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Mize v. Robert J. Ambruster, Inc.

United States District Court, E.D. Missouri, Eastern Division

February 7, 2018

JEFFREY M. MIZE, Petitioner,
v.
ROBERT J. AMBRUSTER, INC., et al., Respondents.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         This 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.

         28 U.S.C. § 1915(e)

         Pursuant 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 (2007).

         To 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.

         Background

         Petitioner 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”).

         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.

         The 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.

         On 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.

         Plaintiff 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).

         The 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.

         In the 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).

         In 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 ...


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