ROSADO v. MUELLER et al

Filing 44

OPINION. Signed by Judge Esther Salas on 6/8/17. (sr, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMESON ROSADO,
Plaintiff,
v.
LORETTA E. LYNCH, et al.,
Defendants.

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Civil Action No. 15-3999 (ES) (JAD)
OPINION

SALAS, DISTRICT JUDGE
I.

Introduction

Pending before the Court is Defendant Jeff B. Sessions’s1 motion to dismiss pro se Plaintiff
Jameson Rosado’s Amended Complaint. (D.E. No. 24, (“Def. Mov. Br.”); D.E. No. 21, Am.
Compl.). Defendant seeks dismissal of Rosado’s Amended Complaint (i) for failure to comply
with Federal Rule of Civil Procedure 10(b); (ii) for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6); and (iii) in the alternative, for a more definite statement under Federal
Rule of Civil Procedure 12(e). The Court exercises jurisdiction under 28 U.S.C. § 1331 and
decides this matter without oral argument under Federal Rule of Civil Procedure 78(b). For the
following reasons, Defendant’s motion to dismiss Rosado’s Amended Complaint for failure to
comply with Rule 10(b) is GRANTED.2 Rosado’s Amended Complaint is dismissed without

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Jeff B. Sessions was sworn in as the Attorney General of the United States of America on February 9, 2017,
and automatically replaced Loretta E. Lynch in this action under Federal Rule of Civil Procedure 25(d). (See D.E.
No. 35 at 1 n.1).
For the same reasons discussed in this Opinion for Rule 10(b), the Court also finds that Rosado’s Amended
Complaint “is so vague or ambiguous that the [Defendant] cannot respond, even with a simple denial, in good faith,
without prejudice to [itself],” and therefore a more definite statement under Rule 12(e) is required. See Clark v.
McDonald’s Corp., 213 F.R.D. 198, 232-33 (D.N.J. 2003). While the Court notes that Defendant moved under Rule
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prejudice to his right to submit within sixty days a revised amended complaint that is consistent
with this Opinion.
II.

Background

On June 12, 2015, Rosado, a former employee of the FBI, filed a form EEOC Complaint
against numerous individual defendants, alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964. (See generally D.E. No. 1). Those defendants moved to
dismiss Rosado’s Complaint for failure to state a claim or, in the alternative, for a more definite
statement. (D.E. No. 10). The Court issued an Opinion on August 17, 2016, granting the
defendants’ motion and dismissing Rosado’s Complaint without prejudice. (See D.E. No. 16 (the
“Aug. 17, 2016 Opinion”)). The Court also held that “the only proper defendant in this action is
the head of the DOJ, United States Attorney General Loretta E. Lynch”3 and instructed Rosado
that, because “this is an employment discrimination action under Title VII,” any amended
complaint “must name only United States Attorney General Loretta E. Lynch as the defendant.”
(Id. at 4-6).
Rosado subsequently filed an Amended Complaint, which is the subject of the instant
motion. After Defendant filed his motion, Rosado submitted a document, titled “Clarification
Regarding Agency Counsel’s Request for a More Definitive Statement,” which Defendant treated,
and this Court will treat, as Rosado’s opposition. (D.E. No. 27, (“Pl. Opp. Br.”)). Defendant

12(e) only with respect to Rosado’s Title VII claims (see Def. Mov. Br. at 10-11), a “court may, sua sponte, order the
plaintiff to file a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure in order to
clarify the plaintiff’s claims.” Long v. N.J. Mfrs. Ins. Co., No. 14-2428, 2016 WL 4844147, at *5 (M.D. Pa. May 17,
2016) (citing Kyeame v. Buchheit, No. 07-1239, 2011 WL 3651369, at *1 (M.D. Pa. Aug. 18, 2011); MFS, Inc. v.
Twp. of South Annville, No. 05-1371, 2006 WL 3254535, at *7 (M.D. Pa. Nov. 9, 2006); Moore’s Federal Practice, §
12.36 (Matthew Bender 3d ed.) (“Because of its potential usefulness . . . courts will occasionally order a more definite
statement sua sponte, which they have the freedom to do.”)).
See Stevenson v. U.S. Post Office, No. 04-5971, 2008 WL 108891, at *4 (D.N.J. Jan. 9, 2008) (“[T]he only
proper defendant in a Title VII action is the head of the agency in which the allegedly discriminatory acts occurred.”).
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submitted a reply brief in further support of his motion. (D.E. No. 28). The matter is now ripe for
review.
III.

Legal Standard

To withstand 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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).4 “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “The plausibility standard is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id.
“When reviewing a motion to dismiss, all allegations in the complaint must be accepted as
true, and the plaintiff must be given the benefit of every favorable inference to be drawn
therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But the court is not required to
accept as true “legal conclusions.” Iqbal, 556 U.S. at 678. And “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “In
deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to
the complaint, matters of the public record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010).
Finally, the Court notes that “[a] document filed pro se is to be liberally construed, . . . and
a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Higgs v. Att’y.
Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (“Our policy of liberally construing pro se

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Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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submissions is driven by the understanding that implicit in the right of self-representation is an
obligation on the part of the court to make reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack of legal training.”). That said, the
Court need not credit a pro se plaintiff’s “bald assertions” or “legal conclusions.” Morse v. Lower
Merion School Dist. 132 F.3d 902, 906 (3d Cir. 1997).
IV.

Discussion
a. Federal Rule of Civil Procedure 10(b)

Defendant argues that the Court should dismiss Rosado’s Amended Complaint because it
does not comply with Federal Rule of Civil Procedure 10(b). (Def. Mov. Br. at 5). That Rule
provides:
(b) Paragraphs; Separate Statements. A party must state its claims or defenses
in numbered paragraphs, each limited as far as practicable to a single set of
circumstances. A later pleading may refer by number to a paragraph in an earlier
pleading. If doing so would promote clarity, each claim founded on a separate
transaction or occurrence—and each defense other than a denial—must be stated in
a separate count or defense.
Fed. R. Civ. P. 10(b). Defendant submits that Rosado’s Amended Complaint “is essentially twelve
pages of argument and legal conclusions . . . . There are no numbered paragraphs. There are on
[sic] headings. There are no separate claims.” (Def. Mov. Br. at 5). Defendant avers that “[t]he
only basis of organization is [Rosado’s] citation to the order of the exhibits he attaches to the
Amended Complaint,” but “those exhibits . . . are also in no particular order (e.g., chronological,
alphabetical).” (Id.). Defendant contends that Rosado “makes no effort to arrange this information
in a manner that addresses the deficiencies identified by the Court in its [Aug. 17, 2016] Opinion”
and “shifts the burden of organizing and understanding these exhibits to the Defendant and the
Court, often admonishing the Court both to read the exhibits and for having not sufficiently
reviewed the previously submitted documents.” (Id. at 6) (citing Am. Compl. at 3 (“[T]he Court
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is requested to re-review those documents as they conflict with Judge Salas’ decision as they
pertain to her knowledge of certain matters before the Court.”)). Rosado does not respond to
Defendant’s Rule 10(b) arguments. (See generally Pl. Opp. Br.).
“Rule 10(b) requires that ‘each claim founded on a separate transaction or occurrence . . .
must be stated in a separate count’ if doing so would promote clarity.” Schiano v. MBNA, No. 051771, 2013 WL 2452681, at *10 n.18 (D.N.J. Feb. 11, 2013) (quoting Fed. R. Civ. P. 10(b)). When
a plaintiff’s complaint does not comply with Rule 10(b), the Court has discretion to dismiss it.
Coleman v. Camacho, No. 10-2613, 2012 WL 5986455, at *3 (D.N.J. Nov. 27, 2012); Borrell v.
Weinstein Supply Corp., No. 94-2857, 1994 WL 530102, at *2 (E.D. Pa. Sept. 27, 1994). “Under
Rule 10(b), separation of claims into separate counts is required only when such separation
facilitates the clear presentation of the matters set forth.” Borrell, 1994 WL 530102, at *2; see
also Schiano, 2013 WL 2452681, at *10 n.18 (finding that Plaintiffs’ proposed complaint fails to
comply with Rule 10(b) in part because “[m]any of Plaintiffs’ factual allegations are lumped
together into the same paragraphs often with no obvious connection with each other”).
To be sure, “while it is well settled that pro se litigants should be afforded a certain degree
of leniency, due to their unfamiliarity with the judicial process, pro se litigants are still bound by
this Court’s orders, local rules, policies and procedures, as well as the Federal Rules of Civil
Procedure.” Kongtcheu v. Hosp. for Special Surgery, No. 13-1854, 2015 WL 502071, at *2 (D.N.J.
Feb. 5, 2015); see also Smith v. Director’s Choice, LLP, No. 15-0081, 2016 WL 7165739, at *2
(D.N.J. July 28, 2016) (noting that the pro se plaintiff’s amended complaint “must comply with”
Rule 10(b)); Francis v. Joint Force Headquarters Nat. Guard, No. 05-4882, 2008 WL 4560714,
at *5 (D.N.J. Oct. 7, 2008) (noting that the pro se plaintiff’s complaint fails to comply with Rule

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10(b) and instructing the plaintiff, in her amended pleading, to “set forth each of her claims in
numbered paragraphs . . . [and] indicate which claims are asserted against which Defendants.”).
Here, the Court has labored extensively over Rosado’s Amended Complaint and the
accompanying 110 pages of exhibits to discern what claims are asserted and what facts relate to
each claim. Yet despite its best efforts, the Court concludes that Rosado’s Amended Complaint
must be revised for Defendant to be able to respond to it. For example, the first sentence of the
Amended Complaint provides: “AMENDED COMPLAINT PURSUANT TO JUDGE ESTHER
SALAS’ REQUEST AUGUST 2016, STATED CLAIMS ARE REPRISAL, HARASSMENT,
SEXUAL HARASSMENT, DEFAMTION [sic], INTIMIDATION, AND INVASION OF
PRIVACY INTO FINANCIAL DOCUMENTS.” (Am. Compl. at 3). But the next twelve pages
consist of rambling argument intertwined with random fact assertions, most of which appear to
omit any reference to the above-identified claims. And Rosado appears to assert an additional
claim for a hostile work environment later on in the Amended Complaint. (See, e.g., Am. Compl.
at 5) (“MR. ROSADO WAS DEMOTED TO A HOSTILE ENVIRONMENT THE DAY
BEFORE HIS WEDDING ON OCTOBER 31, 2008, THE HOSTILE ENVIRONMENT BEING
THE OPERATIONS CENTER.”). Moreover, Rosado’s opposition appears to identify new claims
not mentioned in the Amended Complaint:
Issues here concern claims of retaliation ( AFFIRMED IN THE COMPLAINT),
harassment, defamation of character invasion of privacy, sexual harassment, failure
to promote, unfairly being non selected for other positions in the office ( both at the
FBI and other agencies), Agency violating policy in releasing information to
outside agencies ( ALSO AFFIRMED), and an incident involving sexual
harassment , and then threatening the ( C) after parties may have ‘tampered with
evidence’ at the expense of making Mr. Rosado a running joke in the office after
filing his initial 1 of 3 EEO complaints. Also, a retaliatory mental health exam was
ordered, that despite Mr. Rosado passing and the Agency not having CAUSE to

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order, is also expected to be remedied for the Assistant Director whom ordered it
abusing her position in doing so.5
(Pl. Opp. Br. at 2). Accordingly, Defendant cannot be expected to respond to Rosado’s claims
because it is unclear what claims are being asserted and what facts relate to each claim. See
Schiano, 2013 WL 2452681, at *10 n.18 (“Many of Plaintiff’s factual allegations are lumped
together into the same paragraphs often with no obvious connection with each other.”).
In addition, it is not clear against whom Rosado is asserting all his claims. In the Aug. 17,
2016 Opinion, the Court instructed Rosado to name only United States Attorney General Loretta
E. Lynch as the defendant with respect to his Title VII claims. (See Aug. 17, 2016 Opinion at 56). Here, the Amended Complaint includes a caption that identifies “Loretta Lynch, AG, FBI et
al” as defendants. (Am. Compl. at 1). While it may be proper—and, in some instances,
necessary—for Rosado to assert non-Title VII claims (e.g., defamation, invasion of privacy)
against other defendants, Rosado does not state against whom each claim is asserted. His
Amended Complaint does, however, mention several individuals by name. As the Court in
Schiano found, “[n]ot only is this unintelligible,” but “it creates significant difficulty for the proper
. . . entity or entities to respond to the allegations.” 2013 WL 2452681, at 10 n.18.
To be clear, the Court is not simply concerned with Rosado’s technical failure to number
his paragraphs. See Buzzerd v. East Pikeland Twp., No. 90-1675, 1990 WL 90109, at *3 (E.D. Pa.
June 26, 1990) (“Failure to number the paragraph[s] . . . may be inartful pleading, but the complaint
clearly discloses the nature of the plaintiffs’ grievances and the theory of the complaint.”). And
the Court recognizes that a complaint should not be dismissed for mere failure to comply with

The Court reproduces this portion of Rosado’s opposition verbatim. The Court also notes that this submission
appears to violate the Court’s November 14, 2016 Order, which instructed Rosado to file “a single amended complaint
containing all of his allegations.” (See D.E. No. 29); see also Pa. ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173,
181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to
dismiss.”) (alteration omitted).
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Rule 10 “where such failure does not prevent defendants from filing responsive pleadings.”
Coleman, 2012 WL 5986455, at *3. But here, even giving Rosado the benefits entitled to a pro se
litigant, see Erickson, 551 U.S. at 94, the Court finds that Rosado’s Amended Complaint is so
incoherent and unintelligible that it prevents Defendant from filing responsive pleadings. Further,
the Court finds that a revised amended complaint that sufficiently complies with Rule 10(b) will
ultimately clarify the record, streamline discovery, reduce the litigation costs for the parties, and
preserve the Court’s resources.6
Accordingly, Rosado’s Amended Complaint is dismissed without prejudice. Rosado may
submit a revised amended complaint that is consistent with this Opinion and otherwise complies
with “this Court’s orders, local rules, policies and procedures, as well as the Federal Rules of Civil
Procedure.” Kongtcheu, 2015 WL 502071, at *2. Any such amended complaint should clearly
state each claim, the facts supporting each claim, and the party against whom each claim is
asserted. For example, the amended complaint could include multiple sections, where each section
is devoted to a single claim—that way, it is clear what facts support what claims. The Court also
reminds Rosado that any such amended complaint must include all his claims, as “there can only
be one operative complaint.” Little v. Conn. Gen. Life Ins. Co., No. 11-2944, 2011 WL 5025125,
at *5 (D.N.J. Oct. 21, 2011).7

While the Court’s Aug. 17, 2016 Opinion analyzed the sufficiency of Rosado’s Title VII claims for
employment discrimination and retaliation, that complaint was a form EEOC complaint limited to those claims.
Rosado’s Amended Complaint, however, asserts a variety of claims, ostensibly including non-Title VII claims, and
contains approximately twelve pages of rambling, stream-of-consciousness argument intertwined with random facts.
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The Court notes that Rosado filed a document on June 1, 2017, titled “Motion to Amend Complaint as a
Result of EEOC Dismissal of Appeals; Reflecting Parties Identified within this Document as Additional Defendants
in Captioned Matter[.]” (D.E. No. 42). The Court will deny Rosado’s motion to amend as moot in light of this
Opinion. To the extent Rosado wishes to raise new claims or name new defendants identified for the first time in this
document, he should do so in a revised amended complaint consistent with this Opinion.
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V.

Conclusion

For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. Rosado’s
Amended Complaint is dismissed without prejudice to his right to submit within sixty days a
revised amended complaint consistent with this Opinion. An appropriate Order follows.

s/Esther Salas
Esther Salas, U.S.D.J.

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