ROBINETTE v. DUKE UNIVERSITY

Filing 43

ORDER AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 11/14/11 that the complaint filed by Plaintiff Robinette, Docket Nos. 1 and 2, be stricken and dismissed without prejudice for Plaintiff's failure to comply with Fed. R. Civ. P. 8 as set out. Dismissal should be without prejudice to Plaintiff's filing an amended complaint that complies with Rule 8 within 60 days of any order adopting this Recommendation. (Docket No. 25 .) (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JUSTIN ROBINETTE,
Plaintiff,
v.
DUKE UNIVERSITY, et al.,
Defendants.

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1:11CV536

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on a number of pending motions, including: (1)
the applications of pro se Plaintiff Justin Robinette for leave to proceed in forma pauperis
(Docket Nos. 6 and 7); (2) Plaintiff’s motions to compel mediation under the local rules
(Docket Nos. 14 and 21); (3) Plaintiff’s motions to allow ECF registration (Docket Nos. 16
and 23); (4) the motion of Defendant Duke University to dismiss, strike the complaint, and
to stay the time for responsive pleadings (Docket No. 25); (5) the motion to stay the time for
responsive pleadings filed by Defendants Clapp, Long Moneta, Powell, and Stotsenberg
(Docket No. 27); (6) Plaintiff’s motion to disqualify counsel (Docket No. 29); (7) Plaintiff’s
motion to recover costs of personal service (Docket No. 32); (8) Plaintiff’s motions for an
extension of time to serve process (Docket Nos. 35 and 38); and (9) the motion of Defendant

Roy Cooper for an extension of time to respond to the complaint (Docket No. 42). Upon
review of the filings of the parties, IT IS ORDERED that:
(1)

Plaintiff’s motions to proceed in forma pauperis going forward in this litigation

are GRANTED. In view of this ruling, the Court will order the U.S. Marshal to effect
proper service of process upon the Defendants, if necessary,1 contingent upon (a) Plaintiff
filing an amended complaint that complies with Rule 8, Fed. R. Civ. P., as described below,
and (b) Plaintiff submitting to the Clerk a properly completed summons and a copy of the
amended complaint for each Defendant named in the amended complaint. (Docket Nos. 6
and 7.)
(2)

Plaintiff’s motions to compel mediation pursuant to the local rules of this Court

are DENIED at this time. Cases wherein a party appears pro se are not automatically
selected for mediation under the local rules. See LR83.9b(a). The Court finds no reason to
exercise its discretion at this time to order mediation. See LR83.9b(b). (Docket Nos. 14 and
21.)
(3)

Plaintiff’s motions to allow ECF registration are GRANTED, solely for the

purpose of this action, subject to Plaintiff’s completing the training session conducted by the

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Plaintiff now proceeds pro se. Therefore, process upon Defendants must be served
by the U.S. Marshal. Fed. R. Civ. P. 4(c)(3). If Plaintiff files an amended complaint, the
Court will determine which Defendants have entered general appearances without
maintaining service of process defenses. All other Defendants will be served by the Marshal,
so long as Plaintiff submits completed summonses and sufficient copies of the amended
complaint.
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Clerk as required by LR5.3 and the Middle District of North Carolina Electronic Case Filing
CM/ECF User’s Manual. Until registration, Plaintiff must serve filings upon Defendants in
accordance with Fed. R. Civ. P. 5(a) and (b). (Docket Nos. 16 and 23.)
(4)

Plaintiff’s motion to disqualify counsel for Defendants Duke University,

Forrest, Shen, Feaver, and Tasher is DENIED as without merit. Plaintiff argues in support
of his motion that “each defendant’s negotiations with the plaintiff could be different.”
(Docket No. 29, ¶ 2.)

This argument is a wholly insufficient basis for denying the

Defendants the counsel of their choice in this civil action. (Docket No. 29.)
(5)

Plaintiff’s motion for an extension of time to serve process is GRANTED.

The time for service is extended to 90 days following the filing of an amended complaint by
Plaintiff, should Plaintiff elect to make such a filing. (Docket Nos. 35 and 38.)
(6)

Defendant Cooper’s motion for an extension of time to respond to the

complaint is GRANTED indefinitely, with the additional directive that Defendant need not
respond in any fashion to the original complaint. The time for responding to an amended
complaint which Plaintiff may elect to file is as established by the federal rules. (Docket No.
42.)
(7)

The motions to stay and toll the time for responsive pleadings are GRANTED.

This stay is applicable to all Defendants named in the complaint. If Plaintiff elects to file an
amended complaint, the time for response by each Defendant shall be as established by the
federal rules. (Docket Nos. 25 and 27.)
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(8)

Plaintiff’s motion to recover costs of personal service is RESERVED for later

disposition. (Docket No. 32.)
IT IS SO ORDERED.
Further, upon review of the filings of the parties, IT IS RECOMMENDED that the
complaint filed by Plaintiff Robinette, Docket Nos. 1 and 2, be stricken and dismissed
without prejudice for Plaintiff’s failure to comply with Fed. R. Civ. P. 8. The complaint is
comprised of 224 pages, over 2,000 paragraphs, and 65 claims for relief, and names 46
Defendants. Rule 8(a)(2) requires that a complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Each allegation must be “simple,
concise, and direct.” Rule 8(d)(1). Review of Plaintiff’s complaint shows that it is in blatant
violation of Rule 8, and is replete with redundancies and irrelevancies. Plaintiff’s pro se
status does not excuse him from compliance with the basic dictates of Rule 8. Complaints
far less over-long and burdensome than that of Plaintiff Robinette are routinely struck by the
federal courts. See McHenry v. Renne, 84 F.3d 1172, 1177-78 (9th Cir. 1996)(affirming
dismissal of complaint that was “argumentative, prolix, replete with redundancy, and largely
irrelevant”); Mireles v. Infogroup/Opinion Research Corp., No. 3:11-cv-00503-RCJ-VPC,
2011 WL 4834465, at *2 (D. Nev. Oct. 7, 2011)(granting dismissal with leave to amend);
Carrington v. Duke Univ., No. 1:08CV119, Mem. Op. at 175-76 (M.D.N.C. Mar. 31, 2011);
and McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 1014-15 (M.D.N.C. Mar. 31, 2011).

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Dismissal should be without prejudice to Plaintiff’s filing an amended complaint that
complies with Rule 8 within 60 days of any order adopting this Recommendation. (Docket
No. 25.)
IT IS SO RECOMMENDED.

/s/ P. Trevor Sharp
United States Magistrate Judge

Date: November 14, 2011

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