Bey v. American Honda Financial Services Corporation

Filing 25

ORDER: The Second Amended Complaint (Doc. # 18 ) is dismissed. Bey may file a third amended complaint by June 26, 2017, failing which this action will be dismissed without further notice. Bey must properly serve Defendant in accordance with the requirements of the Federal Rules of Civil Procedure by August 28, 2017. Failure to do so may result in dismissal. Signed by Judge Virginia M. Hernandez Covington on 5/25/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALI TAJ BEY,
d/b/a CRAIG ALLEN MYRICK,
Plaintiff,
v.

Case No. 8:17-cv-759-T-33MAP

AMERICAN HONDA FINANCIAL
SERVICES CORP.,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon sua sponte review
of pro se Plaintiff Ali Taj Bey’s Second Amended Complaint
(Doc. # 18), filed on May 19, 2017. For the reasons that
follow, the Court dismisses the Second Amended Complaint and
grants Bey leave to file a third amended complaint by June
26, 2017.
I.

Background
Bey initiated this action on March 30, 2017, by filing

his Complaint against Defendant American Honda Financial
Services Corporation and a motion for leave to proceed in
forma pauperis. (Doc. ## 1, 2). Bey then filed an Amended
Complaint on April 25, 2017, invoking this Court’s federal
question jurisdiction under 28 U.S.C. § 1331. (Doc. # 5). On

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April 27, 2017, the Court denied Bey’s motion for leave to
proceed

in

forma

pauperis

and

dismissed

the

Amended

Complaint. (Doc. # 8). In that Order, the Court explained the
issues with Bey’s jurisdictional allegations. The Court also
advised Bey that “because his claims rest on transactions
entered under the name Craig Myrick, Bey should explicitly
identify in his second amended complaint whether Myrick is
his legal name.” (Id. at 11).
Now Bey has filed a Second Amended Complaint, invoking
this Court’s diversity jurisdiction. (Doc. # 18). The Second
Amended Complaint states that “CRAIG ALLEN MYRICK, assumed
name, through its authorized representative Ali Taj Bey” is
the plaintiff in this action. (Id. at 1). Additionally, “[t]he
Plaintiff is an unincorporated business tradename organized
under the laws of New Jersey State” and “Plaintiff is an
agency created under the laws of the land in which it is
domiciled, New Jersey, and is a New Jersey National, (New
Jersian),

of

the

age

of

majority.”

(Id.

at

2)(emphasis

original). Bey insists he is “proceeding in sui juris, jus
soli, not pro se.” (Id.). The Second Amended Complaint also
alleges American Honda is “incorporated in the state of
California.” (Id.). Although Bey alleges neither party is a
citizen of Florida, he argues the Tampa Division of the Middle
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District of Florida is the proper venue because “[American
Honda] regularly transacts business here in Florida State.
The contract was executed in Hillsborough County, Florida
State,

the

property

(2016

Honda

HR-V)

is

located

in

Hillsborough County.” (Id.).
The

Second

Amended

Complaint

contains

the

same

six

common law causes of action as the Amended Complaint: Count
1 — breach of contract; Count 2 — willful and negligent
refusal to rescind; Count 3 — unjust enrichment; Count 4 —
breach of fiduciary duty; Count 5 — conversion; and Count 6
— fraud in the inducement. (Doc. # 18). Bey alleges he
purchased a 2016 Honda HR-V in December of 2015, and that
American Honda financed his purchase. Bey asserts he paid the
loan in full — overpaid it, in fact — but American Honda
refuses to acknowledge his payment. As a result, Bey has
continued

to

make

payments

under

protest

and

suffered

damages. He demands “all proceeds from the sale of the note,
plus all money paid on account for a total judgment of
$120,721.71 + $91,250.50 (notes sold) for a total judgment of
$211,972.21.” (Id. at 9).
II.

Legal Standard
The Court construes pro se pleadings liberally and holds

them to a less stringent standard than those drafted by
3

attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). But, “a pro se litigant is still required to conform
to procedural rules, and a district judge is not required to
rewrite a deficient pleading.” McFarlin v. Douglas Cty., 587
F. App’x 593, 595 (11th Cir. 2014). A district judge may sua
sponte dismiss a complaint for failure to comply with the
federal rules.

Id. (citations omitted). Likewise, “[t]he

district judge also has the inherent authority sua sponte to
require the plaintiff to file a more definite statement.” Id.
(citing Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th
Cir. 1996)).
Pursuant to Rule 8(a), Fed. R. Civ. P., a pleading that
states a claim must contain, among other things, “a short
plain statement of the claim showing that the pleader is
entitled to relief.”

Additionally, Rule 10(b) provides that

“[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed. R. Civ. P. 10(b). Taken together,
these

rules

“require

the

pleader

to

present

his

claims

discretely and succinctly . . . .” Fikes, 79 F.3d at 1082
(citation omitted).
Complaints that fail to plead discretely and succinctly
are

often

shotgun

complaints.
4

The

Eleventh

Circuit

has

described

four

varieties

of

shotgun

complaints:

(1)

“a

complaint containing multiple counts where each count adopts
the allegations of all preceding counts”; (2) a complaint
that is “replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action”;
(3) a complaint that does “not separat[e] into a different
count each cause of action or claim for relief”; and (4) a
complaint that “assert[s] multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which acts or omissions, or which of the
defendants the claim is brought against.” Weiland v. Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th
Cir. 2015). “The unifying characteristic of all types of
shotgun pleadings is that they fail to . . . give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at 1323.
In such cases, it is “virtually impossible to know which
allegations of fact are intended to support which claim(s)
for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996). A defendant faced
with such a complaint is not expected to frame a responsive
pleading.
pertinent

Id.

“The

precedent,

Federal

Rules

sound
5

of

principles

Civil
of

Procedure,
litigation

management,

and

fairness

to

the

opposing

party

almost

uniformly commend requiring a litigant to submit a complaint
that is not a ‘shotgun pleading’ and that otherwise complies
with the salutary rules of pleading.” Stevens v. Barringer,
No. 2:11-cv-697-UA-SPC, 2013 WL 24272, at *2 (M.D. Fla. Jan.
2, 2013).
Additionally, a federal court may raise jurisdictional
issues on its own initiative at any stage of litigation, and
the Court may dismiss a complaint for lack of subject-matter
jurisdiction based on the complaint alone. Butler v. Morgan,
562 F. App’x 832, 834 (11th Cir. 2014).
II.

Analysis
Although

it

is

an

improvement

upon

the

Amended

Complaint, the Second Amended Complaint should be dismissed
for a number of reasons. The Second Amended Complaint violates
Rule 10(b) because it does not have numbered paragraphs
throughout. Rather, Bey stops numbering paragraphs before the
“Substantive Allegations” section. If he chooses to file a
third amended complaint, Bey should number every paragraph of
the third amended complaint, including those in the factual
allegations section and the various counts.
Also, Bey has not included all of his factual allegations
in the “Substantive Allegations” section. Bey introduces new
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factual allegations in certain counts. For example, in Count
One, Bey alleges for the first time that American Honda has
“accepted novation of the original agreement” yet “refuses to
settle the account on demand” and has since rejected Bey’s
other offer to settle the debt for $24,891.90. (Doc. # 18 at
3). In the third amended complaint, Bey must assert any facts
upon which his claims rest in the section dedicated to factual
allegations. Furthermore, Bey may specifically incorporate
the

relevant

factual

allegations

for

each

count

at

the

beginning of each count.
In the Second Amended Complaint, Bey cites to exhibits
attached to the original Complaint. For example, in Count
One, Bey directs the reader to “see definition of legal tender
in page 10 of 3/30/2017 filing,” by which Bey means the
exhibits to the Complaint filed on March 30, 2017. (Id. at
3). This is improper because the Complaint to which the
referenced exhibits were attached has been dismissed. See
Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir.
2016)(“[W]hen

Mr.

Hoefling

filed

the

second

amended

complaint, the first amended complaint (and its attached
exhibits) became a legal nullity.”). If Bey wishes to use
exhibits to support his allegations, he must attach those
exhibits to the third amended complaint.
7

Throughout the Second Amended Complaint’s counts, Bey
asserts American Honda has violated the National Bank Act
because banking associations “are prohibited from lending
credit” and “loaning their own stock.” (Doc. # 18 at 4-6). As
the Court explained in its previous Order, the National Bank
Act sections Bey cites do not create private rights of action.
(Doc. # 8 at 6-7); see also Davis v. Countrywide Home Loans,
No. 09 CIV. 8606 RJS HBP, 2010 WL 3219306, at *8 (S.D.N.Y.
July 23, 2010), report and recommendation adopted, No. 09
CIV.

8606

RJS

HBP,

2010

WL

3219304

(S.D.N.Y.

Aug.

13,

2010)(“Provisions of the National Bank Act, such as Sections
29 and 83, which do not prescribe a penalty for noncompliance
may be enforced only by the government.”). Thus, Bey cannot
maintain a claim against American Honda for a violation of
the National Bank Act. Similarly, Bey’s quoting the book of
Proverbs — “He that by usury and unjust gain increaseth his
substance, he shall gather it for him that will pity the poor”
— does not create a cause of action or legally support his
claims. (Doc. # 18 at 6). In his third amended complaint, Bey
should refrain from including such quotations and citations
to statutes that do not create his causes of action.
Finally,

some

questions

remain

regarding

the

citizenships of the parties. The Court reminds Bey that
8

“[w]hen jurisdiction is based on diversity of citizenship, 28
U.S.C. § 1332, the plaintiff’s complaint must specifically
allege each party’s citizenship, and these allegations must
show

that

the

plaintiff

and

defendant

are

citizens

of

different states.” Am. Motorists Ins. Co. v. Am. Emp. Ins.
Co., 600 F.2d 15, 16 (5th Cir. 1979). The Second Amended
Complaint

specifies

American

Honda

is

incorporated

in

California, but does not state where American Honda has its
principal place of business. (Doc. # 18 at 2). As the Court
explained in its last Order, corporations are deemed to be
citizens of “every State and foreign state by which it has
been incorporated and of the State or foreign state where it
has its principal place of business.” 28 U.S.C. § 1332(c)(1).
Thus, in his third amended complaint, Bey must state where
American Honda is incorporated as well as where it maintains
its principal place of business.
The Court is also perplexed as to how Myrick, Bey’s
assumed name, qualifies as both an “unincorporated business
tradename organized under the laws of New Jersey” and “an
agency,” which Bey argues is “domiciled” in New Jersey. (Doc.
# 18 at 2). The confusion is compounded by Bey’s own “Notice
of Filing Certification of Record,” which shows that Myrick
is registered as an assumed name in Minnesota, rather than
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New Jersey. (Doc. # 15). Bey should clarify the legal status
of his “assumed name” Myrick, including in which state or
states

that

name

is

registered,

in

his

third

amended

complaint.
Although the Second Amended Complaint is dismissed, the
Court grants leave to file a third amended complaint, which
should correct the problems noted in this Order, by June 26,
2017. Failure to file a third amended complaint by that date
will result in dismissal of this action without further
notice. As the current deadline to effect service on American
Honda is June 28, 2017, and the third amended complaint is
not due until June 26, 2017, the Court sua sponte extends the
service deadline to August 28, 2017. Bey must properly serve
American Honda in accordance with the requirements of the
Federal Rules of Civil Procedure by that date, or possibly
face dismissal.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Second Amended Complaint (Doc. # 18) is DISMISSED.

(2)

Bey may file a third amended complaint by June 26, 2017,
failing which this action will be dismissed without
further notice.

10

(3)

Bey must properly serve Defendant in accordance with the
requirements of the Federal Rules of Civil Procedure by
August

28,

2017.

Failure

to

do

so

may

result

in

dismissal.
DONE and ORDERED in Chambers, in Tampa, Florida, this
25th day of May, 2017.

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