Cummings v. Cameron et al

Filing 90

ORDER denying as moot 48 Motion to Dismiss for Failure to State a Claim; Denying as moot 67 Motion ; Adopting in part Report and Recommendations - re 68 Report and Recommendations; Denying as moot 71 Motion for Judgment as a Matter of Law; Denying as moot 71 Motion for Judgment on the Pleadings; Denying as moot 71 Motion for Default Judgment; Denying as moot 71 Motion for summary judgment; Denying as moot 72 Motion for Leave to File; Denying 74 Objection to the Repo rt and Recommendation and his Motion to Allow this Case to Proceed; Denying as moot 86 Motion to appoint counsel ; Denying as moot 87 Motion for leave to proceed in forma pauperis/affidavit of indigency; Denying as moot 88 motion for recusal. The Amended Complaint (Doc. 44) is DISMISSED with prejudice. The Clerk is directed to close this case. Signed by Judge Carlos E. Mendoza on 10/31/2018. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

STEPHEN RICHMOND CUMMINGS,
Plaintiff,
v.

Case No: 6:17-cv-1897-Orl-41DCI

JAMES FRANCIS CAMERON,
LIGHTSTORM ENTERTAINMENT,
INC., SONY PICTURES
ENTERTAINMENT INC.,
PARAMOUNT PICTURES CORP.,
PARAMOUNT HOME
ENTERTAINMENT, INC. and
TWENTIETH CENTURY FOX FILM
CORPORATION,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss for Failure to State a
Claim (“Motion,” Doc. 48). United States Magistrate Judge Daniel C. Irick submitted a Report
and Recommendation (“R&R,” Doc. 68), in which he recommends that the Motion be granted and
that Plaintiff’s Amended Complaint (Doc. 44) be dismissed without prejudice. Both Plaintiff and
Defendant filed Objections to the R&R. 1 (See Doc. Nos. 73, 74). In his Objection, Plaintiff also
moves for the Court to allow the case to proceed. (See generally Doc. 74).
On April 10, 2018, Judge Irick issued an Order striking Plaintiff’s first Complaint (Doc. 1)
as a shotgun pleading. (See generally Apr. 10, 2018 Order, Doc. 42). In that Order, Judge Irick

1

Plaintiff’s Objection was filed several days late. Plaintiff blames this on “bizarre
backdating” and being unable to see the R&R on the docket. (Doc. 74 at 2–3). Nonetheless, the
Court will still consider Plaintiff’s Objection to the R&R.
Page 1 of 4

provided Plaintiff with clear directives, stating that in Plaintiff’s amended complaint, Plaintiff
shall:
place his full name in the style of the case on the first page and
provide his full name and current address in the appropriate section
at the end of the complaint; . . . name as defendant(s) only those
person(s) who are responsible for the alleged constitutional,
statutory, common law, or other violations asserted by Plaintiff;
. . . provide the full name and current address for each defendant . . .
specifically allege the basis upon which the Court has subject matter
jurisdiction for each claim asserted; . . . state what rights under state
law, the Constitution, laws, or treaties of the United States or
otherwise have allegedly been violated by each defendant; . . . set
forth each claim in a separate count; . . . set forth a short plain
statement of facts as to each claim and state each defendant’s
involvement in the violation alleged in each claim; . . . show how
he has been damaged or injured by the actions and/or omissions
of the defendant(s); and . . . set forth a clear statement of the relief
sought for each claim.
(Doc. 42 at 6–7). Judge Irick also warned Plaintiff that failure to abide by his instructions may
result in the case being dismissed without further warning. (Id. at 7).
When Plaintiff submitted his Amended Complaint, Judge Irick found that while Plaintiff
did make some changes, the Amended Complaint was still an impermissible shotgun pleading.
(Doc. 68 at 7–8). In the R&R, Judge Irick noted that Plaintiff’s Amended Complaint falls into
three, if not all four, different categories of shotgun pleadings. (See id.) Judge Irick concluded that
Plaintiff’s pleading: fails to correlate any factual allegations to any count in the pleading; asserts
multiple claims in the same count multiple times; and fails to specify which Defendant is
responsible for which injury. (Id.) Because Plaintiff already received the chance to replead his
complaint, Judge Irick determined that the case should be dismissed.
In his Objection, Plaintiff claims that he has complied with Judge Irick’s Order but fails to
provide any argument in support of his claim. (Doc. 74 at 3). Instead, Plaintiff argues that the Court
should accept his late filing, accuses the Court of purposefully backdating docket entries to favor

Page 2 of 4

Defendants, and informs the Court that he considers the Defendants’ Motion to Dismiss to be fraud
on the Court. (Id. at 2–4). Stated differently, Plaintiff makes no substantive objections to the R&R.
Defendants do not object to Judge Irick’s findings, instead they assert that the dismissal
should be with prejudice. Defendants believe that because Plaintiff failed to comply with Judge
Irick’s Order, despite his clear instructions and warning of dismissal, the case should be dismissed
with prejudice. Defendants argue that if the Amended Complaint is not dismissed with prejudice,
Plaintiff will merely file another problematic complaint for what now would be the third time. 2
After an independent de novo review the Court agrees with the analysis set forth in the
Report and Recommendation, with the exception that the case should be dismissed with prejudice.
“A pro se plaintiff . . . ‘must be given at least one chance to amend the complaint before the district
court dismisses the action with prejudice.’” Carter v. HSBC Mortg. Servs., Inc., 622 F. App’x 783,
786 (11th Cir. 2015) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) overruled on
other grounds by Wagner v. Daewood Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002)
(en banc)). Here, Plaintiff has been given a chance to replead his complaint, along with explicit
instructions on how to draft an amended complaint, which he failed to heed. “[D]ismissal 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). Indeed, “[J]udicial resources
are far too scarce to be exploited by litigants who, after being specifically advised about how to
correct their errors and warned that failing to do so will result in dismissal with prejudice, continue

2

Plaintiff is on the verge of being considered a vexatious litigant. Plaintiff previously filed
the exact same case before this Court, which was also dismissed because Plaintiff failed to follow
a Court directive. (Case No. 6:17-cv-908-Orl-CEM-41KRS, Doc. 25). Additionally, Plaintiff has
filed multiple cases deemed frivolous in other courts around the country, which have been
dismissed for similar problems. (See Motion to Stay, Doc. 30, at 4–5 (listing cases filed by Plaintiff
that were dismissed due to pleading deficiencies)).
Page 3 of 4

in their recalcitrance.” Nurse v. Sheraton Atlanta Hotel, 618 F. App’x 987, 991 (11th Cir. 2015).
Accordingly, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 68) is ADOPTED and CONFIRMED in
part and made a part of this Order to the extent consistent with that stated herein.
In all other respects, the Report and Recommendation is REJECTED for the
reasons stated herein.
2. Plaintiff’s Objection to the Report and Recommendation and his Motion to Allow
this Case to Proceed (Doc. 74) is DENIED.
3. The Amended Complaint (Doc. 44) is DISMISSED with prejudice.
4. All pending motions are DENIED as moot.
5. The Clerk is directed to close this case.
DONE and ORDERED in Orlando, Florida on October 31, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Party

Page 4 of 4