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Smith v. City of Princeton

United States District Court, E.D. Texas, Sherman Division

January 8, 2018

JOYCE ANN SMITH
v.
CITY OF PRINCETON, TEXAS, ANNE ANGELL

          Nowak, Judge

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On October 31, 2017, the report of the Magistrate Judge (Dkt. #67) was entered containing proposed findings of fact and recommendations that Defendant City of Princeton, Texas's Motion to Dismiss (Dkt. #48) and Motions to Strike Plaintiff's Third Amended Complaint (Dkts. #54, #57) each be granted, and Plaintiff Joyce Ann Smith's (“Smith”) “Motion Judgment for A Matter of Law” (Dkt. #43) be denied. Further, the Magistrate Judge recommended that Smith's claims against Anne Angell and the City of Princeton Code Enforcement Department be dismissed pursuant to 28 U.S.C. § 1915. Having received the report and recommendation of the Magistrate Judge, having considered Smith's timely filed objections (Dkt. #68) and the City of Princeton's response thereto (Dkt. #69), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report (Dkt. #67) should be adopted.

         BACKGROUND

         The underlying facts are set out in further detail by the Magistrate Judge and need not be repeated here in their entirety. Accordingly, the Court sets forth only those facts pertinent to Smith's objections. Plaintiff Joyce Ann Smith lives in Princeton, Texas, in a neighborhood governed by the Villa of Monte Carlo Homeowners Association (“HOA”). Smith asserts that in violation of the City of Princeton's ordinances and the Villa Monte Carlo's HOA regulations, the City of Princeton improperly labeled her vehicle as abandoned and instructed First Choice Towing, owned by Anne Angell, to tow it from her residence on August 24, 2016 (Dkt. #46 at pp. 2-3). Smith filed this lawsuit on February 3, 2017 (Dkt. #1). On February 9, 2017, the Court granted Smith leave to proceed in forma pauperis (Dkt. #3). Broadly construed, Smith claims that the actions of the City of Princeton and Anne Angell constitute violations of 42 U.S.C. § 1983, 18 U.S.C. § 1956, 18 U.S.C. § 242, Texas Penal Code § 31.03(a), and “Texas Vehicle Code 226581(1)(a) section 683.011 [and] section 683.012” (Dkt. #46 at pp. 2-3).

         The City of Princeton filed its Motion to Dismiss Smith's original complaint on March 14, 2017 (Dkts. #10, #11). On March 23, 2017, “[t]o ensure clarity in the record and allow Plaintiff an adequate opportunity to plead her claims, ” the Court denied the City of Princeton's Motion to Dismiss as moot, and ordered Smith to file an amended complaint that “set forth each cause of action alleged by Plaintiff, specifically identify which causes of action are asserted against which Defendant, and specifically identify the factual basis for each claim” (Dkt. #14). Smith filed her First Amended Complaint on April 27, 2017 (Dkt. #24). Defendants City of Princeton and Angell filed Motions to Dismiss Smith's First Amended Complaint on May 15, 2017 (Dkt. #28) and May 18, 2017 (Dkt. #29), respectively. On June 8, 2017, the Magistrate Judge, for a second time, recommended the Court deny the Defendants' Motions to Dismiss and order Smith to file a second amended complaint. The Magistrate Judge's Report provided Smith with a clear, detailed roadmap to correct her pleading deficiencies (Dkt. #33). The Court fully adopted the Magistrate Judge's recommendation (Dkt. #44). On July 7, 2017, Smith filed her Motion for Judgment (Dkt. #43); to which the City of Princeton responded on July 24, 2017 (Dkt. #45). On July 31, 2017, Smith filed her Second Amended Complaint (Dkt. #46), and on August 2, 2017, Smith filed additional attachments to such complaint (Dkt. #47). On August 10, 2017, the City of Princeton filed a Motion to Dismiss Smith's Second Amended Complaint, its third motion to dismiss (Dkt. #48). Smith subsequently filed a Third Amended Complaint, constituting her fourth attempt at pleading her best case (Dkt. #49), without moving for leave and outside of the deadlines delineated in the Scheduling Order (Dkt. #35) (the Parties' deadline to add parties was July 17, 2017, and Smith's deadline to file amended pleadings was July 28, 2017). On September 7, 2017, the City of Princeton filed a Motion to Strike Smith's Third Amended Complaint (Dkts. #54, #57). Smith filed her Response to the City of Princeton's Motion to Dismiss her Second Amended Complaint on September 21, 2017 (Dkt. #59).

         On October 31, 2017, the Magistrate Judge entered a report and recommendation (Dkt. #67), recommending that the City of Princeton's Motion to Dismiss (Dkt. #48) and Motion to Strike Plaintiff's Third Amended Complaint (Dkts. #54, #57) each be granted, [1] and Smith's “Motion Judgment for A Matter of Law” (Dkt. #43) be denied. Further, the Magistrate Judge recommended that Smith's claims against Defendant Angell and the City of Princeton's Code Enforcement Department, to the extent asserted, be dismissed pursuant to § 1915. Smith filed objections to the report on November 14, 2017 (Dkt. #68). On November 28, 2017, the City of Princeton filed a response to Smith's objections (Dkt. #69).

         OBJECTIONS

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3).

         Broadly construing her objections, Smith objects to each of the Magistrate Judge's ultimate recommendations (Dkt. #68). Specifically, Smith states that the City of Princeton's Motion to Strike should not be granted because: (1) “there is no motion to strike pleadings in the State of Texas” (Dkt. #68 at p. 2) (emphasis omitted); (2) the “motion to strike is untimely because it was made after answering the complaint” (Dkt. #68 at p. 2); and (3) the “City of Princeton Texas went into default because they failed to serve a[n] answer to this complaint on March 19, 2017” (Dkt. #68 at p. 2) (emphasis in original). Smith objects that her complaint should not be dismissed because: (1) “the statute of limitations should, in equity, be deemed tolled because Plaintiff could not have discovered the facts supporting this claim” (Dkt. #68 at p. 2); and (2) the “City of Princeton, Texas has a clear motive to engineer a cover-up because of being a conspirator in illegal towing from First Choice Towing that has NO TEXAS License to Tow, the Plaintiff[']s Vehicle in HOA” (Dkt. #68 at p. 3) (emphasis in original). Finally, Smith objects that her Motion for Judgment should not be denied because:

The City of Princeton, Texas ha[s] no sufficient evidence to Support it[s] case. They have laws, municipal codes and ordinances, but they choose not to abide by them. First Choice Towing ha[s] no sufficient evidence to Support its case. The [S]tate of Texas ha[s] rules and regulations[, ] but First Choice Towing [chose] not to abide by them. Never had a license to operate as a tower.

(Dkt. #68 at p. 7).

         1. Motions to Strike

         To begin, Smith objects that “there is no motion to strike pleadings in the State of Texas” (Dkt. #68 at p. 2). Smith is proceeding in federal court. Federal Rule of Civil Procedure 1 states “[t]hese [Federal Rules of Civil Procedure] govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81.” Because Rule 81 is inapplicable to Smith's case, the instant lawsuit is not subject to Texas state procedure law, but instead is governed by the Federal Rules of Civil Procedure. Accordingly, whether Smith may file her Third Amended Complaint or whether it should be stricken is governed by Federal Rules of Civil Procedure. The appropriate means by which the City of Princeton may object to the unauthorized filing of Smith's Third Amended Complaint is through filing a motion to strike. See Klein v. Walker, No. 1:14-CV-00509-RC-ZJH, 2016 WL 9245462, at *1 (E.D. Tex. Dec. 14, 2016), aff'd, No. 17-40052, 2017 WL 3879795 (5th Cir. Sept. 5, 2017) (Clark, J.); see also United States v. Saul, No. 5:09-CV-69, 2011 WL 13220641, at *1 (E.D. Tex. Dec. 2, 2011). As ...


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