Butler v. Morgan et al

Filing 28

MEMORANDUM OPINION AND ORDER DISMISSING CASE that it is ORDERED that plaintiff's second and third amended complaints are STRICKEN, the 27 motion to dismiss the superceded initial complaint is DENIED as moot; the 21 , 22 , and 26 motions to dismiss the first amended complaint are GRANTED and plaintiff's claims are DISMISSED; Due to the fact that this court lacks subject-matter jurisdiction, the dismissal of plaintiff's state-law claims is without prejudice and costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/31/2013. (AHI)

FILED
2013 May-31 PM 02:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES LAURENCE BUTLER,
SR.,
Plaintiff
vs.
ROBERT BROUSSARD, et al.,
Defendants.

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Civil Action No. CV-12-S-3601-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, James Laurence Butler, Sr., who is proceeding pro se, commenced
this action against Robert Broussard (the current District Attorney of Madison
County, Alabama); Tim Morgan (the former District Attorney of Madison County);
Jeanny Cole (an Assistant District Attorney of Madison County); Jane Smith (Clerk
of the Circuit Court of Madison County); Kay Roome; and Roger Roome.1
Defendants Broussard, Morgan, Cole, and Smith filed motions to dismiss the original
complaint.2 The court found that the complaint was a “shotgun complaint that
contravenes Rules 8 and 10.”3 It contained “disjointed and acontextual statements
that fail[ed] to intelligibly convey which facts relate[d] to which claims against which
1

See doc. no. 1 (Complaint).

2

Doc. no. 6 (Motion to Dismiss by Jane Smith); doc. no. 7 (Motion to Dismiss by Robert
Broussard, Tim Morgan, and Jeanny Cole).
3

Doc. no. 17 (Memorandum Opinion and Order), at 4.

defendants.”4 Despite those defects, the court noted its duty to treat pro se litigants
leniently, and acknowledged that Bank v. Pitt, 928 F.2d 1108 (11th Cir. 1991),
required that plaintiff be given a chance to amend his complaint.5 Accordingly, the
motions to dismiss were denied, but plaintiff was ordered to file an amended
complaint that fully complied with the Federal Rules of Civil Procedure. The court
warned plaintiff that the “failure to comply [with] this order or the Federal Rules of
Civil Procedure may result in dismissal of plaintiff’s claims without notice.”6
Plaintiff filed his first amended complaint on April 22, 2013.7 That complaint
appears to allege claims for conspiracy to commit fraud; fraud, misrepresentation,
deceit, and/or suppression of material facts; conversion; and negligent, wanton, or
intentional breach of fiduciary duty.8 The case is now before the court on motions to
dismiss filed by defendants Broussard, Morgan, Cole, and Smith.9 In response to
those motions, plaintiff filed a second and third amended complaint,10 but without

4

Id. at 5 (alterations supplied).

5

Id. at 7.

6

Id. at 8.

7

Doc. no. 20 (First Amended Complaint).

8

See id. ¶¶ 5-15.

9

Doc. no. 21 (Motion to Dismiss by Robert Broussard, Tim Morgan, and Jeanny Cole); doc.
no. 22 (Motion to Dismiss by Jane Smith).
10

Doc. no. 24 (Second Amended Complaint); doc. no. 25 (Third Amended Complaint).

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first seeking and receiving leave of court to do so. See Fed. R. Civ. P. 15(a)(2).11
After plaintiff filed his second and third amended complaints without leave, the
Roome defendants, who are each proceeding pro se, filed separate motions to dismiss
on May 30, 2013.12 Those motions are also before the court, although they do not
explicitly identify which complaint they attempt to dismiss. Because the motion by
Roger Roome refers to language in the first amended complaint,13 the court construes
his motion as addressing that pleading. Kay Roome’s motion, however, responds to

11

The pertinent portions of Federal Rule of Civil Procedure 15 reads as follows:

(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once
as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time remaining to respond
to the original pleading or within 14 days after service of the amended pleading,
whichever is later.
12

Doc. no 26 (Motion to Dismiss by Roger Roome); doc. no. 27 (Motion to Dismiss by Kay

Roome).
13

See doc. no. 26 (Motion to Dismiss by Roger Roome), at 1 (referring to paragraph 3 of the
first amended complaint).

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language in the initial complaint,14 so the court treats her motion as attacking that
complaint.

Since the initial complaint was superceded by the first amended

complaint, Kay Roome’s motion is due to be denied as moot. Because the second and
third amended complaints potentially mooted the remaining motions to dismiss, the
court first considers the propriety of those pleadings sua sponte.
I. THE SECOND AND THIRD AMENDED COMPLAINTS
If “the pleading is one to which a responsive pleading is required,” e.g., a
complaint, a party may amend the pleading once, as a matter of course, within “21
days after service of a responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). Plaintiff
filed his original complaint on October 15, 2012.15 Defendant Smith filed a motion
to dismiss on November 7, 2012, and defendants Broussard, Morgan, and Cole did
the same on November 8, 2012.16 Thus, plaintiff’s ability under Rule 15(a)(1) to
freely amend “as a matter of course” expired, at the latest, on November 29, 2012.
The court’s subsequent order entered on April 1, 2013, and requiring plaintiff to file
an amended complaint, did not renew plaintiff’s ability to amend his complaint “as
14

See doc. no. 27 (Motion to Dismiss by Kay Roome), at 2 (citing and quoting doc. no. 1
(Complaint), at 12).
15

Doc. no. 1 (Complaint).

16

Doc. no. 6 (Motion to Dismiss by Jane Smith); doc. no. 7 (Motion to Dismiss by Robert
Broussard, Tim Morgan, and Jeanny Cole).

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a matter of course.” Thus, after November 29, 2012, any further amendments to the
complaint required either “the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2) (emphasis supplied).
Defendants Broussard, Morgan, and Cole filed their motion to dismiss the first
amended complaint on April 25, 2013.17 Defendant Smith filed her motion to dismiss
on May 9, 2013.18 Plaintiff responded to the motion of defendants Broussard,
Morgan, and Cole on May 13, 2013, by filing a response brief and a second amended
complaint.19 He responded to the Smith motion to dismiss on May 28, 2013, by filing
a third amended complaint.20 Plaintiff neither sought leave from the court to file
those amended complaints, nor indicated that defendants had provided written
consent for the filing of such amendments. Accordingly, the second and third
amended complaint are procedurally improper.21
17

Doc. no. 21 (Motion to Dismiss by Robert Broussard, Tim Morgan, and Jeanny Cole).

18

Doc. no. 22 (Motion to Dismiss by Jane Smith).

19

Doc. no. 23 (Response to Motion to Dismiss by Broussard, Morgan, Cole); doc. no. 24
(Second Amended Complaint).
20

Doc. no. 25 (Third Amended Complaint).

21

Some litigants have argued that Rule 15(a)(1) permits a plaintiff to file an amended
complaint as a matter of course after each motion to dismiss. See, e.g., Yagman v. Galipo, No. 127908-GW(SHx), 2013 WL 1287409, at *2 n.3 (C.D. Ca. Mar. 25, 2013).
The courts that have considered that outlier interpretation, however, have rejected it. Id.; see
also CSK Investments, LLC v. Select Portfolio Servicing, Inc., No. 10-00452-PHX-GMS, 2011 WL
1158551, at *2 (D. Az. Mar. 29, 2011) (“Plaintiffs interpret [Rule 15(a)(1)] as permitting one
amendment as a matter of course for each answer filed by a defendant. Thus, based on this
interpretation, Plaintiffs could file as many amended complaints as there are defendants in a case.
. . . [But] the rule permits a plaintiff to amend its original complaint only one time in the course of

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Even if plaintiff had sought leave from the court to file his second and third
amended complaints, however, it would have been denied as futile. See Hall v.
United Insurance Co., 367 F.3d 1255, 1263 (11th Cir. 2004) (“This court has found
that denial of leave to amend is justified by futility when the complaint as amended
is still subject to dismissal.”) (quoting Burger King Corp. v. Weaver, 169 F.3d 1310,
1320 (11th Cir. 1999)). The second amended complaint is virtually identical to the
first amended complaint, which (as will be discussed in Section II of this opinion,
infra) is factually deficient. The only difference is that the second amended
complaint adds a count for “conspiracy support,”22 a non-existent cause of action.
Further, the allegations relating to that claim are not “simple, concise, and direct,”
Fed. R. Civ. P. 8(d)(1), and they do not provide a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). Instead,
the second amended complaint alleges a scattershot and disjointed narrative that also
fails to clearly identify the legal basis for the claim sought to be alleged.
The third amended complaint suffers from similar defects. It is identical to the
second amended complaint, except it: (1) adds a second “conspiracy support” count,
as well as two equally unintelligible counts for “conspiracy expansion”; and (2)
a case. Otherwise, a plaintiff must obtain the written consent of opposing counsel or leave of the
Court to file an additional amended complaint.”) (alterations and emphasis supplied).
22

Doc. no. 24 (Second Amended Complaint) ¶¶ 17-30.

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appends thirty pages of “argument” and documents that plaintiff already filed in
response to the motion to dismiss the first amended complaint.23 Those new claims
in the third amended complaint also fail to meet the minimum pleading standards.
Although pro se litigants are due to be treated leniently, the court cannot “serve
as de facto counsel for a party,” or “rewrite an otherwise deficient pleading in order
to sustain an action.” GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359,
1369 (11th Cir. 1998).
In summary, plaintiff’s second and third amended complaints are procedurally
improper under Rule 15, do not satisfy the pleading requirements of the Federal Rules
of Civil Procedure, and generally fail to state a claim upon which relief could be
granted. For those reasons, they are due to be stricken.
II. THE MOTIONS TO DISMISS
Plaintiff’s first amended complaint is also flawed, and some of its shortcomings
are even more glaring than those in the original complaint. For instance, the initial
complaint named six defendants.

The first amended complaint, however,

ambiguously and repeatedly refers to actions by unnamed “defendants.”24 Plaintiff
does not clearly indicate who those defendants are, much less which counts and
23

See doc. no. 25 (Third Amended Complaint), at 10-43. Compare id. at 13-43, with doc.
no. 23 (Response to Motion to Dismiss by Robert Broussard, Tim Morgan, and Jeanny Cole).
24

See doc. no. 20 (First Amended Complaint) ¶¶ 2, 6, 7, 11, 15, 16.

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factual allegations are made against each of them. Of course, that failure violates
Rules 8(a)(1), 8(d)(1), and 10(b) of the Federal Rules of Civil Procedure. The caption
of the first amended complaint merely states that the defendants are “ROBERT
BROUSSARD, et al.”25 Compare Fed. R. Civ. P. 10(a) (“The title of the complaint
must name all the parties[.]”) (emphasis and alteration supplied). Plaintiff does refer
to “Brenda Kay Roome” and “Roger Roome” as parties in the body of the complaint,
but, as Roger Roome observes,26 subsequent references to those defendants are also
ambiguous, because the complaint mentions only the singular “Defendant Roome.”27
Furthermore, the factual allegations consist mainly of mere formulaic
recitations of the elements of plaintiff’s claims. The few facts that are alleged weave
only a confusing narrative. The complaint contains four counts: conspiracy to
commit fraud; “fraud/misrepresentation/deceit/suppression”; conversion; and
“negligent/wanton/intentional breach of fiduciary duty.”28 Plaintiff first generally
alleges that unnamed state employees “blacklisted my family and made them political
targets.”29 In support of his conspiracy claim, plaintiff alleges that unspecified
defendants “combined and conspired together to commit fraud” against him by
25

Id. at 1.

26

Doc. no. 26 (Motion to Dismiss by Roger Roome), at 1.

27

See doc. no. 20 (Fist Amended Complaint) ¶¶ 10, 13.

28

See generally id.

29

Id. ¶ 4.

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keeping unspecified “violations of law out of the prosecution of his son and himself
. . . to prevent the Plaintiff from receiving his lawful portion of the monthly
settlement monies.”30
Plaintiff’s fraud claim is supported only by the allegations that “Defendant
Roome recklessly and intentionally” made false representations “to the other
Defendants,” and that defendants “further suppressed the facts that are true.”31
Plaintiff purportedly “relied on the Defendants’ misrepresentations to his detriment”
and suffered damages.32
As for the conversion claim, plaintiff simply asserts that “Defendant Roome
converted the Plaintiff’s portion of the subject money, and as a proximate
consequence of the Defendant’s conduct, the Plaintiff suffered damages.”33
Finally, the breach of fiduciary duty claim alleges that unspecified defendants
owed plaintiff a duty to “disburse and distribute to the Plaintiff the proceeds gained
through the wrongful prosecution on behalf of the ASC[34] and to give the Plaintiff his
portion of the proceeds of that corporation. Defendant [sic] negligently, wantonly,

30

Id. ¶ 6.

31

Id. ¶ 10.

32

Id. ¶ 11.

33

Doc. no. 20 (First Amended Complaint) ¶ 13.

34

The meaning of the letters “ASC,” presumably an acronym, is not made clear in the
complaint.

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or intentionally failed to perform their fiduciary duty.”35
The flaws described above would be grounds for dismissal under Rule
12(b)(6). See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (noting
that “a formulaic recitation of the elements of a cause of action will not do”); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In fact, defendants Broussard, Morgan,
Cole, and Smith filed their motions to dismiss based on that rule.36 However, their
motions also argue that the court lacks subject matter jurisdiction,37 a deficiency that
technically should be attacked through Rule 12(b)(1). In any event, the court must
ensure that it has jurisdiction before ruling on the merits of any claim. See, e.g., Kelly
v. Harris, 331 F.3d 817, 819 (11th Cir. 2003).
The basic statutory grants of federal-court subject-matter jurisdiction are
contained in Title 28, United States Code, Sections 1331 and 1332. Section 1331
provides for “federal-question” jurisdiction, and section 1332 for “diversity of
citizenship” jurisdiction. See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 513
(2006).38 Here, there is no jurisdiction based on diversity of citizenship, because the
35

Doc. no. 20 (First Amended Complaint) ¶¶ 14-15 (emphasis and alteration supplied).

36

See doc. no. 21 (Motion to Dismiss by Robert Broussard, Tim Morgan, and Jeanny Cole),
at 1; doc. no. 22 (Motion to Dismiss by Jane Smith), at 1.
37

Doc. no. 21 (Motion to Dismiss by Robert Broussard, Tim Morgan, and Jeanny Cole), at
2; doc. no. 22 (Motion to Dismiss by Jane Smith), at 1-2.
38

There are, of course, other statutory forms of subject matter jurisdiction, see, e.g., 28
U.S.C. § 1333 (admiralty), but they are not implicated by this case.

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plaintiff and all defendants are citizens of the same state, Alabama.39 See 28 U.S.C.
§ 1332(a).
As for federal question jurisdiction, a plaintiff properly invokes § 1331 when
he “pleads a colorable claim ‘arising under’ the Constitution or laws of the United
States.” Arbaugh, 546 U.S. at 513. Plaintiff has not satisfied that standard. The first
amended complaint’s only reference to federal law is contained in a footnote to
plaintiff’s prayer for relief: “The Defendants abused their power to bully, intimidate,
and strip me of constitutional protections: 1st, 2nd, 4th, 5th, 6th, 14th.”40 That
isolated and conclusory assertion without supporting factual allegations does not
support federal question jurisdiction, especially considering that the body of the first
amended complaint contains four counts alleging only state-law claims:

i.e.,

conspiracy to commit fraud; fraud, misrepresentation, deceit, and suppression;
conversion; and negligent, wanton, or intentional breach of fiduciary duty.
Although the first amended complaint generally fails to state a claim upon
which relief could be granted, the court technically cannot dismiss the case on that
ground when it lacks subject matter jurisdiction. Nevertheless, “when a federal court
concludes that it lacks subject-matter jurisdiction, the court must dismiss the

39

Doc. no. 20 (First Amended Complaint) ¶¶ 1-3.

40

Id. at 5 n.2.

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complaint in its entirety.” Arbaugh, 546 U.S. at 514; see also Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). Thus, dismissal of plaintiff’s complaint is still the
appropriate remedy.
III. CONCLUSION AND ORDER
For the reasons stated, it is ORDERED that plaintiff’s second and third
amended complaints be, and the same hereby are, STRICKEN.41 The motion to
dismiss the superceded initial complaint filed by defendant Kay Roome is DENIED
as moot.42 The motions to dismiss the first amended complaint filed by defendants
Broussard, Morgan, Cole, Smith, and Roger Roome are GRANTED,43 and plaintiff’s
claims are DISMISSED. Due to the fact that this court lacks subject-matter
jurisdiction, the dismissal of plaintiff’s state-law claims is without prejudice. Costs
are taxed to plaintiff. The clerk is directed to close this file, and to send a copy of this
memorandum opinion and order to plaintiff at the following address: 237 Hough
Road, Laceys Spring, Alabama 35754.
DONE and ORDERED this 31st day of May, 2013.

41

Doc. no. 24 (Second Amended Complaint); doc. no. 25 (Third Amended Complaint).

42

Doc. no. 27 (Motion to Dismiss by Kay Roome).

43

Doc. no. 21 (Motion to Dismiss by Jane Smith); doc. no. 22 (Motion to Dismiss by Robert
Broussard, Tim Morgan, and Jeanny Cole); doc. no. 26 (Motion to Dismiss by Roger Roome).

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______________________________
United States District Judge

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