Ileri v. Publix Super Markets Inc et al

Filing 29

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 9/4/2012. (KAM, )

FILED
2012 Sep-04 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ILYAS ILERI,
Plaintiff,
vs.
PUBLIX SUPER MARKETS, INC.;
PUBLIX ALABAMA, L.L.C.; PUBLIX
ASSET MANAGEMENT, INC.; ANITA
CADDELL,
Defendants.

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CASE NO. 7:10-CV-1797-SLB

MEMORANDUM OPINION
This case is currently before the court on the Publix Defendants’1 Motion to Dismiss
for Repeated Failure to File More Definite Statement Complying with the Court’s Orders,
(doc. 27),2 and defendant Anita Caddell’s Motion to Dismiss, (doc. 28). For the reasons set
forth below, defendants’ Motions to Dismiss for Repeated Failure to File More Definite
Statement Complying with the Court’s Orders, (docs. 27 and 28), will be granted.
Defendant Anita Caddell filed a Motion for More Definite Statement, (doc. 4), which
the court granted, (doc. 9). The court ordered plaintiff to file an Amended Complaint, as
follows:

1

The Publix Defendants refers to defendants Publix Super Markets, Inc.; Publix
Alabama, L.L.C.; and Publix Asset Management, Inc.
2

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

Each Claim for Relief in plaintiff’s Amended Complaint shall contain no more
than one discrete claim against a single defendant, and each Claim for Relief
shall include all allegations of fact that support that discrete claim, in
compliance with Rules 8(a), 8(e)(1), 10(b), and 11(b) of the Federal Rules of
Civil Procedure.
(Doc. 9 at 2 [citing Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 980 and n.57 (11th Cir.
2008)].) The court also noted, “Implicit in such instruction is the notion that if the plaintiff
fails to comply with the court’s order – by filing a repleader with the same deficiency – the
court should strike his pleading or, depending on the circumstances, dismiss his case and
consider the imposition of monetary sanctions.” (Id. [quoting Thompson v. RelationServe
Media, Inc., 610 F.3d 628, 698-99 (11th Cir. 2010)].)
Despite this warning, plaintiff did not file an Amended Complaint in conformity with
the court’s Order. Instead, he filed Plaintiff’s Response to Defendant’s Motion for More
Definite Statement and Amendment to Complaint. (Doc. 12.) In this Response, plaintiff
argued that “there is no basis for requiring a more definite statement,” (id. at 1), and that
references to “defendant” or “defendants” referred to all defendants, including Caddell, (id.
at 4-5). The Amended Complaint contained within the Response stated:
1. As to claim for relief under TITLE II , CIVIL RIGHTS ACT OF
1964, for Discrimination in Places of Public Accommodation, Plaintiff’s
Complaint is intended to state a cause of action directed toward all of the
named Defendants named [i]n ¶ 5, 6, 7, 8 and 9, including but not limited to
Defendant Anita Caddell.
2. As to claim for relief for BREACH OF CONTRACT, Plaintiff’s
Complaint is intended to state a cause of action directed toward all of the
named Defendants named [i]n ¶[¶] 5, 6, 7, 8 and 9, including but not limited
to Defendant Anita Caddell.

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3. As to claim for relief for TORTIOUS INTERFERENCE WITH
CONTRACTUAL RELATIONS, Plaintiff’s Complaint is intended to state a
cause of action directed toward all of the named Defendants named [i]n ¶[¶]
5, 6, 7, 8 and 9, including but not limited to Defendant Anita Caddell.
4. As to claim for relief for CONVERSION, Plaintiff’s Complaint is
intended to state a cause of action directed toward all of the named Defendants
named [i]n ¶[¶] 5, 6, 7, 8 and 9, including but not limited to Defendant Anita
Caddell.
5. As to claim for relief for INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS, Plaintiff’s Complaint is intended to state a cause
of action directed toward all of the named Defendants named [i]n ¶[¶] 5, 6, 7,
8 and 9, including but not limited to Defendant Anita Caddell.
6. As to any other claim for relief in the Plaintiff's Complaint, such
claim is intended to state a cause of action directed toward all Defendants, and
all of those Defendants named [i]n ¶[¶] 5, 6, 7, 8 and 9, including but not
limited to Defendant Anita Caddell.
(Id. at 5-6.)
Defendants moved to strike plaintiff’s Response and to dismiss his Complaint. (Docs.
13, 14.) The court denied these motions and ordered plaintiff to amend his Complaint. (Doc.
19 at 2.) The court did not dismiss plaintiff’s Complaint for his failure to follow the court’s
Order, as the court found plaintiff’s noncompliance “appear[ed] to be the result of inattention
or, perhaps, an unwillingness to put forth the effort required to correct the Complaint.” (Id.)
The court ordered:
The Amended Complaint shall not refer to or reference his previously filed
Complaint. Each Claim for Relief shall be set forth in a separate Count, each
Count shall contain no more than one discrete claim against a single defendant,
and each Count shall include all allegations of fact that support that discrete
claim, in compliance with Rules 8(a), 8(e)(1), 10(b), and 11(b) of the Federal
Rules of Civil Procedure. See Davis v. Coca-Cola Bottling Co. Consol., 516

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F.3d 955, 980 and n.57 (11th Cir. 2008); Beckwith v. Bellsouth
Telecommunications Inc., 146 Fed. Appx. 368, 372 (11th Cir. 2005)(trial court
properly ordered plaintiff to require plaintiff to amend her complaint to specify
which of her claims were against which defendants and to segregate the
relevant facts to each claim).
These rules work together to require the pleader to present his claims
discretely and succinctly, so that his adversary can discern what he is
claiming and frame a responsive pleading, the court can determine
which facts support which claims and whether the plaintiff has stated
any claims upon which relief can be granted, and, at trial, the court can
determine that evidence which is relevant and that which is not.
Davis, 516 F.3d at 980 n.57 (quoting Fikes v. City of Daphne, 79 F.3d 1079,
1082-83 (11th Cir.1996)(quoting T.D.S. v. Shelby Mut. Ins. Co., 760 F.2d
1520, 1543 n.14 (11th Cir.1985)(Tjoflat, J., dissenting))).
(Id. at 3.) The court warned plaintiff that “[f]ailure to file an Amended Complaint that
complies with this Order shall result in sanctions, which may include payment of defendants’
costs, including attorney’s fees, and/or dismissal.” (Id. at 4.)
Plaintiff filed an Amended Complaint that failed to comply with the court’s explicit
Order that each Claim for Relief or Count have one claim against one defendant and include
the facts to support that claim within the Claim for Relief. Indeed, the only change to his
previous Complaint is the addition of additional paragraphs within each Claim for Relief,
stating that Caddell is the agent of “Publix” and that his claims are against “Publix” and
Caddell. (Doc. 24 ¶¶ 32A, 32A,3 35A, 35B, 38A, 38B, 40A, 40B, 43A, 43B.) Defendants
moved to dismiss plaintiff’s Amended Complaint. (Docs. 27, 28.)

3

Plaintiff’s amended Complaint contains two paragraphs numbered 32A. (See doc.
24 at 7-8.)

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Rule 41(b) of the Federal Rules of Civil Procedure provides, “If the plaintiff fails . .
. to comply with . . . a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b). However, “dismissal with prejudice is plainly improper
unless and until the district court finds a clear record of delay or willful conduct and that
lesser sanctions are inadequate to correct such conduct.” Townsend v. Beck, 295 Fed. Appx.
950, 951-52 (11th Cir. 2008)(quoting Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d
1333, 1339 (11th Cir. 2005)). “While dismissal is an extraordinary remedy, dismissal upon
disregard of an order, especially where the litigant has been forewarned, generally is not an
abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)(citing State
Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982); Anthony v. Marion
County General Hospital, 617 F.2d 1164, 1169 n.8 (5th Cir.1980)). The fact that plaintiff
has twice refused to comply with the court’s Orders indicates that his noncompliance was
willful and that lesser sanctions would not suffice. See Baltimore v. Jim Burke Motors, 300
Fed. Appx. 703, 707 (11th Cir. 2008).
The court finds plaintiff’s repeated failure to comply with the court’s Orders was
willful and that no lesser sanction than dismissal would compel compliance. Therefore,
defendants’ Motion to Dismiss, (docs. 27 and 28), will be granted.
An Order granting defendants’ Motions to Dismiss for Repeated Failure to File More
Definite Statement Complying with the Court’s Orders, (docs. 27 and 28), will be entered
contemporaneously with this Memorandum Opinion.

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DONE, this 4th day of September, 2012.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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