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)

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