United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
filed by the Securities and Exchange Commission, this case
has been active for nearly two decades. Much of its extensive
history can be omitted for purposes of addressing the order.
The case centers around a Ponzi scheme constructed by Gary
VanWaeyenberghe and committed through the entity First Choice
Management Services. Money from the scheme ended up in
various oil and gas leases in Oklahoma and, through a
convoluted series of transactions involving multiple parties,
Nona K. Roach and Agape & Associates Inc.
(“Roach”) came into possession of copies of
records and documents concerning these leases. In 2000 the
court appointed attorney Joseph Bradley as receiver with
instructions to recover as much as possible from the scheme.
This required a production of records concerning the leases
from Ms. Roach and others. In 2014 the court sought assistance
from Ms. Roach with regards to records in her possession but
she refused to comply. A year later the court issued another
order directing Ms. Roach to produce certain documents but
she again refused to comply. In 2016 the court held Ms. Roach
in civil contempt because of her noncompliance. The history
of this litigation is rife with willful disregard with court
orders [Doc. No. 1011].
March 2019 the Receiver filed a motion for proceedings
supplemental against Nona K. Roach and Agape &
Associates, Inc. [Doc. No. 1126] in an attempt to recover an
outstanding judgment. United States Magistrate Judge Michael
Gotsch, Sr., determined that the Receiver still owned the
January 26, 2016 monetary judgment this court rendered
against Ms. Roach and others [Doc. No. 1128]. The magistrate
judge found that she still owed a balance of $41.305.24 and
that no action had been taken to satisfy such debt. Ms. Roach
now moves to dismiss the motion to enforce the judgment
against her [Doc. Nos. 1130, 1134, and 1138]. In response,
Receiver has moved to strike Ms. Roach's motion to
dismiss [Doc. No 1135] and moved for sanctions [Doc. No. 1136
and 1137]. For the following reasons, the court denies the
Roach has filed three motions to dismiss the proceedings
supplemental against her. To begin with, Ms. Roach's
motions to dismiss are improper. Fed.R.Civ.P. 12 concerns
pretrial and pre-judgment procedure. Fed.R.Civ.P. 12
isn't the proper mechanism under which Ms. Roach can
challenge the judgment against her or the orders directing
her to comply with the requirements of the judgment. Ms.
Roach's proper course of remedy is either a direct
appeal, which she hasn't done, or a motion for
post-judgment relief under Fed.R.Civ.P. 60. Recognizing that
Ms. Roach is proceeding without an attorney, the court
construes her current motion as if it were made pursuant to
pro se filings are to be construed liberally, “even pro
se litigants must follow the rules of civil procedure.”
Cunningham v. Foresters Fin. Servs., 300 F.Supp.3d
1004, 1012 (N.D. Ind. January 9, 2018); Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). Ms. Roach
makes no showing of any of the factors that could allow the
court to grant relief under Rule 60. Instead, each of Ms.
Roach's motions essentially attempt to relitigate a near
two-decade old case and don't touch on any grounds
outlined in section (b) of Rule 60 that would allow the court
to grant her motions. Stoller v. Pure Fishing Inc.,
528 F.3d 478, 480 (7th Cir. 2008) (“[a] Rule 60(b)
motion is not a substitute for appeal.”).
Ms. Roach feels about the disposition of the case doesn't
relieve her of her obligations to comply with court orders.
This behavior is not unfamiliar to the court - Ms. Roach has
been previously chastised for engaging in improper filings
[Doc. No. 1063] and has been held in civil contempt for
non-compliance with court orders [Doc. No. 1011]. She has
provided no reason under Rule 60 or under any other legal
mechanism why this court's orders shouldn't bind her.
Ms. Roach's motions to dismiss are therefore denied.
Further noncompliance may result in sanctions or finding of
contempt. In re McDonald, 489 U.S. 180, 184 (1989)
(quoting In re Martin-Trigona, 737 F.2d 1254, 1261
(2d Cir. 1984) (“[f]ederal courts have both the
inherent power and constitutional obligation to protect their
jurisdiction from conduct which impairs their ability to
carry out Article III functions.”)); Prima Tek II,
LLC v. Klerk's Plastic Indus., B.V., 525 F.3d 533,
542 (7th Cir. 2008) (civil contempt is “a unique civil
sanction because its aim is both coercive and
response to Ms. Roach's dismissal motions, the Receiver
has filed a motion to strike the motions to dismiss under
Fed.R.Civ.P. 12(f). Ms. Roach didn't respond to this
Rule 12(f) court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed.R.Civ.P. 12(f). Though
generally disfavored, motions to strike serve the purpose of
expediting and resolving as well as “remov[ing]
unnecessary clutter from [a] case.” Art of Design,
Inc. v. Pontoon Boat, LLC, 2017 WL 5563401, at *1 (N.D.
Ind. Nov. 17, 2017) (citing Heller Financial, Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir.
1989)). “[A] court ordinarily will not strike a matter
unless the court can confidently conclude that the portion of
the pleading to which the motion is addressed is redundant or
is both irrelevant to the subject matter of the litigation
and prejudicial to the objecting party.” Art of
Design, Inc. v. Pontoon Boat, LLC, 2017 WL 5563401, at
*1 (citing Fed. Nat'l Mortgage Ass'n v.
Cobb, 738 F.Supp. 1220, 1224 (N.D. Ind. 1990)).
parties have filed redundant material with the court. Recent
filings by the Receiver have contained word-for-word
identical paragraphs; Ms. Roach has filed three motions to
dismiss addressing a single issue. It cannot be said,
however, that these filings are irrelevant or prejudicial.
While not meritorious, Ms. Roach's motions challenging
the proceedings supplemental aren't irrelevant. To the
extent that the Receiver's filings attempt to address Ms.
Roach's motions, the identical language is relevant to
the issues pertinent to the case. Given that the court has
denied Ms. Roach's motions and has directed her to comply
with the court's March 26, 2019 order [Doc. No. 1128],
the court denies the Receiver's motion to strike. The
court further notifies both parties that Fed.R.Civ.P. 12(f)
gives the court authority to strike any redundant or
irrelevant and prejudicial proceeding summarily. Fed.R.Civ.P.
Receiver has also filed an amended motion for sanctions under
Fed.R.Civ.P. 11(b) and (c) and Fed.R.Civ.P. 37. Ms. Roach
hasn't responded to this motion.
has “has inherent power to sanction a party who has
willfully abused the judicial process or otherwise conducted
litigation in bad faith” under Rule 11. Secrease v.
W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir.
2015). “One of the purposes of Rule 11 ‘is to
deter baseless filings in the district court.'”
Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998)
(quoting Cooter & Gell v. Hartmarx Corp., 496
U.S. 384, 393 (1990)). “Rule 11 requires that an
attorney or party, certify to the best of his knowledge,
information, and belief, formed after an inquiry reasonable
under the circumstances that any pleading presented to the
court is not presented for an improper purpose, that the
claims therein have a legally sufficient basis, and that the
allegations and other factual contentions have evidentiary
support.” Jimenez v. Madison Area Tech.
College, 321 F.3d 652, 656 (7th Cir. 2003); see also
Brunt v. Serv. Emp. Int'l Union, 284 F.3d 715,
721 (7th Cir. 2002) (“Sanctions will be imposed if
counsel files a complaint with improper motives or without
Roach must explain to the court why she shouldn't be
sanctioned for her conduct. Her repeated noncompliance with
court orders strongly suggest that today's motions are
attempts to further stall the proper functions of the court
and that Ms. Roach should be sanctioned. Nevertheless, the
court will allow Ms. Roach an opportunity to respond before
making a final determination. The court recognizes Ms.
Roach's status as a pro se litigant, but she must provide
a credible explanation to avoid sanctions. United States
v. Dowell, 259 F.3d 694, 699 (7th Cir. 2001);
Connolly v. J.T. Ventures, 851 F.2d 930, 932 (7th
court should not be revisiting a near twenty-year old case.
The end result of this most recent spree of filings has
resulted in a fair amount of unnecessary matters that require
the court's valuable energy and attention. Each
successive filing further drains the already scarce judicial
resources of this district. The public record is neither a
clearinghouse for every grievance nor an open opportunity to
continually relitigate long-decided issues. In the future,
the court will use its discretionary authority to levy any
sanction it deems necessary for behavior that impairs its
Article III functions.
on the forgoing, Ms. Roach's motions to dismiss [Doc.
Nos. 1130, 1134, and 1138] are DENIED. The court ORDERS Ms.
Roach to show cause by July 15, 2019, as to why she should
not be sanctioned and to comply with the court's March
26, 2019 order [Doc. No. 1128]. Ms. Roach is further
ADMONISHED for her noncompliance with court orders and ...