El v. North Carolina State Employees' Credit Union
ORDER adopting 8 Report and Recommendations, dismissing this case, and closing this civil action. Signed by Chief Judge J. Randal Hall on 05/31/2017. (thb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
NORTH CAROLINA STATE
EMPLOYEES' CREDIT UNION,
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 (doc. no. 10). The
Magistrate Judge recommended dismissal of this case because Plaintiff failed to plead
sufficient facts to invoke the jurisdiction of the federal courts.
(See doc. no. 8.) The
Magistrate Judge made this recommendation after reviewing the original complaint,
explaining no valid basis for federal jurisdiction could be discerned therein, and giving
Plaintiff an opportunity to file an amended complaint. (Doc. no. 4.)
In that Order allowing Plaintiff to re-plead his claims, the Magistrate Judge identified
specific pleading deficiencies and provided explicit instructions about how to file the
amended complaint. (Id, at 3-5.) The Order also stated:
Plaintiff is further cautioned that no portion of any prior pleading shall
be incorporated into his amended complaint by reference. Moreover, Plaintiff
shall submit only one amended complaint in accordance with the terms of this
Order. Therefore, Plaintiff shall state in the single amended complaint filed in
accordance with the terms of this Order all claims that he wishes the Court to
consider as a basis for awarding the relief sought.
(Id at 5.)
Plaintiff submitted his amended complaint on the Form Pro Se 1, Complaint for a
Civil Case, with which he had been provided, but the allegations presented did not cure the
As the Magistrate Judge correctly determined, the Declaratory
Judgment Act is not an independent basis for federal jurisdiction, and the remainder of the
claims sounded in breach of contract.
(See doc. no. 8.)
Having received the
recommendation for dismissal, Plaintiff claims, despite the instructions set forth above, he
did not understand all of his claims from the original complaint would not be incorporated
into the Court's review of the amended complaint. (Doc. no. 10.) Thus, Plaintiff requests
yet another opportunity to amend his amended complaint, and he offers a proposed amended
complaint as an exhibit to his objections/motion to amend. (See id.) The proposed amended
complaint is not on the Form Pro Se 1 the Magistrate Judge directed Plaintiff to use, reverts
to many of the pleading deficiencies identified with original complaint, and does not show
there is federal jurisdiction over Plaintiffs claims.
As a general rule, leave to amend under Fed. R. Civ. P. 15(a) is given freely. Foman
v, Davis, 371 U.S. 178, 182 (1962); Wedemever v. Pneudraulics, Inc., 510 F. App'x 875, 878
(11th Cir. 2013). That said, leave to amend is not guaranteed, and a trial court may deny
such leave "in the exercise of its inherent power to manage the conduct of litigation before
it." Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008). "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." Saewitz v.
Lexington Ins. Co., 133 F. App'x 695, 699 (11th Cir. 2005) (quoting Foman, 371 U.S. at
Having considered the substance of the proposed second amended complaint, the
Court denies the motion to amend because it is futile and because of Plaintiffs dilatory
tactics in purposefully ignoring the Court's explicit instructions concerning amendment.
First, the Court provided Plaintiff explicit instructions on the method for amending his
complaint if he wanted to pursue this case, including using Form Pro Se 1 and refraining
from reciting legal terminology without factual detail and from describing his Moorish
American background in the complaint. The proposed amended complaint does not comply
with any of those instructions.
Second, Plaintiff simply removes the words "breach of contract" and "declaratory
judgment" from the proposed amended complaint, but he does not change description, and
thus the nature, of his claims. Plaintiffs claims still revolve around a contractual dispute for
a $9,000 car loan, which as the Magistrate Judge explained does not raise a federal claim.
Lastly, Plaintiff fails to provide any details supporting his bald assertion that Defendant
violated the Fair Debt Collection Practices Act ("FDCPA"). Not only does Plaintiff fail to
attach certain exhibits referenced in the proposed amended complaint, (for example,
"Plaintiffs Exhibit: Support Case 1925256" (doc. no. 10, p. 6)), but his conclusory phrases
listed after statutory citations, (id at 8), are insufficient to show Plaintiff is entitled to relief.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring "more than an unadorned, the-
defendant-unlawfully-harmed-me accusation" and rejecting "labels and conclusions" as
sufficient to satisfy Rule 8 pleading requirements).
In sum, the Court denies the request to file a second amended complaint. Plaintiffs
attempt to invoke federal jurisdiction with conclusory FDCPA claims is futile, and his
dilatory reversion to proposing a second amended complaint in a format already rejected
once by the Court will not be rewarded. Accordingly, the Court OVERRULES Plaintiffs
objections, ADOPTS the Report and Recommendation of the Magistrate Judge as its
opinion, DISMISSES this case, and CLOSES this civil action.
SO ORDERED this^> / day of
, 2017, at Augusta, Georgia.
J. RA>|^Arj0&tIXrCHIEF JUDGE/
UNITED9TATES DISTRICT JUDGE
LOUTHERN DISTRICT OF GEORGIA
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