LIT COMMENTARY AND UPDATE
Before Clement, Southwick, and Engelhardt, Circuit Judges. Per Curiam:*
Wayne Smith appeals the dismissal of his case under Federal Rule of Civil Procedure 12(b)(6). “We review de novo the grant of a Rule 12(b)(6) motion to dismiss.” Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011) (citation omitted). Having reviewed the briefs and the record, we find Smith
* This opinion is not designated for publication. See 5th Cir. R. 47.5.
hasn’t shown that he stated a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
So, we AFFIRM and all pending motions are DENIED.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending are Memoranda and Recommendations by Magistrate Judge Sam S. Sheldon dated December 27, 2021, and February 3, 2002.
Dkts 25 & 36. Also pending are objections and various other motions by Plaintiff Wayne Smith.
See Dkts 26 & 40 (objections); Dkts 17, 28, 34, 35, 37 & 39 (motions).
The district court reviews de novo those conclusions of a magistrate judge to which a party has specifically objected.
See FRCP 72(b)(3) & 28 USC § 636(b)(1)(C);
see also United States v Wilson, 864 F2d 1219, 1221 (5th Cir 1989, per curiam).
The district court may accept any other portions to which there’s no objection if satisfied that no clear error appears on the face of the record.
See Guillory v PPG Industries Inc, 434 F3d 303, 308 (5th Cir 2005),
citing Douglass v United Services Automobile Association, 79 F3d 1415, 1430 (5th Cir 1996, en banc);
see also FRCP 72(b) advisory committee note (1983).
Upon de novo review and determination, Smith’s objections lack merit.
No clear error otherwise appears upon review and consideration of the Memoranda and Recommendations, the record, and the applicable law.
The objections by Smith to the Memoranda and Recommendations of the Magistrate Judge are OVERRULED.
Dkts 26 & 40.
The Memoranda and Recommendations of Magistrate Judge Sheldon are ADOPTED as the Memoranda and Orders of this Court.
Dkts 25 & 36.
The motion to dismiss by Defendant Judge David Hittner is GRANTED.
Dkt 20.
Judge Hitter is DISMISSED WITH PREJUDICE.
The motion to dismiss by Defendant MTGLQ Investors LP is GRANTED.
Dkt 30.
MTGLQ is DISMISSED WITH PREJUDICE.
The motion by Plaintiff Wayne Smith for recusal is DENIED. Dkt 27.
No valid basis for recusal is stated.
Smith’s various other motions encompassed within the Memorandum and Recommendation of February 3, 2022, are DENIED AS MOOT.
Dkts 17, 28, 34 & 35.
Smith’s later-filed motions are also DENIED AS MOOT.
Dkts 37 & 39.
All claims asserted by Plaintiff Wayne Smith are DISMISSED WITH PREJUDICE.
A final judgment will issue separately. SO ORDERED.
Signed on June 30, 2022, at Houston, Texas.
Hon. Charles Eskridge
United States District Judge
Update, 10 Jan, 2022: After the DOJ appointment of counsel delay was addressed by motion, the DOJ lawyers filed motions to dismiss on jurisdictional and immunity grounds and the case was subsequently quickly disposed of by Judge Charles Eskridge after the M&R was issued by the Magistrate Judge Sheldon.
Now, per the docket, on Jan 10, 2022, pro se Smith has filed a motion to recuse both judges, citing bias and impartiality.
Smith v. Hittner
(4:21-cv-03079)
District Court, S.D. Texas
SEP 17, 2021 | REPUBLISHED BY LIT: OCT 2, 2021
Smith’s Original Complaint, Doc. 1.
LIT previously reviewed Mr Smith’s appeal to the Fifth Circuit and tracked back to the lower court, in this case the infamous S.D. Tex., Houston Div’n. You can read more about our article here. We’ll be tracking this latest case by Smith against Hittner, et al which is set for VIDEO CONFERENCE on Dec. 17, 2021.
Y’all Should Read This Heart-Wrenching Letter LIT Received on Fri., 29 Oct., 2021 from Mr. Smith
(we’re publishing it unedited)
I contacted you all probably 6-8 months ago and had no idea you all were following my case until today I saw you are. I really appreciate all that your group does to bring out the corruption of the system however there is an element I think you may overlook or just do not know how to address which I will explain.
Back in 2007, My wife (now 85 yrs old) and I purchased a foreclosed run-down old nursing home (to be a senior care facility) in Eagle Lake, Tx. for $500 K and borrowed another $500 K to fix up. After 8 months we had an Administrator, secretary and were ready for senior citizens. Went to the bank who said no money out since we do not lend on these types of properties in 2008. The appraised value of the 84 unit facility if operating was a 6.2 million valuation and after putting all in, we lost all, including our senior care home.
After the bank’s action, they came after my securitized home mortgage (they had lost) since I and my wife had put all our money into the project and now are on SSI and still lacking funds today, whereas I am ProSe still pushing and working to make bread every day.
We were flooded in Harvey flood and put any $ from Gov. back into the home to repair it. I did most of the work myself and after spending almost three years applying to get disaster funds from the state and city, we were allotted $50,000 but the City withholds them because we are in court (they are our funds through hard work building equity back in-home yet the bank who act innocence gladly keep us from getting our money).
You guys need to realize, attorneys will not fight judges(they see in court often overseeing their cases) nor anyone else except the economically struggling homeowners who have to work day and night studying laws, etc how to present ourselves in court.
Gentlemen if possible form a fundraising group in which even you all can get a percentage for raising funds. As a fighter for truth, I do not want to settle with the bank but push to win even to the Supreme Court however you need to support us, your troops whom you talk about often and have some of those who are behind you (possibly wealthy persons who love our/your cause) help us financially otherwise we all lose ???
We as many other ProSe’s need to pay our bills and many back bills which even I and my wife owe. We are the army fighting for all our rights. The banks are supported by the money they steal(and other crooks) however can’t you and your associates support our small army whom you talk about often ???
Your any and all Help would be more than greatly appreciated
Sincerely,
Wayne Smith
ProSe, Et Al
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Plaintiff’s Motion for Default Judgment (Dkt. No. 11.) The Court RECOMMENDS that the Motion for Default Judgment be DENIED.
Federal Rule of Civil Procedure 55 governs requests for default judgment. FED. R. CIV. P. 55.
Three steps must occur in order to obtain a default judgment under Rule 55:
“(1) default by the defendant;
(2) entry of default by the Clerk’s office;
and
(3) entry of a default judgment.”
Joe Hand Promotions, Inc. v. 2 Tacos Bar & Grill, LLC, No. 16-CV-1889, 2017 WL 373478, at *1 (N.D. Tex. Jan. 26, 2017).
The first step, default, can only occur if the defendant has been properly served or has executed a waiver of service.
Alamo 1 Specialized Trucking, Inc. v. Bay Crane Servs. of N.J., Inc., No. 18-CV-386, 2018 WL 8619801, at *1 (W.D. Tex. July 27, 2018)
(“[I]t is axiomatic that service of process must be effective under the Federal Rules of Civil Procedure before a default or a default judgment may be entered against a defendant.”) (quotations omitted);
A #Thanksgiving Message to Justice Neil Gorsuch from LIT:@TheBushCenter @laurawbush @JebBush @KarlRove @NathanLHecht @BrettBusby @SupremeCourt_TX @statebaroftexas @HoustonChron @dallasnews @statesman @thesundaytimes @guardian @Telegraph @BorisJohnson @10DowningStreet #txlege pic.twitter.com/TRH14ytDeJ
— LawsInTexas (@lawsintexasusa) November 25, 2021
see also Rogers v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 938 (5th Cir. 1999)
(“Like formal service of process, a waiver of service of process marks the point in a lawsuit after which the defendant must answer or risk default.”).
“Absent proper service, a district court lacks personal jurisdiction, and any default judgment would be void.”
Wells Fargo Bank, N.A. v. Pantalion, No. CV H-18-4215, 2019 WL 2544077, at *2 (S.D. Tex. June 19, 2019) (citing Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986)).
Here, Plaintiff neither filed for entry of default nor properly served Defendants.
According to the certificate of service, it appears that Plaintiff attempted to serve the Defendants by mail.
(See Dkt. No. 9.)
However, service can be made only by
“(1) any sheriff or constable or other person authorized by law,
(2) any person authorized by law or by written order of the court who is not less than eighteen years of age,
or
(3) any person certified under order of the Supreme Court.”
TEX. R. CIV. P. 103.
“[N]o person who is a party to or interested in the outcome of a suit may serve any process in that suit[.]” Id.;
see Hurtado v. JPMC Specialty Mortg. LLC, No. 13-CV-1019, 2014 WL 3404973, at *2 (N.D. Tex. July 11, 2014) (explaining that a party cannot effectuate service under Texas law even when service is attempted by certified mail).
“There is no exception for pro se litigants.”
Avdeef v. Royal Bank of Scotland, P.L.C., 616 F. App’x 665, 672 (5th Cir. 2015);
see also Lohr v. Express Jet Airlines, Inc., No. 20-CV-3399, 2020 WL 7323360, at *1 (S.D. Tex. Dec. 11, 2020).
Accordingly, the Court RECOMMENDS that the Motion for Default Judgment be DENIED.
Indymac “Liar Loans” An audit found 87% fraudulent. Federal Courts are protecting OneWest and Wall St Banks by attempting to steal the elder Burkes Home.
LIT ain’t about to sit back and watch that happen. @FBIHouston @USAO_SDTX @SecretService @wsj @reuters #OperationWhiteout pic.twitter.com/2GbTQs38jW
— LawsInTexas (@lawsintexasusa) November 27, 2021
The Clerk shall send copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections thereto pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.
The original of any written objections shall be filed with the United States District Clerk electronically. Copies of such objections shall be mailed to opposing parties and to the chambers of the Undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.
SIGNED in Houston, Texas on November 29, 2021.
Sam S. Sheldon
United States Magistrate Judge
A Message to Chief Justice John Roberts from LIT#OperationWhiteout #elderabuse #txlege #appellatetwitter @KenRoth @DalaiLama @HHSOCR @CivilRights @ewarren @SenatorDurbin @fbi @USAO_SDTX @civilrightsorg @crdefenders @TXCivilRights @KristenClarkeJD @guardian @abc @msnbc @CNBC pic.twitter.com/lhJ7fXMxDe
— LawsInTexas (@lawsintexasusa) November 23, 2021
SCHEDULING AND DOCKET CONTROL ORDER
The following schedule will control disposition of this case:
1. 01/19/2022 MOTIONS TO ADD NEW PARTIES
The party causing the addition of a new party must provide copies of this Order and all previously entered Orders to the new party.
2. 02/18/2022 MOTIONS FOR LEAVE TO AMEND PLEADINGS
Any party seeking leave to amend pleadings after this date must show good cause.
3a. 08/17/2022 EXPERTS (other than attorney’s fees)
The party with the burden of proof on an issue must designate expert witnesses in writing and provide the required report under Rule 26(a)(2).
3b. 09/16/2022 The opposing party must designate expert witnesses in writing and provide the required report under Rule 26(a)(2).
4. 10/31/2022 COMPLETION OF DISCOVERY
Discovery requests are not timely if the deadline for response under the Federal Rules of Civil Procedure falls after this date. Parties may by agreement continue discovery beyond the deadline.
5. 11/30/2022 DISPOSITIVE AND NONDISPOSITIVE MOTIONS
DEADLINE (except for motions in limine)
No party may file any motion after this date except for good cause shown.
6. 01/18/2023 MEDIATION OR SETTLEMENT CONFERENCE BEFORE THE MAGISTRATE JUDGE
The parties must complete mediation or other form of dispute resolution.
7. 02/17/2023 DEADLINE FOR JOINT PRETRIAL ORDER AND MOTIONS IN LIMINE
The Joint Pretrial Order must contain the pretrial disclosures required by Rule 26(a)(3). Plaintiff is responsible for timely filing of the complete Joint Pretrial Order. Failure to do so may lead to dismissal or other sanction in accordance with applicable rules.
8. 03/20/2023 DOCKET CALL
Docket call will occur at 9:30 a.m. in Courtroom 8B, United States Courthouse, 515 Rusk, Houston, Texas.
The Court will not consider documents filed within seven days of docket call.
The Court may rule on pending motions at docket call and will set the case for trial as close to docket call as practicable.
9. Additional orders or limitations relating to disclosures, discovery, or pretrial motions:
10. Other matters:
Any party wishing to make a discovery or scheduling motion must obtain permission before the submission of motion papers.
This includes any motion to compel, to quash, for protection, or for extension. Follow Section 15 of the Court’s procedures.
The parties agree to submit attorney’s fees issues to the Court by affidavit after resolution of liability and damages.
In cases referred to the Magistrate Judge for the initial conference, the Magistrate Judge has the authority to adjust the scheduling order dates.
Signed on October 6, 2021, at Houston, Texas.
Hon. Charles Eskridge
United States District Judge
Sanctioned Lawyer Ray L. Shackelford’s Repeat Frivolous Filings and Perjury Is Fine, Sayeth Courts
Ray Shackelford fails to disclose his relationship with buyer McQueen, the property will not cover the debt due, or his past litigation.
M&R Issued In Smith v. Judge David Hittner and It’s All About Absolute Immunity
The Court RECOMMENDS that Defendant Judge Hittner’s Motion to Dismiss be GRANTED and the case against him be DISMISSED WITH PREJUDICE.
Judge David Hittner’s Legal Representative from the Justice Dept is Not Yet Approved, Seeks Continuance
Defendant, Judge David Hittner, is assigned an AUSA from the Department of Justice to represent him in this case.
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:21-cv-03079
| Smith v. Hittner et al Assigned to: Judge Charles Eskridge
Cause: 42:1983 Civil Rights Act |
Date Filed: 09/17/2021 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant |
| Plaintiff | ||
| Wayne Smith | represented by | Wayne Smith 5723 Painted Trail Drive Houston, TX 77084 713-882-3081 PRO SE |
| V. | ||
| Defendant | ||
| David Hittner | ||
| Defendant | ||
| MTGLQ Investors, LP | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 09/17/2021 | 1 | COMPLAINT against All Defendants (Application to Proceed In Forma Pauperis granted on 9/17/21 by Judge Charles Eskridge) filed by Wayne Smith. (ltien, 4) (Entered: 09/22/2021) |
| 09/22/2021 | 2 | NOTICE to Pro Se Litigant of Case Opening, filed. Party notified. (ltien, 4) (Entered: 09/22/2021) |
| 10/01/2021 | 3 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 12/17/2021 at 09:45 AM in by video before Magistrate Judge Sam S Sheldon. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalezadi, 4) (Entered: 10/01/2021) |
