Tinsley et al v. BP Corporation North America, Inc. et al

Filing 36

MEMORANDUM OPINION AND ORDER GRANTING IN PART and otherwise DENYING 25 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim, DENYING 31 MOTION for Default Judgment. Accordingly, Mr. Craig Cerise and Ms. Lynette Otto are both HEREBY DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction. Additionally, Counts Seven, Eight, and Nine of Mr. Tinsley's Amended Complaint are HEREBY DISMISSED WITH PREJUDICE. Finally, Mr. Tinsley is ORDERED to replead his Amended Complaint no later than July 20, 2015, as set out herein. Signed by Judge Virginia Emerson Hopkins on 6/16/2015. (JLC, )

FILED
2015 Jun-16 PM 01:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BRIAN R. TINSLEY,
Plaintiff,
v.
BP CORPORATION NORTH
AMERICA, INC., BP AMERICA,
INC., CRAIG CERISE, and
LYNETTE OTTO,
Defendants.

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) Case No.: 1:15-CV-123-VEH
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MEMORANDUM OPINION AND ORDER
I.

Introduction
Plaintiff Brian R. Tinsley (“Mr. Tinsley”), who is proceeding pro se, initiated

this breach of contract action on January 23, 2015. (Doc. 1). The four defendants
named in his lawsuit are BP Corporation North America, Inc. (“BP Corp.”), BP
America, Inc. (“BP America”), Craig Cerise (“Mr. Cerise”), and Lynette Otto (“Ms.
Otto”). (Doc. 15).
The case arises out of Mr. Tinsley’s efforts to become a commissioned broker
of petroleum products for BP Corp. and/or BP America, which began in February
2013. (Doc. 15 at 4 ¶ 15). Mr. Tinsley filed an amended complaint (Doc. 15) on
March 3, 2015, and this pleading includes nine counts: (i) breach of oral contract; (ii)

breach of implied contract; (iii) conspiracy to breach an oral contract; (iv) conspiracy
to breach an implied contract; (v) fraud; (vi) conspiracy to commit fraud; (vii)
deceptive business practice; (viii) conspiracy to commit deceptive business practices;
and (ix) financial discrimination. (Doc. 15 at 14-21 ¶¶ 45-80).
Pending before the court and challenging the viability of Mr. Tinsley’s
amended complaint is Defendants’ Motion to Dismiss (Doc. 25) (the “Dismissal
Motion”) filed on March 24, 2015. Defendants also filed their supporting brief (Doc.
26) and evidentiary materials (Doc. 27) on this same date. Because Mr. Tinsley is
representing himself, the court, on March 25, 2015, entered a special briefing order
(Doc. 30) on the Dismissal Motion.
Also pending before the court is a Motion for Default Judgment, Legal
Malpractice, [and] Fraud upon the Court (Doc. 31) (the “Default Motion”) filed by
Mr. Tinsley on April 13, 2015, as part of his response to Defendants’ Dismissal
Motion. Mr. Tinsley also filed a supporting memorandum (Doc. 32) on April 13,
2015. On April 27, 2015, Defendants filed their reply (Doc. 34) in support of their
Dismissal Motion.
Accordingly, the Dismissal Motion and the Default Motion are now both under
submission. For the reasons discussed below, Defendants’ Dismissal Motion is
GRANTED IN PART and otherwise DENIED. Further, Mr. Tinsley’s Default
2

Motion is DENIED.
II.

Standards
A.

Rule 12(b)(2)

In Madara v. Hall, 916 F.2d 1510 (11th Cir. 1990), the Eleventh Circuit
described the framework for evaluating personal jurisdiction challenges under Rule
12(b)(2) of the Federal Rules of Civil Procedure when subject matter jurisdiction is
premised upon diversity, as Mr. Tinsley relies upon here (Doc. 15 at 2 ¶ 6):1
When a district court does not conduct a discretionary evidentiary
hearing on a motion to dismiss for lack of jurisdiction, the plaintiff must
establish a prima facie case of personal jurisdiction over a nonresident
defendant. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988). A
prima facie case is established if the plaintiff presents enough evidence
to withstand a motion for directed verdict. Id. The district court must
accept the facts alleged in the complaint as true, to the extent they are
uncontroverted by the defendant’s affidavits. Id. Finally, where the
plaintiff's complaint and the defendant's affidavits conflict, the district
court must construe all reasonable inferences in favor of the plaintiff. Id.
The determination of personal jurisdiction over a nonresident
defendant requires a two-part analysis. Cable/Home Communication
Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir.1990);
Alexander Proudfoot Co., 877 F.2d at 919. First, we consider the
jurisdictional question under the state long-arm statute. Cable/Home
Communication Corp., 902 F.2d at 855; Alexander Proudfoot Co., 877

1

Mr. Tinsley mistakenly also suggests that subject matter jurisdiction exists under the
federal question statute, i.e., 28 U.S.C. § 1331. (Doc. 15 at 2 ¶ 7). However, because his case asserts
only state law claims and does not otherwise present a compelling federal interest for this court to
address, no federal question jurisdiction exists and only diversity jurisdiction gains him access to
federal court.
3

F.2d at 919. If there is a basis for the assertion of personal jurisdiction
under the state statute, we next determine whether sufficient minimum
contacts exist to satisfy the Due Process Clause of the Fourteenth
Amendment so that “maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’”
Madara, 916 F.2d at 1514 (emphasis added) (citing International Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945)).
B.

Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of a complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
4

Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
5

possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
C.

Rule 55

Rule 55 of the Federal Rules of Civil Procedure governs default judgments and
provides in part:
(a) Entering a Default. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, the clerk must enter the
party's default.
Fed. R. Civ. P. 55(a). Further, an entry of a default by the clerk is a prerequisite to
obtaining a default judgment against a defendant under Rule 55(b).
III.

Analysis
A.

Defendants’ Dismissal Motion
1.

Defendants’ Personal Jurisdiction Challenge

The first part of Defendants’ Dismissal Motion seeks a dismissal of Mr. Cerise
and Ms. Otto on personal jurisdiction grounds. Mr. Cerise and Ms. Otto have
supported this aspect of the Dismissal Motion with affidavits that establish their
limited involvement with Mr. Tinsley and, importantly, their lack of contacts with the
State of Alabama. (Doc. 27 at 5 ¶¶ 4-8; id. at 6 ¶¶ 4-7).2

2

Any page references to Doc. 27 correspond with the court’s CM/ECF numbering system.
6

As succinctly explained in LaSalle Bank N.A. v. Mobile Hotel Properties, LLC,
274 F. Supp. 2d 1293 (S.D. Ala. 2003), Mr. Tinsley is able to meet his burden of
establishing personal jurisdiction over Mr. Cerise and Ms. Otto in Alabama as
follows:
When a defendant challenges personal jurisdiction, the plaintiff
has the twin burdens of establishing that personal jurisdiction over the
defendant comports with (1) the forum state’s long-arm provision and
(2) the requirements of the due-process clause of the Fourteenth
Amendment to the United States Constitution. See Olivier v. Merritt
Dredging Co., 979 F.2d 827, 830 (11th Cir. 1992), cert. denied, 507
U.S. 983, 113 S. Ct. 1577, 123 L. Ed. 2d 145 (1993). Because
Alabama’s long-arm provision, Ala. R. Civ. P. 4.2(a), authorizes the
assertion of personal jurisdiction to the limits of the United States
Constitution, a plaintiff may carry both burdens by demonstrating that
personal jurisdiction over the defendant meets the requirements of
federal due process. Id. Due process requires, first, that the defendant
have “certain minimum contacts” with the forum state and, second, that
the exercise of jurisdiction over the defendant does not offend
“traditional notions of fair play and substantial justice.”
LaSalle, 274 F. Supp. 2d at 1296 (emphasis added); see also Morris v. SSE, Inc., 843
F.2d 489, 492 n.3 (11th Cir. 1988) (“This case presents no need to examine
Alabama’s long-arm jurisdictional statute because that statute authorizes a court to
assert personal jurisdiction to the limits of federal due process.”).
Mr. Tinsley’s amended complaint generally contends that personal jurisdiction
exists over Defendants. (Doc. 15 at 3 ¶¶ 9-11). However, Mr. Tinsley lumps all the
named defendants together as “BP” (see Doc. 15 at 1 (“to be hereafter referred to as
7

the defendant/s [sic] or BP”)) and makes no particularized allegations about why the
exercise of personal jurisdiction over Mr. Cerise or Ms. Otto as individual defendants
is constitutional. Importantly, Mr. Tinsley has neither made a sufficient threshold
showing why this court can exercise personal jurisdiction over either one of them, nor
rebutted any of the evidence contained in their affidavits establishing why the
exercise of personal jurisdiction over each of them is improper.
A plaintiff can either establish general or specific jurisdiction over the
defendant to satisfy the requirement of in personam jurisdiction. See, e.g.,
International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L.
Ed. 95 (1945) (detailing contours of appropriate and inappropriate exercise of
personal jurisdiction); see also Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414 nn.8-9, 104 S. Ct. 1868, 1872 nn. 8-9, 80 L. Ed. 2d 404 (1984)
(acknowledging distinction made between exercise of “specific” and “general”
jurisdiction); Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291
(11th Cir. 2000) (“The nature and quality of these contacts, however, vary depending
upon whether the type of personal jurisdiction being asserted is specific or general.”);
Ex parte Lagrone, 839 So. 2d 620, 627 (Ala. 2002) (“A nonresident defendant may
be subjected to Alabama’s general in personam jurisdiction if its contacts with this
State, although unrelated to the cause of action, are ‘continuous and systematic.’”)
8

(citing Helicopteros and other cases) (emphasis by underlining added).
To establish general jurisdiction over a defendant, a plaintiff must demonstrate
that the defendant’s connection with the forum state is “continuous and systematic.”
LaSalle Bank, 274 F. Supp. 2d at 1297; see also Sherritt, 216 F.3d 1286, 1292 (11th
Cir. 2000) (“The due process requirements for general personal jurisdiction are more
stringent than for specific personal jurisdiction, and require a showing of continuous
and systematic general business contacts between the defendant and the forum state.”
(citing Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055, 1057
(11th Cir. 1986))).
In contrast, to constitute minimum contacts for the purposes of specific
jurisdiction:
[The Eleventh Circuit] appl[ies] the three-part due process test, which
examines: (1) whether the plaintiff’s claims “arise out of or relate to” at
least one of the defendant’s contacts with the forum; (2) whether the
nonresident defendant “purposefully availed” himself of the privilege of
conducting activities within the forum state, thus invoking the benefit
of the forum state’s laws; and (3) whether the exercise of personal
jurisdiction comports with “traditional notions of fair play and
substantial justice.” See Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472-73, 474-75, 105 S. Ct. 2174, 2182-83, 85 L. Ed. 2d 528 (1985);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
413–14, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404 (1984); Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95
(1945); see also Oldfield, 558 F.3d at 1220-21; Sculptchair, Inc. v.
Century Arts, Ltd., 94 F.3d 623, 630-31 (11th Cir. 1996).

9

The plaintiff bears the burden of establishing the first two prongs,
and if the plaintiff does so, “a defendant must make a ‘compelling case’
that the exercise of jurisdiction would violate traditional notions of fair
play and substantial justice.” Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010).
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1335 (11th Cir. 2013)
(footnote omitted); see LaSalle Bank, 274 F. Supp. 2d at 1297 (similar); see also
Sherritt, 216 F.3d at 1291 (“The requirement that there be minimum contacts is
grounded in fairness.”).
Because of Mr. Cerise’s and Ms. Otto’s lack of any continuous or systematic
contacts with the State of Alabama,3 the court clearly cannot exercise general
jurisdiction over either one of them. As for specific jurisdiction, the court concludes
that a handful of telephone calls and even fewer email communications for a limited
period of time with a plaintiff who had an interest in becoming a broker, who initiated
the discussions about this commercial prospect at a local level first, and who happens
to reside in Alabama is simply not sufficient enough to meet the minimum contacts
test as framed by the Eleventh Circuit in Mosseri.

3

Ms. Otto has “driven through the state of Alabama several times in the past several years
while driving from Illinois to Florida.” (Doc. 27 at 6 ¶ 4). Mr. Tinsley does not contend, much less
cite to any case which holds that such a periodic passing-through presence in Alabama means that
Ms. Otto’s contacts meet the more demanding general jurisdiction standard. Cf. Sherritt, 216 F.3d
at 1292 (“Although Appellants strenuously argue that we need only find the minimum contacts
required for specific jurisdiction, it is clear to us that the applicable due process requirements are the
more restrictive ones of general jurisdiction.”) (emphasis added).
10

Mr. Cerise’s specific contacts with Mr. Tinsley include approximately five
emails and two telephone conversations occurring over the two-month period of
March and April of 2013. (Doc. 27 at 5 ¶ 7). Ms. Otto’s interaction with Mr. Tinsley
in Alabama is even less–she sent him only one email and never spoke to him on the
telephone. (Doc. 27 at 7 ¶ 7).
The court assumes without deciding that Mr. Tinsley can meet the first prong
of the minimum contacts standard, i.e., the parties’ dispute arises out of or relates to
one or more contacts that Defendants made with the forum. However, even with the
benefit of this jurisdictional assumption, neither Mr. Cerise’s nor Ms. Otto’s scarce
communications directed toward and/or responding to Mr. Tinsley in Alabama were
done so purposefully and with such a level of intentionality that they should
reasonably expect to be subject to the court’s jurisdiction merely because of Mr.
Tinsley’s presence here.
As the Eleventh Circuit explained the so-called “traditional” purposeful
availment prong in Mosseri:4
4

The Eleventh Circuit also described the alternative Calder “effects test” as “one that is
based on a plaintiff’s ties to the forum state and the harm suffered by the plaintiff[,]” but did not
analyze its applicability. Mosseri, 736 F.3d at 1357. The “effects test” is “unavailable in contract
cases” and “does not supplant the traditional minimum contacts test for purposeful availment
applicable in contract and tort cases alike.” Id. In Calder v. Jones, 456 U.S. 783, 104 S. Ct. 1482,
79 L. Ed. 2d 804 (1984), the Supreme Court created the “effects test” applicable to non-forum
tortious conduct resulting in an “allegedly libelous story concern[ing] the California activities of a
California resident” such that “California [wa]s the focal point both of the story and of the harm
11

Under the minimum contacts test for purposeful availment, we
assess the nonresident defendant’s contacts with the forum state and ask
whether those contacts: (1) are related to the plaintiff’s cause of action;
(2) involve some act by which the defendant purposefully availed
himself of the privileges of doing business within the forum; and (3) are
such that the defendant should reasonably anticipate being haled into
court in the forum. See Carrillo, 115 F.3d at 1542. In performing this
analysis, we identify all contacts between a nonresident defendant and
a forum state and ask whether, individually or collectively, those
contacts satisfy these criteria. See King & Hatch, Inc. v. S. Pipe &
Supply Co., 435 F.2d 43, 46 (5th Cir. 1970) (“Taken collectively, the
contacts of [the nonresident defendant] with the State of Alabama far
exceed those ‘minimum contacts’ which would allow Alabama to
constitutionally compel [the defendant] to defend this suit in the forum
state.”).
Mosseri, 736 F.3d at 1357 (emphasis added).
The overriding attenuated and inchoate nature as well as the low number of
contacts attributable to Mr. Cerise and Ms. Otto over a short-lived period of time are
insufficient to meet the purposeful availment prong. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474,105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1985) (“[T]he
constitutional touchstone remains whether the defendant purposefully established
‘minimum contacts’ in the forum State [such that a defendant] ‘should reasonably
anticipate being haled into court there.’” (quoting World-Wide Volkswagen Corp. v.

suffered.” 456 U.S. at 788, 789, 104 S. Ct. at 1486. Because, unlike the situation in Calder, Mr.
Tinsley “is [not] the focus of the activities of the defendants out of which the suit arises” and as all
his claims are either expressly or implicitly contract-related, the “effects test” does not apply here.
Cf. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (“A purposeful
availment analysis is most often used in suits sounding in contract.”)
12

Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 (1980))); Burger
King, 471 U.S. at 474, 105 S. Ct. at 2183 (“The unilateral activity of those who claim
some relationship with a nonresident defendant cannot satisfy the requirement of
contact with the forum State.” (internal quotations marks omitted) (quoting Hanson
v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d 1283 (1958)));
Burger King, 471 U.S. at 479, 105 S. Ct. at 2185 (“It is these factors—prior
negotiations and contemplated future consequences, along with the terms of the
contract and the parties’ actual course of dealing—that must be evaluated in
determining whether the defendant purposefully established minimum contacts within
the forum.”); see also Future Technology Today, Inc. v. OSF Healthcare, 218 F.3d
1247, 1251 (11th Cir. 2000) (concluding that “haled into court” prong was not met
when “[a]ll contract negotiations took place by telephone; the contract was signed by
the defendant in Illinois after at least two visits to that state by the plaintiff; the
defendant never came to Florida until after the purported initial breach”));
Aeropower, Ltd. v. Matherly, 511 F. Supp. 2d 1139, 1156 (M.D. Ala. 2007)
(“Considering the quality, nature, and extent of the Aero Records defendants’
contacts with Alabama, [including telephone, fax, mail and wire communications,]
as well as the association between these contacts and the instant litigation, the court
finds that none of said defendants’ contacts with Alabama can support a finding of
13

purposeful activity invoking the benefits and protections of Alabama.”); cf. BorgWarner, 786 F. 2d at 1063 (“The binding precedent in this circuit indicates that a
purchaser in an isolated transaction may not be subject to personal jurisdiction in a
seller’s state merely because the manufacturer performed its duties under the contract
there.” (emphasis added) (citing Owen of Georgia, Inc. v. Blitman, 462 F.2d 603 (5th
Cir. 1972)));5 Rhodes v. Unisys Corp., 170 F. App’x 681, 684 (11th Cir. 2006) (“It is
unlikely that a single contact [in the form of an email unrelated to causes of action
which the plaintiff ultimately brought in the lawsuit] with the forum state by
Weinbach will be sufficient to create jurisdiction over him by the courts in
Alabama.”) (citing Future Technology).
Thus, in light of the foregoing authorities and Mr. Tinsley’s failure to show the
existence of general jurisdiction or satisfy his second prong burden applicable to
specific jurisdiction, the Dismissal Motion is GRANTED as to the personal
jurisdiction portion,6 and Mr. Cerise and Ms. Otto are HEREBY DISMISSED
WITHOUT PREJUDICE from Mr. Tinsley’s lawsuit.
5

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
6

Because Mr. Tinsley has not carried his burden on the purposeful availment prong, the
court does not reach consideration of the “fair play and substantial justice” prong which Defendants
have the burden to carry. See Mosseri, 736 F.3d at 1358 (detailing and analyzing applicable
components of prong three to minimum contacts test).
14

2.

Defendants’ Rule 12(b)(6) Contentions
General 12(b)(6) Ruling

The second section of the Dismissal Motion contends that Mr. Tinsley has
failed to state a claim against any defendant in a fashion that comports with the
pleading requirements of Twombly and Iqbal–for a claim to survive a Rule 12(b)(6)
challenge by a defendant post-Twombly and Iqbal, the cause of action, as alleged, can
no longer just be merely possible or theoretical, but rather it must be plausible under
the applicable law and asserted in a good faith factual manner beyond simply an
assertion conveying to the court that “I was done wrong.” See Iqbal, 556 U.S. at 678,
129 S. Ct. at 1949 (explaining that Rule 8 pleading standard requires more from a
plaintiff than merely “labels and conclusions[,]” “a formulaic recitation of the
elements of a cause of action[,]” or “naked assertion[s]” without “further factual
enhancement” (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555,
557, 127 S. Ct. at 1965, 1966)).
Here, Defendants are correct that neither Mr. Tinsley’s pleading nor his
opposition to their Dismissal Motion “alleges anything that comes close to satisfying
the legal elements of the nine [purported] claims that he makes under Alabama law.”
(Doc. 34 at 3). However, rather than an outright dismissal of his case with prejudice,
the court concludes that, because he is representing himself, the more appropriate
15

relief in this instance is to give Mr. Tinsley the opportunity to replead only those
claims that are plausible under either Alabama or federal law against BP Corp. and
BP America as Mr. Cerise and Ms. Otto are no longer defendants in his case, having
been dismissed above on jurisdictional grounds.
In repleading, Mr. Tinsley must draft a much more definite and comprehendible
pleading. His claims against each defendant must be set forth in separately numbered
counts and not asserted against Defendants collectively. Additionally, Mr. Tinsley
should refrain from incorporating allegations by reference, endeavor to streamline his
claims and allegations, and reduce unnecessary duplication of his contentions. In his
replacement pleading, Mr. Tinsley must break down each one of his claims into its
requisite elements and connect those elements to those facts which in good faith took
place and which plausibly support why that defendant is liable to him under that
specific claim. If Mr. Tinsley lacks facts to plausibly support the elements of a claim,
then he should omit that claim from his replacement pleading.
The deadline for Mr. Tinsley to replead his amended complaint is on or before
July 20, 2015. The court cautions Mr. Tinsley that the failure to replead his
complaint in an acceptable manner that comports with the Federal Rules of Civil
Procedure as required by this order may result in a dismissal of his entire case
with prejudice.
16

Count Specific Dismissals
While the court is giving Mr. Tinsley the opportunity to replead his amended
complaint, such repleader shall not include any deceptive trade practices claim as
Defendants have demonstrated the untimeliness of that alleged statutory violation.
Specifically, § 8-19-14 of Alabama’s Deceptive Trade Practices Act (“DTPA”)
provides in pertinent part:
No action may be brought under this chapter more than one year after
the person bringing the action discovers or reasonably should have
discovered the act or practice which is the subject of the action, but in
no event may any action be brought under this chapter more than four
years from the date of the transaction giving rise to the cause of action
unless the contract or warranty is for more than three years.
Ala. Code § 8-19-14 (emphasis added). Here, Mr. Tinsley objects to Defendants’
alleged wrongful conduct that took place in March and/or April of 2013 and, yet, he
did not initiate this case until over one year later, on January 23, 2015. (Doc. 1).
Additionally, while Mr. Tinsley has attempted to bring a breach of contract claim,
nowhere has he alleged anything that would plausibly trigger the DTPA’s longer
statute of limitations period for contracts lasting more than three years. Consequently,
any purported deceptive trade practices violation is unambiguously time-barred by
the DTPA’s one-year provision and, thus, it is an implausible claim.
Further, in the absence of an underlying timely deceptive trade practices claim,

17

Mr. Tinsley’s asserted conspiracy to commit deceptive business practices is likewise
an implausible count and is due to be dismissed with prejudice. See, e.g., Callens v.
Jefferson County Nursing Home, 769 So. 2d 273, 280 (Ala. 2000) (“A plaintiff
alleging a conspiracy must have a valid underlying cause of action.” (citing Drill
Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1290 (Ala. 1993))); Callens, 769
So. 2d at 280 (“[A] conspiracy claim must fail if the underlying act itself would not
support an action” (internal quotation marks omitted) (quoting Triple J Cattle, Inc.
v. Chambers, 621 So.2d 1221, 1225 (Ala. 1993))).
When repleading Mr. Tinsley must also omit his purported claim for financial
discrimination because neither Alabama nor federal law recognizes such a cause of
action. (See Doc. 26 at 26 ([H]is Complaint [does not] provide any law or statute
which defines such cause of action.”)). Accordingly, the Rule 12(b)(6) portion of the
Dismissal Motion is GRANTED with respect to Counts Seven, Eight, and Nine, and
those claims are HEREBY DISMISSED WITH PREJUDICE from Mr. Tinsley’s
lawsuit.
B.

Mr. Tinsley’s Default Motion

Mr. Tinsley’s Default Motion seeks to have this court enter a default judgment
against Defendants on his claims. However, to the extent that Mr. Tinsley is seeking
such the relief under Rule 55, his request is inappropriate for at least two reasons.
18

First, Mr. Tinsley has not obtained an entry of default by the clerk under Rule 55(a)
and, without that procedural prerequisite, his motion for judgment by default under
Rule 55(b) lacks an essential component. Second, by filing their Dismissal Motion,
Defendants have responded to and defended against his lawsuit consistent with their
obligations under the Federal Rules of Civil Procedure and, as a result, neither an
entry of default pursuant to Rule 55(a) nor an entry of default judgment pursuant to
Rule 55(b) is appropriate.
Alternatively, to the extent that Mr. Tinsley seeks a judgment by default as
some type of sanction against Defendants for their conduct, nothing that they have
done in this litigation warrants a sanction, much less one in the extreme form of a
default judgment. See, e.g., United Artists Corp. v. Freeman, 605 F.2d 854, 856 (5th
Cir. 1979) (“A default judgment is clearly ‘a drastic remedy and should be resorted
to only in extreme situations.’” (emphasis added) (quoting Charlton L. Davis & Co.
P. C. v. Fedder Data Center, 556 F.2d 308, 309 (5th Cir. 1977))); Cox v. American
Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir. 1986) (“The decision to dismiss
a claim, like the decision to enter a default judgment, ought to be a last
resort—ordered only if noncompliance with discovery orders is due to willful or bad
faith disregard for those orders.” (emphasis added) (citing Coors v. Movement
Against Racism, 777 F.2d 1538, 1542 (11th Cir. 1985))). Accordingly, Mr. Tinsley’s
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Default Motion is DENIED.
IV.

Conclusion
Defendants’ Dismissal Motion is GRANTED IN PART and otherwise is

DENIED. Accordingly, Mr. Cerise and Ms. Otto are both HEREBY DISMISSED
WITHOUT PREJUDICE for lack of personal jurisdiction. Additionally, Counts
Seven, Eight, and Nine of Mr. Tinsley’s amended complaint are HEREBY
DISMISSED WITH PREJUDICE. Further, Mr. Tinsley’s Default Motion is
DENIED. Finally, Mr. Tinsley is ORDERED to replead his amended complaint in
a plausible, good faith manner against BP Corp. and BP America only and omitting
any reference to those specific claims that have been dismissed with prejudice by this
order, no later than July 20, 2015.
DONE and ORDERED this the 16th day of June, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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