Herdt v. Horry County Council et al

Filing 75

ORDER: Plaintiff is granted leave to file an amended complaint in compliance with Rule 8 of the Federal Rules of Civil Procedure within 15 days of this Order. Because the Court has granted leave to amend the complaint, all pe nding motions 14 , 17 , 18 , 24 , 31 , 40 , 43 , 45 , 52 , 53 , 54 , 60 , 63 , 64 , 65 , 68 , are DENIED without prejudice with leave to refile, if necessary after the amended complaint is filed. This matter is hereby recommitted to the Magistrate Judge for issuance and service of process upon the filing of an amended complaint.IT IS SO ORDERED. Signed by Honorable R Bryan Harwell on 02/18/2018.(dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Zack Herdt,

)
)
Plaintiff,
)
)
v.
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)
Horry County Council, et al.,
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)
Defendants.
)
)
______________________________)

Civil Action No.: 4:17-cv-00392-RBH

ORDER

Plaintiff and a group of Plaintiffs claim prior employment with or ownership of the business
Skydive Myrtle Beach. These individuals each filed actions based on the same claims and facts against
the same sixty-six defendants. See Davis v. Horry County Council, et al, No. 4:17-391-RBH-TER;
Herdt v. Horry County Council, et al, No. 4:17-392-RBH-TER; Karahalios v. Horry County Council,
et al, No. 4:17-393-RBH-TER; Ringley v. Horry County Council, et al, No. 4:17-395-RBH-TER; Holly
v. Horry County Council, et al, No. 4:17-396-RBH-TER; Herzog v. Horry County Council, et al, No.
4:17-398-RBH-TER; Clarke v. Horry County Council, et al, No. 4:17-401-RBH-TER; Dron, et al v.
Horry County Council, et al, No. 4:17-397-RBH-TER; Bracey, et al v. Horry County Council, et al,
No. 4:17-399-RBH-TER; Guillen v. Horry County Council, et al, No. 4:17-400-RBH-TER; Boulineau
v. Horry County Council, et al, No. 4:17-394-RBH-TER.
Plaintiff’s voluminous complaint contains numerous state law claims: breach of contract;
trespass; conspiracy; infliction of emotional distress; slander, libel, and defamation; false light; fraud;
harassment; gross negligence; abuse of process and authority; and strict and vicarious liability.
Liberally construed, Plaintiff also sets forth allegations of a 42 U.S.C. § 1983 claim based on due
process violations, possible Federal Torts Claim Act claims, and possible Bivens claims.

Plaintiff names as defendants various state employees and state government bodies, federal
employees, the Federal Aviation Administration (FAA), and private individuals and businesses. The
premise of Plaintiff’s complaint appears to be that the Defendants did not want this skydiving business
at the Myrtle Beach airport and falsely reported one hundred and twelve violations in order to put the
them out of business. Plaintiff alleges, ultimately, an eviction from the airport premises occurred
without due process. Plaintiff makes references to ongoing state court actions and an action before the
FAA and the Fourth Circuit Court of Appeals.
Plaintiff’s Complaint is 160 pages and names 66 Defendants. Many allegations group
Defendants together and do not set forth specific allegations of wrongdoing as to specific claims as to
each Defendant. The Complaint also appears to contain many irrelevant details such that the true
substance of the Complaint may be at risk of being lost to a reader, which includes the 66 Defendants
who must answer or otherwise defend against the pleading. Defendants are entitled to allegations from
the Plaintiff that are not conclusory so they will know how to respond. The Complaint in this case
contains many conclusory statements and lacks necessary factual details.
Rule 8 of the Federal Rules of Civil Procedure requires that complaints contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” The court has the authority
to dismiss excessively long complaints under Rule 8(a) where the length renders the complaint
unintelligible. See e.g. United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 379 (7th
Cir. 2003)(155 pages, 400 paragraphs, 99 attachments); In re Westinghouse Securities Litigation, 90
F.3d 696, 702-03 (3d Cir. 1996)(600 paragraphs spanning 240 pages), Vicom, Inc. v. Harbridge Merch.
Svcs., 20 F.3d 771, 775-76 (7th Cir. 1994)(finding 119 page “less than coherent” complaint should have
been dismissed); Kuehl v. FDIC, 8 F.3d 905, 906-09 (1st Cir. 1993) (43 pages); Michaelis v. Nebraska
State Bar Ass’n, 717 F.2d 437, 439 (8th Cir. 1983) (98 pages).

The purpose behind Rule 8 is “to give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation
and quotation omitted).

Further, the plaintiff is obligated to provide “more than labels and

conclusions[;] a formulaic recitation of the elements of a cause of action will not do ...” Id. Even
though a pro se plaintiff’s pleadings are to be liberally construed, a pro se complaint must still contain
sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is
plausible on its face.” Id. at 555, 570; see also Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 252
(4th Cir. 2005).
“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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than
an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how
to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place,
or person involved.” Twombly, 550 U.S. at 565 n. 10. Complaints should contain facts in regard to who
did what to whom and when. Id.
The Complaint currently before the court does not comply with Rule 8(a) of the Federal Rules
of Civil Procedure, which requires a short, plain statement of the grounds for the court’s jurisdiction,
a short plain statement of the claim showing that Plaintiff is entitled to relief, and a demand for the relief
sought by Plaintiff. As such, Plaintiff is being given an opportunity to amend.
Additionally, Defendants have answered or otherwise appeared in this case, as well as the other
cases identified above. Plaintiff should take this opportunity to cure any pleading deficiencies Plaintiff
deems appropriate considering the issues presented in filings since the original Complaint. Pursuant to
Goode v. Cent. Va. Legal Aid. Soc'y, Inc., 807 F.3d 619, 623-24 (4th Cir. 2015), Plaintiff here should

be allowed to amend the Complaint to cure pleading deficiencies as a matter of judicial economy. The
Fourth Circuit has dismissed cases without remand where the district court previously afforded plaintiff
a chance to amend his complaint. See also Grady v. White, No. 16-7722, 2017 WL 1437235 (4th Cir.
April 24, 2017). This Order is affording such an opportunity to Plaintiff.
Any amended complaint should comply with the “short and plain statement” requirement and
state facts sufficient to state a claim for relief against each named defendant, in compliance with Rule
8 of the FRCP. Any amended complaint must also set forth allegations of wrongdoing as to each
Defendant sufficient to give each defendant fair notice of what the claim is and the grounds upon which
it rests.
Accordingly, Plaintiff is granted leave to file an amended complaint in compliance with Rule
8 of the Federal Rules of Civil Procedure within 15 days of this Order.
Because the Court has granted leave to amend the complaint, all pending motions are
DENIED without prejudice with leave to refile, if necessary after the amended complaint is filed.
This matter is hereby recommitted to the Magistrate Judge for issuance and service of
process upon the filing of an amended complaint.
IT IS SO ORDERED.
February 12, 2018
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge