Ward et al v. JP Morgan Chase Bank et al
Filing
47
ORDER DISMISSING COMPLAINT. Signed by Judge James I. Cohn on 1/15/2014. (ns)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-61554-CIV-COHN/SELTZER
CLYDE WARD, CLYDE MCPHATTER, LEROY
WILLIAMS, and MAURICE SYMONETTE,
Plaintiffs,
v.
JP MORGAN CHASE BANK, LOAN CITY
MORTGAGE, WASHINGTON MUTUAL BANK,
MORTGAGE ELECTRONICS REGISTRATION
SYSTEM, and WASHINGTON MUTUAL
SECURITIES,
Defendants.
/
ORDER DISMISSING COMPLAINT
THIS CAUSE is before the Court sua sponte. The Court has considered the
record herein and is otherwise advised in the premises.
I.
BACKGROUND
This action relates to a residential mortgage encumbering a parcel of real
property at 2920 N.E. 55th Place, Fort Lauderdale, Florida (the "Property"). See DE 1;
DE 1-2 at 1. The Property has been the subject of a lengthy and oft-delayed
foreclosure proceeding pending since 2007. DE 19 at 2–3; DE 19-1. On July 18, 2013,
Plaintiffs filed the instant action, contesting the foreclosure as illegal and seeking
injunctive relief prohibiting the foreclosure, a declaration that the underlying debt is void,
restitution, a declaration to quiet title of the Property, $5 million in damages, and other
varied relief. DE 1 at 37–38.
On October 18, 2013, the Court granted Defendants' motion to dismiss on the
grounds that the Complaint failed to comply with the requirements of Rule 8 of the
Federal Rules of Civil Procedure. DE 32 at 2–3. Plaintiffs had also failed to effect
service of process at that time. Id. at 3–5. Nevertheless, given that this Court had
previously granted Plaintiffs leave to proceed in forma pauperis, the Court informed
Plaintiffs that, upon the filing of an amended complaint, the Court would direct the
United States Marshal to serve the necessary papers upon Defendants. Id. at 4–5. On
October 31, 2013, Plaintiffs accordingly filed their Amended Complaint. DE 34. On
November 4, 2013, the Court ordered the United States Marshal to effect service.
DE 36.1
On November 5, 2013, Plaintiffs filed yet another pleading entitled "Amended
Complaint." DE 37 ("Second Amended Complaint"). On December 26, 2013, the Court
dismissed the Second Amended Complaint with leave to re-plead, again on the basis of
Plaintiffs' failure to comply with the applicable pleading requirements. DE 41 at 3–5.
The Court cautioned Plaintiffs, however, that future failure to plead appropriately could
lead to the dismissal of this action with prejudice. Id. at 5.
On January 13, 2014, Plaintiffs filed a document entitled "Second Amended
Complaint," bearing the word "NEW" above its caption. DE 45. For purposes of this
Order, the Court will refer to that document as the "New Second Amended Complaint."
The Court now turns its attention to the sufficiency of the New Second Amended
Complaint.
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As of the date of this Order, the record does not reflect that service of any
pleading upon Defendants has been completed.
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II.
DISCUSSION
A. Legal Standard
Where a plaintiff proceeds in forma pauperis, the Court may review the merits of
his pleading sua sponte pursuant to 28 U.S.C. § 1915(e)(2). Section 1915 reads in
relevant part:
(e)(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that—
...
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.
28 U.S.C. § 1915 (emphasis added). Review of a complaint for failure to state a claim
under section 1915 is governed by the same standard as a motion to dismiss on that
basis under Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997). At this stage of litigation, the Court will take a plaintiff's
allegations as true and will construe them in the light most favorable to the plaintiff. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Nevertheless, the Court does not
have "license to serve as de facto counsel for a party . . . or to rewrite an otherwise
deficient pleading in order to sustain an action." GJR Invs., Inc. v. Cnty. of Escambia,
Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted), abrogated on other
grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).
Moreover, Federal Rule of Civil Procedure 8(a)(2), which sets forth the applicable
standard for notice pleading, requires a complaint to contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." The Court may
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read complaints by pro se plaintiffs, such as Plaintiffs herein, more liberally than those
prepared by attorneys. See Osahar v. U.S. Postal Serv., 297 F. App'x 863, 864 (11th
Cir. 2008) (per curiam). Nevertheless, pro se plaintiffs remain obligated to allege
sufficient facts to support a claim for relief and to give the other parties notice of the
bases for their claims. Id.
B. Analysis
A review of the New Second Amended Complaint demonstrates that Plaintiffs
have failed to remedy the deficiencies of their prior pleadings that led to the dismissal of
those pleadings for failure to satisfy the requirements of Rule 8. By its third page, the
New Second Amended Complaint devolves into a lengthy, rambling missive. See
DE 45 at 3–43. Though the New Second Amended Complaint contains brief bursts of
clarity, the majority of the pleading casts allegations of wrongdoing in all directions.
Numerous causes of action recite mere legal conclusions and direct the reader to sift
through the remainder of the document to guess which particular facts support the
claims. For example, Plaintiffs' Tenth Cause of Action, seeking $5 million in damages
for intentional infliction of emotional distress, "re-alleges and incorporates by reference"
the New Second Amended Complaint's prior allegations, and proceeds to assert in
conclusory manner that the "acts and omissions of the defendants, and each of them,
constitute extreme and outrageous conduct," and that Defendants "engaged in such
conduct either intentionally or with reckless disregard as to the effect on Plaintiff." Id.
¶¶ 77–79. These sorts of "shotgun" allegations fail to link each cause of action to its
factual predicates, and bury what may be kernels of viable claims "beneath innumerable
pages of rambling irrelevancies." Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.
2001) (per curiam). Plaintiffs further attempt to incorporate a qualified written request
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pursuant to the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq., into
the New Second Amended Complaint, as well as a memorandum of law suggesting that
the Court dismiss a state-court action with prejudice, in apparent disregard of the
requirement of Rule 10(b) that a party "state its claims . . . in numbered paragraphs,
each limited as far as practicable to a single set of circumstances." See DE 45 at 19,
21–28. As this Court stated in its prior order dismissing the original Complaint, such a
jumbled and incoherent pleading "imposes unjustifiable burdens on the Court and
Defendants." DE 32 at 3.
The Court therefore will dismiss the New Second Amended Complaint. Faced
with a confusing and incoherent complaint, the Court ordinarily would allow leave to
re-plead. See United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th
Cir. 2006). The Court, however, has already twice dismissed the operative complaint in
this action for failure to comport with the applicable pleading requirements. See DE 32
& 41. Plaintiffs have proved unable or unwilling to satisfy these requirements, and
continue to file unacceptable, confusing pleadings which do not provide Defendants with
sufficient notice of the claims against them. When faced with a plaintiff who repeatedly
fails to plead appropriately, a district court acts within its discretion in dismissing the
plaintiff's action with prejudice. Kennedy v. Bell S. Telecomms., Inc., No. 12-15869,
2013 U.S. App. LEXIS 21111, at *4–7 (11th Cir. Oct. 18, 2013) (per curiam). Therefore,
in light of Plaintiffs' repeated failure to provide the Court and Defendants with an
acceptable complaint herein, in addition to the futility of allowing yet another opportunity
to re-plead, the Court will dismiss the New Second Amended Complaint with prejudice.
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III. CONCLUSION
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that New Second Amended Complaint [DE 45] is
DISMISSED with prejudice. The Court will enter a separate Final Judgment consistent
with this ruling.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 15th day of January, 2014.
Copies provided to:
Counsel of record via CM/ECF
Clyde Ward (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
Clyde McPhatter (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
Leroy Williams (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
Maurice Symonette (pro se)
2920 N.E. 55th Place
Fort Lauderdale, Florida 33308
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