Faller v. Pelosi et al

Filing 44

ORDER denying 32 Motion for Hearing; finding as moot 13 Motion to Dismiss; finding as moot 18 Motion to Dismiss. Plaintiff is directed to file an amended complaint within 14 days from the date of this Order. Signed by Chief Judge J. Randal Hall on 11/19/2020. (pts)

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Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION 5 JAMES S. FALLER II, * * Plaintiff, * CV 120-002 * V. * NANCY PATRICIA PELOSI, et al., * Defendants. ORDER Presently before the Court are Defendants' motions to dismiss (Docs. 13, 18.) For the following reasons. Defendants' motions are DENIED AS MOOT. I. BACKGROXTOD On January 7, 2020, Plaintiff filed a fifty-nine page complaint against seven members of the United States Congress, ''The Deep State," and "Unknown Defendants" alleging violations of various criminal and civil statutes. 5, 52-56.) counts. Plaintiff brings (Id. at 52-56.) suit (Compl., Doc. 1, at 3- against Defendants on ten Additionally, Plaintiff's Complaint includes seventeen demands for relief, including that the Court "refer these matters to a Special Grand Jury," enter judgment in the amount of $1.5 billion, and "entertain a Petition for Habeas Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 2 of 9 Corpus . . . Plaintiff." Complaint is to dismiss the (2) two false convictions of the (Id. at 57-59.) full of As explained below. Plaintiff's extraneous information not obviously connected to any claim against Defendants; thus, the Court will not delve into the factual allegations of the Complaint. II. DISCUSSION A. Shotgun Pleading After careful review, the Court finds Plaintiff s Complaint is an impermissible "shotgun pleading." a complaint that violates Federal 8(a)(2) or 10(b), or both." A shotgun pleading "is Rules of Civil Procedure Toth v. Antonacci, 788 F. App'x 688, 690 (11th Cir. 2019); s^ Fed. R. Civ. P. 8(a)(2) (requiring a pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief"); Fed. R. Civ. P. 10(b) (requiring a party to state its claims "in numbered paragraphs, each limited as far as practicable to a single set of circumstances"). This Court does not tolerate such pleadings and has previously explained: The Eleventh Circuit is particularly opprobrious of what are known as "shotgun pleadings," or pleadings that violate Rules 8(a)(2) or 10(b). See Weiland v. Palm Beach C[n]tv. Sheriff's Off[.], 792 F.3d 1313, 1320-21 (11th Cir. 2015) (recognizing the Eleventh Circuit's "thirty-year salvo of criticism aimed at shotgun pleadings"); Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) ("Courts in the Eleventh Circuit pleadings."). have little tolerance for shotgun Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 3 of 9 Cummings v. Mitchell, No. CV 118-161, 2020 WL 1491751, at *2 (S.D. Ga. Mar. 17, 2020); see also Blochowicz v. Wilkie, No. CV 120-111, 2020 WL 5028224, at *3-4 (S.D. Ga. Aug. 25, 2020). There are four types of shotgun pleadings. is a pleading ''containing multiple counts The first type where each count adopts the allegations of all preceding counts, causing each successive count Weiland, 792 "replete to F.3d with carry all at 1321. conclusory, that came before . The second type is a vague, and immaterial . . pleading facts 1*^♦ obviously connected to any particular cause of action." 1322. not Third is a pleading that does not separate each claim into separate counts. Id. at 1322-23. "relatively of rare sin asserting Finally, fourth is the multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts . . . or which of the defendants the claim is brought against." Id. at 1323. different "sins," all types of shotgun pleadings, another, claims rests." Despite the in one way or fail "to give the defendants adequate notice of the against them and the grounds upon which each claim Id. Here, Plaintiff's Complaint commits all four "sins" to some extent. First, Plaintiff's Complaint contains ten counts.^ The ^ Although Plaintiff only lists ten counts, his Complaint references over twenty federal statutes. Plaintiff also asserts his "First, Fourth, Fifth, Sixth, Seventh, Eighth, Twelfth, Fourteenth and Fifteenth [AJmendment rights were violated." (Compl., at 3.) Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 4 of 9 first fifty-one unnumbered pages allegations of Plaintiff s of fact. Although Complaint contain Plaintiff does not specifically state so, the Court assumes the factual allegations are adopted in full by all ten counts because Plaintiff fails to assert any facts in the last seven pages of his Complaint, where the ten counts are listed. (See Compl., at 52-56.) Thus, it is impossible to determine which facts relate to each count. Plaintiff s Complaint is also riddled with immaterial facts and conclusory allegations not obviously connected to any cause of action. (See, e.g., Id. at 19 (discussing Karen Sypher trial); Id. at 22 (listing statements from celebrities regarding President Trump); Id. at 24, 30 (discussing events that occurred in Luxembourg) Id. at 43-44 (listing five ^''examples of the ongoing travesty").) Additionally, Plaintiff fails to separate each claim for relief into separate counts. For example. Plaintiff combines three claims against Defendants in Count II and III and two claims in Count VI. (Id. at 52-54.) Lastly, Plaintiff commits the ^^rare sin" of failing to specify which Defendants are responsible for which acts. Plaintiff alleges 'Mt]he above named Defendants as a conspiracy and at times acting alone" are responsible for each count. at 52-56.) (Id. While on its face Plaintiff attributed each count to all Defendants and thus specified which Defendant is responsible for which act, it is difficult to believe all seven Defendants Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 5 of 9 are responsible for all ten counts, given the absence of facts pleaded under each count. Shotgun pleadings ^^exact an intolerable toll on the trial court's docket . . . and impose unwarranted expense on the litigants, the court and the court's parajudicial personnel and resources." Cramer v. State of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997). For these reasons, when a party files a shotgun pleading, the Eleventh Circuit instructs district courts to strike the pleading and direct that a new complaint be filed. Jackson v. Bank of Am., N.A., 898 F. 3d 1348, 1357-58 (11th Cir. 2018) (citing Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001)). As required, this Court will give Plaintiff one chance to fix his defective Complaint. See Embree v. Wyndham Worldwide Corp., 779 F. App'x 658, 662 (11th Cir. 2019) (^'When faced with a shotgun pleading, a district court must sua sponte give the plaintiff at least one statement of her chance to claims replead a more before dismissing her prejudice." (citing Vibe Micro, 878 F.3d at 1296)). definite case with However, if Plaintiff fails to comply with the Court's Order, his ''continued impermissible pleadings warrant dismissal with prejudice. Hirsch v. Ensurety Ventures, 805 F. App'x 987, 992 (11th Cir. 2020). Plaintiff is DIRECTED to file an amended complaint within FOURTEEN Plaintiff (14) DAYS should of the date of ensure his amended entry of complaint this Order. complies with Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 6 of 9 Rules 8(a)(2) and 10(b). each of his claims, Specifically, Plaintiff must set forth including claim, as separate counts. distinctly Plaintiff numbered should supporting facts for each Each claim should be separately and and avoid the stated conclusory plainly and statements specific facts that support his claims. succinctly. and state the Plaintiff should also eliminate any extraneous material and make clear against which Defendant or Defendants each count is asserted. B. Criminal Statutes Plaintiff's Complaint seeks relief under more than seven criminal statutes, including 18 U.S.C. § 241 (conspiracy against rights), 18 U.S.C. § 242 (deprivation of rights under color of law), 18 U.S.C. § 1341 (mail fraud), 18 U.S.C. § 875(d) (extortion), 18 U.S.C. § 871(a)—(b) (threats against President and successors to the Presidency), 18 U.S.C. § 953 (private correspondence with foreign governments), and 18 U.S.C. § 3332(a)(special grand jury).2 However, ''MpJrivate rights of action must be to enforce federal law rather than by the federal courts." created by Congress' Morales v. U.S. Dist. Court for S. Dist. of Fla., 580 F. App'x 881, 886 (11th Cir. 2014) 2 Count III also (Compl., at 53.) references 18 U.S.C. §§ 1985 and 1581(a)-(b). The Court notes 18 U.S.C. § 1985 does not exist. Moreover, Plaintiff's Complaint makes no reference to 18 U.S.C. § 1595, which allows ^^a victim of a violation of this chapter [to] bring a civil action against the perpetrator" for damaps and reasonable attorney's fees. Thus, if Plaintiff wishes to bring suit for violations of 18 U.S.C § 1581(a)-(b), he must do so under 18 U.S.C. § 1595. Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 7 of 9 {quoting Alexander v. Sandoval^ 532 U.S. 275, 286 (2001)). text of a criminal statute itself must "clearly congressional intent to create new rights.'" Id. The ^[display] "And Congress must Misplay[] an intent to create not just a private right but also a private remedy.'" Here, statutes Plaintiff that do not Id. (alteration in original). asserts create relief private under federal causes of criminal action. See O'Berry v. State Att'ys Off., 241 F. App'x 654, 657 (11th Cir. 2007) (affirming the district court's ruling that a private individual cannot bring an action under 18 U.S.C. §§ 241 and 242); Austin v. Glob. Connection, 303 F. App'x 750, 752 (11th Cir. 2008) (holding 18 U.S.C. § 1341 is a "criminal statute . . . [that does] not provide for civil remedies"); Fowler v. Univ. of Phoenix, Inc., No. 18cvl544, 2019 WL 1746576, at *17 (S.D. Cal. Apr. 18, 2019), aff'd, 817 F. App'x 442 (9th Cir. 2020) (dismissing plaintiff's extortion claim premised on 18 U.S.C. § 1951 and the related penalties set forth in 18 U.S.C. §§ 817-80 because the statutes do not create a private right of action); Strunk v. N.Y. Province of the Soc. of Jesus, No. CV 09-1249, 2010 WL 816121, at *3 (D.D.C. Mar. 8, 2010) (dismissing civil action alleging violation of 18 U.S.C. § 953 because "the United States Constitution vests the power to conduct criminal litigation on the federal government's behalf [in the Attorney General]" (citing 28 U.S.C. § 516; United States v. Nixon, 418 U.S. 683, 694 (1974))); Morales, 580 F. App'x at 886 (finding 18 Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 8 of 9 U.S.C. § 3332(a) ''nowhere express or implied"). creates a private right of action, Moreover, "[t]he Supreme Court has held that 'a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.'" Garcia v. Miami Beach Police Dep't, 336 F. App'x 858, 859 (11th Cir. 2009) (quoting Linda R.S. v. Richard P., 410 U.S. 614, 619 (1973)). Thus, Plaintiff should avoid asserting any claims that do not allow complaint. for a private cause of action in his amended If Plaintiff does assert such claims, they will be dismissed with prejudice. C. Personal Jurisdiction Finally, Plaintiff should also keep in mind that it is his burden to establish a prima facie case of personal jurisdiction over a nonresident defendant. Meier ex rel. Meier v. Sun Int 1 Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002) (citing Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988)). Alleging each Defendant "resides and acts in many residences in multiple jurisdictions" is not enough. (See Compl., at 12-15.) To meet this burden. Plaintiff must present "enough evidence to withstand a motion for directed verdict." Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (citing Morris, 843 F.2d at 492). To withstand a motion for directed verdict. Plaintiff must put forth "substantial evidence . . . of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions . . . ." 8 Case 1:20-cv-00002-JRH-BKE Document 44 Filed 11/19/20 Page 9 of 9 Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1555 (11th Cir. 1995) (citing Verbraeken v. Westinqhouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)). III. CONCLUSION Plaintiff is DIRECTED to file an amended FOURTEEN (14) DAYS from the date of this Order. complaint within Should Plaintiff file an amended complaint, the Court will review it sua sponte for compliance with this Order. Having granted Plaintiff an opportunity to amend his Complaint, Defendants' motions to dismiss (Docs. 13, 18) are DENIED AS MOOT. Additionally, finding no reason to conduct a hearing, Plaintiff's request for hearing (Doc. 32) is DENIED. ORDER ENTERED at Augusta, Georgia, this day November, 2020. J. kANSif HALL,/CHI JUDGE united/statfs district court :rn district of Georgia of

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