Monkemeier v. Internal Revenue Service et al
OPINION AND ORDER granting 6 Motion for More Definite Statement. Plaintiff shall file an amended complaint within 20 days. Failure to comply may result in dismissal of this action.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
PRO SE Plaintiff,
INTERNAL REVENUE SERVICE, INC., §
CIVIL ACTION H-12-2574
OPINION AND ORDER
Pending before the Court in the above referenced cause,
property, information, documents or papers to the Internal Revenue
Service and from collecting a debt, is Defendant New York Life
statement (instrument #6) under Federal Rule of Civil Procedure.
Pro se Plaintiff James Monkemeier has failed to file a response.
The Court agrees with NYL that the complaint is not adequately
Under Rule 12(e),
A party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but
which is so vague or ambiguous that the party cannot
reasonably prepare a response. The motion must be made
before filing a responsive pleading and must point out
the defects complained of and the details desired. If
the court orders a more definite statement and the order
is not obeyed within 14 days after notice of the order or
within the time the court sets, the court may strike the
pleading or issue any other appropriate order.
unintelligible pleading; they are not used to clarify a pleading
that lacks detail, and they are not intended to serve as a
substitute for discovery.”
Allstate Ins. Co. v. Donovan, Civ. A.
No. H-12-0432, 2012 WL 2577536, *19 (S.D. Tex. July 3, 2012, citing
Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959).
The district court has considerable discretion in deciding whether
to grant such a motion.
Ditcharo v. United Parcel Service, Inc.,
376 Fed. Appx. 432, 440 n.9 (5th Cir. 2010), citing Old Time
Enterprises, Inc. v. International Coffee Corp., 862 F.2d 1213,
1217 (5th Cir. 1989).
The Court agrees that Plaintiff’s complaint
is not comprehensible and needs to be amended not just as to NYL,
but as to all named Defendants.
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
When a district court reviews a motion to dismiss
complaint in favor of the plaintiff and take all well-pleaded facts
as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
“While a complaint . . . does not need detailed factual
‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .”
Bell Atlantic Corp. v.
“Factual allegations must be enough to raise a right to relief
above the speculative level.”
Id. at 1965, citing 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”).
“Twombly . . . require[s] that a
complaint allege enough facts to state a claim that is plausible on
St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.
2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007).
“‘A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable
Montoya v. FedEx Ground Package System, Inc., 614 F.3d
145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal, 129 S. Ct.
1937, 1940 (2009).
Dismissal is appropriate when the plaintiff
fails to allege “‘enough facts to state a claim to relief that is
plausible on its face’” and therefore fails to “‘raise a right to
relief above the speculative level.’”
Montoya, 614 F.3d at 148,
quoting Twombly, 550 U.S. at 555, 570.
“[T]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
Iqbal, 129 S. Ct. at
conclusory allegations, to avoid dismissal.
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
The district court is to construe liberally the briefs of pro
se litigants and apply less stringent standards to them than to
parties represented by counsel.
Erickson v. Pardus, 551 U.S. 89,
94 (2007)(reciting the long-established rule that documents filed
pro se are to be liberally construed and “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers”); Andrade v. Gonzales, 459 F.3d 538,
543 (5th Cir. 2006); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.
Nevertheless, “[e]ven a liberally construed pro se civil
rights complaint . . . must set forth facts giving rise to a claim
on which relief can be granted.”
Johnson v. Atkins, 999 F.2d 99,
100 (5th Cir. 1993).
When a plaintiff’s complaint fails to state a claim, the court
should generally give the plaintiff at least one chance to amend
the complaint under Rule 15(a) before dismissing the action with
Great Plains Trust Co v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts often afford
plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are
Accordingly, the Court
ORDERS that NYL’s motion for more definitive statement is
Plaintiff shall file an amended complaint within twenty
days of entry of this order.
Failure to comply may result in
dismissal of this action.
SIGNED at Houston, Texas, this
October , 2012.
UNITED STATES DISTRICT JUDGE