MCCOLLIGAN v. VENDOR RESOURCE MANAGEMENT
Filing
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ORDER GRANTING 8 Motion to Dismiss claims asserted against Angela Sammons; GRANTING 9 Motion to Dismiss; GRANTING 11 Motion to Dismiss Complaint; and GRANTING 35 Motion to Dismiss for Failure to State a Claim. The Plaintiff's claims against the judges are DISMISSED with prejudice. The Plaintiff's copyright claims against all remaining Defendants, including DOES 1 THROUGH 100, INCLUSIVE and Jimmy Thomas Howell, Jr., are DISMISSED with prejudice. The Plaintiff's remaining claims against VRM, Flynn, Krivo, Howell, and DOES 1 THROUGH 100, INCLUSIVE are DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/5/2019. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RODNEY MICHAEL McCOLLIGAN,
Plaintiff,
v.
VENDOR RESOURCE MANAGEMENT,
et al.,
Defendants.
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CASE NO. 5:18-CV-160 (MTT)
ORDER
Defendants Middle District of Georgia Judges Ashley Royal and Tilman Self, 1
Houston County Superior Court Judge Edward Lukemire, Houston County Magistrate
Judge Angela Sammons, Vendor Resource Management (VRM), Steven Flynn, and
Greg Krivo have moved to dismiss the claims against them brought by Plaintiff Rodney
McColligan. Docs. 8; 9; 11; 35. The Plaintiff, proceeding pro se, responded to the
motions. Docs. 21; 22; 23; 38. For the following reasons, the Defendants’ motions
(Docs. 8; 9; 11; 35) are GRANTED.
I. FACTUAL ALLEGATIONS
The factual allegations outlined in the Plaintiff’s complaint are difficult to follow. It
appears that this case arises from the Plaintiff being “wrongfully evicted from proprietary
property” due to “a foreclosure Judgment dated April 4[,] 2017 without just cause and
without due process; and then enforcing an evict of Plaintiff from his property . . . on
1 Judges should recuse themselves from deciding cases where the defendants are judges of the same
district “unless the litigation is patently frivolous or judicial immunity is clearly applicable.” GUIDE TO
JUDICIARY POLICY § 3.6-6[1]. As explained in this order, “judicial immunity is clearly applicable” to Judges
Ashley Royal and Tilman Self.
APRIL 16, 2018 unlawfully.” Doc. 1 ¶¶ 13, 43. The Plaintiff attached to his complaint
multiple court documents from prior cases regarding his eviction, as well as what
appears to be the Plaintiff’s interpretation and history of various statutes and case law.
See generally Docs. 1-2; 1-3; 1-4; 1-5; 1-6; 1-7; 1-8; 1-9; 1-10; 1-11; 1-12; 1-13; 1-14; 115; 1-16; 1-17; 1-18; 1-19; 1-20; 1-21; 1-22; 1-23; 1-24; 1-25; 1-26; 1-27; 1-28; 1-29; 130; 1-31; 1-32.
The Plaintiff claims that he owned the real property at 111 Glendale Court,
Warner Robins, Georgia. Doc. 1 at 10. On August 20, 2007, the Plaintiff signed a
promissory note and security deed to obtain a mortgage from Market Street
Corporation, giving Market Street the power to foreclose on the Plaintiff’s Property upon
the Plaintiff’s default. Doc. 1-19. On September 5, Market Street assigned the security
deed to the Georgia Housing and Finance Authority (GHFA). Id. On April 4, 2017, the
GHFA foreclosed on the Property and was the successful bidder. Doc. 1-18. GHFA
subsequently conveyed the Property to VRM. Doc. 1-19. On May 20, VRM mailed a
written demand to the Plaintiff for possession of the Property. Doc. 1-20.
On June 8, VRM initiated dispossessory proceedings against the Plaintiff in
Houston County Magistrate Court, and the Plaintiff filed an answer a week later. Doc.
1-15 at 2. After a contested hearing, Judge Sammons entered judgment, ruling that
VRM was entitled to a writ of possession for the Property and ordering removal of the
Plaintiff from the Property. Doc. 1-21. A final order by the Houston County Superior
Court was entered. Id. The Plaintiff appealed the judgment in Houston County Superior
Court. Doc. 1-25. VRM then filed a motion for summary judgment, which Judge
Lukemire granted. Docs. 1-5; 1-16.
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The Plaintiff subsequently filed two lawsuits regarding his eviction. The first
lawsuit—brought in Houston County Superior Court and later removed to this Court—
alleged fraud and misrepresentation during his eviction and foreclosure proceedings by
State Home Mortgage (SHM) and GHFA. Doc. 1-3. The lawsuit was assigned to Judge
Royal, who ultimately granted SHM and GHFA’s motion to dismiss. Id. SHM and
GHFA were represented by Flynn and Jimmy Thomas Howell, Jr. of McCalla Raymer
Leibert Pierce, LLC. 2 Id. The Plaintiff did not appeal. Rather, he filed a second
complaint in this Court against VRM, represented by Krivo, and “DOES 1 THROUGH
94, INCLUSIVE” (“Unknown Investors and Agents” of VRM) alleging deprivation of his
civil rights during the foreclosure process under 42 U.S.C. § 1983. Doc. 1-2. Judge
Self was assigned the case. Id. Judge Self denied the Plaintiff’s motion to preliminarily
enjoin VRM from evicting him from the Property, denied his motion for a temporary
restraining order, and denied his motion to cease and desist. Id. The Plaintiff appealed
Judge Self’s denial of his motions. McColligan v. Vendor Res. Mgmt., Case No. 5:18cv-111, Doc. 13. That case remains pending. Id.
The Plaintiff now brings his third complaint regarding these facts and allegations
against VRM, Howell, Flynn, Judge Royal, Judge Self, Krivo, Judge Lukemire, Judge
Sammons, and “DOES 1 THROUGH 100, INCLUSIVE” (“Unknown Investors and
Agents” of VRM). Doc. 1 at 2. The Plaintiff attempts to allege constitutional violations
under 42 U.S.C. § 1983, civil conspiracy to interfere with his civil rights, copyright
2 The Plaintiff does not bring any claims against McCalla Raymer Leibert Pierce, LLC or allege that it is
vicariously liable for the alleged unlawful acts and omissions of Howell. See generally Doc. 1. The Clerk
is directed to correct the case style to accord with the complaint.
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violations under 18 U.S.C. § 1342, and conspiracy to deny him equal protection under
42 U.S.C. § 1985. Id. at 2-16.
The Plaintiff requests compensatory damages “of $10,000 per day for every day
that [the Plaintiff] is without control of his property due to evition [sic], from each
Defendant, for each cause of action; This shall be payable to the Plaintiff in
Constitutional Lawful Money redeemable in gold or silver coin as set fouth [sic] in Article
1 Sec. 10 of the constitution.” Id. at 15. The Plaintiff also requests $8,000,000 in
damages for the Defendants’ unauthorized use of his copyright via United States mail.
Id. at 14. The Plaintiff additionally requests punitive damages, “cost of this suit,” a jury
trial, and “[a] declaratory judgment that the practices of the Defendants violated the
substantive and procedural due process.” Id. at 15-17. Finally, the Plaintiff requests
“[a]n Order from the court explaining wherein the complaint is deficient and how to
correct it” and “Orders and Judgment or the like or similar ruling . . . to be supported by
Findings of Fact and Conclutions [sic] of Law in pursuance of the Federal Constitution,
not mere unsupported opinions and judgments without explaining the constitutional
basis of the ruling(s)” and leave to amend the complaint “once discovery is completed,
and Defendants have raised the usual Fed. R. Civ. [P.] 12(b)(6) objections and
avalanche of procedural gimmicks.” Id. at 15-16.
II. MOTION TO DISMISS STANDARD
The Federal Rules of Civil Procedure require a pleading to contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), a
complaint must contain sufficient factual matter to “‘state a claim to relief that is
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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “At the motion to dismiss stage, all wellpleaded facts are accepted as true, and the reasonable inferences therefrom are
construed in the light most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466
F.3d 1255, 1261 (11th Cir. 2006) (internal quotation marks and citation omitted).
However, “where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis,
297 F.3d 1182, 1188 (11th Cir. 2002). Although a pro se complaint, “however inartfully
pleaded,” will “be held to less stringent standards than formal pleadings drafted by
lawyers,” Estelle v. Gamble, 429 U.S. 97, 106 (1976), the complaint must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). Where there
are dispositive issues of law, a court may dismiss a claim regardless of the alleged
facts. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th
Cir. 1993).
III. DISCUSSION
A. Judicial Immunity
Judges are “entitled to absolute judicial immunity from damages for those acts
taken while they are acting in their judicial capacity unless they acted in the clear
absence of all jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000)
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(internal quotation marks and citations omitted). “[A] court must construe jurisdiction
broadly in favor of the defendant judge.” Otworth v. The Fla. Bar, 71 F. Supp. 2d 1209,
1218 (M.D. Fla. 1999) (citing Stump v. Sparkman, 435 U.S. 349, 356 (1978)). An
inquiry into the merits of the judicial decision is not permitted in such a case. Sibley v.
Lando, 437 F.3d 1067, 1071 (11th Cir. 2005).
Judges Royal, Self, Lukemire, and Sammons were clearly “acting in their judicial
capacity” as they oversaw the Plaintiff’s various proceedings. See Sibley v. Lando, 437
F.3d 1067, 1070 (11th Cir. 2005) (“Whether a judge’s actions were made while acting in
his judicial capacity depends on whether: (1) the act complained of constituted a normal
judicial function; (2) the events occurred in the judges’ chamber or in open court; (3) the
controversy involved a case pending before the judge; and (4) the confrontation arose
immediately out of a visit to the judge in his judicial capacity.”) (citation omitted).
Additionally, the judges were not acting in the “clear absence of all jurisdiction” because
they had jurisdiction over the proceedings. Id.; O.C.G.A. § 44-7-50 (stating that
magistrate and superior court judges in the district where the land lies have jurisdiction
over dispossessory proceedings); 28 U.S.C. § 1331 (stating that federal judges have
jurisdiction over cases involving a question of federal law, such as 42 U.S.C. § 1983).
Furthermore, judicial immunity applies “even when the judge’s acts are in error,
malicious, or were in excess of his or her jurisdiction.” Bolin, 225 F.3d at 1239.
Accordingly, Judge Royal’s, Judge Self’s, Judge Lukemire’s, and Judge Sammons’
motions to dismiss (Docs. 8; 9; 35) are GRANTED, and the Plaintiff’s claims against
those Defendants are DISMISSED with prejudice.
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B. Prior Pending Action
The Plaintiff cannot bring his civil rights claims against the remaining Defendants
due to the prior pending action doctrine. The prior pending action doctrine is implicated
because: (1) the Plaintiff brought this case while his civil rights action in front of Judge
Self was and is on interlocutory appeal of Judge Self’s order denying injunctive relief;
and (2) the issues in these cases are substantially identical. Cf. Oliney v. Gardner, 771
F.2d 856, 859 (5th Cir. 1985) (“When a plaintiff files a second complaint alleging the
same cause of action as a prior, pending, related action, the second complaint may be
dismissed.” (emphasis in original)); Holliday v. City of Newington, 2004 WL 717160, at
*1 (D. Conn. 2004) (“Because [a] district court enjoys substantial discretion to manage
its docket efficiently to avoid duplicate litigation . . . a court may dismiss an action when
a prior pending action has been filed as long as the controlling issues in the dismissed
action will be determined in the other lawsuit.” (internal quotation marks and citation
omitted)).
The Plaintiff cannot bring these new 42 U.S.C. § 1983, civil conspiracy, and 42
U.S.C. § 1985 claims against Defendants VRM and “DOES 1 THROUGH 100,
INCLUSIVE” because he has a prior case pending against them regarding the same set
of facts with Judge Self. McColligan v. Vendor Res. Mgmt., Case No. 5:18-cv-111, Doc.
13. The Plaintiff also cannot bring claims against Defendants Howell, Krivo, and Flynn.
“[A] party seeking to enforce a claim legally or equitably must present to the court, either
in pleading or in proof, or both, all the grounds upon which he expects a judgment in his
favor. He is not at liberty to split up his demand, and prosecute by piecemeal, or
present only a portion of the grounds upon which special relief is sought, and leave the
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rest to be presented in a second suit, if the first fail.” United States v. Haytian Rep., 154
U.S. 118, 125 (1894) (internal quotation marks and citation omitted). A second lawsuit
is duplicative of the first “if the parties, issues and available relief do not significantly
differ between the two actions.”
Accordingly, the Plaintiff’s § 1983, civil conspiracy, and § 1985 claims against
Defendants VRM, Krivo, Flynn, Howell, and “DOES 1 THROUGH 100, INCLUSIVE” are
DISMISSED without prejudice. 3
C. Failure to State Claims
For the reasons discussed below, the Plaintiff’s civil-rights-based claims are also
subject to dismissal because he has failed to state claims upon which relief can be
granted as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure.
1. Section 1983 Claims
The Plaintiff alleges that the Defendants “are liable under section 1983 if they
received notice of a pattern of unconstitutional acts committed and they demonstrated
deliberate indifference to or tacit authorization of the offensive acts and/or that they
failed to take sufficient remedial action and such failure proximately caused injury to the
Plaintiff.” Doc. 1 at 8. The Plaintiff alleges that the Defendants denied him a jury trial
and his due process rights “repeatedly in the court proceedings wherein Defendants,
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Jimmy Thomas Howell, Jr. and “DOES 1 THROUGH 100, INCLUSIVE” have not filed a motion to
dismiss. “A district court is usually prohibited from dismissing a complaint sua sponte if it has failed to
provide notice of its intent to dismiss or provide an opportunity to respond. Nonetheless, even if a party
does not have notice that the district court is considering a dismissal, the court may dismiss an action
without notice if the complaint is patently frivolous or if amendment would be futile.” Harris v. Buckhorn,
545 F. App’x 862, 863 (11th Cir. 2013). Because the Plaintiff failed by any means to state a claim upon
which relief could be granted, the Plaintiff’s claims against Howell and “DOES 1 THROUGH 100,
INCLUSIVE” are also DISMISSED without prejudice. Westley v. Alberto, 703 F. App’x 727, 732 (11th
Cir. 2017) (holding that a district court did not abuse its discretion by not affording the pro se plaintiff
notice or an opportunity to respond before sua sponte dismissing his complaint with prejudice because
the complaint was “patently frivolous”).
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individuals acting as judges and attorneys et al. government agents, ran foreclosure
proceedings and all Plaintiff’s efforts were ignored and disregarded demonstrating
aforesaid individuals’, Defendants’, contempt for Plaintiff’s rights to equal protection and
due process.” Id. In other words, the Plaintiff appears to allege that the Defendants are
liable under 42 U.S.C. § 1983 and thus acting under color of law simply because the
Defendants were involved in the previous court proceedings. See id.
The Plaintiff is mistaken. Plaintiffs may bring a cause of action against a public
official when that official, acting “under color of any statute,” deprives the plaintiff of his
constitutional and statutory rights. 42 U.S.C. § 1983. “In order to sustain a cause of
action based on 42 U.S.C. § 1983, a plaintiff must make a prima facie showing of two
elements: (1) that the act or omission deprived plaintiff of a right, privilege or immunity
secured by the Constitution or laws of the United States, and (2) that the act or omission
was done by a person acting under color of state law.” Dwyer v. Office of Criminal
Conflict, 2012 WL 4758137, at *3 (N.D. Fla. 2012) (citing Dollar v. Haralson Cty., Ga.,
704 F.2d 1540, 1542-43 (11th Cir. 1983)).
Here, the Plaintiff does not plausibly allege, and clearly on the facts could not in
good faith allege, that the private Defendants were acting under the color of state law.
A private party may be recognized as a state actor only when one of the following three
tests is satisfied: the state compulsion test, the public function test, or the nexus/joint
action test. Davis v. Self, 547 F. App’x 927, 933-34 (11th Cir. 2013). The state
compulsion test applies when “the State has coerced or at least significantly
encouraged the action alleged to violate the Constitution.” Rayburn ex rel. Rayburn v.
Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001). The public function test applies when a
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private party “performed a public function that was traditionally the exclusive prerogative
of the State.” Id. The nexus/joint action test applies when “the State had so far
insinuated itself into a position of interdependence with the [private parties] that it was a
joint participant in the enterprise[].” Id.
None of these tests apply here. The Plaintiff’s complaint offers only the
conclusory statement that the Defendants collectively violated his civil rights because
they were involved in the previous court proceedings without any factual allegations that
an agreement was made. The Plaintiff alleges that VRM and “DOES 1 THROUGH 100,
INCLUSIVE” (or VRM’s investors), acting through its attorneys—Krivo, Flynn, and
Howell—are part of this conspiracy. See generally Doc. 1. In any event, the complaint
clearly does not state any civil rights claims under § 1983. Furthermore, the Eleventh
Circuit has held that private attorneys acting on behalf of their clients, who are private
citizens, are not transformed into state actors simply because they successfully litigated
their clients’ issues in court. Davis, 547 F. App’x at 933. Defendants Howell, Flynn, and
Krivo—private attorneys acting on behalf of their clients—are thus not public officials
acting under the color of state law and are not subject to § 1983. For this additional
reason, the Plaintiff’s § 1983 claims are DISMISSED without prejudice.
2. Conspiracy Claims
In the Plaintiff’s civil conspiracy claim, the only facts alleged are that the
Defendants “work[ed] together via the mechanisms of the court to impose and enforce
summary proceeding on Plaintiff and his property in violation of his right to due process
and equal protection of the laws.” Doc. 1 at 10. “To allege a civil conspiracy, [the
Plaintiff] must cite facts allowing for the reasonable inference that an agreement existed
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between [the Defendants] to do an unlawful act (or a lawful act by unlawful means), that
some overt act was done in furtherance of the conspiracy, and that [the Plaintiff] was
harmed as a result.” Marjam Supply Co. of Fla., LLC v. Pliteq, Inc., 2016 WL 11501768,
at *5 (S.D. Fla. 2016) (internal quotation marks and citations omitted) (emphasis
added). Because the Plaintiff offers only conclusions and no facts alleging “specific
actions taken by any individual defendant,” he fails to plausibly allege his conspiracy
claims. Westley v. Alberto, 703 F. App’x 727, 732 (11th Cir. 2017). Accordingly, the
Plaintiff’s civil conspiracy claims are DISMISSED without prejudice.
3. Section 1985 Claims
The Plaintiff also alleges that the Defendants violated 42 U.S.C. § 1985(3) by
conspiring to deny him due process and a jury trial on his foreclosure proceedings.
Doc. 1 at 11. Specifically, the Plaintiff alleges that that the Defendants unfairly treated
him based on his class: “a non-lawyer pro se litigant.” Id. Section 1985 gives a person
a cause of action against anyone who conspires to deprive “either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws. . . .” 42 U.S.C. § 1985 (emphasis added). “The Equal
Protection Clause has traditionally been applied to governmental classifications that
treat certain groups of citizens differently than others.” Fahs Constr. Grp. v. Van Auken,
725 F.3d 289, 291 (2d Cir. 2013) (citation omitted) (emphasis in original). But unlike §
1983, § 1985(3) actions “reach[ ] purely private conspiracies.” Un. Broth. of Carpenters
& Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 832 (1983) (citations
omitted).
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To state a claim under the Equal Protection Clause, and thus a conspiracy under
§ 1985, a plaintiff “must allege that the plaintiff is a member of an identifiable group, was
subjected to differential treatment from others similarly situated, and the difference in
treatment was based on his or her membership in that group.” Glenn v. Brumby, 724 F.
Supp. 2d 1284, 1296 (N.D. Ga. 2010) (citing Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256, 279 (1979)). As stated in the Defendants’ brief, the Plaintiff “has failed to plead
facts demonstrating that Plaintiff is a member of [a] protected class of individuals for
purposes of equal protection analysis.” Doc. 11-1 at 18 (citation omitted). “[N]on-lawyer
pro se litigant[s]” are not a protected class. See Clark v. Jeter, 486 U.S. 456, 461
(1988). Even if the Plaintiff had properly alleged that he was a member of a protected
class, his allegations that he suffered discriminatory animus by being treated differently
from others similarly situated without a rational basis, or a “class of one claim,” are
conclusory. Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006)
(holding that plaintiffs alleging a class of one claim must allege facts “(1) that they were
treated differently from other similarly situated individuals, and (2) that Defendant
unequally applied a facially neutral [law] for the purpose of discriminating against
Plaintiffs”) (citations omitted). Accordingly, the Plaintiff’s § 1985 claims are DISMISSED
without prejudice.
D. Copyright Claims
The Plaintiff also claims that the Defendants violated 18 U.S.C. § 1342 by using
the Plaintiff’s name in legal proceedings without his permission. Doc. 1 at 14. Section
1342 prohibits the use of a fictitious name in carrying out mail fraud as described in §
1341. However, § 1342, a criminal statute, does not create a private right of action.
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See Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir. 1977) (holding that there exists
no private right of action under 18 U.S.C. § 1341). 4 Accordingly, the Plaintiff’s
“copyright” claims are DISMISSED with prejudice for failure to state a claim upon
which relief can be granted.
IV. CONCLUSION
Judge Ashley Royal’s, Judge Tilman Self’s, Judge Edward Lukemire’s, Judge
Angela Sammons’, Vendor Resource Management’s, Steven Flynn’s, and Greg Krivo’s
motions to dismiss (Docs. 8; 9; 11; 35) are GRANTED. The Plaintiff’s claims against
the judges are DISMISSED with prejudice. The Plaintiff’s “copyright” claims against all
remaining Defendants, including “DOES 1 THROUGH 100, INCLUSIVE” and Jimmy
Thomas Howell, Jr., are DISMISSED with prejudice. The Plaintiff’s remaining claims
against VRM, Flynn, Krivo, Howell, and “DOES 1 THROUGH 100, INCLUSIVE” are
DISMISSED without prejudice.
SO ORDERED, this 5th day of March, 2019.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
4
The Eleventh Circuit has adopted as binding precedent the decisions of the Fifth Circuit rendered prior
to October 1, 1981. Bonner v. City of Pritchard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
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