contemp jonathan

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IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DIOP KAMAU,TYRA RASMUS (a.k.a. TYRA FERRELL),and AMINA KAMAU,

Plaintiffs,

vs. Case No. 4:11cv522-RH/CAS

GREGORY ALAN SLATE, THERESA BOO JOHNSON, GEOFFREY JOHNSON, JONATHAN JOHNSON, and TYLER JOHNSON,

Defendants.

/

ORDER TO SHOW CAUSE

Mail from this Court to Defendant Jonathan Johnson has been returned as

undeliverable. Doc. 47. The envelope contains a postal stamp marked "Return to

Sender; Attempted - not Known." Id.

Summons was filed on June 8, 2012, demonstrating service was carried out on

Defendant Jonathan Johnson, doc. 31, at this address: 1832 West Fayette Street in

Baltimore, MD; doc. 31. The affidavit of service, sworn under penalty of perjury, states

that the service documents were personally served on Jonathan Johnson. Id.

Case 4:11-cv-00522-RH-CAS Document 48 Filed 08/17/12 Page 1 of 6

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Defendant Jonathan Johnson previously asserted that he did not live at that

address, doc. 15 at 3, and it is noted that this Defendant previously has wilfully refused

to advise the Court of his address so that legal mail could reach him. See doc. 27 at

12. When Defendant Slate submitted his motion to dismiss, doc. 29, his motion

attempted to list an address for Defendant Jonathan Johnson that was the same Post

Office Box address as was then used by Defendant Slate. An Order was entered July1

12, 2012, requiring Defendant Jonathan Johnson (hereinafter Johnson) to provide his

correct mailing address to this Court. Doc. 38. If Johnson maintained that his correct

mailing address was indeed the same Post Office Box used by Defendant Slate, then

he was required to "provide a copy of the Postal Service's Form 1093 demonstrating

that he is an authorized box customer." Id.

In response to that Order, Johnson filed a notice which alleged that he had

"grave concerns" about disclosing his actual physical location, but which stated that

Johnson was filing a "notice of his address . . . as ordered." Doc. 39. Johnson further

asserted that the process server affidavit was wrong when the affidavit indicated that

Johnson was a "32-year old co-resident of the dwelling." Id. Johnson asserts that he2

"is 20-years old and is studying at university [sic] where is [sic] also resides." Id.

Defendant Slate has since been informed that he must consistently use only his1

address of record, which is not a Post Office Box, on all documents filed. Doc. 46 at 2.

The affidavit of process server Camille Turner stated that on May 23, 2012, at2

9:30 p.m., Jonathan Johnson was personally served with process. Doc. 31. Theaffidavits for substitute service on Geoffrey Johnson, doc. 34, Theresa Johnson, doc.33, and Tyler Johnson, doc. 35, state that a person residing at that address (JonathanJohnson) advised that he resided there, and he was described as a white male, age 32,between 5'9" and 6'0" and who weighed over 200 pounds. Docs. 33-35. Each affidavitis sworn under penalty of perjury. Presumably, Jonathan Johnson provided at leastsome of that information to the process server.

Case No. 4:11cv522-RH/CAS


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Johnson then listed his address as 1824 North Chapel Street, Baltimore, MD 21213.

Id. at 2. Johnson filed a notice of his address, doc. 43, on July 25, 2012, and a notice

that he was adopting the motion to dismiss, doc. 29, filed by Defendant Slate, doc. 39,

on July 23, 2012. An Order was entered on July 27, 2012, doc. 46, and Johnson's copy

of that Order, doc. 46, is the mail that was returned to the Court on August 9, 2012.

Doc. 47.

A federal court has inherent power to control the judicial proceedings and the

conduct of the parties involved. In Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct.

2123, 115 L. Ed. 2d 27 (1991), the Supreme Court acknowledged that "'certain implied

powers must necessarily result to our Courts of justice from the nature of their

institution,' powers 'which cannot be dispensed with in a Court, because they are

necessary to the exercise of all others.'" Chambers, 501 U.S. at 43, 111 S. Ct. at 2132,

115 L. Ed. 2d at 44, quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.

Ed. 259, 260 (1812); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100

S. Ct. 2455, 2463, 65 L. Ed. 2d 488 (1980). These inherent powers are necessary for

"courts to manage their own affairs" and "achieve the orderly and expeditious

disposition of cases." Chambers, 501 U.S. at 43, 111 S. Ct. at 2132, 115 L. Ed. 2d at

44, quoting Link v. Wabash R. Co., 370 U.S. 626, 630-631, 82 S. Ct. 1386, 1388-1389,

8 L. Ed. 2d 734 (1962). This power is necessary to protect the "integrity of the courts,

for 'tampering with the administration of justice in [this] manner ... involves far more

than an injury to a single litigant. It is a wrong against the institutions set up to protect

and safeguard the public.'" Chambers, 501 U.S. at 43, 111 S. Ct. at 2132, citing

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246, 64 S. Ct. 997, 1001,



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88 L. Ed. 1250 (1944). The Supreme Court stated that "a court has the power to

conduct an independent investigation in order to determine whether it has been the

victim of fraud." Chambers, 501 U.S. at 43, 111 S. Ct. at 2132, citing Universal Oil

Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S. Ct. 1176, 1179, 90 L. Ed.

1447 (1946).

"The key to unlocking a court's inherent power is a finding of bad faith."

Allapattah Services, Inc. v. Exxon Corp., 372 F.Supp.2d 1344, 1373 (S.D. Fla. 2005)

(other citations omitted). "Bad faith exists when the court finds that a fraud has been

practiced upon it, or . . . where a party or attorney knowingly or recklessly raises a

frivolous argument, delays or disrupts the litigation, or hampers the enforcement of a

court order." Allapattah Serv., 372 F.Supp.2d at 1373, citing Chambers, 111 S.Ct. at

2133, Malautea v. Suzuki Motor Co. Ltd., 987 F.2d 1536, 1545-46 (11th Cir. 1993).

At this point, it appears Defendant Jonathan Johnson has intentionally and

wilfully not provided this Court with his correct address. The very short time between

his providing the most recent address and the inability to send mail there make it

appear that Johnson's actions are an attempt to be evasive.

This Order to Show Cause provides Jonathan Johnson with a 21 day period in

which to show good cause as to why he should not be sanctioned. Under Rule 11(a),

every "pleading, written motion, and other paper must be signed . . . by a party

personally if the party is unrepresented." FED. R. CIV. P. 11(a). "The paper must state

the signer's address, e-mail address, and telephone number." Id. That rule also

provides that "[t]he court must strike an unsigned paper unless the omission is promptly

corrected after being called to the attorney's or party's attention."



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In addition, Rule 11(b) provides that "[b]y presenting to the court a pleading,

written motion, or other paper . . . an attorney or unrepresented party certifies that to

the best of the person's knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances: (1) it is not being presented for any improper

purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost

of litigation . . . ." FED. R. CIV. P. 11(b)(1). Papers which are filed that intentionally

provide incorrect addresses increases the costs of litigation and causes unnecessary

delay.

Defendant Jonathan Johnson shall have until September 7, 2012, in which to

show cause why his conduct does not violate Rule 11(a), (b) and why his defenses

should not be stricken under Rule 12(f). Furthermore, Johnson must respond by3

September 7, 2012, and file an affidavit, signed under penalty of perjury, which

provides his correct mailing address. If Johnson contends that he does not live at the

home address of his family where he was served, see doc. 31, and he lives at a

residence near the university where he contends he is studying, Johnson must produce

a copy of a utility bill or water bill which identifies his name with that residence address.

Finally, this Court has a number of sanctions available besides Rule 11.

Allapattah Serv., 372 F.Supp.2d at 1371. Should Defendant Johnson not respond to

this Order, fees, costs or other sanctions may still be assessed. Id. at 1373.

Rule 12(f) provides: "The court may strike from a pleading an insufficient3

defense or any redundant, immaterial, impertinent, or scandalous matter. The courtmay act: (1) on its own; or (2) on motion made by a party either before responding tothe pleading or, if a response is not allowed, within 21 days after being served with thepleading."



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Accordingly, it is

ORDERED:

1. Defendant Jonathan Johnson shall have until September 7, 2012, in which to

show cause why his conduct does not violate Rule 11(a), (b) and why his defenses

should not be stricken under Rule 12(f).

2. No later than September 7, 2012, Defendant Jonathan Johnson must file a

notice to this Court providing his correct mailing address as explained in this Order.

3. The Clerk of Court shall return this file no later than September 7, 2012.

DONE AND ORDERED on August 17, 2012.

S/ Charles A. Stampelos CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE



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