Lindemann-Moses v. Jackmon

644 F.Supp.3d 163

Kerstin LINDEMANN-MOSES, Plaintiff, v. Barbara JACKMON and Christopher Jackmon, Defendants.

1:20cv655

United States District Court, M.D. North Carolina

Signed December 8, 2022

Kerstin Lindemann-Moses, Concord, NC, Pro Se.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court are three motions in which all parties appear pro se. Plaintiff Kerstin Lindemann-Moses moves for an entry of default (Doc. 42) and default judgment (Doc. 41) against Defendant Christopher Jackmon ("CJ"), who has responded in opposition (Doc. 44). Defendant Barbara Jackmon moves for summary judgment (Doc. 33), which Lindemann-Moses opposes (Doc. 40). For the reasons set forth below, Lindemann-Moses's motion for entry of default will be denied and her motion for default judgment dismissed as moot, and Barbara Jackmon's motion for summary judgment will be granted.

I. BACKGROUND

The factual background of this case is extensively set out in this court's prior ruling on Defendant Barbara Jackmon's motion to dismiss for failure to state a claim, which this court granted in part and denied in part. See Lindemann-Moses v. Jackmon, No. 1:20CV655, 2020 WL 6120035, at *1 (M.D.N.C. Oct. 16, 2020). In short, as pertinent here, the facts establish the following:¹

Lindemann-Moses met CJ in January 2016 through an online dating service and soon thereafter began a romantic relationship with him. (Doc. 1 ¶¶ 3-5.) At the time, CJ was incarcerated in a Federal Bureau of Prisons facility in South Carolina. (Id. ¶ 5.) In February 2016, CJ told Lindemann-Moses about a purported business venture, Nationwide Legal Services ("Nationwide"), that he presented as a lucrative investment opportunity. (Id. ¶ 6.) Soon thereafter, Lindemann-Moses began transferring money to CJ through wire transfers to a Wells Fargo bank account. (Id. ¶¶ 7, 9.) Toward the end of 2016, at CJ's urging, Lindemann-Moses developed a personal friendship with Barbara Jackmon, CJ's mother, often conversing several times a week for several hours. (Id. ¶ 16.) By sometime after July 2017, Lindemann-Moses had transferred roughly $250,000 to CJ in the belief she was investing in Nationwide. (Id. ¶ 19.)

In March 2019, Lindemann-Moses visited CJ in while imprisoned in Brooklyn and learned that the money she had given him was - according to CJ - "all gone." (Id. ¶ 24.) Lindemann-Moses began investigating CJ and reached out to Barbara Jackmon regarding her lost money. (Id. ¶ 25.) By January 2020, Lindemann-Moses began recovery efforts: on January 13, 2020, she received a Wells Fargo bank check for the sum of $20,000 (id. ¶ 31); she received a second $20,000 Wells Fargo bank check on March 6, 2020 (id.); and on May 18, 2020, CJ paid her $50,000 in exchange for her signing a "Mutual and General Release of Claims" (the "Agreement") (id. ¶ 3; Doc. 9-7; Doc. 33-3). Importantly, the Agreement provided:

WHEREAS Christopher Jackmon and Kerstin Moses were involved in an interpersonal relationship from 2016 until 2020, and the parties acknowledge that Kerstin Moses caused certain dollar amounts to be transferred to accounts held in the name of Christopher Jackmon; And that Christopher Jackmon delivered a certain amount of money to Kerstin Moses; and the parties not wanting to engage in costly litigation to determine the characterization and amount of the money that was transferred to the other party.

NOW THEREFORE for full and fair consideration, the receipt of which is hereby acknowledged by the parties hereto, the parties to [sic] agree as follows:

1. Christopher Jackmon shall immediately pay to Kerstin Moses the sum of $50,000.00 dollars; and

2. Upon Kerstin Moses' receipt of the bank wire into her account . . . in the above amount, the parties shall execute a release of all claims; and

3. All parties do release and forgive any and all claims they have against each other, and against any other parties regarding and/or in any way arising out of the Litigation. This is intended as a mutual and general release of all claims between the parties, their agents, successors, and affiliates . . . .

(Doc. 33-3 at 2.)

Approximately two months later, on July 15, 2020, Lindemann-Moses filed the instant action asserting claims against both CJ and Barbara Jackmon for breach of contract, fraud, intentional infliction of emotional distress, interference with expectation of inheritance, and unjust enrichment. (Doc. 1.) Defendant Barbara Jackmon was served with the complaint and subsequently moved to dismiss. (Doc. 5.) This court granted the motion in part and dismissed all claims against her except for those alleging conspiracy to defraud and unjust enrichment. (Doc. 10 at 18-19.) Those were allowed to proceed based on Lindemann-Moses's allegation that she had "conveyed at least $130,000 to CJ and [Barbara] Jackmon's joint bank account at the urging of [Barbara] Jackmon's alleged co-conspirator who induced Lindemann-Moses to convey the funds as an investment in a fictitious company." (Id. at 19.)

On April 27, 2022, Barbara Jackmon filed a motion entitled "Emergency Response," in which she purported to respond to Lindemann-Moses's substantive allegations. (Doc. 33.) On June 16, 2022, the Magistrate Judge construed the filing as a motion for summary judgment, concluding that "it would be appropriate and helpful to consider [the issues raised in the motion] prior to proceeding to trial, particularly in light of the parties' pro se status." (Doc. 38 at 3.) Shortly thereafter, Lindemann-Moses responded and moved for entry of default (Doc. 40), to which Barbara Jackmon replied (Doc. 43).

As it relates to the claims against CJ, the procedural history is more complicated. Despite numerous efforts, Lindemann-Moses had difficulty serving CJ with a summons and complaint. (Docs. 16, 17, 19, 20, 21, 22.) On the same day this court issued its memorandum opinion and order on Barbara Jackmon's motion to dismiss, it notified Lindemann-Moses that her failure to serve CJ might result in dismissal of the action against him without prejudice. (Doc. 11.) Finding that CJ could not be served "with due diligence . . . by personal delivery, registered or certified mail, or by a designed delivery service as authorized by 26 U.S.C. § 7502(f)(2)," the Magistrate Judge granted another extension and authorized Lindemann-Moses to serve CJ by publication within 60 days. (Doc. 22 at 7-8.) Within that time, Lindemann-Moses filed an "Affidavit of Due Diligence" averring that she had served CJ by publication in accordance with Federal Rule of Civil Procedure 4. (Doc. 23.) On August 5, 2022, CJ appeared in the action and responded in opposition to Lindemann-Moses's motions, seeking to raise the Agreement in defense of the complaint (Doc. 44), and Lindemann-Moses has filed a reply (Doc. 45).

The court turns first to Barbara Jackmon's motion for summary judgment, then addresses Lindemann-Moses's two default-related motions.

II. ANALYSIS

A. Barbara Jackmon's Motion for Summary Judgment

1. Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact exists 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Basnight v. Diamond Developers, Inc., 146 F. Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In determining a motion for summary judgment, the court views the "evidence in the light most favorable to the non-moving party, according that party the benefit of all reasonable inferences." Id. Summary judgment should be denied "unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail under any circumstances." Guessford v. Pa. Nat'l Mut. Cas. Ins. Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)).

While the movant bears the initial burden of demonstrating the absence of a genuine dispute of material fact, once that burden has been met, the non-moving party must demonstrate the existence of a genuine dispute of material fact. Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 521 (4th Cir. 2003); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) ("[T]he nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence."); see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (noting that there is an affirmative duty for "the trial judge to prevent factually unsupported claims and defenses from proceeding to trial" (citation omitted)). Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).

As noted, all parties proceed pro se. Although courts must construe pro se filings liberally, "generosity is not a fantasy." Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998). The court is not expected to advance a pro se litigant's claim or argument, id., or "construct full blown claims from sentence fragments," Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Likewise, a court...