DAVIS v. LENDMARK FINANCIAL SERVICES

Filing 10

ORDER OF DISMISSAL - The Report and Recommendation 8 is ACCEPTED. The amended complaint is dismissed. ( Plaintiff Second Amended Pleadings due by 7/12/2012.) Signed by JUDGE ROBERT L HINKLE on 6/21/2012. (dlt)

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES DAVIS,
Plaintiff,
v.

CASE NO. 4:12cv153-RH/CAS

LENDMARK FINANCIAL SERVICES,
et al.,
Defendants.
__________________________________/

ORDER OF DISMISSAL
This case is before the court on the magistrate judge’s report and
recommendation, ECF No. 8, and the objections, ECF No. 9. I have reviewed de
novo the issues raised by the objections. The recommendation is for dismissal of
the amended complaint on the court’s own motion.
A plaintiff may be entitled to notice and an opportunity to be heard prior to a
dismissal on the court’s own motion in circumstances like these. See, e.g., Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1069 (11th Cir. 2007); Danow v.
Borack, 197 F. App’x 853, 856, 2006 WL 2671928, at *3 (11th Cir. 2006)
(unpublished); see also Jefferson Fourteenth Associates v. Wometco de Puerto
Case No. 4:12cv153-RH/CAS

Page 2 of 3

Rico, Inc., 695 F.2d 524 (11th Cir. 1983). Here the report and recommendation
gave the plaintiff adequate notice, and he had an opportunity to respond by filing
objections.
The report and recommendation correctly concludes that the amended
complaint is deficient. The plaintiff apparently attempts to assert claims only
under 42 U.S.C. § 1983, but he has alleged no facts showing that he is entitled to
relief. See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (setting out the standards
governing dismissal of a complaint for failure to state a claim on which relief can
be granted); Erickson v. Pardus, 551 U.S. 89 (2007) (same); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) (same).
This order affords the plaintiff one further opportunity to amend. If the
plaintiff chooses to file a second amended complaint, it must include a “short and
plain statement of the claim showing that [the plaintiff] is entitled to relief,” Fed.
R. Civ. P. 8(a)(2), and should allege any asserted fraud “with particularity,” Fed.
R. Civ. P. 9(b). Copying lengthy materials from other sources unrelated to this
case serves no purpose.
One other point deserves mention. Venue is proper in “a judicial district in
which any defendant resides, if all defendants are residents of the State in which
the district is located.” 28 U.S.C. § 1391(b)(1). The complaint seems to allege
that the two individual defendants reside in Florida, albeit in the Southern District.

Case No. 4:12cv153-RH/CAS

Page 3 of 3

The corporate defendant, Landmark Financial Services, Inc., may reside in this
district, as well as others. See 28 U.S.C. § 1391(c)(2) (making a corporate
defendant a resident, for venue purposes, of any district in which it is subject to
personal jurisdiction with respect to the claim at issue). But even if venue is
proper here, if the events at issue occurred in the Southern District of Florida,
transfer to that district may be appropriate under 28 U.S.C. § 1404(a). If the
plaintiff tenders a second amended complaint that states a claim on which relief
can be granted, the case may be transferred to the Southern District without further
notice, unless the second amended complaint alleges facts connecting the case to
this district.
For these reasons and those set out in the report and recommendation,
IT IS ORDERED:
The amended complaint is dismissed. The plaintiff is granted leave to file a
second amended complaint by July 12, 2012.
SO ORDERED on June 21, 2012.
s/Robert L. Hinkle
United States District Judge

Case No. 4:12cv153-RH/CAS