MCLEOD v. INGRAM et al

Filing 45

ORDER denying 8 Motion to Dismiss for Failure to State a Claim; denying 10 Motion to Dismiss. Ordered by US DISTRICT JUDGE HUGH LAWSON on 8/10/2017. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

RICHARD JERRY MCLEOD,
Plaintiff,
v.

Civil Action No. 7:16-CV-185

BILLY INGRAM, ET AL.,
Defendants.
ORDER
Before the Court are Defendant Dr. Laura E. Hall’s Motion to Dismiss
(Docs. 8, 9) and Defendants Edward Williams and Chandler Giddes’ Motion to
Dismiss (Doc. 10). For the reasons discussed herein, both motions are denied.
I.

BACKGROUND
Plaintiff Jerry McLeod filed a pro se Complaint in this Court on October 11,

2016. (Doc. 1). Because Mr. McLeod is proceeding in forma pauperis, the Court
conducted a preliminary review of Plaintiff’s Complaint, as required by 28 U.S.C.
§ 1915A(a). Of relevance to the pending motions, the following claims were
allowed to proceed against Defendant Dr. Hall: (1) violation of Fourth
Amendment rights under 42 U.S.C. § 1983; (2) violation of Fifth Amendment
rights under 42 U.S.C. § 1983; (3) slander; and (4) animal cruelty. The following
claims were allowed to proceed against Defendants Williams and Giddes: (1)
violation of Fourth Amendment rights under 42 U.S.C. § 1983; (2) violation of

Fifth Amendment rights under 42 U.S.C. § 1983; (3) fraud; (4) conversion; and
(5) slander. Defendants Hall, Williams, and Giddes move to dismiss all claims
against them.
II.

DISCUSSION
A.

Defendant Dr. Laura E. Hall’s Motion to Dismiss

Dr. Hall moves to dismiss pursuant to O.C.G.A. § 9-11-9.1(e), arguing that
Plaintiff’s failure to attach an expert affidavit to his Complaint warrants dismissal
for failure to state a claim. The Court disagrees.
It is well settled that, pursuant to the Supreme Court’s holding in Erie
Railroad v. Tompkins, 304 U.S. 64 (1938), state procedural laws do not apply in
a federal court exercising pendent jurisdiction over state law claims. Lundgren v.
McDaniel, 814 F.2d 600, 605 (11th Cir. 1987) (citing United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966)). When federal courts are sitting in pendent
jurisdiction, “only substantive state law must be applied,” while “federal law
governs matters of procedure.” Lundgren, 814 F.2d at 605 (citing Nat’l Distillers
& Chem. Corp. v. Brad’s Mach. Prods., Inc., 666 F.2d 492, 494–95 (11th Cir.
1982)); see also Jones v. United Space Alliance, L.L.C., 494 F.3d 1306, 1309
(11th Cir. 2007) (citations omitted) (“[W]e apply substantive Florida law to state
claims heard on the basis of supplemental jurisdiction.”).
O.C.G.A. § 9-11-9.1 does not apply in federal courts because it is a
procedural obligation, not substantive state law. See Baird v. Celis, M.D., et al.,
41 F. Supp. 2d 1358, 1360–61 (N.D. Ga. 1999) (“[T]he expert affidavit which
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requires specific allegations of negligence is in direct conflict with the notice
pleading standard of Federal Rule 8(a).”). The sufficiency of a complaint filed in
federal court is judged by the standard set out in Fed. R. Civ. P. 8(a), which does
not require the affidavit of an expert. See Hanna v. Plumer, 380 U.S. 460, 470
(1965); Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986); Baird, 41 F.
Supp. 2d at 1360–61.
Plaintiff’s Complaint contains a short and plain statement sufficient to fulfill
the pleading requirements of Rule 8(a). Dismissal of his claims against Dr. Hall
for failure to follow the heightened pleading requirement set by Georgia in
professional malpractices cases would be inappropriate. Therefore, Defendant
Dr. Laura E. Hall’s Motion to Dismiss (Docs. 8, 9) is DENIED.
B.

Defendants Edward Williams and Chandler Giddes’ Motion to
Dismiss

Defendants Edward Williams and Chandler Giddes move to dismiss
Plaintiff’s claims against them because Plaintiff is currently prosecuting two
causes of action involving the same set of facts in both this court and in the
Superior Court of Thomas County. Attached to their Motion to Dismiss is an
amended complaint, filed in the Superior Court of Thomas County on August 12,
2016 (the “Superior Court complaint”). (Doc. 10-2). Both Williams and Giddes
are listed as defendants in the Superior Court complaint, which alleges facts
nearly identical to the facts in this case. In addition, the Superior Court complaint
contains the same state law causes of actions. The only claims alleged in this
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action but not in the Superior Court complaint are Plaintiff’s claims arising under
42 U.S.C. § 1983.
To support this argument, Williams and Giddes cite O.C.G.A. §§ 9-2-5(a)
and 9-2-44(a). O.C.G.A. § 9-2-5 states that, “[n]o plaintiff may prosecute two
actions in the courts at the same time for the same cause of action and against
the same party.

If two such actions are commenced simultaneously, the

defendant may require the plaintiff to elect which he will prosecute. If two such
actions are commenced at different times, the pendency of the former shall be a
good defense to the latter.” Further, under O.C.G.A. § 9-2-44, “the pendency of
a former action for the same cause of action between the same parties in the
same or any other court having jurisdiction shall be a good cause for abatement.”
The Court finds this argument unpersuasive. Although Plaintiff does not
raise this issue, these statutes do not apply in this case in light of Cox v. State,
418 S.E. 2d 133 (Ga. Ct. App. 1992), in which the Georgia Court of Appeals held
that O.C.G.A. § 9-2-5 is part of the Georgia Civil Practice Act—the Act that
generally prescribes the procedures applicable to state court lawsuits in Georgia.
As discussed supra, pages 2–3, such state procedural laws do not apply in a
federal court exercising supplemental jurisdiction over state law claims.
Lundgren, 814 F.2d at 605 (citation omitted).
Generally, “the rule is that the pendency of an action in the state court is
no bar to proceedings concerning the same matter in the Federal court having
jurisdiction.” Colorado River Water Conservation v. United States, 424 U.S. 800,
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817 (1976).

Consequently, federal courts may “abstain to avoid duplicative

litigation with state courts only in exceptional circumstances.” Ambrosia Coal &
Const. Co. v. Pages Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (emphasis
added). District courts must conduct a multi-factor inquiry to determine whether
the facts of a particular case warrant abstention:
(1) whether one of the courts has assumed jurisdiction over property,
(2) the inconvenience of the federal forum, (3) the potential for
piecemeal litigation, (4) the order in which the fora obtained
jurisdiction, (5) whether state or federal law will be applied, and (6)
the adequacy of the state court to protect the parties’ rights.
Id. at 1331. The requisite circumstances when considering whether abstention is
appropriate under Colorado River do not exist in the present case, based on the
facts known to the Court at this time. As a consequence, Williams and Giddes’
Motion to Dismiss is DENIED.
IV.

CONCLUSION
For the reasons discussed, Defendant Dr. Laura E. Hall’s Motion to

Dismiss (Docs. 8, 9) and Defendants Edward Williams and Chandler Giddes’
Motion to Dismiss (Doc. 10) are DENIED.
SO ORDERED, this the 10th day of August, 2017.

/s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE
les

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