Weathers v. Ziko, 14cv828.

• Decision Date: 25 June 2015
• Docket Number: No. 14cv828.,14cv828.
• Citation: 113 F.Supp.3d 830
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Andrea C. WEATHERS, Plaintiff, v. Thomas J. ZIKO, in his individual and official capacity ; Gregory Connor, in his individual capacity; University of North Carolina at Chapel Hill; Herbert B. Peterson, in his individual and official capacity ; Jonathan Kotch, in his individual and official capacity ; Barbara K. Rimer, in her individual and official capacity ; and Sandra L. Martin, in her individual and official capacity ; Defendants.

113 F.Supp.3d 830

Andrea C. WEATHERS, Plaintiff,

v.Thomas J. ZIKO, in his individual and official capacity ; Gregory Connor, in his individual capacity; University of North Carolina at Chapel Hill; Herbert B. Peterson, in his individual and official capacity ; Jonathan Kotch, in his individual and official capacity ; Barbara K. Rimer, in her individual and official capacity ; and Sandra L. Martin, in her individual and official capacity ; Defendants.

No. 14cv828.

United States District Court, M.D. North Carolina.

Signed June 25, 2015.

Andrea C. Weathers, Morrisville, NC, pro se.

Matthew T. Tulchin, N.C. Dept. of Justice, Gary S. Parsons, Troutman Sanders, LLP, Raleigh, NC, Gregory Stephen Connor, The Connor Law Firm, PLLC, Durham, NC, for Defendants.

MEMORANDUM ORDER

THOMAS D. SCHROEDER, District Judge.

This case returns to the court for yet a third time as Plaintiff Andrea Weathers continues to overcome her previous dismissals.

In 2010, Weathers, an African–American professor at the University of North Carolina at Chapel Hill ("the University"), brought various racial discrimination claims against the University, Herbert Peterson, Jonathan Kotch, Barbara Rimer, Edward Foster, and Sandra Martin, for denying her reappointment and tenure. Weathers was represented by attorney Gregory S. Connor. Her claims were dismissed at summary judgment. Weathers v. Univ. of N.C. at Chapel Hill (Weathers I), No. 1:08CV847, 2010 WL 4791809, at *1 (M.D.N.C. Nov. 18, 2010). She appealed, and the Fourth Circuit affirmed the dismissal in an unpublished, per curiam opinion. 447 Fed.Appx. 508 (4th Cir.2011).

In 2013, Weathers filed a pro se complaint against the University, Peterson, Kotch, Rimer, and Martin. The action brought seven claims, including a request to set aside the Weathers I judgment for alleged fraud on the court under Federal Rule of Civil Procedure 60(b) and an independent action in equity. Weathers also brought various State law tort claims, as well as claims for constitutional violations. Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss all the claims. Weathers then retained her attorney from Weathers I, Connor, to oppose the motion. Ultimately, the district court found no fraud on the court and dismissed all claims. Weathers v. Univ. of N.C. at Chapel Hill (Weathers II), No. 1:12CV1059, 2013 WL 5462300, at *8 (M.D.N.C. Sept. 30, 2013). Weathers then moved the court to reconsider its Judgment pursuant to Federal Rule of Civil Procedure 59. That motion was denied by the court. Weathers v. Univ. of N.C. at Chapel Hill, No. 1:12CV1059, 2014 WL 198216 (M.D.N.C. Jan. 15, 2014). Weathers appealed these rulings pro se, and the Fourth Circuit again affirmed by an unpublished, per curiam opinion. 578 Fed.Appx. 300 (4th Cir.2014).

In the present lawsuit, Weathers appears pro se and brings claims against the same Defendants as in Weathers I and Weathers II —the University, Peterson, Kotch, Rimer, and Martin—but also adds Connor, her former attorney, as well as Thomas Ziko, the attorney from the North Carolina Department Justice who represented the University and individual Defendants in Weathers I and Weathers II.

In her initial complaint in the present case, Weathers sought relief from judgment under Federal Rule of Civil Procedure 60(b) ; an independent action in equity for relief from a judgment; and constitutional claims under the Fifth, Seventh, and Fourteenth Amendments to the United States Constitution. All Defendants moved to dismiss the claims, and Weathers responded with a motion for leave to amend her complaint. Connor and the "State Defendants" (all Defendants other than Connor) separately opposed the amendment.¹

Weathers' proposed amended complaint seeks relief from the judgments in Weathers I & II pursuant to Federal Rule of Civil Procedure 60(b) ; an independent action in equity for relief from the judgments in Weathers I & II; a State law claim for fraudulent attorney practice under N.C. Gen.Stat. § 84–13 against Ziko and Connor; employment discrimination in violation of 42 U.S.C. §§ 1981 and 1983 against the University, Peterson, Rimer, Kotch, and Martin; employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. against the University, Peterson, Kotch, and Rimer; business discrimination in violation of N.C. Gen.Stat. § 75B–2 against all Defendants; and violations of Amendments Five, Seven, and Fourteen to the United States Constitution against all Defendants.

Weathers' motion for leave to amend will be denied as futile, her federal law claims will be dismissed with prejudice, and the court will decline jurisdiction over the State law claims. The court has already addressed Weathers' claims at significant length in two other cases, both of which she appealed. So, rather than to repeat that analysis yet again, the court will simply summarize the fundamental problems with Weathers' current lawsuit that require dismissal.

First, Weathers has failed to show any grounds for setting aside the judgments in Weathers I or Weathers II. Her attack on the Weathers I judgment under Rule 60(b) is untimely because the present action was not filed within one year of the entry of judgment by the district court. See The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1088–89 (10th Cir.2005). As to the judgment in Weathers II , Weathers has failed to allege in her complaint or her proposed amended complaint sufficient facts to make a claim of fraud plausible to avoid the judgment under Rule 60(b). In addition, even when construed as an independent action for relief from the previous judgments, as contemplated by Rule 60(d), Weathers' present action fails to state a claim for fraud on the court entitling her to relief. See Great Coastal Exp., Inc. v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 675 F.2d 1349, 1356 (4th Cir.1982) ("Thus ‘fraud on the court’ is typically confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged.").

Second, Weathers' constitutional claims under the Fifth, Seventh, and Fourteenth Amendments fail against Connor, a private attorney, for lack of State action. Berry v. Porterfield, No. 3:08–CV–311–MU, 2008 WL 3154947, at *1 (W.D.N.C. Aug. 1, 2008), aff'd, 312 Fed.Appx. 578 (4th Cir.2009). These claims further fail against all Defendants for failing to state plausible claims for relief. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Third, Weathers' employment discrimination claims against the State Defendants—under Title VII, § 1981, and § 1983—are barred by the doctrine of res judicata, since they all were or could have been brought in Weathers I or Weathers II. Union Carbide Corp. v. Richards, 721 F.3d 307, 314–15 (4th Cir.2013). It is apparent that the facts underlying her claims existed during those lawsuits. Thus, these claims will be dismissed. Alternatively, the claims fail to state a plausible claim, likewise warranting dismissal.

For these reasons, all of Weathers' federal claims, over which this court has original jurisdiction, will be dismissed with prejudice. This leaves only Weathers' claims for fraudulent attorney practice and business discrimination under North Carolina law. This court "may decline to exercise supplemental jurisdiction" over these State law claims because it ...