John Westley v. Jose Alberto, et al

Filing

Opinion issued by court as to Appellant John Westley. 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.

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Date Filed: 07/12/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10666
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-20283-KMW

JOHN WESTLEY,
Plaintiff - Appellant,
versus
JOSE L. ALBERTO,
RE/MAX LLC,
VERONA CONDOMINIUM ASSOCIATION INC.,
CHARLES PIERCE MATTHEWS,
DEUTSCHE BANK SECURITIES, INC.,
JACQUELYN PLASNER NEEDELMAN,
MIAMI DADE COUNTY COURTS
c/o Wendell M. Graham, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 12, 2017)

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Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
For the third time, plaintiff John Westley has filed suit against several
individuals and entities alleging that they conspired to fraudulently evict him from
his apartment, destroy his personal property, and quash his subsequent efforts to
obtain relief. Westley appeals the transfer of his case from the Middle District of
Florida to the Southern District of Florida, the district court’s dismissal of his
complaint with prejudice, and several alleged docketing errors by the district court
clerk. After careful review, we affirm the district court’s dismissal of Westley’s
complaint.
I.

BACKGROUND

The saga of this lawsuit began in 2013, when Westley filed suit in the
District of Minnesota alleging that a number of defendants conspired to
fraudulently evict Westley from his Miami, Florida apartment and destroy his
personal property. According to the complaint, the defendants conspired to evict
him in retaliation for his cooperation with federal authorities investigating fraud
and corruption by several of the alleged co-conspirators. Westley alleged 11
counts against the defendants, including inducement, misrepresentation, fraud,
tortious interference, defamation, conversion, unjust enrichment, racketeering,
whistleblower retribution, breach of contract and malpractice. In pleading federal
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subject matter jurisdiction, Westley further alleged violations of the First and Fifth
Amendments, the Fair Housing Act, the Fraud Enforcement and Recovery Act, and
the Racketeer Influence and Corrupt Organizations Act, among others. On two
defendants’ motions, the Minnesota district court dismissed the case without
prejudice for lack of personal jurisdiction and improper venue. On a separate
motion, the district court also dismissed with prejudice Westley’s claims against a
third defendant, Deutsche Bank National Trust Company, noting that the claims
were difficult to decipher and implausible. The Eighth Circuit summarily
affirmed.
Following that dismissal, Westley filed another complaint, this time in the
Northern District of Florida, again naming numerous defendants, including most of
the defendants from the Minnesota case as well as the attorneys who represented
Deutsche Bank in that case. Although Westley added a few new factual
allegations and two additional claims, the complaint was similar to the one he had
filed in Minnesota. Noting that 12 of the defendants were located in the Southern
District of Florida and only one was in the Northern District of Florida, and that
the events allegedly giving rise to the claims at issue took place in the Southern
District of Florida, a magistrate judge sua sponte transferred the case to the
Southern District of Florida. In his order, the magistrate judge—like the
Minnesota district court judge—noted that the complaint was “difficult to
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construe” and “constitute[d] a classic example of a shotgun pleading.” Transfer
Order, S.D. Fla. Case No. 1:14-cv-22939, Doc. 5 at 1. After receiving the case, the
district court in the Southern District of Florida dismissed it without prejudice for
failure to comply with the pleading standards of Federal Rule of Civil Procedure
8(a)(2). Westley failed to appeal this ruling.
Westley then filed this lawsuit in the Middle District of Florida against two
dozen defendants, including many of those named in his first two suits, as well as
the District of Minnesota and Southern District of Florida judges who dismissed
his previous cases. This complaint again made factual allegations similar to his
two prior complaints and contained the same 13 claims as his second complaint. It
also alleged that a majority of the 24 defendants lived in the Southern District of
Florida.
The Middle District of Florida judge sua sponte entered an order for Westley
to show cause why the case should not be dismissed for improper venue or
otherwise transferred to the Southern District of Florida. Westley sought relief
from the order, arguing that judicial estoppel and res judicata barred the court from
transferring the case, that the district court committed misconduct by engaging in
ex parte communications with the defendants, that the district judge had a financial
stake in the case, and that the Southern District of Florida was an inappropriate
venue because he was suing a judge of that district. Westley also asked for an
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extension of time to respond to the show cause order. Describing the complaint as
“virtually indecipherable,” the Middle District of Florida judge rejected both of
Westley’s motions and ordered the case transferred to the Southern District of
Florida. Transfer Order, Doc. 46.1
The record reflects that prior to the transfer, Westley obtained returns of
service from just three of the 24 defendants: Miami-Dade County Courts,
Jacquelyn Needleman, and Pabitree Goolcharran. Miami-Dade and Needleman
filed separate motions to dismiss for failure to state a claim, among other grounds.
Westley never filed responses to these motions. Instead, he requested an extension
of time to respond to Needleman’s motion, which had been docketed prior to the
transfer. Westley attempted to file two additional motions, one to strike
Needleman’s motion to dismiss and disqualify her counsel and another for an
extension of time to respond to Miami-Dade’s motion to dismiss. These motions
failed to arrive at the Middle District of Florida until after the case had been
transferred and therefore never were docketed. Westley did, however, obtain a
clerk’s default against Goolcharran in the Middle District of Florida three days
before the case was transferred.
One week after the case was transferred to the Southern District of Florida,
the district court granted Needleman’s motion to dismiss and sua sponte dismissed
1

Unless otherwise noted, citations to “Doc. __” refer to numbered docket entries in the
district court record in this case.
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the complaint as to all other defendants for failure to meet minimum pleading
standards. Noting Westley’s multiple prior attempts to state a claim, the district
court concluded that further amendment would be futile and dismissed the
complaint with prejudice.
Westley now appeals the transfer, the dismissal of his complaint with
prejudice, and the district court’s alleged failure to docket his motions.
II.

STANDARD OF REVIEW

“A transfer of venue is completely within the discretion of the trial court and
the decision to deny a change of venue request will be reversed only for abuse of
discretion.” United States v. Smith, 918 F.2d 1551, 1556 (11th Cir. 1990). We
review a district court’s decision granting a motion to dismiss de novo. MSP
Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016). In doing
so, we accept the well-pleaded allegations in the complaint as true and view them
in the light most favorable to the plaintiff. See Chaparro v. Carnival Corp., 693
F.3d 1333, 1335 (11th Cir. 2012).
III.
A.

DISCUSSION

Venue Transfer
Under 28 U.S.C. § 1391(b), when the defendants reside in different states,

venue lies in “a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is
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the subject of the action is situated.” 28 U.S.C. § 1391(b)(2). “Before transferring
[a case] sua sponte, . . . the judge should, at minimum, issue an order to show
cause why the case should not be transferred, and thereby afford the parties an
opportunity to state their reasons.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336
(11th Cir. 2011) (internal quotation marks omitted).
The district court in the Middle District of Florida properly transferred this
case to the Southern District of Florida. The complaint noted that a majority of the
defendants resided in that district, although some defendants were residents of
Minnesota, Missouri, and California. Given that the property in question was in
Miami and the events at the center of the complaint overwhelmingly took place in
Miami, the district court correctly determined that the proper venue was the
Southern District of Florida. See 28 U.S.C. § 1391(b)(2) (noting that where
defendants are from more than one state, venue lies where “a substantial part of the
events” giving rise to the complaint occurred). Before transferring the case, the
district court entered an order to show cause, giving Westley an opportunity to
demonstrate to the court that the case should remain in the Middle District of
Florida. But instead of taking advantage of that opportunity, Westley made a
series of frivolous legal arguments and leveled unsupported accusations of
misconduct at the district court. Westley was afforded all the due process required
by law; he chose to squander his opportunity by focusing on imagined injustices.
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Nor was transfer of this case to the Southern District of Florida barred
because one of the defendants is a judge of that district. 28 U.S.C. § 455 governs
the disqualification of judges. “Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). Disqualification is also
required “[w]here [the judge] has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the proceeding.”
28 U.S.C. § 455(b)(1). The standard under § 455 is objective, requiring the court
to determine whether a disinterested lay observer informed of all the relevant facts
would “entertain a significant doubt about the judge’s impartiality.” Bolin v. Story,
225 F.3d 1234, 1239 (11th Cir. 2000).
Citing no law and without pointing to any supporting evidence, Westley
asserts that no judge of the Southern District of Florida could possibly be unbiased
where another judge of that district was a defendant. We disagree. Bolin is
dispositive. In Bolin, the plaintiff sued in the Northern District of Georgia several
judges of the same district, and moved for the judge assigned to the case to
disqualify himself. The judge declined to do so, and we affirmed, noting:
Plaintiffs’ motions offer no factual evidence of the type of personal
bias that would sustain a doubt about [the judge]’s impartiality and
require recusal in this case. Plaintiffs base their motions upon the fact
that [the judge] has sat by designation on the Eleventh Circuit Court
of Appeals in the past, has a long-term working relationship with a
large majority of the defendants, and oversaw a grand jury
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investigation of one of the plaintiffs. We conclude that these
allegations are not sufficient to cause an objective, disinterested, lay
observer to entertain a significant doubt about [the judge]’s
impartiality.
Bolin, 225 F.3d at 1239. So too here. Westley offered no factual support for his
assertion that every judge of the Southern District of Florida harbored bias against
his case sufficient to require disqualification. The case was therefore properly
transferred to the Southern District of Florida. 2
B.

Dismissal
Liberally construing Westley’s opening brief, Westley argues that the

district court improperly dismissed his complaint with prejudice sua sponte and did
so without affording him proper notice. Again, we disagree. A district court may
sua sponte dismiss an action if the court employs a fair procedure. Tazoe, 631
F.3d at 1336. A fair procedure generally requires notice to the parties of the
court’s intent to dismiss the action and an opportunity to respond. Id. We
nonetheless will affirm a district court’s dismissal of a complaint without notice if
the complaint was “patently frivolous or if reversal would be futile.” Id. (alteration
and internal quotation marks omitted).
The district court properly dismissed Westley’s complaint. The complaint
failed to state a claim under Federal Rule of Civil Procedure 8(a)(2), which

2

To the extent Westley argues that res judicata or judicial estoppel precluded the transfer
of the case to the Southern District of Florida, we reject his arguments as meritless.
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requires that a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” We have identified multiple types of
“shotgun pleadings” insufficient to satisfy Rule 8. One kind of shotgun pleading is
“replete with conclusory, vague, and immaterial facts not obviously connected to
any particular cause of action.” Weiland v. Palm Beach Cty. Sheriff’s Office, 792
F.3d 1313, 1322 (11th Cir. 2015). Another type alleges “multiple claims against
multiple defendants without specifying which of the defendants are responsible for
which acts or omissions, or which of the defendants the claim is brought against.”
Id. at 1323.
Westley’s complaint suffered from both of these infirmities. Most
paragraphs in the complaint accused strings of defendants of engaging in a broad
conspiracy to harm Westley, but rarely if ever did the complaint identify the
specific actions taken by any individual defendant. For example, paragraph nine
alleges that a host of defendants “conspired, perpetrated and conducted
unlawful . . . acts,” without identifying any specific actions taken by any
defendant. Compl., Doc. 1 at 7. Paragraph 10 alleged that a number of defendants
conspired to sell a piece of real property to another defendant “through unlawful
publically corrupt acts, bribes and influence peddling,” again without identifying
any specific acts by any defendant. Id. at 8. Paragraph 11 similarly pled, in
conclusory fashion, that several defendants engaged in “illegal banking real estate
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fraud, obstruction of justice, influence peddling and domestic terrorism against
citizens.” Id. at 8-9. Likewise, each of the 13 counts in the complaint implicated
multiple defendants without identifying any specific actions taken by any
defendant that gave rise to the count.
In short, while Westley’s complaint at times described alleged events in
some detail, it offered nothing more than “conclusory, vague, and immaterial
facts” in describing the defendants’ allegedly improper behavior. Weiland, 792
F.3d at 1322. The district court therefore properly dismissed it. Moreover, given
that Westley was warned repeatedly by multiple courts that his complaint was
incomprehensible, his failure to improve its specificity and clarity warranted
dismissal with prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)
(“A district court need not, however, allow an amendment . . . where there has
been undue delay, bad faith, dilatory motive, or repeated failure to cure
deficiencies by amendments previously allowed . . . or . . . where amendment
would be futile.”).
The district court also was not required to afford Westley notice or an
opportunity to respond before sua sponte dismissing the complaint because the
complaint was “patently frivolous.” Tazoe, 631 F.3d at 1336. Westley alleged a
broad, ill-defined conspiracy involving widespread bribery and public corruption
cutting across two dozen defendants, including multiple federal judges. Yet the
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complaint offered virtually nothing in terms of specifics to support its outrageous
claims. Because “[i]t is patently obvious, given the legal and factual inadequacies
of the complaint, that [Westley] could not prevail,” the district court properly
dismissed the complaint sua sponte. Byrne v. Nezhat, 261 F.3d 1075, 1127 (11th
Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639 (2008). 3
C.

Docketing Errors
Finally, Westley protests alleged docketing errors that prevented the district

court from considering (1) his motion for an extension of time to respond to Miami
Dade’s motion to dismiss and (2) his motion for disqualification of Needleman’s
counsel and to strike Needleman’s motion to dismiss. The district court having
properly dismissed the entire complaint with prejudice sua sponte, any error
arising from the failure to docket these motions or transmit them to the Southern
District of Florida was harmless and did not affect Westley’s substantial rights.
See Fed. R. Civ. P. 61 (“Unless justice requires otherwise, no . . . error by the court
. . . is ground for . . . disturbing a judgment or order. At every stage of the
proceeding, the court must disregard all errors and defects that do not affect any
party’s substantial rights.”).
3

Because the district court properly dismissed the entire complaint with prejudice, we
need not consider its specific dismissal of the claims against defendant Needleman. Moreover,
dismissal of the claims against defendant Goolcharran was proper notwithstanding the clerk’s
entry of a default against her because Westley neither moved for nor received a default judgment
pursuant to Federal Rule of Civil Procedure 55(b)(2).
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IV.

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CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.

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