Abdulla v. Southern Bank et al
Filing
46
ORDER granting 39 Motion to Dismiss; denying as moot 40 Motion to Strike. This case is dismissed with prejudice and stands closed. Signed by Chief Judge J. Randal Hall on 5/10/2022. (pts)
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
SOHAIL M. ABDULLA,
Plaintiff,
CV 121-099
V.
SOUTHERN BANK,
Defendant
ORDER
Presently before the Court are Defendant's motion to dismiss
the Amended Complaint (Doc. 39) and Defendant's motion to strike
portions of the Amended Complaint (Doc. 40).
For the following
reasons. Defendant's motion to dismiss is GRANTED and Defendant's
motion to strike is DENIED AS MOOT.
I. PROCEDURAL HISTORY
On January 3, 2022, this Court granted in part Defendant's
original motion to dismiss, dismissing Plaintiff's claims under
the Federal Trade Commission" Act C'FTCA"), the Gramm-Leach-Bliley
Act ("GLBA"), the Privacy Act of 1974 (''Privacy Act"), and the
Fair Credit Reporting Act ("FCRA"). (Doc. 30.)
Further, the Court
found the remainder of Plaintiff's complaint to be an impermissible
shotgun pleading and directed him to file an amended complaint in
compliance with Federal Rules of Civil Procedure 8(a)(2) and 10(b).
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 2 of 16
(Id. at 11.)
Specifically, Plaintiff was instructed to set forth
each of his claims as separate counts and clearly allege the
appropriate facts under each one; to make each claim separately
and distinctly numbered and stated plainly and succinctly; to avoid
conclusory and vague statements and state the specific facts that
support each claim; and to eliminate any extraneous material and
make clear which facts pertain to which count.
(Id. at 11-12.)
On January 18, 2022, Plaintiff filed his Amended Complaint
against Defendant, asserting three claims: (1) breach of contract;
(2) accounting; and (3) illegal entry of safety deposit box.
Compl., Doc. 35, at 17-19.)
(Am.
On February 1, 2022, Defendant filed
the pending motions seeking to dismiss the Amended Complaint as
well as to strike certain paragraphs from the Amended Complaint.
(Docs. 39, 40.) Plaintiff responded in opposition to both motions
(Docs. 41, 42), Defendant filed a brief in support of its motion
to dismiss (Doc. 44), and Plaintiff filed an additional reply in
opposition (Doc. 45).
Based on the foregoing, the motions have
been fully briefed and are ready for the Court's review.
II. FACTUAL BACKGROUND
Despite the Court's instructions in its January 3, 2022 Order,
the Amended Complaint rehashes countless transactions and events
that took place from 2001 through 2019, and the facts relevant to
the alleged claims are still somewhat hard to follow.
(See Am.
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 3 of 16
Compl.; Doc. 30, at 11-12.)
Nevertheless, the Court attempts to
decipher the basis of Plaintiff's grievances as best it can.
Plaintiff,
a
South
Carolina
resident,
brings
claims
against
Defendant for breach of contract, accounting, and illegal entry of
safety deposit box.
(Am. Compl., at 16-19.) The underlying facts
start as early as June 2001 when Plaintiff executed a note and
mortgage with Defendant that attached a condominium (the '^^Goodale
Property"), as collateral.
(Id. at 2.)
Then in 2006, Plaintiff
executed a note and security agreement on behalf of his business.
Sportsman's Link, Inc. (the ''Sportsman's Loan"). (Id.) Plaintiff
represents that "[n]o security deed was ever executed or recorded
for the Goodale Property" after the first mortgage was satisfied
"in or before 2005."
(Id. at 3.)
As part of the Sportsman's Link
Loan, Plaintiff asserts there was a third-party agreement "drafted
by Defendant as an inducement . . . to allow Defendant to attempt
to circumvent the lending limit restrictions prescribed by [12
U.S.C. ยง 12], essentially doubling the amount the bank could
legally lend to Plaintiff and his business."
In
March
2007,
Sportsman's
Link
(Id.)
entered
Chapter
11
Bankruptcy. (Id. at 4.) In relation to this bankruptcy. Plaintiff
alleges many other actions took place. He references many renewals
and modifications to his loans that Defendant fraudulently and
secretly did
without reporting
them to the
Bankruptcy Court,
ultimately alleging Defendant "circumvent[ed] the law."
(Id. at
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 4 of 16
4-6.)
Then in November 2008, Defendant foreclosed on the Goodale
Property ^^without providing lawful notice or serving Plaintiff
with the necessary documents in violation of due process."
at
6.)
Plaintiff makes
numerous other
(Id.
allegations about the
foreclosure, the sale of the property, the process that went along
with it, and the money Defendant made from the sale.
(Id. at 6-
8.)
Plaintiff goes on to allege he ^^was sick at the time of
signing [the renewal] and was not of sufficient capacity to sign
this foolish and unnecessary note which ceded over to Defendant
around $250,000.00 of additional unneeded collateral."
9.)
(Id. at
He believes his lack of capacity made what he refers to as
the ''Burke Note" void.
(Id.)
Defendant proceeded to repossess
Plaintiff s vehicles and additional real estate that was listed as
collateral, and Plaintiff believes Defendant sent the notices to
an address it knew was incorrect.
(Id. at 9-10.)
Somewhere along
the way there was another personal debt that was secured by two
parcels of land in Columbia County and a parcel in Burke County
which
were
Plaintiff.
also foreclosed
(Id. at 10.)
on
by
Defendant
without
notice
to
Essentially, Plaintiff alleges Defendant
never gave him an accounting, credit, or listing for the "wrongful"
sales, never obtained a judgment against Plaintiff, and ultimately
violated his due process rights.
(Id. at 12-13.)
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 5 of 16
Plaintiff states ^^[t]he doctrine of unclean hands applies to
the Defendant for all of the transactions contemplated [in the
Amended Complaint]." (Id. at 13.)
claim
incorporates
all
preceding
Plaintiff's breach of contract
paragraphs
in
the
Amended
Complaint and appears to be based on two allegations: Defendant
foreclosed on an ''invalid" note in 2008, and Defendant's fraudulent
acts have tolled the statute of limitations until 2018 when the
wrongdoing was discovered.
(Id. at 16-17.)
His accounting claim
again incorporates the preceding paragraphs and alleges Defendant
failed to provide notice of the seizure and sale of Plaintiff's
personal property or the foreclosures and failed to properly
liquidate his personal property and apply the sale proceeds to his
indebtedness.
(Id. at 17-18.)
And finally, Plaintiff's claim for
illegal entry of safety deposit box simply states "Defendant
willfully and illegally drilled and entered Plaintiff's safety
deposit box" which was "kept open despite ten years of nonpayment."
(Id.)
Plaintiff had no notice of this situation as he was sick
and out of the country, and he is unsure what happened to the
contents of the box.
(Id. at 19.)
III. LEGAL STANDARD
In considering a motion to dismiss under Rule 12(b)(6), the
Court tests the legal sufficiency of the complaint.
Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 6 of 16
Davis V. Scherer, 468 U.S. 183 (1984).
Pursuant to Federal Rule
of Civil Procedure 8(a)(2), a complaint must contain
short and
plain statement of the claim showing that the pleader is entitled
to relief" to give the defendant fair notice of both the claim and
the supporting grounds.
555
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544,-
Although ''detailed
factual allegations" are
not
required, Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation."
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'" ^
Id. (quoting Twombly,
550 U.S. at 570).
The plaintiff must plead "factual content that
allows
to
the
defendant
court
is
liable
draw
for
the
the
reasonable
misconduct
inference
alleged."
that
Id.
the
"The
plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that defendant has
acted
unlawfully."
"requires
more
than
Id.
labels
A
plaintiff's
and
conclusions,
recitation of the elements of a cause
Twombly, 550 U.S. at 555.
tenders
'naked
pleading
and
of action
obligation
a
formulaic
will not do."
"Nor does a complaint suffice if it
assertions'
devoid
of
'further
factual
^ The Court must accept all well-pleaded facts in the Amended Complaint as true
and construe all reasonable inferences therefrom in the light most favorable to
Plaintiff. Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006).
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 7 of 16
enhancement.'"
at 557).
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
Furthermore, ''the court may dismiss a complaint pursuant
to [Rule 12(b)(6)] when, on the basis of a dispositive issue of
law, no construction of the factual allegations will support the
cause of action."
Marshall Cnty. Bd. of Educ. v. Marshall Cnty.
Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citing Exec. 100,
Inc. V. Martin Cnty., 922 F.2d 1536, 1539 (11th Cir. 1991)).
Pursuant to the Court's January 3, 2022 Order, Plaintiff was
given an opportunity to replead his complaint because the Court
found it to be a shotgun pleading.
(Doc. 30, at 8-12.)
The
Eleventh Circuit provides that "a district court must sua sponte
give the plaintiff at least one chance to replead a more definite
statement
of
[his]
claims
before
dismissing
[the]
case
with
prejudice." Embree v. Wyndham Worldwide Corp., 779 F. App'x 658,
662 (11th Cir. 2019) (citation omitted). A court's order requiring
repleading "comes with an implicit notion that if the plaintiff
fails to comply with the court's order - by filing a repleader
with the same deficiency - the court should strike his pleading
or, depending on the circumstances, dismiss his case and consider
the
imposition
Shabanets,
878
of monetary
F.3d
1291,
sanctions."
1295
quotations and citations omitted).
(11th
Vibe
Cir.
Micro, Inc.
2018)
v.
(internal
These procedures are in place
because shotgun pleadings "exact an intolerable toll on the trial
court's docket, lead to unnecessary and unchanneled discovery, and
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 8 of 16
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).
IV. DISCUSSION
Defendant
moves
to
dismiss
Plaintiff s
Amended
Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(6) and 41(b).
(Doc. 39.)
Defendant argues Plaintiff has failed to recast his
complaint in accordance with the Court's instructions and even if
he had remedied the defects, his allegations are still insufficient
and should be dismissed for failure to state a claim.
1, at 1.)
(Doc. 39-
Defendant also moves to strike portions of Plaintiff's
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(f).
(Doc. 40.)
The Court will address Defendant's motions in
turn.
A. Motion to Dismiss
Defendant asserts Plaintiff's Amended Complaint is a shotgun
pleading, arguing it should be dismissed pursuant to Rule 41(b)
for failure to comply with the Court's instructions and pursuant
to Rules 8(a) and 10(b) for failure to state a claim.
(Doc. 39.)
1. Compliance with Court Order (Doc. 30)
The Court's January 3, 2022 Order found Plaintiff's original
complaint to be an impermissible shotgun pleading.
9-12.)
(Doc. 30, at
Specifically, the Court found that each of Plaintiff's
8
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 9 of 16
claims adopted the allegations of all preceding claims without
clearly describing their association with each specific offense.
(Id.
at
9.)
recounted
Further,
years'
specific claim.
There
worth
the
Court
pointed
that
Plaintiff
of events without linking them to any
(Id.)
are four types of shotgun
"containing
out
multiple
counts
where
pleadings: first, those
each
count
adopts
the
allegations of all preceding counts, causing each successive count
to carry all that came before
"
Weiland v. Palm Beach
Cnty. Sheriff's Off., 792 F.3d 1313, 1321 (11th Cir. 2015).
The
second type is "replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of action."
Id. at 1322.
Third are those that do not separate each claim into
a separate count.
See id. at 1322-23.
Fourth is the "relatively
rare sin of asserting 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.
A pleading must only qualify as one of
these four types to be an impermissible shotgun pleading.
Plaintiff argues he "more than satisfie[d] the
pleading
requirements" and that his Amended Complaint "in no way relies
upon mere legal conclusions but contains a detailed factual account
of Defendant[^s] illegal practices." (Doc. 41, at 3.)
While true
that Plaintiff includes a detailed factual account, the facts he
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 10 of 16
recounts are numerous and are very difficult to link to his claims.
Further, Plaintiff states in his response that he is bringing a
claim of "unclean hands of the Defendant"; however, this is not a
claim asserted in his Amended Complaint and therefore he cannot
bring it for the first time in his response to the motion to
dismiss.2
(See id. at 4-5; Gilmour v. Gates, McDonald & Co., 382
F.Sd 1312, 1315 (11th Cir. 2004) ("A plaintiff may not amend her
complaint through argument in a brief . . . .").)
of Plaintiff s
response
rehashes the
same
The remainder
factual allegations
previously stated in his Amended Complaint simply separated into
categories based on the various foreclosed properties.
12.)
(Id. at 6-
Plaintiff also lists so many monetary values the Court is
unable to ascertain their connection to the various allegations
Plaintiff attempts to bring.
(See id. at 5-16.)
In his second
reply in opposition. Plaintiff simply states that "Defendant is
once again confusing the simple nature of [his] Amended Complaint"
and that his "charge is breach of contract."
(Doc. 45, at 1.)
Plaintiff argues "Defendant breached a security deed by using a
phantom instrument(note) to seize Plaintiffs property."
(Id.)
Defendant supplemented its motion to dismiss by arguing that
"Plaintiff
has
completely
failed
to
abide
by
the
Court's
instructions, choosing rather to add another 14 paragraphs to his
2 Plaintiff simply mentioning the doctrine of "unclean hands" during his long
factual recount is insufficient to put Defendant on notice of such claim when
he explicitly named and numbered the claims he legitimately brings,
10
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 11 of 16
rambling
^factual background account' of various wrongs that he
thinks he has experienced."
(Doc. 44, at 1.)
Further, it believes
Plaintiff is simply trying to ^^indulge in a wide-ranging fishing
expedition through discovery requests . . . all without any reason
to believe that a tenable legal claim will miraculously arise from
the results."
(Id. at 2.)
Defendant also addresses Plaintiff's
mention of ^^unclean hands" and argues ^Mu]nclean hands is only
appropriate as an equitable defense, which Plaintiff has no purpose
to assert here because the Defendant has not filed counterclaims
against Plaintiff."
(Id. at 3.)
Defendant also clarifies the
underlying facts and characterizes the transactions and debts in
a very different light than Plaintiff.
(Id. at 3-10.)
The Court
is required to accept as true Plaintiff s version of the facts at
the motion to dismiss stage unless the evidence on the record
contradicts Plaintiff's assertions.
811
F.3d
1271,
1277 (11th
See Hoefling v. City of Miami,
Cir. 2016)
("A
district
court can
generally consider exhibits attached to a complaint in ruling on
a motion to dismiss, and if the allegations of the complaint about
a particular exhibit conflict with the contents of the exhibit
itself, the exhibit controls.").
Plaintiff alleges after the
original mortgage was paid in full by March 2005, "[n]o other legal
mortgages were placed on the Goodale Property."
2.)
(Am. Compl., at
However, the exhibits attached to his Amended Complaint show
the Goodale Property listed on several lines of credit issued after
11
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 12 of 16
the alleged March 2005 date.
161.)
(See e.g. Doc. 35-1, at 155, 158,
Therefore, the Court cannot accept Plaintiff's version of
the facts in light of his own proffered evidence.
Instead, the
evidence shows that ""Plaintiff continually pledged this property
as security for the business loans to Sportsman's Link, Inc.
through the last note he executed August 30, 2007."
(Doc. 44, at
5.)
The Court further finds that Plaintiff's Amended Complaint
continues to violate the above-described ""sins," and is therefore
an impermissible shotgun pleading.
First, two of Plaintiff's
causes of action explicitly incorporate all preceding paragraphs
of the Amended Complaint.
violates
the
instructing
first
(See Am. Compl., at 17, 18.)
""sin."
Plaintiff
to
And
second,
eliminate
despite
extraneous
the
This
Court
material,
the
Amended Complaint is still replete with conclusory, vague, and
immaterial facts, violating the second ""sin."
As pointed out
above.
back
Plaintiff
recounts transactions
dating
to
2001,
including various loans, renewals, payments, and actions; however,
he fails to clearly describe what happened in this case and the
basis for each of his claims.
For example. Plaintiff states he
was not mentally capable to sign one of the loan renewals, yet
brings a breach of contract claim presumably for breach of that
same contract.
(See id. at 9, 17.)
Further, under his singular
breach of contract claim, he mentions three different ""notes," so
12
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 13 of 16
it is impossible to know under which contract he is bringing a
claim.
(See id. at 17.)
The Court is unable to decipher the basis
of Plaintiff's three claims due to his failure to comply with Rules
8 and 10 and the Court's prior instructions.
By incorporating prior assertions and restating irrelevant
and conclusory facts under these counts, Plaintiff requires the
Court and Defendant to speculate how to properly apply the factual
allegations to each alleged count.
See Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1359 n.9 (11th Cir. 1997) (classifying
complaint as a shotgun pleading because reader must speculate as
to which factual allegations pertain to which count).
^'When
plaintiffs indiscriminately incorporate assertions from one count
to
another,
they
run
afoul
of
Rule
8(a)(2)
by
^materially
increas[ing] the burden of understanding the factual allegations
underlying each count.'" Cummings v. Mitchell, No. 20-14784, 2022
WL 301697, at *3 (11th Cir. Feb. 2, 2022) (quoting Weiland, 792
F.3d at 1324).
And, a district court has the ''inherent authority
to control its docket and, in some circumstances, dismiss pleadings
that fail to conform with the Federal Rules of Civil Procedure."
Id. at *2 (citing Weiland, 792 F.3d at 1320).
"On a motion by the defendant, a district court may dismiss
a complaint for failure . . . to obey a court order or federal
rule."
Beckwith v. Bellsouth Telecomms. Inc., 146 F. App'x 368,
372 (11th Cir. 2005) (citing Fed. R. Civ. P. 41(b)).
13
"Dismissal
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 14 of 16
upon disregard of an order, especially where the litigant has been
forewarned, generally is not an abuse of discretion."
Sarhan v.
Miami Dade Coll., 800 F. App'x 769, 772 (llth Cir. 2020) (internal
quotations and citation omitted).
But, dismissal under Rule 41(b)
is only appropriate where ^^there is a clear record of delay or
willful contempt and a finding that lesser sanctions would not
suffice."
Goforth v. Owens, 766 F.2d 1533, 1535 (llth Cir. 1985)
(internal quotations and citations omitted).
The Eleventh Circuit
has held that:
our case law ''makes clear that dismissal of a complaint
with prejudice [as a shotgun pleading] is warranted
under certain circumstances,"
Jackson v. Bank of Am.,
N.A., 898 F.3d 1348, 1358 (llth Cir. 2018).
One
circumstance is where . . . the pleader fails to remedy
the
problems
with
the
complaint
another chance . . . to do so.
after
being
given
See id.
Tran v. City of Holmes Beach, 817 F. App'x 911, 915 (llth Cir.
2020).
The
Court
finds
that
Plaintiff
willfully
disobeyed
the
Court's January 3, 2022 Order (Doc. 30) by re-filing his Amended
Complaint replete with the same issues the Court instructed him to
fix.
When faced with a shotgun pleading, the Court is required to
give the plaintiff a chance to replead a more definite statement
before dismissing the case with prejudice, and that chance was
already given. See Embree, 779 F. App'x at 662 (citing Vibe Micro,
878 F.3d at 1296).
Lesser sanctions would not suffice in this
case because Plaintiff has repled his complaint and has still
14
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 15 of 16
failed to file a cohesive legal pleading that follows Rules 8(a)(2)
and 10(b).
Based on this, the Court finds Plaintiff's Amended
Complaint (Doc. 35) is a ^^shotgun pleading" and GRANTS Defendant's
motion to dismiss (Doc. 39).
Plaintiff's Amended Complaint shall
be DISMISSED WITH PREJUDICE.
2. Failure to State a Claim
Having
found
Plaintiff's
Amended
Complaint
to
be
an
impermissible shotgun pleading and not in compliance with the
Court's
January
3,
2022
Order,
the
Court
Defendant's remaining arguments for dismissal.
will
not
address
(See Doc. 39-1, at
6-20.)
B. Motion to Strike
Defendant also moves to strike paragraphs 11, 12, 15, 17, 34,
54, 55, a portion of paragraph 60, and a portion of paragraph 61
from Plaintiff's Amended Complaint.
Plaintiff's
Amended
Complaint
(Doc. 40.)
as
an
Having dismissed
impermissible
shotgun
pleading. Defendant's motion to strike is DENIED AS MOOT.
V. CONCLUSION
For
the
foregoing
reasons,
IT
IS
HEREBY
ORDERED
that
Defendant's motion to dismiss (Doc. 39) is GRANTED and Defendant's
itiotion
strike (Doc. 40) is DENIED AS MOOT.
This matter is
DISMISSED WITH PREJUDICE and the Clerk is DIRECTED to TERMINATE
all pending motions and deadlines, if any, and CLOSE this case.
15
Case 1:21-cv-00099-JRH-BKE Document 46 Filed 05/10/22 Page 16 of 16
ORDER ENTERED at Augusta, Georgia, this
day of May,
2022.
J. RANDAL HALL, CHIEF JUDGl
UNITE^STATES DISTRICT COURT
-SetmiERN DISTRICT OF GEORGIA
16
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