Brown v. Titlemax of Georgia, Inc. et al

Filing 59

ORDER adopting in part and declining to adopt in part the 56 Report and Recommendations as modified herein as the Court's opinion, dismissing with prejudice Plaintiff's 13 Third Amended Complaint, dismissing all other pending motions as moot, and directing the Clerk of Court to close this case. Signed by Judge William T. Moore, Jr on 01/17/2023. (jlh)

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

CORDELIUS BROWN,

Plaintiff,
CASE NO. CV422-082

V.

TITLEMAX OF GEORGIA, INC.;
INSURANCE AUTO AUCTION OF

RINCON; GREG LUDWIG; STEVE
THOMAS;.NATHANIEL ANDERSON;
ERIN FRITTS; CARLEY BRAGG;

JASON BROCE; CLAY ALEXANDER,

also known as Clayton Hall;
RACHEL HUDSON; TABITHA
MCCALLUM; KELLY CUMMINGS; TRACY

YOUNG; DOE 1-5; FRANK CHILSOM,

also known as Kip; and
INSURANCE AUTO AUCTION OF

SAVANNAH;

Defendants.

ORDER

Before the Court is the Magistrate Judge's October 13, 2022,

Report and Recommendation (Doc. 56), to which Plaintiff Cordelius
Brown has objected (Doc. 57) and the TitleMax Defendants have

responded (Doc. 58).^ After a careful review of the record, the

^ Like the Magistrate Judge, the Court notes that Defendants
TitleMax of Georgia, Inc., Insurance Auto Auctions, Inc.,
incorrectly identified as Insurance Auto Auction of Savannah
("'lAA"), Greg Ludwig, Frank ''Kip" Chisolm, Steve Thomas, Nathanial
Anderson, Erin Fritts, Carley Bragg, Jason Broce, Clay Hall, Kellie
Cummings, and Tracy Young have responded (Doc. 58 at 1), and that
some other named defendants have not responded. For ease of
reference, this Court will similarly refer to the movants as the
"TitleMax Defendants."

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 2 of 11

Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the report and

recommendation as herein modified as the Court's opinion in this

case. (Doc. 56.) Plaintiff's objections are OVERRULED. (Doc. 57.)
Plaintiff's third amended complaint is DISMISSED WITH PREJUDICE.
(Doc. 13.)
BACKGROUND

On

April 6, 2022,

Plaintiff filed the first of several

complaints, each of which are more than ICQ pages in length. (Doc.
1.) On May 13, 2022, the Magistrate Judge determined Plaintiff's
first amended complaint (Doc. 6) was a ^^shotgun pleading." (Doc.
7 at 3.) In the order, the Magistrate Judge set out the four types

of

shotgun

pleadings

identified

by

the

Eleventh

Circuit,

including:

(1) 'MA] complaint containing multiple counts where each
count adopts the allegations of all preceding counts";
(2) a complaint that is "replete with conclusory, vague,
and

immaterial

facts

not

obviously

connected

to

any

particular cause of action"; (3) a pleading that does
not "separate[e] into a different count each cause of
action or claim for relief"; and (4) a pleading that

asserts multiple claims against multiple defendants
without specifying which defendant allegedly committed
which claim.

(Doc. 7 at 4 (citing Adams v. Huntsville Hosp., 819 F. App'x 836,
838 (11th Cir. 2020) (citation omitted)).) The Magistrate Judge

explained Plaintiff's first amended complaint was deficient in at
least three respects. First, the complaint adopted all of the

allegations of each preceding count. (Id. at 4-5.) Second, the

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 3 of 11

expansive complaint also contained conclusory allegations. (Id. at
5.) And third, the complaint failed to articulate against whom
each claim was made and what factual allegations supported which

claim.

(Id.)

The

Magistrate

Judge

afforded

Plaintiff

an

opportunity to file an amended complaint and advised her that the
failure to timely comply with the order may result in dismissal.
(Id. at 6-7.)

In response to the Magistrate Judge's directive. Plaintiff
filed

a

second

amended

complaint.

(Doc. 8.) Soon

thereafter.

Plaintiff filed a third amended complaint without leave of court.^

(Doc. 13.) Although the parties engaged in significant litigation,
the

Magistrate

Plaintiff's

Judge

third

recommended

amended

complaint

sua

sponte

(Doc.

13)

dismissal
as

a

of

shotgun

pleading. (Doc. 56 at 5-8, 11.) Despite Plaintiff's procedural
mistakes, the Magistrate Judge explained that Plaintiff's second
amended

complaint

continued

to

incorporate

by

reference

all

preceding paragraphs. (Id. at 6 (citing Doc. 8).) Additionally,
the

Magistrate

Judge

noted

that

Plaintiff's

third

amended

complaint failed "to articulate against whom each specific claim
[was]

made,

[failed

to

articulate]

what

factual

allegations

2 As the Magistrate Judge noted. Plaintiff did not request leave
of Court before filing her third amended complaint. (Doc. 13.)
Nevertheless, Magistrate Judge implicitly recognized that leave of
court should be "freely" given. Fed. R. Civ. P. 15(a)(2),
considered the contents of the third amended complaint, and found
it also failed to remedy the shotgun pleading shortcomings.

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 4 of 11

support[ed]

each

claim,

allegations. . .

and

[was]

replete

with

conclusory

(Id. at 6-7 (citing Doc. 13).) Plaintiff

objected to the Magistrate Judge's recommendation. (Doc. 57.) The
TitleMax Defendants filed a response to Plaintiff's objections,

arguing the Court should overrule Plaintiff's objections and adopt

the Magistrate Judge's report and recommendation. (Doc. 58 at 2.)
LEGAL STANDARD

The Court reviews de novo a magistrate judge's findings to

which a party objects, and the Court reviews for clear error the
portions of a report and recommendation to which a party does not
object. 28 U.S.C. § 636(b)(1); see Merchant v. Nationwide Recovery
Serv., Inc., 440 F. Supp. 3d 1369, 1371 (N.D. Ga. 2020) (outlining
the standard of review for report and recommendations (citing
Macort V. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006) (per
curiam))). The Court "may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
ANALYSIS

I.

SHOTGUN PLEADING

The

Magistrate

Judge

correctly

determined,

whether

considering Plaintiff's second or third amended complaint, that

her

complaints

are

shotgun

pleadings.

First,

as

previously

explained, the Magistrate Judge recommended dismissing Plaintiff s
second

amended

complaint

as

a

shotgun

pleading

because

she

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 5 of 11

continued to incorporate all preceding paragraphs of her complaint

by reference. (Doc. 56 at 6.) The problem with this type of
pleading is that it causes ''each successive count to carry all
that came before and the last count to be a combination of the

entire complaint." Weiland v. Palm Beach Cnty. Sheriff^s Off., 792
F.3d 1313, 1321 (llth Cir. 2015). Plaintiff's objection regarding

incorporating prior paragraphs misses the mark. (Doc. 57 at 19
(arguing Plaintiff "corrected the phrase" by stating she "alleges,
states, and re-allege[s] by reference" the allegations in the

preceding paragraphs).) The issue is not in Plaintiff's word
choice. Instead, she continues to incorporate all of the factual

allegations and counts into every count that follows. (E.g., Doc.
8 at 51, 54; Doc. 13 at 53, 55.) Thus, Plaintiff's first objection
is overruled.

Plaintiff's second objection requires closer inspection. The

Magistrate Judge found that Plaintiff's third amended complaint
failed to articulate against whom each specific claim was made.

(Doc. 56 at 6.) In her objection. Plaintiff argues she identified

each party and their conduct in the factual allegations section,
"distinctly tying each person's conduct to the cause of action[.]"
(Doc. 57 at 19-20.) Specifically, Plaintiff listed the name of

each defendant against whom she asserted her causes of action.
(E.g., Doc. 8 at 51, 54, 56; Doc. 13 at 53, 55, 57.) Thus, the
Court declines to adopt the Magistrate Judge's recommendation to

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 6 of 11

the

extent

it

suggests

Plaintiff's

complaint,

when

liberally

construed, did not state against which defendant each claim was
brought. However, due to Plaintiff's adoption of the allegations
of all preceding counts, it is still impossible to decipher which

defendants are responsible for the acts or omissions giving rise
to each claim. Weiland, 792 F.3d at 1323 {explaining part of the

problem with asserting multiple claims against multiple defendants
is failing to specify ^^which of the defendants are responsible for
which acts or omissions").

Notwithstanding, Plaintiff's amended complaints also remain
''replete

with

conclusory,

vague,

and

immaterial

facts

not

obviously connected to any particular cause of action[.]" Adams,

819 F. App'x at 838. Many of Plaintiff's meandering allegations
are not clearly connected to any particular cause of action, and
they

include,

but

are

not

limited

to,

allegations

about

an

inappropriate sexual relationship, an illegal repossession, and
losing her desire to have children. (Doc. 113 at 39, 47-48, 50.)
Neither the Court nor the TitleMax Defendants can determine which

causes of action these and other similarly immaterial allegations

pertain to because Plaintiff includes them as factual allegations,
which she then incorporates into each count. (E.g., Doc. 13 at 53,
55.)

Plaintiff

argues

that

the

TitleMax

Defendants

clearly

understood the claims against them because they filed a motion to

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 7 of 11

compel arbitration. (Doc. 57 at 5-7.) While Plaintiff correctly
notes

that

Defendants

did

not

file

a

motion

for

more

definite

statement and filed the motion to compel in lieu of filing an
answer, the motion does not demonstrate, as Plaintiff claims, that
the

TitleMax

Defendants

had

''a

clear

understanding

of

the

allegations against them in which relief can be granted." (Id. at
7.)3 In fact, the TitleMax Defendants ardently avoided addressing

any merits of Plaintiff's claims. (E.g., Doc. 41 at 2 (^^Defendants
want to be clear that it is not their intention to litigate this
matter

before

this

Honorable

Court

understanding of Plaintiff s claims

.

.

.

.").)

A

clear

was not required for the

arbitration agreement to appear potentially applicable. And, in

any

event,

arbitration

the

TitleMax

agreement

does

Defendants'
not

attempt

defeat the

to

enforce

Magistrate

an

Judge's

conclusion that Plaintiff's amended complaints constitute shotgun

pleadings for the reasons explained above.
II.

GROUNDS FOR DISMISSAL

Throughout Plaintiff's objection, she briefly raises several
other

arguments

regarding

why the

Court should

overrule the

3 Plaintiff misunderstands the Magistrate Judge's description of
the
TitleMax
Defendants
rtiotion
to
compel
arbitration
as

''premature." (Doc. 57 at 6.) The Magistrate Judge merely conveyed
that

the

TitleMax

Defendants'

defensive

tactics

were

hasty

considering the Magistrate Judge had not screened Plaintiff s
amended complaint to determine whether she remedied the shotgun
pleading deficiencies.

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 8 of 11

Magistrate Judge's report and recommendation. Each of those is
equally

unavailing.

Plaintiff

appears

to

confuse

applicable

standards and the grounds on which the Magistrate Judge recommended
dismissal.''
warranted,

Despite
not

on

the

Plaintiff's
various

contentions,

grounds

Plaintiff

dismissal

is

contends

the

Magistrate Judge inappropriately applied, but because Plaintiff
has

not

filed

a

complaint

that

complies

with

the

pleading

requirements of Federal Rule of Civil Procedure 8(a) {2} to provide
"'a short and plain statement of the claim showing that the pleader
is entitled to relief[.]" (Doc. 56 at 6-8.) Although the Court

liberally construes pleadings from pro se litigants, ^'that a

litigant opts to represent themselves pro se does not excuse their
noncompliance with procedural rules." Sarhan v. Miami Dade Coll.,

800 F. App'x 769, 771 (11th Cir. 2020) (per curiam) (affirming
dismissal with prejudice of pro se plaintiff's complaint as a

shotgun pleading because it ''contained counts that incorporated
and re-alleged the counts that came before them"). "Further, the

^ Plaintiff argues the Magistrate Judge erred by not considering
the

five

"Henderson"

factors.

(Doc.

57

at

1.)

Additionally,

Plaintiff argues dismissal because she disobeyed a court order is
inappropriate due to the timing of and her efforts to comply with
the Magistrate Judge's directive. (Id. at 2, 4.) Plaintiff also
maintains the Magistrate Judge misapplied the Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss standard and did not accept

her factual allegations as true and draw all inferences in her
favor, causing him to erroneously classify her allegations as
conclusory. (Id. at 12, 21, 22, 23.) Further, Plaintiff contends
dismissal based on delay, service of process issues, managing the
docket, or vexatious conduct would be improper. (Id. at 8-11, 25.)

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 9 of 11

leniency afforded pro se litigants does not give a court license
to serve as de facto counsel for a party, or to rewrite an otherwise

deficient pleading in order to sustain an action." Ramchandani v.
Sanqhrajka, No. 22-11701, 2022 WL 16549470, at *1 (11th Cir. Oct.

31, 2022) (internal quotation marks and citation omitted).

Although

not

entirely

clear.

Plaintiff

contends

she

was

unaware of the risk of dismissal and that the Court should consider

sanctions other than dismissal. (Doc. 57 at 2, 4.) The Magistrate
r

Judge's May 2022 order directing Plaintiff to file an amended
complaint and Plaintiff's own objection defeats these arguments.

''Before dismissing a complaint with prejudice on shotgun-pleading

grounds, the district court must first explain how the pleading
violates the shotgun-pleading rule and give the plaintiff at least
one opportunity to re-plead the complaint." Arrington v. Green,
757 F. App'x 796, 797 (11th Cir. 2018) (per curiam). In the May
2022 Order, the Magistrate Judge gave Plaintiff an opportunity to

replead her claims along with a "veritable instruction manual" on
how to do so effectively. Vibe Micro, Inc. v. Shabanets, 878 F.Sd
1291, 1296 (11th Cir. 2018), and warned her that the failure to

timely comply with the order could result in dismissal of her case
(Doc. 7 at 7). Moreover, in the objection. Plaintiff contradicts

herself, arguing that she "timely filed her amended complaint
addressing all factors that would have made it a shotgun pleading"
and "amended her [c]omplaint to correct the errors pointed out by

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 10 of 11

the court." (Doc. 57 at 2, 4.) When Plaintiff's amended complaints

failed to remedy the shotgun pleading errors, the Magistrate Judge
recommended dismissal, which is an appropriate action after the

Court

affords

a

litigant

one

chance

to

cure

the

identified

deficiencies. Sarhan, 800 F. App'x at 772. Further, Plaintiff's

persistent attempts to avoid, rather than address, the defects
identified by the Magistrate Judge confirm the futility of further

opportunities to amend. England v. Hillsborough Cmty. Coll., 546
F. App'x 881, 885 (11th Cir. 2013) (per curiam) (holding that the
district court did not abuse its discretion in dismissing a case

in which the plaintiff failed to heed the court's instruction in
any of several filed complaints).

District courts are empowered to " 'control [their] docket

and ensure the prompt resolution of lawsuits,' which includes the

ability to dismiss a complaint on shotgun pleading grounds." Vibe
Micro, 878 F.3d at 1295 (citing Weiland, 792 F.3d at 1320). Because
Plaintiff s

attempts

to

amend

her

complaint

remain • shotgun

pleadings. Plaintiff's third amended complaint is DISMISSED WITH
PREJUDICE. (Doc. 13.)

Finally,

the

Magistrate

Judge

offered

Plaintiff

an

opportunity to clarify whether she sought to seal any additional
material. (Doc. 56 at 9-11.) In her objection. Plaintiff did not
indicate that she seeks to seal any additional material. (Doc.

10

Case 4:22-cv-00082-WTM-CLR Document 59 Filed 01/17/23 Page 11 of 11

57.) Thus, any further relief on that request is DENIED, (Doc.
29. )
CONCLUSION

For the foregoing reasons, Plaintiff's objections (Doc. 57)
are OVERRULED, and the Court ADOPTS IN PART and DECLINES TO ADOPT

IN PART the report and recommendation as herein modified as the

Court's opinion in this case (Doc, 56). Plaintiff's third amended
complaint is DISMISSED WITH PREJUDICE.^ (Doc.

13.) All other

pending motions are DENIED AS MOOT. The Clerk of Court is DIRECTED
to close this case.

SO ORDERED this

day of January 2023.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

^ To the extent the amended complaint included state law claims,
the dismissal is without prejudice as to refiling in state court.
Vibe Micro, Inc., 878 F.3d at 1296.
11