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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KATHY M. WIGGINS,

Plaintiff,

v.

CREDIT MANAGEMENT,

Defendant.

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1:11CV1093

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States
Magistrate Judge sua sponte to address Plaintiff’s failure to
comply with court orders. For the reasons that follow, the Court
should dismiss this case pursuant to Federal Rule of Civil
Procedure 41(b).

BACKGROUND

This case began when Plaintiff (or someone using Plaintiff’s
name) filed a pro se Complaint (Docket Entry 2), along with an
Application for Leave to Proceed In Forma Pauperis (“IFP
Application”) (Docket Entry 1). The Complaint contains a
“PRELIMINARY STATEMENT,” which describes the case as “an action for
damages brought for damages for violations of the Fair Debt
Collection Practices Act (FDCPA) 15 U.S.C. §1692 et seq.; and for
damages for violations of the Fair Credit Reporting Act (FCRA) 15
U.S.C. §1681 et seq[.]” (Docket Entry 2 at 1.) It further

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identifies Defendant as “a Texas Corporation, authorized to do
business in North Carolina.” (Id. (emphasis added).)

The Court (per the undersigned Magistrate Judge) granted the
IFP Application and ordered Plaintiff to “prepar[e] and deliver[]
to the Clerk[] the correct summons for service on each defendant,
including the correct address and the name and title of the
individual to be served on behalf of a corporation . . . .”
(Docket Entry 4 at 1 (emphasis added).) That Order (which the
Court promptly mailed to Plaintiff) further warned that a
“[f]ailure to prepare and deliver said summons within 15 days
. . . shall result in this case being dismissed without further
notice.” (Id.; see also Docket Entry dated Dec. 14, 2011.) The
summons form provided by (or by someone on behalf of) Plaintiff
(apparently, given the date of its docketing, prior to her receipt
of the foregoing Order)1 gave an address in Texas, but lacked the
name and title of an individual to receive service on behalf of
Defendant. (See Docket Entry 5 at 1.) The United States Marshals
Service later returned that summons undelivered with a notation
reflecting “Business No Longer at address.” (Docket Entry 7 at 1.)
The Court promptly mailed the returned summons to Plaintiff
(long after she would have received the earlier Order instructing
her about the requirements for a proper summons). (See Docket

1 The Court often receives completed summons forms along with
the initial case-opening documents, such as complaints and pauper
applications.

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Entry dated Jan. 26, 2012.) Plaintiff (or someone acting on her
behalf) thereafter submitted a second summons form with a different
address (this time in North Carolina), but again without a name and
title of an individual to receive service on behalf of Defendant
(despite the fact that Plaintiff long since would have received a
clear directive from the Court of that requirement and the
consequences of failing to comply). (See Docket Entry 8 at 1.)
The undersigned Magistrate Judge thereafter reviewed the case and
noticed the insufficiency of the second summons submitted by (or on
behalf of) Plaintiff, as well as the fact that her IFP Application
and Complaint all appeared to lack a traditional signature and,
instead, appeared to feature a mere printed version of Plaintiff’s
name in the signature block. (See Docket Entry 1 at 3; Docket
Entry 2 at 5.) In fact, said “signatures” matched the printed
version of Plaintiff’s name in the first paragraph of the IFP
Application. (Compare id., with Docket Entry 1 at 1.)

Moreover, the undersigned Magistrate Judge determined that the
printing on Plaintiff’s IFP Application and the “signatures” on her
Complaint and IFP Application all bear significant, distinctive
similarities to printing and/or “signatures” on a number of other
pauper applications, complaints, and/or envelopes used to convey
such documents in similar cases filed pro se in this Court,
particularly as to a unique, bubble-type dot on the lower-case “i.”
(Compare, e.g., Docket Entry 1 at 1-3, Docket Entry 2 at 5, with

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Ferguson v. North Carolina Dep’t of Health & Human Servs., No.
1:12CV493, Docket Entry 1 at 1, 3, Docket Entry 2 at 9; Golden v.
Firstpoint Collection Serv., No. 1:12CV875, Docket Entry 1 at 1, 3,
Docket Entry 2 at 9; Shamberger v. Firstpoint Collection Serv., No.
1:12CV876, Docket Entry 1 at 1, 3; Golden v. Absolute Collection
Servs., No. 1:12CV956, Docket Entry 1 at 1, 3; Durham v. Absolute
Collection Servs., No. 1:12CV957, Docket Entry 1 at 3, Docket Entry
2-1 at 1; Grant v. Absolute Collection Servs., No. 1:12CV958,
Docket Entry 1 at 1, 3; Ferguson v. Absolute Collection Serv., No.
1:12CV1023, Docket Entry 1 at 1, 3, Docket Entry 2 at 9, Docket
Entry 2-1 at 1; Golden v. NCO Fin. Sys., No. 1:12CV1097, Docket
Entry 1 at 1, Docket Entry 2 at 9, Docket Entry 2-1 at 1; James v.
Firstpoint Collection Serv., No. 1:12CV1098, Docket Entry 1 at 3,
Docket Entry 2-1 at 1; and Durham v. National Credit Sys., No.
1:12CV1099, Docket Entry 1 at 3, Docket Entry 2-1 at 1.)

Further, a review of the complaints in those cases revealed a
number of other unusual similarities both of form and substance,
including that most (like Plaintiff’s Complaint): 1) state under
the heading “JURISDICTION AND VENUE” that “jurisdiction of this
Court is conferred by 15 U.S.C. §1681p” and that “[v]enue is proper
in this Circuit pursuant to 28 U.S.C. §1391b”; and 2) set forth
virtually identical sections (including as to content, format,
style, and even typographical/scrivener errors) entitled “COUNT I,”
“COUNT II,” “15 U.S.C 1681b,” and “COUNT III.” (Compare Docket

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Entry 2, with Ferguson, No. 1:12CV493, Docket Entry 2; Golden, No.
1:12CV875, Docket Entry 2; Shamberger, No. 1:12CV876, Docket Entry
2; Golden, No. 1:12CV956, Docket Entry 2; Durham, No. 1:12CV957,
Docket Entry 2; Grant, No. 1:12CV958, Docket Entry 2; Ferguson, No.
1:12CV1023, Docket Entry 2; Golden, No. 1:12CV1097, Docket Entry 2;
and James, No. 1:12CV1098, Docket Entry 2.)2

Given the foregoing circumstances and the signature
requirement imposed by Federal Rule of Civil Procedure 11(a), the
undersigned Magistrate Judge set this case for a status conference
and placed 13 other similar cases on for hearings/status
conferences on the same calendar. (See Docket Entry 9.) Plaintiff
did not appear as directed. (See Docket Entry dated Nov. 26,
2012.) Indeed, only one of the plaintiffs from the other similar
cases noticed for proceedings on that date appeared and he denied
preparing, signing, or filing any documents in his case (or
authorizing anyone else to take such action), but did acknowledge
that he had talked to someone he knew only as “Mussa” about

2 Another similar lawsuit filed by (or in the name of)
Plaintiff also shared such characteristics. (See Wiggins v.
Firstpoint Collections Res., No. 1:12CV451, Docket Entry 1 at 1, 3,
Docket Entry 2 at 9.) Yet another lawsuit (not listed above)
matches the cases cited here except that its original complaint
appears to have a traditional signature. (See Covington v.
Absolute Collection Serv., No. 1:12CV811, Docket Entry 2; but see
id., Docket Entry 12 at 5 (setting out printed name in signature
box for amended complaint).)

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improving his credit record. (See Grant, No. 1:12CV958, Docket
Entry dated Nov. 26, 2012.)3

DISCUSSION

“The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and this
authority includes the power to order dismissal of an action for
failure to comply with court orders. Fed. R. Civ. P. 41(b).”
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989). In this case,
Plaintiff disobeyed the Court’s Orders to submit a properly-
completed summons form and to appear at a status conference. These
circumstances warrant dismissal under Federal Rule of Civil
Procedure 41(b).

In making this recommendation, the undersigned Magistrate
Judge recognizes that “dismissal is not a sanction to be invoked
lightly.” Id. Generally, before dismissing an action under
Federal Rule of Civil Procedure 41(b), a court should consider:
“(i) the degree of personal responsibility of the plaintiff;
(ii) the amount of prejudice caused the defendant; (iii) the
existence of a history of deliberately proceeding in a dilatory
fashion; and (iv) the existence of a sanction less drastic than
dismissal.” Id. In this case, Plaintiff (or whoever improperly
filed this case in her name) bears sole responsibility for the

3 The Clerk maintains an audio-recording of all the

proceedings from that calendar.

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instant non-compliance, the conduct (and inaction) at issue
prejudiced Defendant by delaying the litigation unduly (and thus
depriving Defendant of the opportunity to defend against this
apparent sham lawsuit while memories remained freshest and before
greater risk of loss of pertinent documents), the record reflects
a pattern of dilatory conduct by Plaintiff (or whoever improperly
filed this case in her name), and no other sanction appears
feasible or sufficient.

As to that last point, the Court (per the undersigned
Magistrate Judge) specifically warned Plaintiff that her failure to
submit a timely, properly-completed summons form could result in
dismissal of this case. “In view of th[at] warning, the [Court]
ha[s] little alternative to dismissal. Any other course would have
[the effect of] plac[ing] the credibility of the [C]ourt in doubt
and invit[ing] abuse.” Id.

IT IS THEREFORE RECOMMENDED that this action be dismissed

under Federal Rule of Civil Procedure 41(b).



/s/ L. Patrick Auld
United States Magistrate Judge

L. Patrick Auld

June 4, 2013

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