ALLEN v. RENTGROW, INC.
| DERRICK ALLEN |
| RENTGROW, INC., CORPORATION SERVICE COMPANY, ANANT YARDI and GORDON MORRELL |
| 1:2020cv00256 |
| March 17, 2020 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Consumer Credit |
| 15 U.S.C. § 1681 |
| Plaintiff |
Docket Report
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| Filing 49 USCA SUPREME COURT REMARK: Petition for Writ of Certiorari dismissed. (USCA Case number: 20-1837) (Garland, Leah) |
| Filing 48 STIPULATION of Dismissal With Prejudice by RENTGROW, INC.. (DELGOBBO, BONNIE) |
| Filing 47 USCA SUPREMEME COURT REMARK: The petition for a writ of certiorari in the above entitled case was filed on March 2, 2021 and placed on the docket March 2, 2021 as No. 20-7302. (USCA Case number: 20-1837, 20-2014) (Garland, Leah) |
| Filing 46 MANDATE of USCA as to #37 Notice of Appeal Without Fee Payment filed by DERRICK ALLEN: The judgment of this court, entered December 7, 2020, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (USCA Case number: 20-1837(L), 20-2014) (Garland, Leah) |
| Filing 45 USCA ORDER: The court denies the petition for rehearing and rehearing en banc. No judge requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc. Entered at the direction of the panel: Judge King, Judge Harris, and Senior Judge Shedd. (USCA Case number: 20-1837(L), 20-2014) (Garland, Leah) |
| Filing 44 STAY OF MANDATE UNDER FED. R. APP. P. 41(d)(1): Under Fed. R. App. P. 41(d)(1), the timely filing of a petition for rehearing or rehearing en banc or the timely filing of a motion to stay the mandate stays the mandate until the court has ruled on the petition for rehearing or rehearing en banc or motion to stay. In accordance with Rule 41(d) (1), the mandate is stayed pending further order of this court. (USCA Case numbers: 20-1837(L), 20-2014) (Garland, Leah) |
| Filing 43 USCA JUDGMENT as to DERRICK ALLEN: In accordance with the decision of this court, the appeals are dismissed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P.41. (USCA Case number: 20-1837(L), 20-2014) (Garland, Leah) |
| Filing 42 USCA OPINION dismissing the appeal by unpublished per curiam opinion. (USCA Case number 20-1837, 20-2014) (Garland, Leah) |
| Filing 41 USCA ORDER: The court consolidates case No. 20-1837 and case No. 20-2014. (USCA Case number: 20-1837(L), 20-2014) (Garland, Leah) |
| Assembled Electronic Record (8/5/2020 - Present) Re-Transmitted to Fourth Circuit to US Court of Appeals re: #37 Notice of Appeal Without Fee Payment. (USCA Case number: 20-2014) (Garland, Leah) |
| Filing 40 NOTICE of Docketing Record on Appeal from USCA re #37 Notice of Appeal Without Fee Payment filed by DERRICK ALLEN. USCA Case Manager is Kirsten Hancock. USCA Case Number 20-2014. (Garland, Leah) |
| Assembled Supplemental (8/5/2020 to Present) Electronic Record Transmitted to Fourth Circuit to US Court of Appeals re: #37 Notice of Appeal Without Fee Payment. (USCA Case number: 20-2014) (Garland, Leah) |
| Motion Referred to MAGISTRATE JUDGE L. PATRICK AULD RE: #38 MOTION for Transcripts. (Engle, Anita) |
| TEXT ORDER denying as moot #38 Motion for Preparation of a District Court Transcript at Government Expense. The Court conducted no in-court proceedings and thus nothing exists for transcription. Moreover, as shown in #39 Appeal Transmittal Form, the Court has forwarded an electronic copy of all docketed filings to the United States Court of Appeals for the Fourth Circuit. Finally, Plaintiff possesses no right to free copies of all docketed filings in connection with his appeal. Issued by MAG/JUDGE L. PATRICK AULD on 09/21/2020. (AULD, L.) |
| Filing 39 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re #37 Notice of Appeal Without Fee Payment. (Garland, Leah) |
| Filing 38 MOTION for Transcripts, filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Filing 37 NOTICE OF APPEAL Without Fee Payment as to #36 Order, filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| TEXT ORDER adopting the following Scheduling Order (without holding an initial pretrial conference, as permitted by Local Rule 16.1(a)): (1) the Standard case management track established by Local Rule 26.1(a)(1) shall apply, with the lone exception that the Court will adopt an eight-month rather than a four-month discovery period to account for delays reasonably likely to arise due to Plaintiff's incarceration and the present public health situation; (2) the parties shall file any motions seeking leave to amend pleadings or to add parties by 11/12/2020; (3) the parties shall serve any expert disclosures required by Federal Rule of Civil Procedure 26(a)(2)(B) and (C) by 03/12/2021; (4) the parties shall serve any rebuttal expert reports (as contemplated by Federal Rule of Civil Procedure 26(a)(2)(d)(ii)) by 04/12/2021; (5) the parties shall complete all discovery by 05/12/2021; and (6) consistent with Local Rule 16.4(b), the parties need not conduct mediation. To assist Plaintiff in meeting his obligation to litigate this case, the Clerk shall send Plaintiff a copy of the Civil Rules portion of the Local Rules, as well as Federal Rules of Civil Procedure 5, 5.2, 6, 7, 10, 11, 15, 16, 26, 28, 29, 30, 31, 33, 34, 36, 45, 56, and 72. Issued by MAG/JUDGE L. PATRICK AULD on 09/11/2020. (AULD, L.) |
Filing 36
ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 9/10/2020 adopting the Magistrate Judge's Recommendation, that the claims against Corporation Service Company are DISMISSED without prejudice, due to the lack of any allegations against it in the Amended Complaint (Doc. #8 ) (or in the Complaint and its attachments (Doc. #1 )). (Garland, Leah)
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| CASE REFERRED to CHIEF JUDGE THOMAS D. SCHROEDER RE: RECOMMENDED RULING by MAGISTRATE JUDGE. (Engle, Anita) |
| Filing 35 ANSWER to Amended Complaint by RENTGROW, INC.. (ANDREWS, RICHARD) |
| Filing 34 Notice of Mailing Recommendation: Objections to R&R due by 8/26/2020. Objections to R&R for Pro Se due by 8/31/2020. (Garland, Leah) |
| TEXT ORDER denying #24 Motion to Reconsider Allowing Plaintiff to File Electronically. Nothing in #24 Motion alters the conclusion in the Text Order dated 04/20/2020, "denying #16 Motion Requesting to File Electronically." Issued by MAG/JUDGE L. PATRICK AULD on 08/11/2020. (AULD, L.) |
| TEXT RECOMMENDATION that the Court dismiss without prejudice any claims against Corporation Service Company, due to the lack of any allegations against it in #8 Amended Complaint (or in #1 Complaint and its attachments). The Court (per Chief United States District Judge Thomas D. Schroeder) recently issued #29 Memorandum Opinion and Order dismissing all claims against Defendants Anant Yardi and Gordon Morrell, pursuant to Weidman v. Exxon Mobil Corp., 776 F.3d 214, 218, (4th Cir. 2015), because "their names appear nowhere in [Plaintiff's pleadings] besides their identification in the case caption." The Court should dismiss any claim against Corporation Service Company for the same reason, notwithstanding the lack of any motion from said Defendant. See Jensen v. Conrad, 570 F. Supp. 91, 99-100 (D.S.C. 1983) ("[T]he court is constrained to raise sua sponte the viability of the plaintiff's claim against [the defendant].... As set forth in 5 C. Wright and A. Miller, Federal Practice and Procedure 1357 (1973): 'Even if a party does not make a formal motion, the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim.'"), aff'd on other grounds, 747 F.2d 185, disapproved in part on other grounds, DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 197-98 & n.4 (1989); Rogers v. Fuller, 410 F. Supp. 187, 192 (M.D.N.C. 1976) (Ward, J.) ("[T]he Court will, sua sponte, dismiss those claims for failure to state a claim upon which relief can be granted."). Indeed, in discussing the authority of a district court to dismiss a complaint sua sponte, the United States Court of Appeals for the Fourth Circuit has observed that, "[w]here the face of a complaint plainly fails to state a claim for relief, a district court has 'no discretion' but to dismiss it." Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 1357 (2d ed. 1990)). Moreover, to the extent some courts (including the Fourth Circuit in an unpublished opinion) have required notice and an opportunity to respond before any sua sponte dismissal, see, e.g., Carroll v. Fort James Corp., 470 F.3d 1171, 1176-77 (5th Cir. 2006); Webb v. Environmental Prot. Agency, No. 90-2106, 914 F.2d 1493 (table), 1990 WL 139665, at *1 (4th Cir. Sept. 27, 1990) (unpublished), Plaintiff has notice via this Text Recommendation and a chance to respond via objection under Federal Rule of Civil Procedure 72(b). Issued by MAG/JUDGE L. PATRICK AULD on 08/11/2020. (AULD, L.) |
| Filing 33 USCA ORDER: The court grants leave to proceed in forma pauperis. (USCA Case number: 20-1837) (Garland, Leah) |
| Filing 32 NOTICE of Docketing Record on Appeal from USCA re #30 Notice of Appeal Without Fee Payment filed by DERRICK ALLEN. USCA Case Manager is Kirsten Hancock. USCA Case Number 20-1837. (Garland, Leah) |
| Assembled Electronic Record Transmitted to Fourth Circuit to US Court of Appeals re #30 Notice of Appeal Without Fee Payment. (USCA Case number: 20-1837) (Garland, Leah) |
| Filing 31 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re #30 Notice of Appeal Without Fee Payment. (Garland, Leah) |
| Filing 30 NOTICE OF APPEAL Without Fee Payment as to #29 Memorandum Opinion and Order, filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
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Filing 29
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 7/30/2020. Defendants' motion to dismiss (Doc. #20 ) is GRANTED. All claims brought against Defendants Yardi and Morrell are DISMISSED WITH PREJUDICE. Allen's state law libel per se claim against Rentgrow is DISMISSED WITHOUT PREJUDICE. Allen's reference in his response brief to the possibility of leave to amend, if construed as such a request, is DENIED WITHOUT PREJUDICE. (Daniel, J)
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| Filing 28 SUPPLEMENT BRIEF filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Filing 27 REPLY, filed by Defendants GORDON MORRELL, RENTGROW, INC., ANANT YARDI, to Response to #20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended Complaint (Doc 8) filed by GORDON MORRELL, RENTGROW, INC., ANANT YARDI. (SOUTHERLAND, JEFFREY) |
| Motion Submitted to CHIEF JUDGE THOMAS D. SCHROEDER: #20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended Complaint (Doc 8). (Engle, Anita) |
| Filing 26 NOTICE of Appearance by attorney BONNIE KEANE DELGOBBO on behalf of Defendants GORDON MORRELL, RENTGROW, INC., ANANT YARDI (DELGOBBO, BONNIE) |
| Filing 25 RESPONSE in Opposition to #20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, filed by DERRICK ALLEN. Replies due by 5/13/2020. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Envelope - Front and Back) (Garland, Leah) |
| Motion Referred to MAGISTRATE JUDGE L. PATRICK AULD RE: #24 MOTION for Reconsideration re: 4/20/2020 Text Order. (Engle, Anita) |
| Filing 24 MOTION for Reconsideration re: 4/20/2020 Text Order, filed by DERRICK ALLEN. Response to Motion due by 5/18/2020. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Filing 23 Roseboro Letter re: #20 Motion to Dismiss. (Garland, Leah) |
| Filing 22 Corporate Disclosure Statement by RENTGROW, INC. identifying Corporate Parent YARDI SYSTEMS, INC. for RENTGROW, INC... (SOUTHERLAND, JEFFREY) |
| Filing 21 MEMORANDUM re #20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended Complaint (Doc 8) by Defendants GORDON MORRELL, RENTGROW, INC., ANANT YARDI. (SOUTHERLAND, JEFFREY) |
| Filing 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Amended Complaint (Doc 8) by GORDON MORRELL, RENTGROW, INC., ANANT YARDI. Response to Motion due by 5/15/2020 (SOUTHERLAND, JEFFREY) |
| Filing 19 NOTICE of Appearance by attorney RICHARD WYATT ANDREWS, II on behalf of Defendants GORDON MORRELL, RENTGROW, INC., ANANT YARDI (ANDREWS, RICHARD) |
| Filing 18 NOTICE of Appearance by attorney JEFFREY S. SOUTHERLAND on behalf of Defendants GORDON MORRELL, RENTGROW, INC., ANANT YARDI (SOUTHERLAND, JEFFREY) |
| Filing 17 ***FILED IN ERROR*** NOTICE of Appearance by attorney RICHARD WYATT ANDREWS, II on behalf of Defendants CORPORATION SERVICE COMPANY, GORDON MORRELL, RENTGROW, INC., ANANT YARDI (ANDREWS, RICHARD) Modified on 4/24/2020 to mark filed in error (see #19 ). (Engle, Anita) |
| *** Attorney RICHARD WYATT ANDREWS, II terminated as to CORPORATION SERVICE COMPANY. (Selected in error. See #17 ) (Engle, Anita) |
| Filing 16 MOTION entitled "Motion Requesting to File Electronically", filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Motion Referred to MAGISTRATEJUDGE L. PATRICK AULD RE: #16 MOTION entitled "Motion Requesting to File Electronically", filed by DERRICK ALLEN. (Engle, Anita) |
| TEXT ORDER denying #16 Motion Requesting to File Electronically. Plaintiff's repetitive and/or unauthorized filings in this case demonstrate that he lacks the ability to follow straight-forward rules and practices. Accordingly, the Court concludes that Plaintiff lacks the ability to follow the more complex rules and practices associated with electronic filing. Issued by MAG/JUDGE L. PATRICK AULD on 04/20/2020. (AULD, L.) |
| Filing 15 AFFIDAVIT OF SERVICE as to GORDON MORRELL served on 4/6/2020, answer due 4/27/2020; ANANT YARDI served on 4/6/2020, answer due 4/27/2020. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Filing 14 AFFIDAVIT OF SERVICE as to CORPORATION SERVICE COMPANY served on 4/2/2020, answer due 4/23/2020; RENTGROW, INC. served on 4/3/2020, answer due 4/24/2020. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Filing 13 Notice of Signed Pro Se Electronic Service Consent filed by DERRICK ALLEN for 78DERRICKALLEN@GMAIL.COM. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| TEXT ORDER striking 11 Second Amended Complaint. Pursuant to Federal Rule of Civil Procedure 15(a), Plaintiff cannot amend his pleadings a second time without either Defendant's written consent or this Court's leave, neither of which the record reflects. Issued by MAG/JUDGE L. PATRICK AULD on 04/03/2020. (AULD, L.) |
| Filing 12 AMENDED CIVIL COVER SHEET. (Garland, Leah) |
| TEXT ORDER denying #7 Motion for Appointment of Counsel, for the reasons stated in the Text Orders dated 03/20/2020 and 03/24/2020, denying identical requests. Issued by MAG/JUDGE L. PATRICK AULD on 03/30/2020. (AULD, L.) |
| Filing 10 Notice of Right to Consent. Plaintiff shall serve the attached form on all parties. (Attachments: #1 Magistrate Cosent Form) (Garland, Leah) |
| Filing 9 Summons Issued as to All Defendants. (Garland, Leah) |
| Filing 8 AMENDED COMPLAINT against All Defendants, filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Filing 7 MOTION to Appoint Counsel filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Motion Referred to MAGISTRATE JUDGE L. PATRICK AULD RE: #7 MOTION to Appoint Counsel. (Engle, Anita) |
| Filing 6 NOTICE of Change of Address by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Sheets, Jamie) |
| Filing 5 FINANCIAL AFFIDAVIT - CJA 23 by DERRICK ALLEN. (Garland, Leah) |
| Filing 4 MOTION for Reconsideration of 3/20/2020 Text Order, filed by DERRICK ALLEN. (Attachments: #1 Envelope - Front and Back) (Garland, Leah) |
| Motion Referred to MAGISTRATE JUDGE L. PATRICK AULD RE: #4 MOTION for Reconsideration of 3/20/2020 Text Order. (Engle, Anita) |
| TEXT ORDER denying #4 Motion to Reconsider Appointment of Counsel. Although Plaintiff now has filed #5 Affidavit, showing inability to pay counsel, nothing in #4 Motion alters the analysis in the Text Order dated 03/20/2020, denying #3 Motion for Appointment of Counsel, which applies regardless of whether or not Plaintiff is a prisoner. To the extent Plaintiff argues that 18 U.S.C. s 3006A or the Court's Criminal Justice Act Plan somehow entitle him to appointment of counsel, he is mistaken, as that statute and plan address appointment of counsel for criminal defendants. Issued by MAG/JUDGE L. PATRICK AULD on 03/24/2020.(AULD, L.) |
| TEXT ORDER denying #3 Motion for Appointment of Counsel. In #3 Motion, Plaintiff "mov[es] the [C]ourt to enter an order permitting counsel to be appointed in accordance with 28 U.S.C.[ section] 1915(e)(1)," which provision, in turn, authorizes the Court to "request an attorney to represent any person unable to afford counsel." The Court denies #3 Motion for a number of reasons. First, #3 Motion does not include any showing that Plaintiff is "unable to afford counsel," 28 U.S.C. section 1915(e)(1). Further, Section 1915(e)(1) does not provide funds for the Court to pay counsel to represent Plaintiff and does not grant him "an absolute right to appointment of counsel." Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Instead, court assistance in obtaining pro bono counsel, pursuant to Section 1915(e)(1) constitutes "a matter within the discretion of the District Court. It is a privilege and not a right." Bowman v. White, 388 F.2d 756, 761 (4th Cir. 1968). In this regard, the United States Court of Appeals for the Fourth Circuit has held that a litigant "must show that his case is one with exceptional circumstances." Miller, 814 F.2d at 966 (citing Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975)). "The question of whether such circumstances exist in any particular case hinges on characteristics of the claim and the litigant." Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated in part on other grounds, Mallard v. United States Dist. Ct. for S.D. of Iowa, 490 U.S. 296 (1989) (holding that Section 1915 does not authorize compulsory appointment of counsel). Specifically, "[i]f it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him." Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978). At this juncture (prior to any responsive filing by Defendant to #1 Complaint), the Court does not find it apparent (i.e., obvious) that Plaintiff possesses a colorable claim or that he lacks the capacity to present any such claim. Nor does #3 Motion otherwise show exceptional circumstances warranting court intervention to solicit counsel willing to represent Plaintiff without compensation. Finally, to the extent #3 Motion asserts that the First Amendment's guarantee of the right to petition and/or the Fourteenth Amendment's guarantee of equal protection of the laws entitles him to appointment of counsel, Plaintiff has cited no authority -- and the Court has found no authority -- to support those assertions. Issued by MAG/JUDGE L. PATRICK AULD on 03/20/2020. (AULD, L.) |
| Motion Referred to MAGISTRATE JUDGE L. PATRICK AULD RE: #3 MOTION to Appoint Counsel. (Engle, Anita) |
| Motion Referred to MAGISTRATE JUDGE JOE L. WEBSTER RE: #3 MOTION to Appoint Counsel. (Engle, Anita) |
| Case ASSIGNED to CHIEF JUDGE THOMAS D. SCHROEDER and MAG/JUDGE L. PATRICK AULD. (Sheets, Jamie) |
| Receipt of Funds for Filing Fee in the amount of $ 400.00. Receipt Number NCM049697. (Sheets, Jamie) |
| Filing 3 MOTION to Appoint Counsel by DERRICK ALLEN. (Sheets, Jamie) |
| Filing 2 CIVIL COVER SHEET. (Sheets, Jamie) |
| Filing 1 COMPLAINT against RENTGROW, INC., filed by DERRICK ALLEN. (Sheets, Jamie) (Additional attachment(s) added on 3/18/2020: #1 Envelope - Front and Back) (Sheets, Jamie). |
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