Jones Creek Investors, LLC et al v. Columbia County, Georgia et al

Filing 90

ORDER ADOPTING the 63 Report and Recommendations of the Magistrate Judge, GRANTING 26 Motion to Strike, Motion for Extension of Time to File Answer, and DEEMED AS MOOT 28 Motion to Dismiss, GRANTING 15 Motion for Extension of Time, Motion to Strike, GRANTING 85 Motion to Amend/Correct, DEEMED AS MOOT 70 Motion to Amend/Correct. The effected that are named in the new complaint shall have 14 days to answer. Within 21 days of the date of this Order, the parties shall confer as required by Fed.R.Civ.P. 26(f); w/in 14 days of the conference, the parties shall submit a written report in compliance set forth in the Order dated 10/14/11 (doc. no. 4). Signed by Chief Judge Lisa G. Wood on 3/1/2012. (ca)

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IN THE

UNITED

STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JONES CREEK INVESTORS, LLC, and ).
SAVANNAH RIVERKEEPER, INC.,
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Plaintiffs,
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V.

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CV 111"174

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COLUMBIA COUNTY, GEORGIA, et al,)
Defôndnts.

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ORDER

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After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation, to which objections have been filed (doe no 71)
Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the

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opinion of the Court Therefore, because Plaintiffs' original and first amended complaints
do not comply with the pleading standard of Federal Rule of Civil Procedure 8(a), the

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motions to strike filed by Defendants Columbia County, Georgia ("Columbia County"),
Ktmlandco, LLC, Southern Site Design, Inc. and Dr. Robert F Mullins' are GRANTED

.'Hereinafter, conistentth the terminology in Plaintiffs' pleadings, the Court will
collectively refer to Defendants Knnlandco, LLC, Southern Site Design, Inc., and Dr. Robert
F Mullins as the "Krystal River Defendants" In addition, the Court will collectively refer
to Defendants Marshall Square, LLC, D C Lawrence Commercial Real Estate, LLC, Donald
Lawrence, Joseph H Marshall, III, and Allen Daniel Marshall as the "Marshall Square
Defendants" Finally, the Court will collectively refer to Defendants Bruce E Lyons and
Jones Creek Partners, LLC, as the "Townhomes Defendants.":

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(doe. nos. 10-2, 15-2, 26), and Plaintiffs are required to replead their claims in accordance
with Rule 8(a).
In the pleadings addressed by the Magistrate Judge, Plaintiffs asserted 13 claims,
several of which arise under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (
doe. nos. 1, 12.) As alluded to above, in addition to recommending that these shotgun
pleadings be stricken, the Magistrate Judge recommended that Plaintiffs be required to
replead their claims in a single, amended complaint that complies with Rule 8(a). (Doe. no.
64, p. 11.) Rather than await a final ruling from this Court, Plaintiffs filed a motion to
amend along with their objections. (Doe. no. 70.) In their motion to amend, Plaintiffs
sought permission to file a second amended complaint, which, according to them, addressed
the deficiencies in their previous pleadings identified by the Magistrate Judge. (Doc. no. 70,
pp. 16-18.) Plaintiffs also sought to add additional federal and state law claims against
Defendant CSX Transportation, Inc. ("CSXT").2 (S ee id. at 8-16.) Also, Plaintiffs indicated
their intent to name another Defendant in a future amendment upon satisfying certain
requirements that must be completed prior to bringing a CWA claim. fte id. at 6 n.3.)
Defendant Columbia County - as well as the Krystal River, Marshall Square, and
Townhomes Defendants - opposed Plaintiffs' motion to amend. (Doe. nos. 72, 73, 75, 77.)
These Defendants argued that Plaintiffs' proposed second amended complaint was a shotgun
pleading that suffered from the same deficiencies identified by the Magistrate Judge with

20f. note, unlike Defendants who moved to strike Plaintiffs' original and first
amended complaints, Defendant CSXT filed a motion to dismiss, arguing the claims asserted
against it in those pleadings fail as a matter of law. (Doe. no. 28.)
PA

regard to Plaintiffs' initial pleadings. (See. e.g., doe. no. 72, PP. 5-9.) They also argued that,
in light of Plaintiffs' intent to add another party in a future amendment, the case should be
dismissed without prejudice so that Plaintiffs might "file a simple omnibus complaint at the
appropriate time instead of requiring the Defendants to file multiple and redundant responses
to pieôemeal pleadings." (Ld. at 4; doe, no. 73, p. 3.) Plaintiffs disputed these contentions
in a consolidated reply. (Doe. no. 83.)
Defendant CSXT also opposed the motion to amend. As in the motion to dismiss it
filed in response to the initial pleadings, rather than raising the issue of compliance with the
Rule 8(a) pleading standard, Defendant CSXT argued that the additional claims against it in
the proposed second amended complaint failed to state a claim upon which relief could be
granted. (Doe. no. 81.) Plaintiffs' filed a separate reply to Defendant . CSXT's response to
the motion to amend. (Doe. no. 84.)
Shortly after filing their reply to Defendant CSXT's response - at which point the
motion to amend was ripe for adjudication - Plaintiffs filed a second motion to amend their
complaint. (Doe. no. 85.) In their second motion to amend, Plaintiffs seek permission to file
a "Revised Second Amended Complaint," which is materially similar to the proposed second
amended complaint attached to their original motion to amend except that it names a new
Defendant (Marshall Square Property Owner's Association, Inc.)' and omits a previously
named Defendant (Allen Daniel Marshall). ($ j4) The Marshall Square Defendants have

3The claims against Marshall Square Property Owner's Association, Inc., in the new
proposed complaint are the same as the CWA and state law claims, asserted against the
Marshall Square Defendants in Plaintiffs' previous pleadings. (Leg doe. no. 85-2, pp. 6-10.)
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filed a response to the second motion to amend in which they reiterate the arguments raised
in opposition to the first motion to amend. See doe. no. 88.)
The Court recognizes that the time for responding to the second motion to amend has
not expired. However, because the proposed revised second amended complaint is similar
with regard to Defendants named in Plaintiffs' previous pleadings, and because the Court is
unwilling to permit further delay, the Court will now proceed to evaluate Plaintiffs' second
motion to amend. Rather than waiting for any additional responses or replies regarding.the
second motion to amend, the Court will take into account the responses to the first motion
to amend in ruling on the second motion to amend.
As a general rule, leave to amend under Fed. R. Civ. P. 15(a) is given freely. Foman
v. Davis, 371 U.S. 178 (1962). That said, leave to amend is not guaranteed, and the decision

of whether to grant a motion to amend is within the sound discretion of the trial court.
Addington v. Farmer's Elevator Mut. Ins. Co.. 650 F.2d 663, 666 (5th Cir. 1981). "In

making this determination, a court should consider whether there has been undue delay in
filing, bad faith or dilatory motives, prejudice to the opposing parties, and the.futility of the
amendment." Local 472. United Ass'n of Journeymen & Apprentices of the Plumbing &
Pipefitting Ind. v. Georgia Power Co., 684 F.2d 721, 724 (11th Cir. 1982) (quoting Foman,

371 U.S. at 182). Moreover, as set forth above, the Court has adopted the Magistrate Judge's

41n Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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Report and Recommendation such that Plaintiffs are required to replead their claims in a new
complaint.
Here, the relevant factors weigh in favor of permitting Plaintiffs' proposed
amendment. The proposed revised second amended complaint is significantly shorter than
Plaintiffs' previous pleadings, and Plaintiffs have endeavored only to incorporate relevant
factual allegations into each count. ee e.g..doc. no. 85-1, p. 68.) As Defendants pointed
out in their responses to Plaintiffs' first motion to amend, Plaintiffs' new proposed complaint
still contains a significant amount of factual detail — likely more than is necessary. See
Ashcroft v. Igbal, 556 U.S. _, 129 S. Ct. 1937, 1949 (2009) ("[T]he pleading. standard
Rule 8 announces does not require `detailed factual allegations' .... (quoting Bell Atl..
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, because Plaintiffs have taken
measures to address their initial pleadings' lack of intelligibility, such as limiting the quantity
of factual allegations incorporated into each count, it is appropriate to allow their proposed
amendment rather than further delaying this case by demanding a perfect complaint. See
United States v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) . ("Some
complaints are windy but understandable. Surplusage can and should be ignored. Instead
of insisting that the parties perfect their pleadings, a judge should bypass the dross and get
on with the case.") Additionally, as noted by the Magistrate Judge in his Report and
Recommendation, Rule 8(a)(2) does not require maximum particularity in pleadings, and the
number and complexity of Plaintiffs' claims counsel in favor of granting them leeway as to
the length of their pleadings. (See doe. no. 64, p. 8.) Moreover, the concerns regarding

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Plaintiffs' addition of another party at a later date are no longer material, as Plaintiffs'
revised second amended complaint names the party in question as a Defendant.
Regarding the separate issues raised by Defendant CSXT, the Court will not address
matters pertaining exclusively to one Defendant in the context of a motion to amend that
seeks to replace Plaintiffs' previous pleadings. in their entirety. Rather, Defendant CSXT
may re-urge its contentions regarding the sufficiency of Plaintiffs' allegations to state a valid
claim against it in its response to the new complaint.'
In sum, the Court finds that the revised second amended complaint adequately
complies with the Court's directive that Plaintiffs replead their claims. Therefore, Plaintiffs'
second motion to amend is GRANTED. (Doe. no. 85.) Plaintiffs shall have seven days
from the date of this Order to. file their revised second amended complaint as a stand-alone
entry on the docket. Consistent with Rule 12(a)(4)(B), upon the filing of Plaintiffs' new
complaint as a stand-alone entry, all Defendants upon whom service has already been

'Similarly, because the granting of Plaintiffs' second motion to amend will result in
Plaintiffs' initial pleadings being superseded, Defendant CSXT's pending motionto dismiss
directed at those pleadings is DEEMED MOOT (doe. no. 28). See Pintando v. Miami-Dade
Hous Agency, 501 F 3d 1241, 1243 (11th Cir. 2007) (per curiam)("[A]n amended pleading
supersedes the former pleading; the original pleading is abandoned by the amendment, and
is no longer a part o. the pleader's averments against his adversary." (quoting Dresdner Bank
AG v. MIX Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006))); see also Hall v. Jnt'l
Union, Case No. 3:10-cv-418, 2011 U.S. Dist. LEXIS 66084, at *1 (W.D.N.C. June 21,
2011) ("It is well-settled that a timely filed amended pleading supersedes the original
pleading, and that motions directed at superseded pleadings are to be denied as moot.").
Defendant CSXT may re-urge the contentions in its motion to dismiss in its response to
Plaintiffs' new complaint.
6Having granted Plaintiffs' second motion to amend, their first motion to amend is
DEEMED MOOT. (Doe. no. 70.)

effected that are named in the new complaint shall have 14 days to answer or otherwise
respond.' Furthermore, within 21 days of the date of this Order, the parties shall confer as
required by Federal Rule of Civil Procedure 26(f); within 14 days of the conference, the
parties shall submit a written report in compliance with the instructions set forth in the Order
issued by the Magistrate Judge on October 14, 2011 (doc. no. 4).
SO ORDERED this

day of March,

.YVOOD, CHIEF JUDGE
.TES DISTRICT COURT
DISTRICT OF GEORGIA

70f course, Plaintiffs must effect service of process on the new Defendant in
accordance with the applicable procedural rules.
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