Andrea Silverthorne v. Allan Yeaman, et al

Filing

Opinion issued by court as to Appellant Andrea K. Silverthorne. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-10870

Date Filed: 08/19/2016

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________
No. 15-10870
Non-Argument Calendar
____________________
D.C. Docket No. l:12-cv-20325-JEM
ANDREA K. SILVERTHORNE,
Plaintiff-Appellant,
versus
ALLAN YEAMAN,
Individually,
BLUE SKY MIAMI, INC.,
Officially and Collectively,
BUSINESS LAW GROUP, P.A.,
Officially and Collectively,
DANIEL DINICOLA,
Individually,
DAVID DESORBO,
Individually,
MAXWELL SCHEINER,
Individually,
LM FUNDING, LLC
Officially and Collectively,
LINCOLN PLACE RESIDENCES CONDOMINIUM ASSOCIATION, INC.
Officially and Collectively, et al.,
Defendants-Appellees.

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Date Filed: 08/19/2016

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__________________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________________
(August 19, 2016)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
Andrea Silverthorne, proceeding pro se, appeals the district court's grant of the
defendants' motions to dismiss her third amended complaint without prejudice for failure
to comply with Federal Rule of Civil Procedure 8. On appeal, Silverthorne argues that
the district court abused its discretion in dismissing her 108-page third amended complaint
as an improper shotgun pleading because it did not cumulatively re-allege allegations and
Federal Rule of Civil Procedure 9 required her to plead with specificity.
We review a district court's dismissal of an action for failure to comply with a
court order or the Federal Rules of Civil Procedure for abuse of discretion.
Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Although
we give liberal construction to pro 'se pleadings, we nevertheless require them to
conform to procedural rules. Albra v. Aavan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
Issues not briefed on appeal by a pro se litigant are deemed abandoned. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).Rule 8 of the Federal Rules of Civil
Procedure requires that "[a] pleading that states a claim for relief must contain. . . a short
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and plain statement of the claim showing that the pleader is entitled to relief," and that
"[e]ach allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(a)(2), (d)(1).
In addition, the federal rules require that each claim be presented in a separate numbered
paragraph, "each limited as far as practicable to a single set of circumstances" and that
"each claim founded on a separate transaction or occurrence . . . must be stated in a
separate count." Fed. R. Civ. P. 10(b). The pleading requirements of Rule 9(b) for
claims involving fraud or mistake do not allow a plaintiff to "evade the less
rigid—though still operative—strictures of Rule 8." Ashcroft v. Iqbal, 556 U.S. 662,
686-87, 129 S. Ct. 1937, 1954, 173 L. Ed. 2d 868 (2009).
We repeatedly have condemned "shotgun" pleadings. Weiland v. Palm Beach
Cty. Sheriff's Office, 792 F.3d 1313, 1321 (11th Cir. 2015). Shotgun pleadings
include complaints that: (1) contain multiple counts where each count adopts the
allegations of all preceding counts; (2) do not re-allege all preceding counts but are
"replete with conclusory, vague, and immaterial facts not obviously connected to any
particular cause of action;" (3) do not separate each cause of action or claim for relief into
separate counts; or (4) contain counts that present more than one discrete claim for
relief. Id at 1321-23.
Rule 41(b) provides that "[i]f the plaintiff fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any claim
against it." Fed. R. Civ. P. 41(b). In general, a dismissal without prejudice is not an
abuse of discretion. See Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495,1499
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(11th Cir. 1983) ("Although this case does not involve a series of violation of court
rules or pretrial orders, because the case was dismissed without prejudice, we cannot say
that the district court abused its discretion."). Such a dismissal should be allowed absent
some plain prejudice other than the mere prospect of a second lawsuit. Kotzen v.
Levine, 678 F.2d 140,140 (11th Cir. 1982).
The district court did not abuse its discretion in dismissing Silverthorne's third
amended complaint without prejudice. See Dynes, 720 F.2d at 1499. Although she
argues that the district court should have evaluated her complaint under the Rule 9
standard, the requirement to plead with specificity does not allow her to evade Rule 8's
requirements. See lqbal, 556 U.S. at 686-87,129 S. Ct . at 1954. Although
Silverthorne had been instructed by the court that re-alleging previous allegations in
each count was a reason for the previous dismissal, she continued to reference the entire
facts section rather than only the relevant portions. Finally, she has not demonstrated
that the dismissal without prejudice served to prejudice her in any way other than
requiring her to clarify her complaint and comply with Rule 8, which she declined to do.
See Kotzen, 678 F.2d at 140.
AFFIRMED.

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