Serna v. Webster
| Decision Date | 04 May 2017 |
| Docket Number | CV 17-20 JB/WPL |
| Parties | EMMA SERNA d/b/a SERNA & ASSOCIATES CONSTRUCTION CO., LLC, Plaintiff, v. MARGETTE WEBSTER; DAVID WEBSTER; STATE OF NEW MEXICO, U.S. Judicial Court Division; CLAYTON CROWLEY; ALEX CHISHOLM; CARL BUTKUS; CINDY MOLINA; ALAN MALOTT; BEATRICE BRICKHOUSE; BOBBY JO WALKER; JAMES O'NEAL; ROBERT BOB SIMON; ESTATE OF PAUL F. BECHT; CARL A. CALVERT; JOEY MOYA; AMY MAYER; GARCIA MADELIENE; ARTHUR PEPIN; MONICA ZAMORA; CHERYL ORTEGA; JOHN DOE #1; PAT MCMURRAY; MARTHA MUTILLO; SALLY GALANTER; NEW MEXICO CONSTRUCTION INDUSTRIES DIVISION; ROBERT "MIKE" UNTHANK; MARTIN ROMERO; AMANDA ROYBAL; NAN NASH; and JOHN WELLS, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Despite being filed in January 2017, this case has already endured an unusually large amount of motion practice and other filings. This Second Proposed Findings and Recommended Disposition ("Second PFRD") will recommend disposition of the following motions and other filings, in the order in which they were filed:
Because Serna is a pro se litigant, I must construe her pleadings liberally and hold them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro selitigant's "failure to cite proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence construction, or [her] unfamiliarity with pleading requirements." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110) (alterations omitted). However, "the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Id.
I note that Serna has attempted to bring claims on behalf of her construction company, Serna & Associates Construction Co., LLC. Serna may not proceed pro se and represent her LLC. D.N.M.LR-Civ. 83.7; Perry v. Stout, 20 F. App'x 780, 782 (10th Cir. 2001) (unpublished) (citing 28 U.S.C. § 1654); (Doc. 103). At the time of writing, Judge Browning has not yet ruled on the outstanding PFRD that would dismiss the LLC as a Plaintiff. (Doc. 103.) However, I proceed under the assumption that the LLC cannot maintain its claims without representation, and thus address only the claims of Serna herself.
To the extent that Serna attempts to bring criminal claims—state or federal—against any of the Defendants, I recommend that the Court dismiss those claims sua sponte. "[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another" and cannot base a claim for which relief can be granted on criminal statutes. Diamond v. Charles, 476 U.S. 54, 64 (1986) (quotation omitted). No amount of factual amendment will convert criminal charges into cognizable civil causes of action. To the extent that Serna attempts to assert criminal claims in this case, I recommend that the Court dismiss those claims with prejudice.
As previously stated, this case has an unusually large record for being so recently filed. Essentially, this case arises from underlying state court litigation. Serna and the Webster Defendants entered into a construction contract sometime in 2002. The work was apparently notcompleted and/or paid for by mid-2004. The parties attempted to sort out the differences, but ultimately filed two separate civil cases in 2006 or 2007, and those cases were consolidated. The Websters alleged that Serna walked off the job-site, in breach of contract, and they incurred additional expenses due to that breach. Serna contended that the work was finished but the Websters did not finish paying for the work, and sued to collect those fees. In addition to suing Serna, the Websters sued Serna's husband.
In 2008, Crowley, who was then representing Serna, filed a motion for summary judgment in the consolidated cases as to Serna's husband only and seeking dismissal of Serna's husband. (Doc. 8 at 32.) The state district judge who heard the motion for summary judgment as to Serna's husband granted that motion and dismissed Serna's husband from the underlying litigation. (Id. at 41, 50.) Things went downhill from there.
Since that time, the consolidated cases have gone up and down the New Mexico court system with Serna doggedly insisting, at every level, that summary judgment was granted in her favor. This argument has been rejected by every level of the New Mexico courts. In fact, every level of the New Mexico courts have imposed filing restrictions on Serna because of her frivolous and abusive filings. (See Doc. 34-5 (); Doc. 34-6 (); Doc. 34-7 ().)
The allegations are as follows: the Websters filed suit in state district court in 2007, claiming that Serna walked off the job-site and breached the contract; Serna, then represented by Simon, countersued for unpaid labor. (Doc. 1 at 8-9.) Serna claims that Simon filed a motion forpartial summary judgment, but "mumbled" in court, so the motion was denied. (Id. at 9.) Serna then fired Simon.
Serna then hired Crowley. Crowley filed for "full summary judgment," summary judgment was granted by non-party Judge Lang, Judge Lang retired, Crowley submitted a proposed order to the state court but "was not going to correct the order," and "refused to dismiss the Webster's lawsuit" in state court. (Id.) Serna then fired Crowley. She later states that "Crowley committed obstruction of the law, extortion, conspiring to commit extortion, aiding and abetting, fraud, bribery, false statements to the court, illegal kickbacks, false information and misleading information, racketeering conspiracy to commit, money laundering." (Id. at 17.) Serna also asserts that "Crowley has blackballed the Construction Company with 90% of the attorneys in Albuquerque." (Doc. 26 at 1.)
Judge Butkus took over the underlying state case when Judge Lang retired, after Judge Lang orally granted the motion for summary judgment as to Serna's husband. (Doc. 8 at 34, 37 (); Doc. 8 at 41 (...
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