ivest Properties, under this Court's inherent power. The inherent power of federal courts to sanction allows this Court to address "bad-faith conduct in the course of litigation" that is not sanctionable under other specific rules. Chambers, 501 U.S. at 50. The burden for imposing sanctions under this Court's inherent poweris higher than those under Rule 37 or other sources, requiring "clear and convincing" evidence of bad faith. Id.; In re Moore, 739 F.3d 724, 730 (5th Cir. 2014).
Plaintiff's motion summarizes various events occurring over the past six months in connection with Plaintiff's state-court and federal lawsuit pending against J.P. Morgan Chase. It is difficult to discern the precise basis of Plaintiff's complaints, but it appears that Plaintiff is accusing Mr. Valdespino of improperly contacting him directly, despite the fact that he had court-appointed counsel in the federal suit against J.P. Morgan Chase for a period of time. Yet Ivest Properties, whom Mr. Valdespino represents, is not a party to that suit. Additionally, Plaintiff's court-appointed attorney was terminated on February 22, 2021, and Plaintiff is now representing himself pro se in that suit as well. That Mr. Valdespino has contacted Plaintiff directly is not a basis for the imposition of sanctions in this lawsuit. Plaintiff should raise any issue of misconduct in the state-court proceedings with the state court. Plaintiff should raise any issue of misconduct in the federal litigation before the federal judge assigned to that case. If Plaintiff believes Mr. Valdespino contacted him in violation of some rule of ethics imposed by the Texas Bar, he may file a grievance with the Bar.
Additionally, the majority of allegations in the motion for sanctions reiterate the substantive allegations contained in Plaintiff's Amended Complaint against Ivest Properties. Plaintiff cannot litigate his substantive claims through a motion for sanctions.
Plaintiff has also filed a motion for default judgment against all named Defendants, arguing that no Defendant has filed a response to the Amended Complaint that he attempted to serve on each named party. The motion should be denied.
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Plaintiff is not entitled to a default judgment against any Defendant because no Defendant has been served, and the only Defendant that has made an appearance in this case is actively defending this suit by pursuing a motion to dismiss.
There is no indication in the record that Plaintiff has requested issuance of summonses as to any Defendant or that any Defendant has been formally served in this case. After Plaintiff indicated he had not been successful in serving Defendants, the Court ordered Plaintiff to submit to the Clerk's Office a fully completed United States Marshal Service Form 285 for each Defendant and directed the U.S. Marshal to assist Plaintiff with service [#42]. The deadline to do so imposed by the Court's Order is April 26, 2021.
The Court notes that Defendant Ivest Properties, Inc., has entered an appearance in this case, despite lack of formal service. Plaintiff need not complete a Form 285 for this Defendant. For a court to have jurisdiction over a defendant, the defendant may be formally served, may waive service, or simply enter an appearance in the case. Tisdale v. Georgia-Pac. Corp., 854 F.2d 773, 776 (5th Cir. 1988) (). If Plaintiff intends to pursue his claims against the other Defendants (Abdelhakim Rafati and Lydia O'Connel), he must follow the Court's instructions and fill out Form 285 for these Defendants.
Defendant Ivest Properties, Inc., first entered an appearance in this case on August 28, 2020, by moving to dismiss Plaintiff's Original Complaint for lack of jurisdiction and for failure to state a claim. After the Court consolidated this case with another case filed by Plaintiff regarding the same subject matter, the Court ordered Plaintiff to file an Amended Complaint...
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