Weathers v. ZikoWeathers v. Ziko
MEMORANDUM ORDER
This сase returns to the court for yet a third time as Plaintiff Andrea Weathers, continues to overcome her previous dismissals.
In 2010, Weathers, an African-Americаn professor at the .University of North Carolina at Chapel Hill (“the University”), brought various racial discrimination claims, against the University, Herbert Peterson, Jonathаn Kotch, Barbara Rimer, Edward Foster, and Sandra Martin, for denying, her reappointment and tenure. Weathers was -represented, by attorney Gregory S. Connоr. Her claims were dismissed at summary judgment. Weathers v. Univ. of N.C. at Chapel Hill (Weathers I), No. 1:08CV847,
In 2013, Weathers filed a pro se complaint against the University, Peterson, Kotch, Rimer, and Martin. The action brought seven claims, including a request to set aside the Weathers I judgment for alleged fraud on the court under Fеderal Rule of Civil Procedure 60(b) and an independent action in equity. Weathers also brought -various State law tort claims, as well as claims for constitutional violations. Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss all the claims. Weathers then retained her- attorney from Weathers I, Connor, to oppose the motion. Ultimately, the district court found no fraud on the court and dismissed all claims. Weathers v. Univ. of N.C. at Chapel Hill (Weathers II), No. 1:12CV1059,
In the present lawsuit, Weathers appears pro se and brings claims against the same Defendants as in Weathers I and Weathers II — the University, Peterson, Kotch, Rimer, and Martin — but also adds Connor, her former attorney, as well as Thomas Ziko, the attorney from the North Carolina Department Justice who represented the University and individual Defendants in Weathers I and Weathers II.
In her initial complaint in the present case, Weathers sought relief from judgment under Federal Rule of Civil Procedure 60(b); an independent action in еquity for relief from a judgment; and constitutional claims under the Fifth, Seventh, and Fourteenth Amendments to the United States Constitution. All Defendants moved to dismiss the claims, and Weathers responded with a motion for leave to amend her complaint. Con-nor and the “State Defendants” (all Defendants other than Connor) separately opposed the amendment.
Weathers’ proposed amended complaint seeks relief from the judgments in Weathers I & II pursuant to Federal Rulе of Civil Procedure 60(b); an independent action in equity for relief from the judgments in Weathers I & II; a State law claim for fraudulent attorney practice under N.C. Gen.Stat. § 84-13 against Ziko and Con-nor; employment discrimination in violation of 42 U.S.C. §§ 1981 and 1983 against the University, Peterson, Rimer, Kotch, and Martin; employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. against the University, Peterson, Kotch, and Rimer; business discrimination in violation of N.C. Gen.Stat. § 75B-2 against all Defendants; and violations of Amendments Five, Seven, and Fourteen to the United States Constitution against all Defendants.
Weathers’ motion for leave to amend will be denied as futile, her federal law сlaims will be dismissed with prejudice, and the court will decline jurisdiction over the State law claims. The court has already addressed Weathers’ claims at signifiсant length in two other cases, both of which she appealed. So, rather than to repeat that analysis yet again, the court will simply summarize the fundamental problems with Weathers’ current lawsuit that require dismissal.
First, Weathers has failed to show any grounds for setting aside the judgments in Weathers I or Weathers II. Her attack on the Weathers I judgment under Rule 60(b) is untimely because the present action was not filed within one year of the entry of judgment by the district court. See The Tool Box, Inc. v. Ogden City Corp.,
Second, Weathers’ constitutional claims under the Fifth, Seventh, and Fourteenth Amendments fail against Connor, á рrivate attorney, for lack of State action. Berry v. Porterfield, No. 3:08-CV-311 MU,
Third, Weаthers’ employment discrimination claims against the State Defendants — under Title VII, § 1981, and § 1983 — are barred by the doctrine of res judicata, since they all were оr could have been brought in Weathers I or Weathers II. Union Carbide Corp. v. Richards,
For these reasons, all of Weathers’ federal claims, over which this court has. original jurisdiction, will be dismissed with prеjudice. This leaves only Weathers’ claims for fraudulent attorney practice and business discrimination under North Carolina law. This court “may decline to exercise supplemental jurisdiction” ovér these State law claims because it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). This decision lies within this court’s discretion. See Carnegie-Mellon Univ. v. Cohill,
Having considered the'“convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations, of judicial economy,” Shanaghan,
IT IS THEREFORE ORDERED that Defendants’ motions to dismiss (Docs. 19, 31) be GRANTED, Weathers’ motion to amend (Doc. 37) be DENIED, and Weathers’ motion to сonsider as uncontested (Doc. 51) be DENIED as moot. Weathers’ federal law claims are hereby' DISMISSED WITH PREJUDICE, and her State law claims are DISMISSED WITHOUT PREJUDICE-.
A word of caution is in order. Weathers is proceeding pro se. Pro se litigants are entitled tо consideration of their non-lawyer status. However, they are not entitled to be relieved of the applicable legal standards, rules of procedure, or deadlines. See Alston v. Becton, Dickinson & Co., No. 12-CV-452,