Bender et al v. Coram et al

Filing 38

MEMORANDUM OPINION AND ORDER For the reasons discussed within, the court DEEMS Mr. Bender's initial "Motion for Leave to File Second Amended Complaint" and Officer Coram and Officer Richardson's "Motion for Leave to File Sealed Document" to be MOOT. (Docs. 32 & 35, respectively). The court also DENIES Mr. Bender's "Motion for Leave to File (Corrected) Second Amended Complaint" (Doc. 36). Signed by Chief Judge Karon O Bowdre on 7/23/15. (SAC )

FILED
2015 Jul-23 AM 09:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRIAN J. BENDER, JR. BOBBY JOE
BELL, and CHRISTOPHER BURTS,
Plaintiffs,
v.
BARBARA ZEZULKA,
Defendant.

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Case No.: 2:14-cv-1583

MEMORANDUM OPINION & ORDER
This matter is before the court on the “Plaintiff’s Motion for Leave to File (Corrected)
Second Amended Complaint.” (Doc. 36). In that motion, Plaintiff Brian Bender seeks leave to
file a Second Amended Complaint, adding new claims against Defendant Barbara Zezulka. For
the reasons discussed below, the court DENIES Mr. Bender’s motion.
Background
In their First Amended Complaint, Plaintiffs Brian Bender, Bobby Joe Bell, and
Christopher Burts brought suit against Defendants Barbara Zezulka, Greg Coram, and Brad
Richardson. (Doc. 7). In that Complaint, the Plaintiffs asserted claims against all three
Defendants for unlawful arrest and false imprisonment. The Plaintiffs also asserted claims
against Officer Coram and Officer Richardson for unlawful search and seizure, violation of the
equal protection clause, deliberate indifference, and assault and battery.
On December 18, 2014, Ms. Zezulka filed a motion to dismiss the Plaintiffs’ two claims
against her. (Doc. 11). The court subsequently granted the motion as to all three Plaintiffs’ false
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imprisonment claims and Mr. Bell and Mr. Burts’s § 1983 unlawful arrest claims, dismissing
those claims with prejudice. (Doc. 25). The court also dismissed the three Plaintiffs’ claims
against Mr. Coram and Mr. Richardson with prejudice because the Parties had negotiated a
settlement. (Doc. 25). In sum, the only claim that this court did not dismiss with prejudice in the
case is Mr. Bender’s § 1983 claim for unlawful arrest against Ms. Zezulka.
On June 29, 2015, Mr. Bender filed a “Motion for Leave to File Second Amended
Complaint.” (Doc. 32). Mr. Bender attached to that motion a proposed Second Amended
Complaint, which included claims against Officer Coram and Officer Richardson. Likely
surprised to find themselves named once again as defendants, Officer Coram and Officer
Richardson objected to Mr. Bender’s motion to amend and filed their own motion for leave to
file a copy of the general release of liability and settlement executed by Mr. Bender. (Doc. 35).
The same day that Mr. Coram and Mr. Richardson filed their objection and motion, Mr. Bender
filed the pending “Motion for Leave to File (Corrected) Second Amended Complaint,” in which
he removed the claims against Officer Coram and Mr. Richardson from his proposed amended
complaint.
Discussion
As an initial matter, the court DEEMS Mr. Bender’s initial “Motion for Leave to File a
Second Amended Complaint” (doc. 32) and Officer Coram and Officer Richardson’s “Motion for
Leave to File Sealed Document” (doc. 35) to be MOOT in light of Mr. Bender’s subsequent
“Motion for Leave to File (Corrected) Second Amended Complaint” (doc. 36). Thus, the only
issue before the court is whether to grant Mr. Bender’s “Motion for Leave to File (Corrected)
Second Amended Complaint.” Having reviewed Mr. Bender’s motion, the court determines that
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the motion is due to be denied because Mr. Bender’s proposed amended complaint does not
comply with Federal Rule of Civil Procedure 10(b).
Under Rule 10(b), a plaintiff’s complaint may include only a single claim for relief in
each count. See Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cnty. Coll., 77 F.3d 364, 366
(11th Cir. 1996); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979–80 (11th Cir.
2008); Weiland v. Palm Beach Cnty. Sheriff’s Office, —F.3d—, No. 13-14396, 2015 WL
4098270, at *5 (11th Cir. July 8, 2015) (“The third type of shotgun pleading is one that commits
the sin of not separating into a different count each cause of action or claim for relief.”). Mr.
Bender’s proposed Second Amended Complaint does not comply with Rule 10(b) as two out of
his four counts contain multiple causes of action. In his proposed Second Amended Complaint,
Mr. Bender asserts the following counts: Count 1: Unlawful Arrest-Malicious Prosecution;
Count 2: 42 U.S.C. 1983 Unlawful Search and Seizure; Count III1: False Imprisonment,
Malicious Prosecution, Negligence; and Count IV: Assault and Battery.2 Because Mr. Bender’s
proposed Second Amended Complaint does not comply with Rule 10(b), the court DENIES Mr.
Bender’s motion to amend.
Should Mr. Bender file another motion to amend, the court reminds him that it previously
dismissed his false imprisonment claim against Ms. Zezulka with prejudice. Therefore, he
should not include that claim in his proposed amended complaint. Additionally, Mr. Bender’s
proposed Second Amended Complaint, although identified as being brought only by Mr. Bender,
appears to include claims brought by Mr. Bell and Mr. Burts. The court instructs Mr. Bender to

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Mr. Bender incorrectly identified this claim as Count V.

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Mr. Bender incorrectly identified this claim as Count VI.

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draft any future proposed amended complaints to clearly indicate whether Mr. Bell and Mr.
Burts join him in asserting claims against Ms. Zezulka.
Conclusion
For the reasons discussed above, the court DEEMS Mr. Bender’s initial “Motion for
Leave to File Second Amended Complaint” and Officer Coram and Officer Richardson’s
“Motion for Leave to File Sealed Document” to be MOOT. (Docs. 32 & 35, respectively). The
court also DENIES Mr. Bender’s “Motion for Leave to File (Corrected) Second Amended
Complaint.” (Doc. 36). The only motion now pending before the court in this case is Ms.
Zezulka’s “Renewed Motion for Judgment on the Pleadings.” (Doc. 29).
DONE and ORDERED this 23rd day of July 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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