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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Plaintiff,

v.

YORICK FERGUSON,

)
)
)
)
)
)
ABSOLUTE COLLECTION SERVICES, )
)
)

Defendant.

1:12CV1023

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,” describing it as “an action for damages
brought for violations of the Fair Credit Reporting Act (FCRA) 15
U.S.C. §1681 et seq and for violations of the Fair Debt Collection
Practices Act (FDCPA) 15 U.S.C. §1692 et seq[.]” (Docket Entry 2
at 1.) It also purportedly asserts state-law claims. (See id. at
3-9.) The Court granted the IFP Application and ordered Plaintiff

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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 Oct. 2, 2012.)
The summons form provided by (or by someone on behalf of) Plaintiff
(apparently, given the date of its docketing, prior to his receipt
of the foregoing Order)1 lacked the name and title of an individual
to receive service for Defendant. (See Docket Entry 5 at 1.)

The undersigned Magistrate Judge thereafter took judicial
notice that Defendant was a corporation. See http://
wwww.secretary.state.nc.us/corporations/CSearch.aspx (search for
“Absolute Collection Services” last performed June 1, 2013); see
also Ledford v. D.R. Horton, Inc., No. 3:09CV65, 2009 WL 2432631,
at *3 (W.D.N.C. Aug. 6, 2009) (unpublished) (recognizing that
courts may take judicial notice of public records, including
specifically records of the North Carolina Secretary of State).
Additionally, the undersigned Magistrate Judge noticed that
Plaintiff’s IFP Application and Complaint appeared to lack a

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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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 9.) Indeed, the
“signatures” in question matched the printed version of Plaintiff’s
name in the caption and 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, the “signatures” on the
IFP Application and Complaint, and the printing on the envelope
used to convey those documents, 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 9, Docket
Entry 2-1 at 1, with Wiggins v. Credit Mgmt., No. 1:11CV1093,
Docket Entry 1 at 1-3, Docket Entry 2 at 5; Wiggins v. Firstpoint
Collections Res., No. 1:12CV451, Docket Entry 1 at 1, 3, Docket
Entry 2 at 9; 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; Thompson v. SCA
Collections, No. 1:12CV955, Docket Entry 1 at 1, 3, Docket Entry 2-

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1 at 1, Docket Entry 4-1 at 1; 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; 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 the foregoing cases
revealed a number of other unusual similarities of substance and
form, 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”; 2) set forth
virtually identical sections (including as to content, format,
style, and even typographical/scrivener errors) entitled “GENERAL
ALLEGATIONS,” “COUNT I,” “COUNT II,” “15 U.S.C 1681b,” “COUNT III,”
“RECKLESS AND WANTON CONDUCT,” “COUNT THREE,” “COUNT FOUR,” “COUNT
FIVE,” and “COUNT SIX”; and 3) list on the signature page an e-mail
address consisting of the respective plaintiff’s first and last
name (strung together as one term) appended to “[email protected]
(or, in one case, “[email protected]”). (Compare Docket Entry 2, with
Wiggins, No. 1:12CV451, Docket Entry 2; Ferguson, No. 1:12CV493,

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Docket Entry 2; Golden, No. 1:12CV875, Docket Entry 2; Shamberger,
No. 1:12CV876, Docket Entry 2; Thompson, No. 1:12CV955, Docket
Entry 2; Golden, No. 1:12CV956, Docket Entry 2; Durham, No.
1:12CV957, Docket Entry 2; Grant, No. 1:12CV958, 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 8.) Plaintiff
did not appear. (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

2 In addition, one of the previously-cited cases materially
differs from the ones cited here only in that it contains a section
entitled “FACTUAL ALLEGATIONS” with less content than the “GENERAL
ALLEGATIONS” section in the others and in that it lacks their
“COUNT THREE,” “COUNT FOUR,” “COUNT FIVE,” and “COUNT SIX.” (See
Wiggins, No. 1:11CV1093, Docket Entry 2.) Another of the
previously-cited cases mirrors the others cited here except that it
sets forth some additional items under the “GENERAL ALLEGATIONS”
heading. (See Golden, No. 1:12CV1097, Docket Entry 2.) Finally,
yet another lawsuit (not listed above) matches the cases cited here
except that it omits the sections entitled “RECKLESS AND WANTON
CONDUCT,” “COUNT THREE,” “COUNT FOUR,” “COUNT FIVE,” and “COUNT
SIX” and appears to have a traditional signature. (See Covington
v. Absolute Collection Serv., No. 1:12CV811, Docket Entry 2.)

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someone he knew only as “Mussa” about 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). Plaintiff
disobeyed the Court’s Orders to submit a properly-completed summons
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 filed this
case in his name) bears sole responsibility for the instant non-
compliance, the conduct (and inaction) at issue prejudiced
Defendant by delaying the litigation unduly (and thus depriving

3 The Clerk maintains an audio-recording of these proceedings.

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Defendant of the opportunity to defend against this apparent sham
lawsuit while memories remained freshest and before risk of loss of
pertinent documents grew), the record reflects a pattern of
dilatory conduct by Plaintiff (or whoever filed this case in his
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 a failure to
submit a timely, properly-completed summons could result in
dismissal of this action without further notice. “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.4
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

4 The fact that Plaintiff apparently submitted the defective
summons before receiving that warning does not alter this
conclusion because Plaintiff failed to take any action after the
Court notified him that a summons for a corporation must include
the name and title of an individual to receive service of process.
Moreover, Plaintiff did not seek entry of default against
Defendant, which inaction supports an inference that Plaintiff
either did not believe that proper service had occurred or had
abandoned this case. Finally, and most significantly, when the
Court held a status conference to address, inter alia, Plaintiff’s
failure to provide a proper summons for Defendant, Plaintiff did
not appear despite notice. The Court should not permit this
litigation to linger under such circumstances.

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