Smith v. Comcast Corporation, et al
Order granting in part denying in part the 6 MOTION to Dismiss filed by Helmsman Management Services, LLC; granting in part denying in part the 7 MOTION to Dismiss for Lack of Jurisdiction filed by Joy Howard. The Complaint is DISMISSED WITHOUT PREJUDICE to plaintiff's ability to file an amended complaint by 3/8/2018. Plaintiff must show proof of service on each defendant by 4/5/2018. The motions to dismiss filed by defendants Brian L. Roberts and Comcast Corporation, (Docs. 25, 26), are denied as moot. Signed by District Judge William H. Steele on 2/8/2018. Copy mailed to Plaintiff. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL HENRY SMITH,
) CIVIL ACTION 17-0456-WS-M
COMCAST CORPORATION, et al.,
This matter is before the Court on motions to dismiss filed by defendants
Helmsman Management Services ("Helmsman")1 and Joy Howard. (Docs. 6, 7).2
The parties have filed briefs and evidentiary materials in support of their
respective positions, (Docs. 6, 7, 24, 29), and the motions are ripe for resolution.
Helmsman says that its correct name is Helmsman Management Services,
L.L.C. (Doc. 6 at 1). Because the complaint cannot be amended by a defendant, the
Court utilizes the name provided in the complaint.
Helmsman drops a footnote in which it argues that defendant Liberty Mutual
Insurance "should be dismissed" because it "is not an existing entity" and because the
plaintiff has not properly served it. (Doc. 6 at 1 n.1). The first objection is curious, since
Helmsman previously equated "Liberty Mutual Insurance" with "Liberty Mutual
Insurance Company," an entity that it admits does exist, (Doc. 1 at 3 & n.2); indeed,
Howard insists that she works for Liberty Mutual Insurance Company. (Doc. 7 at 10;
Doc. 7-1 at 2). It is also curious in that Helmsman recognizes itself as a defendant even
though the complaint omits "L.L.C." from its name, yet Helmsman purports to be
confused by the comparable omission of "Company" from Liberty Mutual Insurance's
name. Nor does Helmsman address the effect of Rule 15(c)(1)(C)(ii), which permits
amendments to a complaint, complete with relation back, in the event of misnomer. E.g.,
Wayne v. Jarvis, 197 F.3d 1098, 1103 (11th Cir. 1999), overruled in part on other
grounds, Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc). Both objections are
curious in that Helmsman offers no authority for the proposition that it can seek dismissal
of another defendant that has not sought dismissal for itself. Nor does counsel purport to
represent anyone other than Helmsman and Howard. For all these reasons, to the
uncertain extent Helmsman's footnote can be construed as a motion to dismiss Liberty
Mutual Insurance as a defendant, the motion is denied.
After careful consideration, the Court concludes that the motions are due to be
granted in part and denied in part.
According to the pro se complaint, (Doc. 1-1 at 6-25), in May 2016 the
plaintiff subscribed to Comcast/Xfinity for internet and phone service. A
technician dispatched to accomplish installation permanently disabled the ethernet
port on the plaintiff's laptop. The plaintiff had various difficulties seeking to
rectify this situation, including unpleasant encounters with representatives of the
entity defendants and unjustifiably high bills from Comcast/Xfinity.
Helmsman and Howard assert that dismissal is appropriate under Rules
12(b)(5) and 12(b)(6); Howard additionally asserts that dismissal is appropriate
under Rule 12(b)(2).
I. Personal Jurisdiction.
A defendant may move to dismiss based on "lack of personal jurisdiction."
Fed. R. Civ. P. 12(b)(2). "As a general rule, courts should address issues relating
to personal jurisdiction before reaching the merits of a plaintiff's claims."
Republic of Panama v. BCCI Holdings S.A., 119 F.3d 935, 940 (11th Cir. 1997).
"A plaintiff seeking to establish personal jurisdiction over a nonresident
defendant bears the initial burden of alleging in the complaint sufficient facts to
make out a prima facie case of jurisdiction." Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (internal quotes omitted). "When a
defendant challenges personal jurisdiction by submitting affidavit evidence in
support of its position, the burden traditionally shifts back to the plaintiff to
produce evidence supporting jurisdiction," unless "the defendant's affidavits
contain only conclusory assertions that the defendant is not subject to
jurisdiction." Id. (internal quotes omitted). "Where the plaintiff's complaint and
supporting evidence conflict with the defendant's affidavits, the court must
construe all reasonable inferences in favor of the plaintiff." Meier ex rel. Meier v.
Sun International Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002); accord
Diamond Crystal Brands, Inc. v. Food Movers International, Inc., 593 F.3d 1249,
1257 (11th Cir. 2010).
"A federal court sitting in diversity may exercise jurisdiction over a
nonresident defendant to the same extent as a court of that state." Ruiz de Molina
v. Merritt & Furman Insurance Agency, Inc., 207 F.3d 1351, 1355 (11th Cir.
2000). Alabama "extends the personal jurisdiction of Alabama courts to the limits
of due process under the federal and state constitutions." Ex parte Fidelity Bank,
893 So. 2d 1116, 1121 (Ala. 2004); accord Ala. R. Civ. P. 4.2(b). Due process
under the Alabama Constitution is in this respect co-extensive with that under the
federal Constitution. Ex parte Georgia Farm Bureau Mutual Automobile
Insurance Co., 889 So. 2d 545, 550 (Ala. 2004).
Personal jurisdiction can be either general or specific. "General personal
jurisdiction arises when a defendant maintains continuous and systematic contacts
with the forum state even when the cause of action has no relation to those
contacts." HomeBingo Network, Inc. v. Chayevsky, 428 F. Supp. 2d 1232, 1241
(S.D. Ala. 2006) (internal quotes omitted). Howard has testified by declaration
that she is not a resident of Alabama but of Georgia, that she owns no real
property in Alabama, that she maintains no bank accounts in Alabama, that she
conducts no personal business in Alabama, that she has no mailing address in
Alabama, that she pays no taxes to the state of Alabama, and that she has not been
to Alabama since 2013. (Doc. 7-1 at 3). Howard's declaration carries her burden,
shifting to the plaintiff the burden to present evidence supporting general
jurisdiction. Because he has presented nothing in this regard, it is clear that
Howard is not subject to general jurisdiction in this state.
"Specific jurisdiction refers to jurisdiction over causes of action arising
from or related to a defendant's actions within the forum." PVC Windoors, Inc. v.
Babbitbay Beach Construction, N.V., 598 F.3d 802, 808 (11th Cir. 2010) (internal
quotes omitted). According to the complaint, Howard contacted the plaintiff (an
Alabama resident), attempted to frustrate his pleas for relief, attempted to defraud
him, resorted to subterfuge in order to reduce the amount he would be paid,
dispatched an investigator to look at his laptop and wiring, and did everything in
her power to mislead the plaintiff and to defeat his effort to obtain compensation,
her conduct constituting the tort of outrage/intentional infliction of emotional
distress. (Doc. 1-1 at 6, 8, 15-16, 20).3 Howard agrees that, from Georgia, she
spoke with the plaintiff over the phone and sent him e-mails and a letter, all in
connection with his claims regarding laptop damage and service visits, but she
denies ever visiting Alabama in connection with the plaintiff's claims. All her
contact with the plaintiff was in her role as claims adjuster for Liberty Mutual
Insurance Company. (Doc. 7-1 at 2).
"A defendant is constitutionally amenable to a forum's specific jurisdiction
if it possesses sufficient minimum contacts with the forum to satisfy due process
requirements, and if the forum's exercise of jurisdiction comports with traditional
notions of fair play and substantial justice." Vermeulen v. Renault, U.S.A., Inc.,
985 F.2d 1534, 1545 (11th Cir. 1993) (internal quotes omitted). "To constitute
constitutionally minimum contacts, the defendant's contacts with the applicable
forum must satisfy three criteria. First, the contacts must be related to the
plaintiff's cause of action or have given rise to it." Id. at 1546. "Second, the
contacts must involve some act by which the defendant purposefully avails itself
of the privilege of conducting activities within the forum ..., thus invoking the
benefits and protections of its laws." Id. (internal quotes omitted). "Third, the
"The tort of outrage is the same cause of action as intentional infliction of
emotional distress." Wilson v. University of Alabama Health Services Foundation, P.C.,
___ So. 3d ___, 2017 WL 6397654 at *1 n.1 (Ala. 2017) (internal quotes omitted).
defendant's contacts with the forum must be such that [the defendant] should
reasonably anticipate being haled into court there." Id. (internal quotes omitted).
Howard, (Doc. 7 at 6), correctly notes that she cannot be subjected to
personal jurisdiction in Alabama simply because her employer might be subject to
such jurisdiction. Ex parte Kohlberg Kravis Roberts & Co., 78 So. 3d 959, 974
(Ala. 2011); accord Calder v. Jones, 465 U.S. 783, 790 (1984) ("Petitioners are
correct that their contacts with California are not to be judged according to their
employer's activities there. ... Each defendant's contacts with the forum State
must be assessed individually."). Of course, "[o]n the other hand, [defendants']
status as employees does not somehow insulate them from jurisdiction." Id.
Howard relies on Pierce v. Heyman, 480 So. 2d 1185 (Ala. 1985), to refute
personal jurisdiction. In Pierce, the plaintiff sued, inter alia, several employees of
the plaintiff's insurer. The claims asserted against the non-resident individuals are
not identified in the opinion, but the Alabama Supreme Court noted that, from the
allegations of the complaint and its attached exhibits, "it appears that they had
valid justification to request and obtain additional records and information as to
the date of what they alleged to be a second injury before paying the claim." Id. at
1186. The defendants presented affidavits stating that their communications with
the plaintiff were not for personal business but were made within the scope of their
employment in the claims department of the insurer, which was not their alter ego.
Id. at 1185. The Pierce Court, relying on Thames v. Gunter-Dunn, Inc., 373 So.
2d 640 (Ala. 1979), concluded that personal jurisdiction would not lie under these
circumstances. 480 So. 2d at 1186-87.
Howard reads Pierce for the proposition that "a claims handler does not
submit to personal jurisdiction in Alabama merely by working on an Alabamabased insurance claim." (Doc. 7 at 7). Courts construing Pierce and Thames,
however, have construed them differently. The Supreme Court in Calder
distinguished between "untargeted negligence," which will not support personal
jurisdiction, and "intentional, allegedly tortious, actions ... expressly aimed at" the
forum state, which will. 465 U.S. at 789. The Alabama Supreme Court has
characterized Pierce and Thames as involving only untargeted negligence; when
the defendant's alleged conduct is intentional, tortious and directed specifically at
an Alabama resident, personal jurisdiction is warranted. Duke v. Young, 496 So.
2d 37, 40 (Ala. 1986) (conspiracy to conceal a material fact during negotiations
with Alabama resident); accord Ex parte Kohlberg, 76 So. 3d at 975-76
(complicity in fraud for purpose of acquiring Alabama corporation with physical
presence in Alabama); Sudduth v. Howard, 646 So. 2d 664, 668-69 (Ala. 1994)
(participation in scheme to defraud and deceive potential Alabama investors);
Lowry v. Owens, 621 So. 2d 1262, 1267 (Ala. 1993) (fraudulent
misrepresentations to an Alabama resident).
The complaint alleges that Howard contacted the plaintiff in Alabama
(something she admits she did repeatedly). The complaint alleges that Howard,
through those contacts, misled the plaintiff, attempted to defraud him, and engaged
in conduct amounting to the tort of outrage/intentional infliction of emotional
distress. Howard does not offer to explain how such allegations could implicate
only untargeted negligence rather than intentional tortious conduct directed
specifically towards an Alabama resident, and the Court will not cast about for
such an explanation on her behalf. What was said in Calder would appear to
apply here: "In this case, petitione[r] [is a] primary participan[t] in an alleged
wrongdoing intentionally directed at [an Alabama resident], and jurisdiction over
[her] is proper on that basis." 465 U.S. at 790.4
Howard posits rather than demonstrates that the assumption of personal
jurisdiction over her, even if she has miminum contacts with Alabama, would
offend traditional notions of fair play and substantial justice. (Doc. 7 at 9-10).
Even if it is possible for the assumption of personal jurisdiction over a defendant
In her reply brief, Howard complains that the plaintiff has presented no evidence
to counter her declaration. (Doc. 29 at 3-4). Because, as discussed in text, Howard's
declaration does not demonstrate the absence of personal jurisdiction, no burden fell to
the plaintiff to counter her declaration with evidence of his own.
who intentionally directs tortious activity against a resident of another state to give
such offense, Howard has failed to show such offense in this case. Alabama
plainly has an interest in redressing torts against its citizens, and resolving all the
plaintiff's claims in a single forum is clearly more convenient and effective.
Howard says she will be burdened by litigation in Alabama, but she provides no
specifics to bolster her position; that she is represented by the same counsel as is
Helmsman suggests that she personally will bear little burden in this action. See
generally Coastal Builders, Inc. v. Ficon Fabricators, Inc., 2005 WL 1005135 at
*3-5 (S.D. Ala. 2005) (discussing the factors relevant to the inquiry and a
defendant's considerable burden in showing they disfavor personal jurisdiction).
In summary, Howard is not entitled to dismissal for want of personal
II. Sufficiency of Service.
A defendant may move to dismiss based on "insufficient service of
process." Fed. R. Civ. P. 12(b)(5). Howard argues that service on her was
insufficient because the plaintiff attempted to serve her by certified mail at
Helmsman's Boston office rather than on her personally or at her dwelling, (Doc. 7
at 11), and she denies by declaration that she has authorized anyone in Boston to
accept service on her behalf. (Doc. 7-1 at 3). The difficulty is that Howard has
identified no evidence regarding the plaintiff's attempt to serve her. As this Court
and others have held, "the defendant first bears the burden of producing affidavits
that, in non-conclusory fashion, demonstrate the absence of" good service.5
Bell v. Integrated Health Services, Inc., 2007 WL 274364 at *2 (S.D. Ala.
2007); accord Lowdon PTY Ltd. v. Westminster Ceramics, LLC, 534 F. Supp. 2d 1354,
1360 (N.D. Ga. 2008); Fresh v. Diamond Development Investments, Inc., 2014 WL
3867596 at *4 (N.D. Ga. 2014); Carthen v. Baptist South Medical Center, 2011 WL
855279 at *2 (M.D. Ala. 2011).
Because Howard has not met her threshold burden, her motion to dismiss under
Rule 12(b)(5) must fail.
The complaint was filed in state court on July 13, 2017, (Doc. 1-1 at 6), and
the plaintiff attempted to serve Helmsman by certified mail in September 2017,
(Doc. 6-2 at 2-3), prior to the October 11, 2017 removal of the action. When, as
here, service of process is attempted prior to removal from state court, the
sufficiency of service must be measured by state law governing service of process.
Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1
(11th Cir. 1985).
Helmsman has presented evidence that the certified mailing was addressed
to Helmsman at its Boston address, but without designation of any human
recipient. (Doc. 6-2 at 2-3). Under Alabama law, an LLC such as Helmsman
must be served "by serving an officer, a partner (other than a limited partner), a
managing or general agent, or any agent authorized by appointment or by law to
receive service of process." Ala. R. Civ. P. 4(c)(6). Service on an LLC may be
accomplished by certified mail, but in that event "the addressee shall be a person
described in the appropriate subdivision." Id. Rule 4(i)(2)(B)(i), (ii). As the
Alabama Supreme Court has recently noted, "we are clear to the conclusion that
service on a corporation or business entity cannot be perfected by certified mail
addressed merely to the entity itself." Ex parte LERETA, LLC, 226 So. 3d 140,
145 (Ala. 2016). Because the addressee of the plaintiff's certified mailing is
Helmsman rather than a person, the plaintiff has not perfected service on
As noted, this action was removed from state court on October 11, 2017.
Pursuant to the interplay between 28 U.S.C. § 1448 and Rules 4(m) and 81(c), the
plaintiff had 90 days from that date, or until January 9, 2018, to perfect service.6
E.g., Wallace v. Microsoft Corp., 596 F.3d 703, 706-07 (10th Cir. 2010); Rice v.
Alpha Security, Inc., 556 Fed. Appx. 257, 261-62 (7th Cir. 2014); Medlen v. Estate of
Meyers, 273 Fed. Appx. 464, 470 (6th Cir. 2008).
Helmsman, however, moved to dismiss under Rule 12(b)(5) on October 18, 2017.7
Its motion therefore must be denied as premature. E.g., King v. Taylor, 694 F.3d
650, 661 (6th Cir. 2012); McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir. 1993);
Hall v. O'Clallaghan, 2013 WL 12141247 at *2 (D. Neb. 2013) (collecting
The fact remains that the plaintiff has not properly served Helmsman. Had
the plaintiff shown good cause for this failure, the Court would be required by
Rule 4(m) to afford him additional time to perfect service, but he offers no
explanation for not serving Helmsman properly. Nevertheless, the Court has
discretion under Rule 4(m) to permit additional time to effect service even absent
a showing of good cause. The Court concludes that such an extension of time is
appropriate in this case.9
In summary, neither Howard nor Helmsman is entitled to dismissal for
insufficiency of service of process.
III. Failure to State a Claim.
A defendant may move to dismiss based on "failure to state a claim upon
which relief can be granted." Fed. R. Civ. P. 12(b)(6). Howard and Helmsman
Due to questions regarding the Court's subject matter jurisdiction, along with the
plaintiff's request for additional time, Helmsman's motion did not become ripe until early
Even were Helmsman's Rule 12(b)(5) motion to be granted, any dismissal
necessarily would be without prejudice and not, as Helmsman requests, (Doc. 6 at 7),
with prejudice. Service of process is a jurisdictional requirement, and without such
service the Court lacks personal jurisdiction over a defendant. Hemispherx Biopharma,
Inc. v. Johannesburg Consolidated Investments, 553 F.3d 1351, 1360 (11th Cir. 2008).
Thus, just as dismissal for lack of personal jurisdiction must be without prejudice
(because it does not preclude litigation in an appropriate forum), Posner v. Essex
Insurance Co., 178 F.3d 1209, 1221 (11th Cir. 1999), any dismissal for insufficient
service of process is without prejudice. E.g., Prewitt Enterprises, Inc. v. Organization of
Petroleum Exporting Countries, 353 F.3d 916, 920 (11th Cir. 2003).
The Court would reach the same conclusion even were Helmsman's Rule
12(b)(5) motion not premature.
characterize the sole claim against them as one for outrage/intentional infliction of
emotional distress, and they argue that no such claim lies against them because:
(1) Alabama law permits such a claim only against the insurer of the plaintiff
(which Helmsman and Howard were not); and (2) the allegations of the complaint
are insufficiently stark to implicate the tort. (Doc. 6 at 2, 5-7; Doc. 7 at 2, 1214).10
“The four elements of the tort of intentional infliction of emotional distress,
which is also known as the tort of outrage, are: (1) the actor intended to inflict
emotional distress, or knew or should have known that emotional distress was
likely to result from his conduct; (2) the conduct was extreme and outrageous; (3)
the defendant’s actions caused the plaintiff distress; and (4) the distress was
severe.” Martin v. Hodges Chapel, LLC, 89 So. 3d 756, 763 (Ala. Civ. App.
2011) (internal quotes omitted); accord Harris v. McDavid, 553 So. 2d 567, 569
“By extreme we refer to conduct so outrageous in character and so extreme
in degree as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized society.” Horne v. TGM Associates,
L.P., 56 So. 3d 615, 630 (Ala. 2010) (internal quotes omitted). “This Court has
consistently held that the tort of outrage is a very limited cause of action that is
available only in the most egregious circumstances.” Thomas v. BSE Industrial
Contractors, Inc., 624 So. 2d 1041, 1044 (Ala. 1993). “The tort of outrage … is
so limited that this Court has recognized it in regard to only three kinds of
conduct: (1) wrongful conduct in the family-burial context [citation omitted]; (2)
barbaric methods employed to coerce an insurance settlement [citation omitted];
and (3) egregious sexual harassment [citation omitted].” O’Rear v. B.H., 69 So.
3d 106, 118 (Ala. 2011) (internal quotes omitted).
Howard drops a footnote asserting that Alabama does not permit any tort claim
against a claims handler. (Doc. 7 at 13 n.6). Howard's sole authority for this proposition
addresses only the availability of such legal claims to the insured. Because, as Howard
stresses, the plaintiff is not the insured, her argument need not be considered further.
Helmsman and Howard assert that "Alabama law only permits recovery"
for outrage in these specific categories. (Doc. 6 at 5; Doc. 7 at 12). According to
the Alabama Supreme Court, however, the listing "is not to say ... that the tort of
outrage is viable in only the three circumstances noted" above. Little v. Robinson,
72 So. 3d 1168, 1172-73 (Ala. 2011) (noting that liability was upheld in O'Rear
even though the facts fell within none of the three categories). Therefore, a
statement "that the tort of outrage is limited to three situations is an incorrect
statement of the law." Wilson v. University of Alabama Health Services
Foundation, P.C., ___ So. 3d ___, 2017 WL 6397654 at *3 (Ala. 2017).11 The
mere fact that Helmsman and Howard are not the plaintiff's insurer thus furnishes
insufficient grounds to dismiss the outrage claim as to them.12
According to Helmsman and Howard, the complaint alleges nothing more
than that they delayed payment to the plaintiff for his laptop. (Doc. 6 at 7; Doc. 7
at 14). This, they say, is inadequate as a matter of law to support an outrage claim,
and the case they cite appears to support that proposition.13 The complaint,
however, alleges much more than mere delay in payment. As noted, the complaint
alleges that Howard attempted to defraud the plaintiff, engaged in subterfuge and
did everything in her power to mislead him. (Doc. 1-1 at 16, 20-21). The
The plaintiff's claim in Wilson was based on egregious comments made by the
medical defendants to the plaintiff regarding her mother's "condition and her impending
death, and to the effect that she was wasting resources by being in the hospital instead of
dying at home." ___ So. 3d at ___, 2017 WL 6397654 at *1.
As Helmsman and Howard acknowledge, the Alabama Supreme Court has
permitted an outrage claim in the worker's compensation insurance context, which is not
a first-party situation, but they assert that this line of case law "is not applicable here."
(Doc. 6 at 6 n.3; Doc. 7 at 13 n.5). They offer no reason why an outrage claim would be
possible in the worker's compensation context but not in other third-party insurance
contexts. Because Little and Wilson make plain that the tort is not confined to the three
classic paradigms, the Court need not explore the movants' contention further.
"Delay or refusal to pay on an insurance claim is not sufficient by itself to
demonstrate barbaric conduct." Philippou v. American National Property & Casualty
Co., 2017 WL 21299900 at *3 (M.D. Ala. 2017).
complaint further alleges that Helmsman is responsible for Howard's conduct. (Id.
at 15, 20).14 Because Helmsman and Howard have not addressed these
allegations, the Court need not decide whether they would, if proved, fall short of
the standard for an outrage claim.
The main argument pursued by Helmsman and Howard is that the
complaint's allegations are "vague," with insufficient factual material to satisfy
Rule 8(a)(2) as construed by the Supreme Court in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). (Doc. 6 at 3, 67; Doc. 7 at 14). With this assessment, the Court agrees.
To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the
pleading requirements of Rule 8(a)(2). Twombly, 550 U.S. at 555. “A pleading
that states a claim for relief must contain … a short and plain statement of the
claim showing that the pleader is entitled to relief ….” Fed. R. Civ. P. 8(a)(2).
Rule 8 establishes a regime of “notice pleading.” Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512, 513-14 (2002). It does not, however, eliminate all pleading
First, the complaint must address all the elements that must be shown in
order to support recovery under one or more causes of action. “At a minimum,
notice pleading requires that a complaint contain inferential allegations from
which we can identify each of the material elements necessary to sustain a
recovery under some viable legal theory.” Wilchombe v. TeeVee Toons, Inc., 555
F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted).
Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2).
The rule “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do” to satisfy that rule. Twombly, 550
U.S. at 555. There must in addition be a pleading of facts. Though they need not
be detailed, “[f]actual allegations must be enough to raise a right to relief above
Howard admits that she "provide[s] claims handling support for Helmsman."
(Doc. 7-1 at 2).
the speculative level ....” Id. That is, the complaint must allege “enough facts to
state a claim for relief that is plausible on its face.” Id. at 570. “A claim has facial
plausibility 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. “The plausibility standard … asks for more than a sheer
possibility that the defendant has acted unlawfully,” and “[w]here a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.” Id. (internal
quotes omitted). A complaint lacking “sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face” will not “survive a motion to
dismiss.” Id. But so long as the plausibility standard is met, the complaint “may
proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S.
at 556 (internal quotes omitted).
As noted, the complaint alleges generally that Howard "contacted me and
attempted to frustrate my pleas for relief," that she "did everything in her power to
defeat my receiving any compensation and to mislead me," and that she "did
attempt to defraud me and resorted to subterfuge and exacerbating my depression
and anxieties[, a]ll in an effort to reduce the amounts paid to me for the harms that
she knew to have been done to me." (Doc. 1-1 at 15-16, 20-21). These statements
are little more than labels and conclusions, with virtually no factual information
regarding either: (1) what Howard said and/or did that the plaintiff considers to
have been misleading, fraudulent, a subterfuge or otherwise improper; or (2) the
circumstances rendering what Howard said and/or did extreme and outrageous.
Without such allegations, the complaint cannot survive scrutiny under Twombly
Helmsman and Howard seek dismissal with prejudice, (Doc. 6 at 7; Doc. 7
at 14), but this is impermissible. Before dismissal with prejudice of a defendant
for failure to state a claim, a pro se plaintiff must be given an opportunity to
amend the complaint if a more carefully drafted version might state a claim.15
Helmsman and Howard make no argument that this stringent standard for
dismissal with prejudice is met.
In summary, Helmsman and Howard are entitled to dismissal of the outrage
claim as to them, without prejudice, for failure to satisfy Rule 8(a)(2) and thus
IV. Other Pleading Deficiencies.
The complaint is problematic in other ways unremarked by Helmsman and
Howard. They include (without pretense of exhausting the subject) the following.
"Each allegation [of a complaint] must be simple, concise, and direct."
Fed. R. Civ. P. 8(d)(1). The complaint violates this rule by routinely employing
long, rambling paragraphs, some of which include unhelpful and distracting
"A party must state its claims ... in numbered paragraphs, each limited as
far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). As
noted, the complaint contains many inordinately long paragraphs, and none of
them are numbered.
The Eleventh Circuit has condemned the use of "shotgun pleadings" over
60 times. Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1321
(11th Cir. 2015). Shotgun complaints include those "replete with conclusory,
vague, and immaterial facts not obviously connected to any particular cause of
E.g., Goguette v. U.S. Bank National Association, ___ Fed. Appx. ___, 2017
WL 5192360 at *2 (11th Cir. 2017); Lee v. Alachua County, 461 Fed. Appx. 859, 860
(11th Cir. 2012); Schmitt v. United States Office of Personnel Management, 403 Fed.
Appx. 460, 462 (11th Cir. 2010).
For example, found in the midst of a page-long paragraph is the assertion that
"[s]omeone in the Pandœmonium of the defendants canceled out the Escalation Number
for the complaint." (Doc. 1-1 at 13). Or, in another page-long paragraph, that a
defendant "insists that the business affairs of Comcast and Xfinity be conducted in as
ruthless and exploitative a fashion as is possible." (Id. at 7).
action." Id. at 1322. At least five pages of the complaint fall squarely within this
category, consisting of musings about removal jurisdiction, Rule 408, "exhaustion
of remedies," pleading standards, and other material having no place in a proper
pleading. (Doc. 1-1 at 8-12).
Another form of shotgun pleading "is one that commits the sin of not
separating into a different count each cause of action or claim for relief." Weiland,
792 F.3d at 1323. The complaint does not include any specifically identified
"counts," and Helmsman and Howard reasonably understood the complaint to
include only a single claim for "the tort of outrage," since those are the first four
words appearing in the body of the complaint and since the complaint devotes a
full page to (inappropriately) discussing what the plaintiff understands to be the
law governing such a claim. (Doc. 1-1 at 6, 11-12). The plaintiff, however, now
insists that the complaint also includes causes of action for negligence and fraud,
(Doc. 24 at 10), apparently because those words appear, buried, in the rambling
heading following the style. (Doc. 1-1 at 6). Helmsman and Howard reply that no
such claims are asserted in the complaint, (Doc. 29 at 5 n.6), but that is impossible
to say, given the chaotic nature of that pleading.
A shotgun pleading such as the instant complaint is subject to a motion to
strike under Rule 12(e). Weiland, 721 F.3d at 1322 n.10. No defendant has filed
such a motion but, "when a defendant fails to do so, the district court ought to take
the initiative to dismiss or strike the shotgun pleading and give the plaintiff an
opportunity to replead." Id. The Court does so.
As the plaintiff prepares his amended complaint, he would be wise to
review the applicable pleading rules and cases construing them. As the Court has
said to another pro se litigant, in that event:
He will discover that successful plaintiffs present crisp complaints that:
clearly allege in brief numbered paragraphs necessary facts as to what
each defendant did (not character attacks on the defendants and not
irrelevant ramblings); clearly list each legal claim presented, each
under a separate heading called a "Count" (not laundry lists of
unamplified legal terms and case citations); clearly state under each
count which defendants are defendants under that count, clearly
identify the factual numbered paragraphs that apply to that count,
and clearly explain how the legal right implicated by that count was
violated; and clearly articulate the relief requested.
Muhammad v. Bethel, 2010 WL 2472171 at *3 (S.D. Ala. 2010); accord
Muhammad v. Bethel-Muhammad, 2012 WL 206173 at *2 (S.D. Ala. 2012).
The plaintiff should be especially careful in pleading his amended
complaint, because he has elected to pursue two causes of action that require
unusual detail in order to survive. As noted, the tort of outrage "is a very limited
cause of action that is available only in the most egregious circumstances.”
Thomas, 624 So. 2d at 1044. Thus, a failure to plead factual content (not glib
conclusions) showing egregious circumstances will likely expose the amended
complaint to a motion to dismiss for failure to state a claim. To the extent the
plaintiff pursues a fraud claim, he "must state with particularity the circumstances
constituting fraud," Fed. R. Civ. P. 9(b), a demanding requirement the parameters
of which are fleshed out in many cases.17
The plaintiff is further cautioned not to assume he will be afforded limitless
opportunities to present a legally acceptable pleading. In this regard as in most
others, his pro se status offers him no immunity from the rules and consequences
attending represented parties. "All persons proceeding pro se shall be bound by,
and must comply with, all Local Rules of this Court, as well as the Federal Rules
of Civil and Criminal Procedure, unless excused by Court order." General Local
Rule 83.5(a). Moreover, "both the Supreme Court and [the Eleventh Circuit] have
concluded that a defendant's pro se status in civil litigation generally will not
excuse mistakes he makes regarding procedural rules." Nelson v. Barden, 145
Fed. Appx. 303, 311 n.10 (11th Cir. 2005). Likewise, "even in the case of pro se
litigants ... a court [does not have] license to serve as de facto counsel for a party
Prudence would also counsel the plaintiff to address in the amended complaint
the jurisdictional allegations that certain defendants find wanting. (Doc. 25 at 1-6; Doc.
26 at 1-6).
... or to 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.
For the reasons set forth above, the motion of Howard to dismiss under
Rule 12(b)(2) is denied; the motions of Helmsman and Howard to dismiss under
Rule 12(b)(5) are denied; and the motions of Helmsman and Howard to dismiss
under Rule 12(b)(6) are granted. Pursuant to Rules 12(b)(6) and 12(e), the
complaint is dismissed without prejudice to the plaintiff's ability to file an
amended complaint no later than March 8, 2018, failing which the Court will
enter without further notice an order dismissing this action with prejudice.
Pursuant to Rule 4(m), and assuming he timely files an amended complaint,
the plaintiff is given until April 5, 2018 to properly serve each defendant in
accordance with Rule 4 and to file proof of such service, failing which the Court
will enter without further notice an order dismissing without prejudice any
defendant as to which no such proof of service has been filed.
Based on the Court's rulings herein, the pending motions to dismiss filed by
defendants Brian L. Roberts and Comcast Corporation, (Docs. 25, 26), are denied
DONE and ORDERED this 8th day of February, 2018.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
The movants' arguments regarding Rules 12(b)(2) and 12(b)(6) depend upon
the allegations of the (now dismissed) complaint, while their Rule 12(b)(5) argument,
even if meritorious, cannot result in dismissal given the Court's extension of time under
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