Allen v. Allen

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:24-cv-00320-BO-RJ

)

KATHY R. ALLEN, )

Plaintiff, )

)

V. ) ORDER

)

ARTHUR L. ALLEN, deceased, MARY _ )

FLAGER ALLEN, STEVE R. ALLEN, )

ANTHONY A. KLISH, C. JORDAN )

GODWIN, JUDGE CHRIS DILLON, )

JUDGE TOBIAS HAMPSON, JUDGE )

JEFFERSON GRIFFIN, GRANT E. )

BUCKNER, and HENSON & FUERST )

P.A, )

Defendants. )

)

This matter is before the Court on multiple motions to dismiss, motions for extensions of

time in which to file responses or pleadings, a motion for default judgment, and a motion to

submit the case to the pro bono panel. For the following reasons, the motions are granted in part

and denied in part. Further, the Court will sua sponte conduct frivolity review.

BACKGROUND

This case stems from the death of Rebecca Bowden Allen Johnson, who passed away in

March 2016. Plaintiff alleges that she “expected inheritance of her mother’s estate.” DE 1 at 2.

However, two of her siblings—Arthur L. Allen, since deceased, and Steve R. Allen—were named

beneficiaries of the will, which was probated in Wake County, North Carolina. In response,

Plaintiff filed a will caveat, which was unsuccessful. Plaintiff then embarked on a tour of litigation,

filing multiple cases against multiple defendants, which ultimately resulted in the Wake County

Superior Court enjoining her from “filing any further motion, pleading, or document related to the

Matters (defined below) in Wake County Court or any other Court in North Carolina without the

prior approval of the Court.” Allen v. Allen et al., 18-CVS-13119 at 5 (Wake Cnty. Super. Ct.)

(Feb. 17, 2020).

The present case alleges, so far as the Court can determine, that numerous lawyers, judges,

and Plaintiffs relatives fraudulently, negligently, and maliciously conspired to deprive her of her

civil rights in violation of 28 U.S.C. § 1983 and the Fair Debt Collection Practices Act. Nearly all

of these defendants have filed motions to dismiss, which will be dealt with in turn.

ANALYSIS

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject

matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and should be

considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation omitted).

When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction

to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). When a

facial challenge to subject-matter jurisdiction is raised, the facts alleged by the plaintiff in the

complaint are taken as true, “and the motion must be denied if the complaint alleges sufficient

facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.

2009). The Court can consider evidence outside the pleadings without converting the motion into

one for summary judgment. See, e.g., Evans, 166 F.3d at 647.

Rule 12(b)(5) authorizes dismissal for insufficient service of process, or a deficiency in

service itself. See Washington v. Cedar Fair, L. P., No. 3:22-cv-244-MOC-DSC, 2023 U.S. Dist.

LEXIS 16559, at *5 (W.D.N.C. Feb. 1, 2023). When a defendant moves to dismiss for insufficient

service of process, the plaintiff must demonstrate that service has been effected in accordance with

the rules. Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003). “Absent waiver or consent, a

failure to obtain proper service on the defendant deprives the court of personal jurisdiction over

the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998).

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain, 478

USS. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), “the court should

accept as true all well-pleaded allegations and should view the complaint in a light most favorable

to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A complaint must

allege enough facts to state a claim for relief that is facially plausible. Be// Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). In other words, the facts alleged must allow a court, drawing

on judicial experience and common sense, to infer more than the mere possibility of misconduct.

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009). The court

“need not accept the plaintiff's legal conclusions drawn from the facts, nor need it accept as true

unwarranted inferences, unreasonable conclusions, or arguments.” Philips v. Pitt Cnty. Mem’]

Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (alteration and citation omitted).

Because Plaintiff Allen Henderson is proceeding pro se, the Court construes her filings

liberally and holds them to a less stringent standard than it would formal pleadings drafted by

lawyers. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). Still a pro se plaintiff must satisfy

the obligation to state a plausible claim under the pleading standards. And it is not the Court’ s

role to construct legal arguments for the plaintiff. Small v. Endicott, 998 F.2d 411, 417-18 (7th

Cir. 1993).

I. Motion to Dismiss by Judge Chris Dillon, Judge Jefferson Griffin, Judge Tobias

Hampson, and Clerk Grant Buckner [DE 25]

Absolute judicial immunity is a bedrock principle of our legal system. It is firmly settled

law that “a judge may not be attacked for exercising his judicial authority, even if done

improperly.” Mullins v. Oakley, 437 F.2d 1217, 1218 (4th Cir. 1971). The only two circumstances

in which judicial immunity does not apply are when a judge acts outside of their judicial capacity

or in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

Neither of those exceptions apply here. Plaintiff contends that Congress authorized

lawsuits against judges with the passage of 28 U.S.C. § 1983 [DE 59 at 12]. This is flatly incorrect,

as judicial immunity applies “even when the judge is accused of acting maliciously and corruptly.”

Pierson v. Ray, 386 U.S. 547, 554 (1967). The proper measure of whether an act is judicial in

nature is whether the act is “‘a function normally performed by a judge.” Stump v. Sparkman, 435

U.S. 349, 362 (1978). And, as the Defendants accurately point out, “[i]t is difficult to imagine a

more quintessential judicial function than the issuance of judgment on cases presented to the court

on which a judge sits.” DE 26 at 6. Plaintiff's disagreement with the decisions of those judges does

not thereby open those judges to suit—the exact circumstance in which absolute judicial immunity

is meant to apply.

The decisions of state court judges are further protected from federal scrutiny by the

Rooker-Feldman doctrine, which prevents federal district courts from exercising jurisdiction over

challenges to state court decisions. Friedman’ s, Inc. v. Dunlap, 290 F.3d 191, 196 (4th Cir. 2002).

“A party losing in state court is barred from seeking what in substance would be appellate review

of the state judgment in a United States district court, based on the losing party’s claim that the

state judgment itself violates the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997,

1005-06 (1994).

The Plaintiff's response offers no compelling arguments for why neither of these settled

legal principles would apply. Accordingly, the claims against the judicial defendarts must be:

dismissed.

I. Motion to Dismiss by Defendants Godwin and Henson & Fuerst, P.A. [DE 23],

and Anthony Klish [DE 34 & DE 49]

Defendants Godwin and Henson & Fuerst, P.A. have moved to dismiss the claims against

them on the grounds that the Plaintiffs claims are “inextricably intertwined” with the preceding

state court case under Rooker-Feldman. DE 23. Defendant Anthony Klish has moved to dismiss

on identical grounds [DE 49], and the Court will discuss both motions together.

Rooker-Feldman applies to the review of both “issues actually decided by the state court”

and review of “those claims which are ‘inextricably intertwined’ with state court decisions.”

Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000). Claims are “inextricably

intertwined” when, for the claims to succeed, the federal court must determine “that the [state]

court judgment was erroneously entered or must take action that would render the judgment

ineffectual.” Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997). Rooker-

Feldman is a narrow doctrine, which is “confined to cases” that are “brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and rejection of those judgments.”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). A litigant cannot escape

Rooker-Feldman by instituting a federal action which, though not a direct appeal, “amounts to

nothing more than an attempt to seek review of [the state court’s] decision by a lower federal

court.” Am. Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003).

Here, the relief Plaintiff seeks is “an immediate injunction declaratory relief to have [her]

mother’s estate properly administered for distribution of [the will] properly determined by the

evidence and a jury trial.” DE 1 at 53. Characteristic of Plaintiffs filings, this request is

accompanied by voluminous and conclusory allegations of fraud, conspiracy, and malevolence

leveled against lawyers, lacking any meaningful factual support.

If the Court were to decide in Plaintiffs favor on any of her claims, it would be required

to determine that the state courts wrongly decided the issues before them, and this Court is barred

from engaging in such review. Accordingly, the claims levied by Plaintiff against Defendant

Gowdin, Henson Fuerst P.A., and Defendant Klish are inextricably intertwined under Rooker-

Feldman and must be dismissed for lack of subject matter jurisdiction.

II. Motion to Submit the Case to the Pro Bono Panel [DE 18]

The Plaintiff has motioned that this case be submitted to the pro bono panel [DE 18].

Review by the pro bono panel does not guarantee that counsel will be secured, and submission of

a case to the panel frequently results in a declination of representation. Reath v. Social Security

Administration, 2018 WL 2291299, at *2 (E.D.N.C. 2018).

The Court will not refer this case to the pro bono panel on this motion. Judicial solicitation

of the bar for free legal representation for a pro se party remains ‘“‘a matter within the discretion of

the [ ] Court. It is a privilege and not a right.” Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968).

To merit such solicitation, a pro se plaintiff “must show that his [or her] case is one with

exceptional circumstances.” Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Having

reviewed the record, the Court believes that this plaintiff does not present exceptional

circumstances here. Accordingly, the motion to refer the case to the pro bono panel will be denied.

IV. Motion to Join Defendants [DE 19}

Plaintiff filed her complaint on June 7, 2024 [DE 1]. On July 18, 2024, Plaintiff sought to

add two new defendants to the suit—the State Ernployees Credit Union and SECU’s lawyer,

Cathleen. Plaut.

Under Fed. R. Civ. P. 20, a court may permit joinder when justice so requires, absent some

reason “such as undue delay, bad faith or dilatory motive on the part of the movant, repezated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment or futility of the amendment...” Foman v. Davis, 371 U.S.

178, 182 (1962). Although the court recognizes that pro se pleadings must be liberally construed,

a court is not expected to assume the role of advocate for a pro se plaintiff and develop statutory

and constitutional claims not clearly raised in a complaint. Lordmaster v. Augusta Correctional

Ctr. Personnel, 2014 WL 12521385, at *1 (W.D. Va. 2014).

The Court readily determines that permitting joiner in this instance would be unwarranted

and futile. Plaintiff's allegations are conclusory and unsupported by facts, and she has added

nothing in her motion to join beyond reciting the same threadbare claims already replete

throughout her filings. Further, Plaintiff has also filed suit against the proposed defendants in a

parallel case and has had ample opportunity to develop her claims there. See Allen v. Allen et al.,

No. 5:24-cv-00319-BO-RJ (2024). Plaintiff's motion does not “establish a cognizable basis for the

Court to grant either a motion for required or permissive joinder.” Sanford v. City of Franklin,

Virginia, 2022 WL 4451332, at *6 (E.D. Va. 2022). Accordingly, the motion to join is denied.

V. Motion for Extension of Time to Serve Defendant Klish [DE 37]

Plaintiff has moved for an extension of time in which to effect service on Defendant Klish

[DE 37]. Since the time of filing, Defendant Klish has been served and has responded [DE 49]. As

such, this motion will be denied as moot.

VI. Motion to Compel [DE 20]

On July 25, 2024, Plaintiff moved to compel Edward Maginnis—the former employer of

Defendant Klish, and who is not a defendant in this case—to turn over Defendant Klish’s contact

information for service of process. Concurrently, Plaintiff moved under Rule 37 for sanctions in

the amount of $5,000 for refusing to provide such information to Plaintiff [DE 26 at 4]. Maginnis

responded in opposition [DE 28], and Plaintiff replied [DE 36].

Rule 37 permits a motion to compel in only two circumstances: (1) compelling a

disclosure required by Rule 26(a); or (2) compelling a discovery response. See Fed. R. Civ. P.

37(a)(3)(A)B). Discovery has not yet commenced, and the only disclosures permitted under

Rule 26(a) are initial discovery disclosures about individuals and documents that the Defendant

could use to support its claims or defenses. See Fed. R. Civ. P. 24(a). Nowhere in Rule 37 or

Rule 26 is a requirement that a third party assist the plaintiff in securing service of process

against a defendant by providing addresses or phone numbers.

Further, the Court may only order sanctions under Rule 37 if a party or their agent fails to

appear for a deposition, Fed. R. Civ. P. 37(d)(1)(A)(i), a party fails to respond to properly served

interrogatories, Fed. R. Civ. P. 37(d)(1)(A)(ii), or a party fails to obey a court’s order to provide

discovery, Fed. R. Civ. P. 37(b)(2)(A). The present circumstances fit into none of those Rule 37

categories, nor, indeed, any category justifying the awarding of sanctions—whether that be Rule

11, Rule 26, or 28 U.S.C. § 1927.

Plaintiff's motion is ill-founded, and her central theory of recovery—that “Edward

Maginnis is the one who is more learned in the legal profession than the Plaintiff and should be

sanctioned for it”—is unwarranted, improper, and plainly incorrect. DE 20 at 3. The motion to

compel is denied.

The Court notes that, in response, Maginnis requests that the Court assess Rule 11

sanctions against the Plaintiff [DE 28]. Given the scope of this order, and the dismissal of the

vast majority of Plaintiffs claims, the Court will not order such sanctions at this time.

VII. Motion for Entry of Default [DE 22]

The Plaintiff has motioned under Fed. R. Civ. P. 55 that default judgment be awarded to

her against Defendant Mary Flager Allen and Defendant Steve R. Allen because those

defendants did not respond to the complaint [DE 22].

The United States Court of Appeals for the Fourth Circuit has a “strong policy that cases

be decided on their merits.” United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.1993).

Default judgment is only available when the “adversary process has been halted because of an

essentially unresponsive party.” S.E.C. v. Lawbaugh, 359 F. Supp. 2d 418, 421 (D. Md. 2005).

However, “[a] defendant's default does not in itself warrant the court in entering a default

judgment. There must be a sufficient basis in the pleadings for the judgment entered.” D/RECTV,

Inc. v. Pernites, 200 Fed. App'x 257, 258 (4th Cir. 2006) (quoting NMishimatsu Const. Co. v.

Houston Nat. Bank, 515 F.2d 1200, 1206 (Sth Cir. 1975). “The district judge is required to exercise

sound judicial discretion in determining whether the judgment should be entered,” and the Court

may “refuse to enter a default judgment.” /d. Accordingly, the Court must “determine whether the

well-pleaded allegations in [Plaintiff's] complaint support the relief sought,” since a party in

default does not admit mere conclusions of law. Ryan v. Homecomings Fin. Network, 253 F.3d

778, 780 (4th Cir. 2001).

Here, the Court is confident that the unchallenged facts included in Plaintiff's complaint

are insufficient to constitute any legitimate cause of action identified by the Plaintiff, nor, indeed,

any other that the Court can discern. Plaintiff's allegations are verbose and difficult to parse. The

facts alleged related to Defendant Mary Flager Allen show, at most, that the Plaintiff paid some

amount of consumer debt that she may not have had to pay [DE 1 at 39]. Appending the words

“fraud scheme” and “negligence” to a claim of erroneous payment is conclusory and does not

create a cause of action. The facts alleged related to Steve Allen show the same erroneous payment,

coupled with conclusory allegations that Steve Allen conspired with law firms to prevent Plaintiff

from bringing suit to enforce her rights [DE 1 at 42-43]. Plaintiffs factual support for these claims

is thin to nonexistent, and her allegations are incapable of making out any discernable claim

entitling her to relief. The Court therefore determines that the entry of default judgment in this

matter is inappropriate. The motion for the entry of default is denied.

VIII. Motions for Extensions of Time

Federal Rule of Civil Procedure 6(b)(1)(A) empowers the Court to extend the time in which

to act “for good cause.” On the multiple motions for an extension of time to act present in this

case, the Court makes the following determinations.

Defendant Klish’s motions for an extension of time to file an answer [DE 17 & DE 40] are

granted, the motion being made before the expiration of time for performance and for good cause

shown. On these facts, the prolixity of plaintiff's filings and confusion over the identity of the

proper defendant comprises good cause.

Plaintiff has filed multiple motions for extensions of time to respond to all defendants in

this case [DE 31, 32, 41, 42, 43, 44, 45, 54, 47, 48, 51 and 52]. Good cause is not a demanding

standard, Peche v. Keller, 2012 WL 2128095, at *6 (M.D.N.C. 2012), yet the Plaintiff has féiled

to meet it for months. The Plaintiff's justification for these extensions amounts to, repeatedly, “my

personal time schedule that will not allow time to properly write an opposition to these

Defendants[.]” See, e.g., DE 48 at 1. This does not constitute good cause, even given the leeway’

traditionally afforded to pro se plaintiffs. Accordingly, all of Plaintiff's motions for extensions are

denied.

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Similarly, the Plaintiff has filed several motions for permission to exceed the word count

on, or to file extra pages with, her responsive pleadings. As the time for filing a response has

elapsed and good cause has not been shown for an extension to be granted, these motions [DE 61,

62, and 66] will be denied as moot.

IX. Frivolity Review

Up to this point, this case has not yet undergone the strictures of frivolity review. A federal

court may properly dismiss an action swa sponte under the screening provisions of 28 U.S.C. §

1915(e)(2)(B) if “the action is frivolous or malicious, fails to state a claim upon which relief may

be granted, or seeks monetary relief from a defendant who is immune from such relief.” Ball v.

Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655

n.10 (4th Cir. 2006). An action is frivolous if it “lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). However, before dismissing a complaint or claims

for failure to state a claim upon which relief may be granted pursuant to the screening provisions

of 28 U.S.C. § 1915, the court must typically grant plaintiff leave to amend her complaint ualess

amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 239 F.3d 103,

114 (3d Cir. 2002).

Here, for all reasons discussed previously, and particularly those contained in Part VII, the

Court finds that Plaintiff's claims are legally frivolous because they lack an arguable basis either

in law or in fact, and the “complaint plainly fails to state a claim for relief, [such that] the district

court has no discretion but to dismiss it.” Nix v. NASA Fed. Credit Union, 200 F. Supp. 3d 578,

586 (D. Md. 2016) (quotations omitted). At bottom, Plaintiff has alleged a wide-ranging

conspiracy between her family members, attorneys, financial institutions, and every level of state

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court judge. Though Plaintiff has pointed to many sections of the U.S. Code in her complaint and

filings, nowhere does she provide facts adequate to support those charges.

If a plaintiff's case is dismissed on frivolity review, the plaintiff must traditionally be

afforded the chance to amend her complaint. However, leave to amend is not necessary if

amendment would be inequitable or futile. See O’Dell v. United States Gov't, 256 Fed. App’x 444

(3d Cir. 2007) (leave to amend is improper if Plaintiff's claims appear “patently meritless and

beyond all hope of redemption”); see also Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002).

Here, in neither her complaint, nor her numerous other motions, nor her responses to motions to

dismiss, has Plaintiff adduced arguments or facts indicating that she may have a plausible claim to

relief. Further, there is no indication that such facts would be forthcoming were Plaintiff granted

leave to amend her complaint. No facts she could produce, for instance, would be adequate to

overcome the bar of absolute judicial immunity. No facts could overcome the jurisdictional bar of

Rooker-Feldman.

For these reasons, the Court determines that the Plaintiff's complaint is frivolous under 28

U.S.C. § 1915 and fails to state a claim upon which relief may be granted, and dismissal of the

entire complaint is appropriate.

CONCLUSION

The motion to dismiss filed by Judge Chris Dillon, Judge Tobias Hampson, Judge Jefferson

Griffin, and Grant Buckner [DE 25] is GRANTED.

The motions to dismiss filed by Jordon Godwin and Henson & Feurst, P.A. [DE 23], and

Anthony Klish [DE 34 & DE 49], are GRANTED.

Plaintiff's motion to submit the case to the pro bono panel [DE 18] is DENIED.

Plaintiff's motion for an extension of time to serve Klish [DE 37] is DENIED AS MOOT.

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Plaintiff's motion to join SECU and Cathleen Plaut [DE 19] is DENIED.

Plaintiff's motion to compel [DE 20] is DENIED.

The motions for an extension of time filed by Klish [DE 17 and 40] are GRANTED.

Plaintiff's motions for an extension of time in which to file responsive pleadings [DE 31,

32, 41, 42, 43, 44, 45, 54, 47, 48, 51 and 52] are DENIED. Plaintiff's motions to exceed the word

count [DE 61, 62, and 66] are DENIED AS MOOT.

Plaintiff's motion for the entry of default judgment against Defendants Mary Flager Allen

and Steve R. Allen [DE 22] is DENIED.

The claims against Defendants Judge Chris Dillion, Judge Tobias Hampson, Judge

Jefferson Griffin, Grant Buckner, C. Jordon Godwin, Anthony Klish, and Henson & Fuerst, P.A.

are DISMISSED WITH PREJUDICE.

Having conducted a sua sponte frivolity review in accordance with the provisions of 28

U.S.C. § 1915, the Court determines that Plaintiff's complaint is meritless and does not state a

claim upon which relief may be granted, and that granting leave to amend would be futile.

Accordingly, the Court DISMISSES this action in its entirety.

The clerk is DIRECTED to close the case.

SO ORDERED, this Jl day of March 2025.

PT erietas bay

TERRENCE W. BOYLE)

UNITED STATES DISTRICT JUDGE

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