Dickey et al v. Zell et al

Filing 7

Judge Douglas P. Woodlock: ORDER entered. MEMORANDUM AND ORDER: This action is DISMISSED with prejudice in its entirety; and Plaintiffs John Dickey and Zelma Dickey are PROHIBITED from filing further lawsuits or pleadings that relate in anyfashion to matters raised in this lawsuit, unless the lawsuit or other pleadings are signed and filed by a duly licensed attorney.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ZELMA DICKEY, and
JOHN DICKEY,
Plaintiffs,
v.
SAMUEL ZELL, ET AL.,
Defendants.

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CIVIL ACTION NO. 11-11729-DPW

MEMORANDUM AND ORDER
November 14, 2011
WOODLOCK, D.J.
I.

INTRODUCTION
On September 27, 2011, plaintiffs Zelma Dickey (“Zelma”) and

John Dickey (“John”), filed five civil actions relating to the
alleged uninhabitable condition of an apartment they leased from
Equity Residential Management, LLC, and its affiliates.

In this

action, Zelma and John sought a bench trial against the Equity
Residential defendants, including the Chairman of Equity Group
Investments, LLC (Zell), the Chief Executive Officer
(Neithercut), the Executive Vice President, Chief Financial
Officer (Parnell), the Executive Vice President, Chief Investment
Officer (George), the Executive Vice President, Human Resources
(Powers), and the Manager of South Winds Apartments (Mascoli).
On October 10, 2011, I issued a Memorandum and Order (Docket
No. 4) with respect to all five cases.

As to this action, I

found that the Complaint was not entirely coherent and did not
set forth plausible claims in accordance with Rule 8 of the

Federal Rules of Civil Procedure.

Nevertheless, I considered

that plaintiffs might, if given a further opportunity to cure the
pleading defects, be able to set forth plausible state tort and
contract claims based on the uninhabitability of their apartment
due to, inter alia, spider infestation, mold conditions, and lack
of clean water, as well as improper practices with respect to fee
charges and security deposits.

I found that the main problem

with the Complaint, however, was that plaintiffs identified a
number of defendants and affiliated persons, but it was unclear
what claims were asserted against each defendant, particularly
the other corporate entities or individual executive officers.
In light of this, I directed the plaintiffs to file an Amended
Complaint that set forth, in a plain statement, each of their
claims separately as to each defendant, providing underlying
facts showing that they are entitled to relief against each named
defendant.

I expressly specified that the Amended Complaint may

not assert claims collectively against the Equity Residential
defendants; rather, the Amended Complaint had to set forth claims
separately as to each defendant.
In setting the parameters of the Amended Complaint, I
directed that plaintiffs identify:
the name of the defendant, the nature of the action or
inaction that allegedly forms the basis of liability,
the place and date, and the reason for such action
(i.e, the “who, what, when, where, and why” type
information necessary to provide sufficient notice to
each defendant as to the nature of the claims).
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Memorandum and Order (Docket No. 4 at 34).

I further directed

that:
The Amended Complaint should not contain argument,
epithets, or recitations of plaintiffs’ understanding
of the law; all that is required is a brief statement
with respect to each defendant that provides notice to
them of the plaintiffs’ claims. Plaintiffs are advised
that failure to comply with this directive will result
in a dismissal of this action in whole or part.
Additionally, notwithstanding that they are proceeding
pro se, plaintiffs are advised that I will not permit
them serial opportunities to file a Complaint that
comports with Rule 8 pleading requirements. Any
Amended Complaint must meet the obligations of fair
pleading or this action will be ordered dismissed.
Plaintiffs are urged to consider whether to seek legal
advice or representation in this matter.
Id. at 34-35.
On November 8, 2011, the plaintiffs filed an Amended
Complaint (Docket No. 5).
II.

DISCUSSION
The Amended Complaint is set forth in narrative form and

materially fails to comply with the directives contained in the
Memorandum and Order (Docket No. 4).

Indeed, the Amended

Complaint is virtually unintelligible.

From what can be gleaned,

plaintiffs take issue with my evaluation of their Complaint as it
relates to the sum total and identity of the defendants, and the
grounds for liability.

On the one hand, plaintiffs allege that

they are not suing the individual defendants or the Board of
Directors and others, claiming they merely listed these parties
to show that diversity jurisdiction existed.

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On the other hand,

plaintiffs make seemingly contradictory statements by later
alleging that a party must be listed in the caption of the
Complaint in order to be held legally responsible.1

This does

not explain sufficiently why the individual parties and other
corporate entities were, in fact, listed in the caption of the
original Complaint as parties.

Further contradicting their prior

statements, plaintiffs indicate that they do seek to hold liable
the individual officers of Equity Residential “for being a part
of a corporation have a chain of command and every link of that
chain is equal to the highest person in relation to being
responsible as a party in a suit in which a corporation is list.”
Am. Compl. (Docket No. 4 at 2).
In short, because the Amended Complaint is not entirely
incoherent, it remains unclear whether plaintiffs intended to
include the individuals or other corporate entities as liable
parties, or whether the reference to those other than Equity
Residential was meant only to support the claims against the
corporation.

In any event, what is crystal clear is that

plaintiffs have failed to set forth plausible claims against any
party, in accordance with Rule 8.

There is no short and plain

statement of the legal claim or the factual basis for the claim,

1

They state: “This court has without a doubt confused the
parties listed with in [sic] the caption with the supporting
evidence put with in [sic] the body of the complaint for the
court records of clarifying the matter of multiple individuals
being held responsible.” Am. Compl. (Docket No. 5 at 1).
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nor does the Amended Complaint contain the “who, what, when,
where and why” type information required.

Even under the

broadest reading, the Amended Complaint utterly fails to give
sufficient notice of the claims to any purported defendant.
Finally, the Amended Complaint violates the very clear
directives contained in the prior Memorandum and Order to refrain
from asserting legal argument or recitations of law.

Most of the

Amended Complaint simply lists various case citations and asserts
legal argument or recitations of law.
In light of all of the above, I will DISMISS this action for
failure to state plausible claims upon which relief may be
granted, and for failure to comply with the directives contained
in the Memorandum and Order.

While plaintiffs’ alleged housing

plights are regrettable, I do not consider dismissal of this
action at this juncture to be a draconian measure because
plaintiffs were warned expressly that they would not be given
further opportunities to cure the pleading deficiencies and that
the Amended Complaint must meet the minimum Rule 8 pleading
requirements giving the defendants sufficient notice of the
claims.
As an additional matter, for the reasons set forth herein,
and in view of the plaintiffs’ litigation history as outlined in
the Memorandum and Order (Docket No. 4), I find that dismissal of
this action with prejudice is warranted.

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In order to preserve

the scarce judicial resources of this Court, I will PROHIBIT the
filing of further lawsuits or pleadings that relate in any
fashion to matters raised in this lawsuit, unless the lawsuit or
other pleadings are signed and filed by a duly-licensed attorney.
Failure to comply with this directive may result in the
imposition of sanctions, including an order enjoining plaintiffs
from filing lawsuits absent prior permission of the court to
file, and/or monetary or other sanctions.
III. CONCLUSION
Based on the foregoing, it is here Ordered that:
1.

This action is DISMISSED with prejudice in its entirety; and

2.

Plaintiffs John Dickey and Zelma Dickey are PROHIBITED from
filing further lawsuits or pleadings that relate in any
fashion to matters raised in this lawsuit, unless the
lawsuit or other pleadings are signed and filed by a dulylicensed attorney.2

SO ORDERED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

2

This Order does not preclude the filing of a Notice of
Appeal of the dismissal of this action.
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