Laura McKinley v. Federal Deposit Insurance Corp
Filing
Opinion issued by court as to Appellant Laura McKinley. 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: 15-14036
Date Filed: 03/11/2016
Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14036
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cv-00071-LGW-RSB
LAURA MCKINLEY,
Plaintiff–Appellant,
versus
FEDERAL DEPOSIT INSURANCE
CORPORATION,
as Receiver of Oglethorpe Bank,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 11, 2016)
Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 15-14036
Date Filed: 03/11/2016
Page: 2 of 5
Proceeding pro se, Plaintiff Laura McKinley sued the Federal Deposit
Insurance Corporation. Plaintiff titled the complaint, “Counterclaim / Counter
Complaint.” On the same day, Plaintiff moved to proceed in forma pauperis. In
considering the motion, the magistrate judge began a review under 28 U.S.C.
§ 1915(e)(2)(B), which permits a district court to dismiss an in forma pauperis
complaint sua sponte if the complaint is frivolous or fails to state a claim.
The magistrate judge deferred ruling on Plaintiff’s motion because the
magistrate judge detected several procedural errors and ambiguities in the
complaint. Most notably, the magistrate judge explained the difficulty in
comprehending the complaint:
[Plaintiff]’s Complaint in the action now before the Court is
difficult to follow. She begins with what appears to be a
rewording of the conclusion of the Court’s summary judgment
ruling in [another action], though she does not reference that
case. She then includes information regarding Federal Rules of
Civil Procedure 13 and 15 and O.C.G.A. § 9-11-13. In several
enumerated paragraphs, [Plaintiff] then appears to attack the
[Defendant]’s claims in [a third action], though the Complaint
does not reference that case either. The Complaint then
includes a lengthy argument section that cites to Federal Rule
of Civil Procedure 12 and states why various claims should be
dismissed. Though it is not clear, it appears that this argument
section also refers to the claims pending against [Plaintiff] and
her codefendants in [the third action]. [Plaintiff] concludes her
Complaint with a request that she be “personally released from
[Defendant’s] lawsuit” and that her contract, “which was not
voided, be paid out in full.” She also requests that the Court
“reverse the prior denial of summary judgement.”
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The magistrate judge concluded, “Even after a careful reading of [Plaintiff]’s
Complaint, the Court is in the dark as to what legal claims she seeks to assert
against [Defendant] and the factual basis for those claims.”
A review of the complaint confirms the difficulty of interpreting Plaintiff’s
complaint. Most notably, large portions of the complaint resemble a motion to
dismiss a complaint in an unidentified action. For example, the complaint contains
a “Summary of Defendants’ Arguments” section in which Plaintiff stated, “The
ordinary negligence and breach of fiduciary duty claims should be dismissed as
against [Plaintiff].”
Despite Plaintiff’s opaque complaint, the magistrate judge recognized that
Plaintiff might nonetheless amend the complaint to state a claim. Accordingly, the
magistrate judge deferred ruling on Plaintiff’s motion to proceed in forma pauperis
and instead (1) directed Plaintiff to amend the complaint and (2) instructed
Plaintiff on how to cure the complaint’s deficiencies. The magistrate judge
identified Rules 8 and 10, Federal Rules of Civil Procedure, for help in crafting a
complaint. Further, the magistrate judge advised Plaintiff on how to accomplish
varying goals. For example, the magistrate judge stated, “[I]f [Plaintiff] is seeking
to defend the claims that [Defendant] has asserted against her in [another action],
she must assert her defenses via pleadings in that action, not through this separate
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civil case.” Finally, the magistrate judge warned, “If [Plaintiff] does not file an
amended complaint, the Court may dismiss this action.”
Plaintiff ignored the magistrate judge’s advice and instead filed the same
complaint.1 In response, the district judge dismissed Plaintiff’s complaint without
prejudice because Plaintiff failed to comply with the magistrate judge’s order.
We review for abuse of discretion a district court’s dismissal for failure to
comply with a court order. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d
1333, 1337 (11th Cir. 2005). In this action, we find no abuse of discretion because
(1) Plaintiff blatantly flouted the magistrate judge’s order,2 (2) the order warned
Plaintiff of dismissal, and (3) the district judge dismissed without prejudice.3 See
Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (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
1
In fact, Plaintiff’s amended complaint changed the complaint in only one detectable manner.
Plaintiff’s 39-page amended complaint added one paragraph to the 38-page original complaint.
The added paragraph clarifies nothing.
2
Plaintiff’s narrative reply brief asserts that the magistrate judge gave Plaintiff neither sufficient
time to amend the complaint nor sufficient guidance on how to amend the complaint. The
magistrate judge gave Plaintiff two weeks to amend and, as discussed above, included substantial
guidance on how to amend the complaint. Both suffice, especially because Plaintiff neither
requested additional time nor attempted to amend the complaint. See also Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 243 (3d Cir. 2013) (“[P]ro se litigants do not have a right to general
legal advice from judges.”).
3
If a dismissal without prejudice has the same effect as a dismissal with prejudice, the district
court may dismiss for failure to comply with a court order “only in the face of a clear record of
delay or contumacious conduct by the plaintiff.” McKelvey v. AT & T Techs., Inc., 789 F.2d
1518, 1520 (11th Cir. 1986). Plaintiff does not argue that the dismissal in this action is
equivalent to a dismissal with prejudice.
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district court abused its discretion.”); see also Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989) (affirming a dismissal with prejudice against a pro se litigant
and stating that “dismissal upon disregard of an order, especially where the litigant
has been forewarned, generally is not an abuse of discretion”). Accordingly, we
AFFIRM.
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