Burch v. Baker et al
MEMORANDUM OPINION AND ORDER that the motions to dismiss filed by defendants McIntyre, Baker, Hamilton, Lansdell, and Rager are overruled, but Rager's motion for more definite statement is GRANTED; and, it is ORDERED that plaintiff, John Wesley Burch, file a third amended complaint by 1/16/2013, It is further ORDERED that such third amended complaint must fully comply with all requirements set out in this order, without exception as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/2/2013. (AHI)
2013 Jan-02 PM 01:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JOHN WESLEY BURCH,
JEREMY KEITH BAKER, et al.,
Civil Action No. CV-11-S-3770-NW
MEMORANDUM OPINION AND ORDER
Plaintiff, John Wesley Burch, commenced this action on October 28, 2011. His
pro se complaint was 32 pages long, and named five defendants: Jeremy Keith
Baker, an Alabama State Trooper; Angie Hamilton, an Assistant District Attorney for
Lauderdale County, Alabama; Ronald Lansdell, an investigator employed by the
Lauderdale County District Attorney; the City of Florence, Alabama; and Luke
McIntyre, an officer of the Florence, Alabama police force. Plaintiff’s claims arose
from an allegedly unlawful arrest that occurred on October 28, 2009.1
Before serving any of those defendants with process and copies of his original
complaint, however, plaintiff filed an amended complaint on November 17, 2011.
That pleading was 79 pages long — more than twice the length of the original.2
Doc. no. 1 ¶¶ 3-7.
Doc. no. 3.
Defendants Angie Hamilton and Ronnie Lansdell jointly filed a motion for
more definite statement pursuant to Federal Rule of Civil Procedure Rule 12(e) on
January 17, 2012.3 Defendant Jeremy Keith Baker filed a similar motion two days
later.4 Hamilton, Lansdell, and Baker argued that plaintiff’s amended complaint was
deficient for several reasons: e.g., it was a “shotgun” pleading; it was excessively
long; several of the numbered paragraphs contained multiple statements of fact, rather
than a single discrete fact; several of the paragraphs were misnumbered; the
complaint contained speculation and legal conclusions, rather than statements of fact;
and the complaint failed to divide plaintiff’s claims into discrete counts.5 All three
defendants requested that plaintiff be ordered to file an amended complaint that
complied with the Federal Rules of Civil Procedure. The motion jointly filed by
Hamilton and Lansdell additionally requested that the amended complaint be limited
to ten pages in length.6 Plaintiff was ordered — not just once, but twice — to file his
responses to those motions by February 3, 2012,7 but he failed to do so.
Doc. no. 7.
Doc. no. 10.
See generally doc. no. 8 (Brief in Support of Motion for More Definite Statement of
Lansdell and Hamilton), doc. no. 11 (Brief in Support of Motion for More Definite Statement of
Doc. no. 8, at 7.
Doc. no. 9 (Jan. 18, 2012 Order to Respond To Hamilton and Lansdell motion); doc. no.
12 (Jan. 19, 2012 Order to Respond to Baker motion).
The City of Florence, Alabama, filed a motion to dismiss on February 2, 2012,
based upon Federal Rule of Civil Procedure Rule 12(b)(6). The City argued that the
complaint contained no factual allegations regarding the City as an entity, and that
the statute of limitations had expired.8 On the same day, defendant Luke McIntyre
filed a motion for a more definite statement, raising the same arguments stated in the
motions previously filed by the other individual defendants.9 McIntyre requested that
plaintiff be ordered to replead his complaint, and that the new complaint be limited
to twenty pages.10 McIntyre and the City of Florence also jointly filed a motion to
stay discovery and suspend their obligation under Federal Rule of Civil Procedure 26,
pending disposition of the motions to dismiss and for more definite statement.11 The
court ordered plaintiff to respond to those motions by February 17, 2012.12
Plaintiff did not strictly respond to any of the pending motions. Instead, on
February 9, 2012, he filed a motion for leave to submit a “consolidated response.”
Plaintiff stated that he “would be prejudiced by filing a response that addressed only
the issues and concerns aired in any one or multiple Defendant’s motion [sic] for
Doc. no. 13. As discussed below, the City was dismissed from the case after plaintiff filed
his second amended complaint that did not include the City as a defendant. See doc. no. 39 (Order
entered Apr. 16, 2012).
Doc. no. 15.
Id. ¶ 7.
Doc. no. 16.
Doc. no. 17 (Order to Respond).
more definite statement without also addressing the issues and concerns raised in all
such filed motions”; therefore, he requested leave “to file a single more definite
statement that will function as a consolidated Response to Respective Defendant’s
Motions for More Definite Statement . . . .”13 Plaintiff requested the same filing
deadline already in place for his responses to the motions of the City and McIntyre:
i.e., February 17, 2012.14 This court granted plaintiff’s motion.15
Thus, plaintiff filed a second amended complaint on February 17, 2012.16 That
pleading removed the City of Florence as a defendant — thus ending its involvement
in this case17 — but added another defendant: Kenneth Rager, a digital forensics
investigator employed by the Alabama Department of Revenue.18 The second
amended complaint is 159 pages long, exclusive of exhibits.19 It contains 424
numbered paragraphs, twenty-four footnotes, and seven counts.20
In response to plaintiff’s second amended complaint, defendants McIntyre,
Hamilton and Lansdell jointly, and Baker filed on March 2, 2012 motions to dismiss
Doc. no. 18, at 2 (emphasis in original).
Doc. no. 19 (Order Granting Motion for Leave to File Consolidated Response).
Doc. no. 20 (Second Amended Complaint).
See doc. no. 39 (Order entered Apr. 16, 2012), at 2 (dismissing City from the case).
See id. ¶ 7.
See generally id.
See generally id.
this action pursuant to Federal Rule of Civil Procedure 41(b).21 Plaintiff timely
responded to those motions on March 20, 2012.22
Kenneth Rager, the new defendant named in the second amended complaint,
was served on March 16, 2012.23 After obtaining an extension of time to answer,
Rager filed his own motion for a more definite statement on April 12, 2012.24 That
motion differs from the motions for a more definite statement filed by the other
defendants, in that Rager’s motion addresses plaintiff’s second — rather than his first
— amended complaint. Rager subsequently filed a motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 41(b).25 Plaintiff has not responded
to either of Rager’s motions.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 41(b)
According to Federal Rule of Civil Procedure 41, when a plaintiff “fails to
prosecute or 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). The power to
See doc. no. 22 (Motion to Dismiss by Luke McIntyre); doc. no. 23 (Motion to Dismiss by
Jeremy Keith Baker); doc. no. 26 (Motion to Dismiss by Angie Hamilton and Ronald Lansdell).
Doc. no. 32 (Plaintiff’s Response to McIntyre’s Motion to Dismiss); doc. no. 33 (Plaintiff’s
Joint Response to Motions to Dismiss by Baker, Hamilton, and Lansdell).
Doc. no. 34 (Executed Summons).
Doc. no. 37 (Motion for More Definite Statement by Kenneth Rager).
Doc. no. 46 (Motion to Dismiss by Kenneth Rager).
dismiss under Rule 41(b) is discretionary. Even so, the district court’s discretion is
tempered by the requirement that there be “a clear record of ‘willful’ contempt and
an implicit or explicit finding that lesser sanctions would not suffice.” Gratton v.
Great American Communications, 178 F.3d 1373, 1374 (11th Cir. 1999); see also,
e.g., Reed v. Fulton County Government, 170 F. App’x 674, 675-76 (11th Cir. 2006)
(same); Beckwith v. Bellsouth Telecommunications Inc., 146 F. App’x 368, 372 (11th
Cir. 2005) (per curiam) (“Because dismissal with prejudice is a drastic sanction, a
district court may impose it only as a last resort, when: (1) the failure to comply with
a court order [or the federal rules] is a result of willfulness or bad faith, and (2) the
district court specifically finds that lesser sanctions will not suffice.”) (alteration
supplied, internal citations omitted).
“Shotgun” Pleadings and Rules 8(a)(2), 8(d)(1), 10(b), and 12(e)
The Eleventh Circuit has frequently condemned so-called “shotgun pleadings.”
See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) (en banc)
(citing Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir. 1997). “A shotgun
pleading is a pleading that incorporates every antecedent allegation by reference into
each subsequent claim for relief or affirmative defense.” Wagner v. First Horizon
Pharmacy Corp., 464 F.3d 1273, 1279 (11th Cir. 2006); see also, e.g., Strategic
Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th
Cir. 2002); McMahon v. Cleveland Clinic Foundation Police Department, 455 F.
App’x 874, 877 (11th Cir. 2011) (per curiam).
Shotgun pleadings implicate (and typically violate) several of the Federal Rules
of Civil Procedure. For instance, Rule 8(a)(2) requires a complaint to contain a
“short and plain statement of the claim showing that the pleader is entitled to relief,”
and which gives the opposing party notice of the claim and its grounds. Fed. R. Civ.
P. 8(a)(2) (emphasis supplied); see also Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Rule 8(d) states that “[e]ach allegation [in a pleading] must be
simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1) (alterations and emphasis
supplied). Yet, there is nothing “short and plain,” or “simple, concise, and direct,”
about a shotgun pleading. If left undisturbed, such a pleading forces a court to “sift
through the facts presented and decide for [itself] which were material to the
particular cause of action asserted.” Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th
Cir. 1991) (alteration supplied). Federal Rule of Civil Procedure 10 also provides
A party must state its claims or defenses in numbered paragraphs,
each limited as far as practicable to a single set of circumstances. A
later pleading may refer by number to a paragraph in an earlier pleading.
If doing so would promote clarity, each claim founded on a separate
transaction or occurrence — and each defense other than a denial —
must be stated in a separate count or defense.
Fed. R. Civ. P. 10(b) (emphasis supplied). By definition, then, a shotgun pleading
“completely disregards Rule 10(b)’s requirement that discrete claims should be plead
in separate counts.” Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)
(citing Anderson v. District Board of Trustees of Central Florida Community College,
77 F.3d 364, 366-67 (11th Cir. 1996)).
When a complaint takes the form of a “shotgun pleading,” the defendant is not
required to submit a responsive pleading. See Anderson, 77 F.3d at 366. Instead, the
defendant is encouraged — in fact, expected — to move for a more definite statement
pursuant to Federal Rule of Civil Procedure 12(e).26 Id. If the defendant does not
take matters into his own hands, the court should address the issue sua sponte. See
Magluta, 256 F.3d at 1284-85 (noting that, when faced with a shotgun complaint, the
court should strike the complaint and require plaintiff to replead in accordance with
Rule 8); United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th Cir.
2006); Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001).
The referenced Rule provides that:
A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response. The motion must be made before filing a
responsive pleading and must point out the defects complained of and the details
desired. If the court orders a more definite statement and the order is not obeyed
within 14 days after notice of the order or within the time the court sets, the court
may strike the pleading or issue any other appropriate order.
Fed. R. Civ. P. 12(e).
The original motions for a more definite statement filed by Baker, Hamilton
and Lansdell jointly, and McIntyre individually are due to be denied as moot.27 Those
motions addressed plaintiff’s first amended complaint, which has since been
superceded by his second amended complaint.
Plaintiff’s second amended complaint is a classic “shotgun complaint” that
contravenes Federal Rules of Civil Procedure 8 and 10. The first paragraph within
each numbered count realleges and incorporates by reference the allegations set forth
in each of the preceding paragraphs of the complaint.28 The complaint does not offer
a “short and plain” statement of plaintiff’s claims, and its allegations are not “simple,
concise, and direct.” Fed. R. Civ. P. 8(a)(2), 8(d)(1). This court need not wade
through the entirety of the 159-page, 424-paragraph pleading in order to extensively
catalog how it violates Rule 8.29 Instead, the following extracts will serve to illustrate
the complaint’s typically verbose and convoluted nature.
See doc. no. 7 (Motion for More Definite Statement by Angie Hamilton and Ronald
Lansdell); doc. no. 10 (Motion for More Definite Statement by Jeremy Keith Baker); doc. no. 15
(Motion for More Definite Statement by Luke McIntyre).
Doc. no. 20-1 (Second Amended Complaint) ¶¶ 355, 363, 382, 391, 406, 411, 417.
Plaintiff contends that the length of a complaint is not sufficient, by itself, to render a
complaint improper. See doc. no. 32 (Response to McIntyre’s Motion to Dismiss) ¶ 4. But at
minimum, the length of a complaint is certainly a factor to be considered. Combined with its other
flaws, the court easily concludes that the second amended complaint does not meet the standards set
forth in the Federal Rules of Civil Procedure.
240. Had Hamilton actually believed that probable cause existed
to believe that Plaintiff had committed the offense [sic] of stalking
offense as she advised Trooper Baker on seizing Plaintiffs property on
October 28, 2009, and then helped him draft the affidavit for search
warrant as to the stalking offense later that evening, and had Hamilton
actually believed that probable cause existed as to the same search
warrant as to the stalking offense, this time additionally bolstered by the
fabricated “smoking gun” images allegedly taken of Trooper Baker or
his car prior to the stop on October 28, 2009, and additionally bolstered
by the addition to her fraudulent presentation of Plaintiffs alleged
verbally communicated physical threat in the form of the notepad and
its transcribed writing of parts or all of the October 28, 2009 cellular
phone conversation between Plaintiff and Lansdell, then Hamilton, upon
the district court's supreme graciously finding as to probable cause as to
the stalking offense would have had no reason not to have sought an
241. Had Hamilton sought an indictment, however, consistent
with her hard fought claims as to existence of probable cause as to the
stalking offense, she would have surely been familiar with the “smoking
gun” photographic evidence of Trooper Baker that she had reported in
the face of the Plaintiffs [sic] denials at the November 12, 2009 hearing
as Trooper Baker was the only individual described in the affidavit in
support of search warrant who — between Defendant Baker’s own
fabricated claim of Plaintiffs [sic] August 7, 2009 photography of he and
his nephew at a Pure Gas Station in Killen, Alabama at 3:30 pm and
Hamilton’s complementary bolstering in the form of the fabricated claim
of evidence of Plaintiffs pre-arrest photographic stalking of Trooper
Baker on October 28, 2009 — would have met the Alabama’s stalking
statute's requirement that the victim be repeatedly followed.
242. In addition, as there was absolutely no proof whatsoever that
any of the photographs alleged in the affidavit had ever, in fact, been
taken, the stalking photograph(s) that Hamilton had alleged that Plaintiff
had taken of Trooper Baker and/or his patrol vehicle prior to the October
28, 2009 stop would have been the only supporting photographic
evidence that Hamilton would have had available to present to the grand
jury. Even if Hamilton had somehow decided not to present such
photographs to a grand jury, there is no reasonable or rational theory that
Hamilton had sought an indictment on the stalking offense and not been
have become aware of the fact that the photographs that she had claimed
existed were nowhere to be seen.
243. Hamilton’s superficially nonchalant admission that she had
never seen the photographs of Plaintiff stalking Trooper Baker and/or
his patrol car on October 28, 2009 — the same photographs she
emphatically claimed existed against Plaintiff’ [sic] denials on
November 12, 2009 and that Hamilton should have been very interested
in analyzing given the potential danger that these photographs suggested
Trooper Baker and his family were in — coupled with her still-stated
belief that investigator Rager had, in fact, identified the photographs of
Trooper Baker that she had claimed revealed Plaintiff's October 28,
2009 pre-stop staling of Baker, is quite telling.
244. Because these photographs that Plaintiff had, through his
denials as to having taken such photographs, ostensibly perjured himself
over, and that would tend to suggest that Trooper Baker and his family
were being stalked by Plaintiff, were centrally relevant to Hamilton’s
supposed interest in prosecuting the Plaintiff for stalking, Hamilton’s
casual admission that she had never seen these photographs, but
accompanying profession in a belief as to their existence, is only
rationally explained by Hamilton’s actual knowledge that the
photographs that she ordered Rager to fraudulently document in an
evidentiary report never, in fact, existed, thus explaining her lack of
concern as to where the photographs bearing on Baker’s safety were
located, an individual who she knew was never being stalked, followed,
or photographed by Plaintiff.30
Plaintiff’s second amended complaint also violates Rule 10(b). For instance,
with the sole exception of Count II, all remaining counts of the seven-count pleading
Doc. no. 20-1(Second Amended Complaint) ¶¶ 240-244 (all emphasis in original).
state claims against multiple defendants.31 Moreover, many of the individually
numbered counts contain multiple legal claims for relief. Thus, for example, Count
IV alleges “[v]iolations of 42 U.S.C. § 1983 [for] First Amendment Retaliation, False
Arrest and Imprisonment, Illegal Search and Seizure, Malicious Prosecution,
Selective Prosecution, Abuse of Process, Law Enforcement Retaliatory Conduct,”
while Count V alleges “[v]iolations of State Law [for] False Arrest and Imprisonment,
Malicious and Selective Prosecution/Equal Protection Claim; Abuse of Process;
Outrage; False Light; Invasion Of Privacy; Intentional and Negligent Infliction of
Such pleadings should not be permitted, as they place heavy burdens on the
litigants, as well as the court. See Strategic Income Fund, L.L.C., 305 F.3d at 1296
nn.9-10 (noting the negative effects of shotgun pleadings); Bryne, 261 F.3d at 112932 (discussing the evils associated with shotgun complaints).
The issue that confronts this court is whether to dismiss the second amended
complaint or require plaintiff to replead his claims. Considerations that bear upon
that decision exist not only in the present case, but also another action that previously
was filed in this court and dismissed on December 17, 2012: i.e., John Wesley Burch
See id. ¶¶ 355-424.
Id. at 147 (Heading to Count IV), 151 (Heading to Count V).
v. City of Florence, Alabama; Luke McIntyre; and Philip Moss, Civil Action No. 10s-2417-NW (hereafter, “the City of Florence case”).
In the present case, none of plaintiff’s three complaints have even closely
approximated the requirements of Federal Rules of Civil Procedure 8 or 10. After the
opposing parties identified and catalogued the problems with his first amended
complaint,33 plaintiff indicated that he would “address the concerns raised in each of
the various Defendant’s [sic] motion[s].”34
Yet, his second amended complaint also failed to comply with the Rules;
indeed, at 159 pages and 424 paragraphs, it is not rationally possible to argue
reasonably that the document constitutes a “a short and plain statement of the
[plaintiff’s] claim[s] showing that the pleader is entitled to relief,” or that each
allegation is “simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1) (alterations
supplied). Additionally, plaintiff refused to comply with this court’s two orders
directing him to respond to the defendants’ motions for a more definite statement by
February 3, 2012.35
E.g., doc. no. 8 (Brief in Support of Motion for More Definite Statement by Hamilton and
Lansdell), at 2-7; doc. no. 11 (Brief in Support of Motion for More Definite Statement by Jeremy
Baker), at 5-10; doc. no. 15 (Motion for More Definite Statement by Luke McIntryre), at 1-5; see
doc. no. 22 (Motion to Dismiss by Luke McIntyre), at 9-10 ¶ 11.
Doc. no. 18 (Motion for Leave to File Consolidated Responses), at 2.
See supra note 7.
As noted previously, however, this is not the only case in which this court has
battled to procure plaintiff’s compliance with either the Federal Rules of Civil
Procedure or this court’s orders. The City of Florence case illustrates the difficulties
encountered when indulging plaintiff.
In the memorandum opinion granting
summary judgment in favor of the defendants in that action, this court listed examples
of plaintiff’s disregard for court-ordered deadlines and procedures. As illustrated in
the following extracts from pages 3 through 9 of that opinion, plaintiff’s
transgressions included: failure to timely provide initial disclosures; failure to
comply with the court’s order to respond to a motion to compel; delaying the
scheduling of his deposition for over six months; repeatedly requesting “emergency”
filing arrangements, after the normal closing hours for the Clerk of Court; filing a
repetitious motion to consolidate after the plaintiff’s motion for joinder had been
denied; multiple failures to timely respond to a motion for summary judgment; filing
documents in the wrong judicial district; and repeated violations of court-ordered
briefing requirements.36 This court began the City of Florence opinion by observing
Plaintiff did not submit any evidence, or a brief, in opposition to
defendants’ motions for summary judgment. In fact, plaintiff has a
Burch v. City of Florence, No. CV-10-S-2417-NW, slip op. at 3-12 (N.D. Ala. Dec. 17,
history of missing court-ordered deadlines and disregarding the court’s
procedures throughout this litigation. For example, on August 17, 2011,
the court granted defendants’ motion to compel discovery and ordered
plaintiff to serve defendants with his initial disclosures and responses to
all of defendants’ written discovery requests. Plaintiff had failed to
comply with the court’s order to respond to defendants’ motion to
compel, and had instead attempted to provide discovery responses to
defendants’ attorney via electronic mail. Plaintiff was advised that he
would be required to strictly comply with the court’s orders in the
future, and that communicating with opposing counsel was not sufficient
to comply with his duty to respond to a court order.
On December 2, 2011, after approximately six months of
unsuccessfully attempting to schedule plaintiff’s deposition and
otherwise obtain discovery from him, defendants filed a motion to
dismiss plaintiff’s claims for failure to prosecute. Plaintiff was ordered
to show cause why defendants’ motion should not be granted; and, while
he filed two separate responses to the show cause order, he never
explained his failures to meaningfully engage in the discovery process,
but instead filed more than sixty pages of argument on the merits of his
claims. Affording plaintiff leeway because of his pro se status, this
court denied defendants’ motion to dismiss on January 6, 2012, and
advised plaintiff that it would expect his future compliance with court
orders and the requirements of the Federal Rules of Civil Procedure,
despite his pro se status. The court extended the discovery deadlines in
order to provide plaintiff yet another opportunity to comply with his
discovery obligations, and cautioned plaintiff that if he did not appear
for deposition at a time and place of defendants’ choosing by February
6, 2012, his case would be dismissed without further notice.
Plaintiff later sought a further extension of the discovery
deadlines, which the court granted, but advised plaintiff that it would be
his final extension. The court also noted that plaintiff had developed an
unnecessary habit of requesting the Clerk of Court to make emergency
arrangements to accept his filings after hours, and informed plaintiff that
all future filings must be received by the Clerk no later than 4:30 o’clock
p.m. The court also stated:
If plaintiff makes any future special requests for late
filings, he will be required to submit with the filing a
detailed, sworn statement of the nature of his alleged
emergency. If the court deems plaintiff’s statement to be
insufficient, plaintiff may be subject to sanctions, including
having his pleading stricken from the record, for abuse of
the court’s procedures. Forgetting a deadline or other lack
of diligence will not be an acceptable excuse. Even though
plaintiff is proceeding pro se, he still must be expected to
comply with basic court rules and procedures.
On May 25, 2012, plaintiff filed 304 pages of briefing and
evidence in support of a motion for joinder of this case with another
lawsuit he filed in this district. As plaintiff’s motion for joinder
essentially was a repetition of his previous motion to consolidate, it was
denied. In the order denying the motion for joinder, the court noted that
plaintiff had devoted the overwhelming majority of his voluminous brief
to a superfluous discussion of the merits of his claims. In order to
prevent any future waste of the court’s (and plaintiff’s) time, plaintiff
was cautioned that he should not argue the underlying merits of his case
in every filing, and that any future briefs filed in support of or in
opposition to a motion should address only the limited issues implicated
by such motions. The court also mandated that all future briefs by either
party should not exceed 40 pages of double-spaced, fourteen-point (or
larger) type, unless advance permission had been granted, and advised
that any non-compliant briefs would be stricken.
Defendants filed their motions for summary judgment on June 11,
2012. The court entered two separate orders that same day, requiring
plaintiff to respond to both motions by July 3, 2012, and reminding him
that his responses must comply with the requirements of the Appendix
to the Uniform Initial Order. Plaintiff did not respond to either motion
for summary judgment before July 3. Instead, the Clerk’s Office notes
indicate that plaintiff telephoned that office at approximately 4:15
o’clock p.m. on July 2, to inquire who would be serving as the “after
hours clerk” that day. He also advised the Clerk’s Office staff that he
would be in Huntsville to file a pleading at approximately 5:15 or 5:30
o’clock p.m. that day. Plaintiff did not arrive in Huntsville by 5:30 on
July 2 to file his pleading. Instead, he placed it in the overnight drop
box at the Clerk’s Office of the United States District Court for the
Middle District of Alabama in Montgomery, Alabama. The Middle
District subsequently forwarded plaintiff’s pleading, which was a
motion for extension of time to respond to defendants’ motions for
summary judgment, and for leave to exceed the page limitation, to this
court for filing, and it was accepted and placed on the docket of this case
on July 5, 2012. This court leniently granted plaintiff an extension until
July 24 to respond to defendants’ motions for summary judgment. The
court also allowed plaintiff thirty pages to respond to the motion filed
by the City, and fifty pages to respond to the motion filed by McIntyre
and Moss. The court advised plaintiff that his briefs otherwise must
strictly comply with the requirements of the Appendix to the Uniform
Initial Order, and cautioned him that any non-compliant briefs would be
stricken. The court also ordered that all future filings by either party
were required to be made by 4:30 o’clock p.m. on the day they were due,
with no exceptions, and no provisions to be made for late or noncompliant filings.
Despite the court’s clear directives, plaintiff did not file a
response to either motion for summary judgment before July 24. Indeed,
the court heard nothing further from plaintiff until August 17, 2012,
when he filed a “motion requesting leave to file out of time motion to
strike with incorporated memorandum in excess of page limitation.”
The essence of plaintiff’s motion was a request for this court to strike
any affidavits from witnesses that had not previously been disclosed,
and to strike any testimony about subject matters that had not previously
been discussed. Plaintiff’s motion for leave was thirteen pages long, and
the proposed motion to strike appended to the motion for leave was
ninety-two pages in length, and was accompanied by an additional
thirty-nine pages of exhibits. As plaintiff’s motion failed to comply with
the court’s previous directives, it was summarily denied on August 30,
2012. On September 21, 2012, plaintiff filed a “motion requesting leave
to file out of time motion to strike with incorporated memorandum of
law in excess of page limitation.” The motion to strike that plaintiff
sought to file covered eighty-seven pages and asked the court to strike
defendants’ “dashcam evidence,” i.e., the patrol car video recording of
one of the primary incidents forming the basis of plaintiff’s claims. The
court summarily denied plaintiff’s motion on September 26, 2012 —
again, because it did not comply with the court’s prior, repeated
Plaintiff never filed, or attempted to file, any response to
defendants’ summary judgment motion that would have come even close
to complying with the requirements of the Appendix to the Uniform
Initial Order. . . .
Burch v. City of Florence, No. CV-10-S-2417-NW, slip op. at 3-9 (N.D. Ala. Dec. 17,
2010) (footnotes omitted).37
With regard to the statement in the last paragraph of the quotation from the City of
Florence opinion — i.e., that plaintiff neither filed nor attempted to file a response to the defendants’
motion for summary judgment that complied with the requirements of the Appendix to the this
court’s “Uniform Initial Order” — that Appendix contains the following requirements, among
Manner of Stating Facts
All briefs submitted either in support of or opposition to a motion must begin
with a statement of allegedly undisputed relevant material facts set out in separately
numbered paragraphs. Counsel must state facts in clear, unambiguous, simple,
declarative sentences. All statements of fact must be supported by specific reference
to evidentiary submissions.
Moving Party’s Initial Statement of Facts
The moving party shall list in separately numbered paragraphs each material
fact the movant contends is true and not in genuine dispute, and upon which the
moving party relies to demonstrate that it is entitled to summary judgment. Each
such statement must be followed by a specific reference to those portions of the
evidentiary record that the movant claims supports it.
Opposing Party’s Statement of Facts
Each party opposing a summary judgment motion also must submit a
statement of facts divided as follows.
For such reasons, this court is sorely inclined to dismiss plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 41(b).
Even so, the court is not convinced that the Eleventh Circuit would approve of
basing such an extreme sanction on the plaintiff’s derelictions in a separate case.
Stated differently, the court suspects that the Circuit might decide that each case, like
a pot, must sit upon its own bottom. Consequently, the court finds that the better
Response to Movant’s Statement
The first section must consist of only the non-moving party’s disputes, if any,
with the moving party’s claimed undisputed facts. The non-moving party’s response
to the moving party’s claimed undisputed facts shall be in separately numbered
paragraphs that coincide with those of the moving party’s claimed undisputed facts.
Any statements of fact that are disputed by the non-moving party must be followed
by a specific reference to those portions of the evidentiary record upon which the
dispute is based. All material facts set forth in the statement required of the moving
party will be deemed to be admitted for summary judgment purposes unless
controverted by the response of the party opposing summary judgment.
Additional Undisputed Facts
The second section may contain additional, allegedly undisputed facts set out
in separately numbered paragraphs that the opposing party contends require the
denial of summary judgment. The second section of the opposing party’s statement
of facts, if any, shall be clearly designated as such. The opposing party should
include only facts which the opposing party contends are true and not in genuine
Additional Disputed Facts
The third section may contain additional, allegedly disputed facts set out in
separately numbered paragraphs that the opposing party contends require the denial
of summary judgment. The third section of the opposing party’s statement of facts,
if any, shall be clearly designated as such. Each statement of allegedly disputed facts
must be followed by specific reference to those portions of the evidentiary record
which both support and contradict the alleged fact.
course is to allow plaintiff one last opportunity — and one only — to comply with
both the pleading requirements of the Federal Rules of Civil Procedure and the orders
of this court.
Consequently, the motions to dismiss filed by defendants Luke McIntyre,
Jeremy Keith Baker, Angie Hamilton, Ronald Lansdell, and Kenneth Rager are
overruled,38 but Kenneth Rager’s motion for more definite statement is GRANTED;39
and, it is ORDERED that plaintiff, John Wesley Burch, file a third amended
complaint on or before Wednesday, January 16, 2013. It is further ORDERED that
such third amended complaint must fully comply with all of the following
requirements, without exception:
The complaint must not exceed twenty (20) pages of double-spaced, 14-point
The complaint must comply with the pleading requirements of Federal Rules
of Civil Procedure 8 and 10 discussed above.
The complaint must be filed in the Clerk’s office in the United States
Courthouse located at 101 Holmes Avenue, Huntsville, Alabama 35801, not
later than the close of business (i.e., 4:30 o’clock p.m. Central Standard
Time) on Wednesday, January 16, 2013.
No “emergency,” after-hours filing will be permitted or accepted;
See doc. no. 22 (Motion to Dismiss by Luke McIntyre); doc. no. 23 (Motion to Dismiss by
Jeremy Keith Baker); doc. no. 26 (Motion to Dismiss jointly filed by Angie Hamilton and Ronald
Lansdell); and doc. no. 46 (Motion to Dismiss by Kenneth Rager).
See doc. no. 37.
and, without question, no filings in the Middle District of Alabama as
previously occurred in the City of Florence case will be sanctioned.
Any deviation from the foregoing requirements will subject plaintiff to the sanction
of dismissal of all claims.
DONE and ORDERED this 2nd day of January, 2012.
United States District Judge
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