United States District Court, E.D. Missouri, Eastern Division
JEFFREY M. MIZE, Petitioner,
ROBERT J. AMBRUSTER, INC., et al., Respondents.
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of petitioner,
Jeffrey M. Mize, for leave to commence this action without
prepayment of the filing fee pursuant to 28 U.S.C. §
1915. Upon consideration of the financial statement provided
by petitioner, the Court finds that petitioner is financially
unable to pay any portion of the filing fee. As a result,
petitioner will be granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. Additionally, the Court
has reviewed the complaint and will dismiss it pursuant to
Federal Rule of Civil Procedure 12(h)(3) and 28 U.S.C. §
1915(e)(2)(B) because this Court lacks jurisdiction over this
matter and because petitioner's application for writ of
mandamus fails to state a claim and/or is legally frivolous.
U.S.C. § 1915(e)
to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a
complaint filed in forma pauperis if the action is frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a respondent who is
immune from such relief. An action is frivolous if it
“lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989);
Denton v. Hernandez, 504 U.S. 25, 31 (1992). An
action is malicious if it is undertaken for the purpose of
harassing the named respondents and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes,
656 F.Supp. 458, 461-63 (E.D. N.C. 1987), aff'd
826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a
claim if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
state a claim for relief under § 1983, a complaint must
plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679.
brings this action seeking a writ of mandamus, pursuant to 28
U.S.C. § 1651, seeking to overturn a state court
judgment against him in Robert J. Ambruster, Inc. v.
Jeffrey Mize, et al, No. 15SL-CC00798 (21st
Judicial Circuit, St. Louis County, State of Missouri) (the
State Case was a breach of contract action between Robert J.
Ambruster, Inc., a Missouri corporation
(“Ambruster”) that owned and operated a funeral
home under the names “Ambruster Chapel” and
“Ambruster-Donnelly Mortuary, ” and Deborah Drace
and Jeffrey Mize who were running an unincorporated business
under the business name of “Ambruster Great Hall
Events.” The Court has reviewed the record before it,
as well as the unofficial record of the State Case on
Missouri.Case.Net, which reveals the following. During the
State Case, plaintiff and Ms. Drace refused to respond to
written discovery served on them by Ambruster. They were
ordered on August 17, 2015, to provide such responses.
Plaintiff and Ms. Drace failed to comply in full, and on
September 21, 2015, the state court ordered them to supply
copies of certain categories of documents within twenty (20)
days or “the Court will consider striking
Defendants' pleadings.” Despite the state
court's Order, plaintiff and Ms. Drace persisted in
refusing to supply the requested documents. On October 29,
2015, the state court struck all their pleadings and entered
a preliminary judgment against them, and scheduled a hearing
on Ambruster's damages for November 30, 2015. On November
30, 2015, the state court further struck all pleadings of
plaintiff and Ms. Drace that sought affirmative relief,
including counterclaims and affirmative defenses, and
continued the hearing for damages.
state court held a lengthy evidentiary hearing on
Ambruster's damages on February 28, 2016 and March 1,
2016. The state court then entered the final judgment for
Ambruster against plaintiff and Ms. Drace that is the object
of plaintiff's action in this Court. The judgment against
plaintiff and Ms. Drace was in the amount of $135, 509.85, as
well as for certain equitable relief.
March 10, 2016 (as amended March 11, 2016), plaintiff filed a
motion for new trial in the State Case; it was overruled on
March 16, 2016. A second motion for new trial was filed by
counsel for plaintiff who was engaged by plaintiff and Ms.
Drace, and it was overruled on March 21, 2016.
and Ms. Drace filed a notice of appeal in the State Case on
March 31, 2016 to the Missouri Court of Appeals for the
Eastern District. Robert J. Ambruster, Inc. v. Deborah
Drace, et al., No. ED104201 (Mo.Ct.App. 2017).
Court of Appeals provided plaintiff and Ms. Drace almost a
year and a half to complete the filing of the record on
appeal and file briefs. Finally, on September 21, 2017,
plaintiff and Ms. Drace filed a voluntary motion to dismiss
the appeal “without prejudice.” The Court of
Appeals granted the motion on September 26, 2017, but in its
Order, the Missouri Court of Appeals failed to rule as to
whether the dismissal was without prejudice.
meantime, plaintiff and Ms. Drace continued to attack the
State Case judgment through a multitude of pleadings filed in
the state court. This Court has reviewed plaintiff's
post-judgment motions on Missouri.Case.Net, and it is
apparent that the majority of the post-judgment motions
include arguments plaintiff and Ms. Drace previously raised
in prior motions. Robert J. Ambruster, Inc. v. Jeffrey
Mize, et al, No. 15SL-CC00798 (21st Judicial
Circuit, St. Louis County).
October 2016, plaintiff and Ms. Drace began to assert in
their pleadings that the state court's judgment was void
under Missouri Supreme Court Rule 74.06(b)(2) (motions to
aside judgments for fraud). Plaintiff later expanded on the
fraud argument to assert that he had “recently”
uncovered evidence that demonstrated the identity of
Ambruster's corporate Secretary had been ...