Sevier v. Apple Inc.
REPORT AND RECOMMENDATION: For all the foregoing reasons, the undersigned recommends that the instant Motion (Docket No. 219) be GRANTED and that this action be DISMISSED WITH PREJUDICE. Any pending Motions should be DENIED AS MOOT. Signed by Magistrate Judge E. Clifton Knowles on 8/13/2015. (xc:Pro se party via email.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw) Modified on 8/14/2015 (jw).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
CASE NO. 3:13-0607
REPORT AND RECOMMENDATION
This matter is before the Court upon a request made by Defendant Apple, Inc. (“Apple”)
in a “Response to the Court’s Order.” Docket No. 219. The Court will treat Apple’s request as a
Motion to Dismiss. Plaintiff has filed a “Response to the Question Presented by the Decision in
Google” (Docket No. 223), which the Court will treat as a Response to that Motion.
By way of background, Plaintiff previously filed a similar lawsuit in this Court against
Google, Samsung, Android, LG, Motorola, x-Box, Microsoft, Governor Bill Haslam, former
Attorney General Bob Cooper, Planned Parenthood, Dell, Inc., and Verizon Wireless Tennessee
Partnership. Sevier v. Google, et al., No. 3:14-cv-1313, United States District Court for the
Middle District of Tennessee. The undersigned submitted two Reports and Recommendations in
that action recommending that Plaintiff’s claims in Google be dismissed. Case No. 3:14-cv1313. Docket Nos. 210, 211. Judge Sharp subsequently adopted those Reports and
Recommendations, and dismissed the Google action with prejudice in its entirety. Docket No.
235, Case No. 3:14-cv-1313. As will be discussed in greater detail below, Judge Sharp
dismissed Plaintiff’s claims in Google with prejudice because he had failed to abide by Fed. R.
Civ. P. 8(a)(2) & (d)(1). Judge Sharp also ruled that the Complaint should be dismissed pursuant
to Fed. R. Civ. P. 12(b)(1) and Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999).
Following Judge Sharp’s dismissal of Google, the undersigned entered an Order in the
instant action requiring Defendants to file a written document, in appropriate form, addressing
the impact, if any, of Judge Sharp’s Order in Google. Docket No. 207. The undersigned’s Order
also allowed Plaintiff to respond. Apple filed a Response to the Order. Docket No. 219. In that
Response, Apple requested that the Court dismiss this action with prejudice for the same reasons
adopted by Judge Sharp in Google. Docket No. 219, p. 12. As noted, Plaintiff filed a “Response
to the Question Presented by the Decision in Google” (Docket No. 223), which the Court will
treat as a Response in Opposition to Apple’s Motion.
This matter is before the Court following the filing of Plaintiff’s “Third Amended
Complaint.”1 Docket No. 214. Plaintiff is an attorney licensed to practice law in the State of
Even though Plaintiff refers to his current Complaint as the “Third Amended
Complaint,” that designation is simply not correct. Plaintiff filed his original Complaint on June
19, 2013 (Docket No. 1). On November 13, 2013, without leave of Court or any other authority,
Plaintiff simply filed a “First Amended Complaint.” Docket No. 28. On December 20, 2013,
Plaintiff filed another document headed “First Amended Complaint.” Docket No. 46. On
January 21, 2014, Plaintiff filed a “Second Amended Complaint.” Docket No. 64.
On September 9, 2014, Plaintiff filed a “Emergency Motion Amend [sic] the Original
Complaint, or Alternatively, Leave to Amend the Current Existing Complaint.” Docket No. 137.
Plaintiff did not, however, attach a proposed Amended Complaint to that Motion.
On November 25, 2014, Plaintiff filed a document headed “Notice of Filing Proposed
First Amended Complaint Attachment and Requests a Supplement and Alternatively Request to
Amend the Pre-existing Motion to Amended Complaint and to Supplement the Pending Motion
to Continue Apple’s Motion to Dismiss the Original Complaint.” Docket No. 161. The very
same day, Plaintiff filed a “Second Motion to Amend the Original Complaint and Request to Add
Hewlett-Packard.” Docket No. 162. Plaintiff did attach to that Motion a document headed
“Amended Complaint.” Docket No. 162-1. Before the Court ruled on that Motion, Plaintiff filed
a “Motion to File a Third Amended Complaint,” on May 22, 2015. Docket No. 212. That same
Tennessee, but since December 19, 2001, his license status has been “Disability Inactive.” See
www.http://www.tbpr.org. See also In Re: Mark Christopher Sevier, BPR #26577, No. M201102608-FC-BPR-BP (Tenn. Dec. 19, 2011).
In this action, Plaintiff essentially complains that he purchased one or more products from
Apple that allowed him to view pornography on the Internet, which he contends had a
devastating impact on his entire life. In a former version of his Complaint, Plaintiff alleged that,
in using his Apple computer, he accidentally misspelled “facebook.com” which led him to
“fuckbook.com” and a haste of websites that caused him to see pornographic images. Docket
No. 1, p. 21. Before he purchased the Apple computer, he had never seen pornographic images.
Id., p. 21-22.
Plaintiff sues Apple under a number of theories, all of which basically boil down to an
argument that Apple should have installed a “pornography filter” on devices that he (and others
as well) purchased from Apple that would have filtered out Internet pornography unless he made
a conscious decision to turn off the filter. In other words, Plaintiff contends that he should not
day, he filed a document headed “Third Amended Complaint.” Docket No. 214. The Court has
recently granted Plaintiff’s “Motion to File a Third Amended Complaint.” Docket No. 230. The
Court further notes that, on May 23, 2015, Plaintiff filed a document headed “Response to
Apple’s Request for More Time to Response [sic].” Docket No. 216. For whatever reason, he
simply attached to that document a document headed “Third Amended Complaint” (Docket No.
216-1), which he describes on the docket as “Exhibit third amended complaint option without
footnotes total 70 pages.” Docket No. 216-1, attachment description.
In many of his filings, Plaintiff lists “Hewlett-Packard” as a Defendant in the style of this
case. In his Third Amended Complaint, however, Plaintiff does not sue Hewlett-Packard.
Docket No. 214. Thus, Plaintiff has voluntarily dismissed any claims he may have had against
Hewlett-Packard. Moreover, in many of his filings, Plaintiff refers to “Defendants,” when there
is only one Defendant in this action.
have been inadvertently allowed to view pornography on the Internet, and that he should have
been able to view pornography only after turning off the pornography filter.
Plaintiff’s Third Amended Complaint is 90 pages in length, and includes 100 footnotes.
The following allegations are but a small sample of the Complaint as a whole:
10. The laptops and cell phones that came with preinstalled
software were designed to allow the user to connect automatically
to the internet. The devices were portable and not designed for
stationary use; the devices were created to be carried around on
one’s person. The devices were not designed to be monitored and
disregard of the realities of the innate urge to procreate in order to
ensure the survival of the species. None of Apple’s products came
with preinstalled software that would have allowed me to “opt out”
of interacting with illegally distributed and dangerous pornography
that posed a threat to my reproductive, sexual, mental, spiritual,
emotional, and relational health. Because of Apple’s out of control
greed, Apple refused to allow [sic] their customers to fully assume
the risk of being left exposed to hard core pornography on their
metallic boxes of smut. The airports on Apple’s devices were
activated in searching for wifi from right out of the box. The
Defendant’s product knowingly opened the door to predatory
pornographers and invited them to hunt me down, which they did
in accordance with Apple’s self-serving expectations. The
predatory pornographers that the Defendant and their coconspirators enable, support, and encourage know how to smell out
their prey and get them hooked into their damaging product for the
paramount benefit of the Defendant and its co-conspirators. Due to
the realities of the coolidge effect, one pornographic website might
get old. Even watching vanilla sex might. This is why there are
extreme torture and violent porn websites. Apple knows that their
products are always necessary for porn addicts no matter how
perversed down the sliding slope they may fall. Apple knows that
it is at the helm of a porn pandemic, silent epidemic, and sexual
holocaust but it does not care.
11. When the ISPs sold me their device, they were aware that I
would be forced to encounter pornography through the normal use
of their product in conjunction with device makers’ product. The
Defendant and their co-conspirators knew that this exposure would
threaten the quality of my life, exploit my biology adversely, and
interject addiction at the expense of my family and health. The
Defendant and its co-conspirators invited, welcomed, and
encouraged predatory pornography to cause forced interaction
through fraudulent tactics. I was subsequently inflicted with the
perils of pornography to include adverse impact on reproductive
health, mental health, and relational health. These injuries are
ongoing and continuing. These injuries require continual ongoing
treatment that the Defendant should be responsible for, as well as a
host of other damages for the irreversible decrease quality in life
and all the way down to the loss of my only son.
Docket No. 214, p. 8-9.
Just because Tim Cook is a radical homosexual atheist does not
mean that he has the right to force everyone to conform to his selfdestructive religious world view.
Id., p. 12.
17. I have the fundamental right to practice religion and to be free
from unknowingly developing an addiction as a result of using the
Defendant’s products that interact and depend on devices that
connect to the web. I want to reserve the right to choose what set
of influences I will subject my heart, soul, mind, and emotions to.
For government related purposes, work related purposes, and
personal family purposes, I was required to own products sold by
the Defendant. The Government of the United States has a duty to
protect my fundamental religious liberties. My fundamental
religious and health rights not the be forced [sic] into interacting
with obscene content was trampled by Apple’s disregard for the
product safety and obscenity laws. My consent to exposure was
not sought by the Defendant because Apple was only concerned
with maximizing profits and was completely indifferent to my
quality of life. In using the Defendant’s products as intended, I
developed a pornography addiction, which devastated the most
important relationships in life. Relationships are spiritual. Sex is
spiritual. Lust and sex out of context ruins nearly all relationships.
18. My wife, simply could not compete with the endless stream of
ageless cyber vixens, who “never say no” and who were enhanced
in every way to maximize arousal all thanks to Apple’s total
disregard for my safety and welfare. Real women are less
clickable. Not so with the porn starlets, who offer no strings
attached and a life time void of confrontation and the intimacy.
The sexually indecent material exploited by my biology and
depleted my oxytocin, which crippling effect on my limbic system
[sic]. Consequently, I was unable to obtain a bond with my wife
and son. My wife left; she took my son and all of our property.
19. As the cherry on top, after my wife split, I was further
subjected to a host of dehumanizing and depersonalizing civil and
criminal litigation was [sic] a direct consequence of the porn
compact. Forced exposure to pornography on filterless devices
was the superceding cause of the costly litigation. The
pornography addiction that the filterless products injured my
business [sic], as well, which I was unable to maintain due to the
infliction of an unwanted pornography addiction. . . .
20. The injurious desensitization and voyeurism that followed
exposure to porn, as a result of the enterprise that the ISPs played a
fundamental role in creating in conjunction with device makers and
lobbying groups like planned parenthood, has managed to produce
a termination of rights and adoption case [sic]. These civil
lawsuits place me in a position of irreparable harm. My parental
rights are subject to termination all because the tech companies and
pornography companies partnered to inflict society with the same
kind of fraud that the Cigarette Companies unleashed and for the
same reasons – maximization of property by misleading the public
about the harmlessness of their products. The District Attorney’s
office in Nashville is threatening to investigate and prosecute me
for having admitted to being a porn addict because porn addiction
naturally leads to a digression of a downgrade dopamine system,
which causes an addict to seek more and more extreme visual sex
to achieve the same fix and escapism from emotional challenges.
Because of the fall of the nature of man, I have sued three Assistant
District Attorneys in Nashville and deliberately thrown the former
head of the Board of Professional Responsible [sic] under the bus
publicly, for being a tyrannical scoundrel. In keeping with the
spirit of prideful arrogance, a host of state officials in Tennessee
have sought to engage in willful and outrageous retaliation all
because I have publicly embarrassed many members in the public
record due to my refusal to cowardly play “go along get along” as a
matter of actual honor and integrity (foreign concepts in the
Tennessee Justice System at large). The District Attorney’s office
promised to have me arrested and jailed for child porn violations
because I admitted to having a porn addiction, which is the direct
result of the porn compact. The assistant district attorney who
knowingly brought a phony stalking case invented by F list
celebrity John Rich, asserted at the hearing in January 2014 that
because I admitted to being a porn addict, there was probable cause
to have me investigated for exposure to child pornography.
Meanwhile, I was never given the opportunity to consent to the
forced exposure to pornography, which has served as a basis for
the factory of malicious prosecution that the Nashville DA’s office
was ready to produce to cure it’s “embarrassment.”
Docket No. 214, p. 12-15.
My dopamine level were [sic] impacted, like pavlov’s dogs, I was
conditioned to prefer porn stars over my wife. Like with meth, a
person cannot be a casual user of pornography because dopamine is
raised too high. P. 16 (footnotes omitted).
Id., p. 16 (footnotes omitted).
When the Defendants sold me their products, they knew I would be
forced to encounter pornographic content that would cause adverse
compulsive sexual behavior, arousal addiction, brain shrinkage,
and decrease my capability to experience intimacy by highjacking
my dopamine receptors.
Id., p. 17 n.31.
The brain cannot really tell a difference between real sex and porn,
which creates co-dependency on the product providing the drug of
detached sex with a voluptuous vixen.
Id., p. 18.
Apple has literally attempted to convince the Court that forcing its
customers to masterbate [sic] to its products is in keeping with
Apple’s first amendment rights. The founding fathers would
Id., p. 19.
Adrenal gland stimulation addiction is birthed with disasterous
results for the future of individual citizens with uncontainable
collateral damaging consequences for others.
Id., p. 21 (footnotes omitted).
Since I became conditioned by the Defendant’s pornography to
desire to get the fix with women of the opposite sex, I began
avoiding the dating process altogether . . . . while my wife may
reject me in the bedroom for failure to take out the garbage, the
prostitutes advertise – “when she says no, I’ll say yes.”
Id., p. 21 n.38.
If Apple was smart – and it’s not – it would join me in the fight
against sex trafficking, becoming part of the solution, and stop
being the key part of the problem. Instead, the court must be
responsive or it will have resolute former Judge Advocate to
contend with. And I am not interested in “no” or the kind of
abusive nonsense that I witnessed Judge Haynes manifested in the
Rich case. The dark side of technology must be scaled back
through minimal regulation . . . The Court should rethink twice
[sic] before it reducts this case into an opportunity to to [sic] abuse
its discretion for the sake of the public health, the welfare of the
children, wives, and for future generation. I kneel before this
Honorable Court and implore it with all of my essence that it
enjoin this pathetic company from Cupertino for the sake of
mankind and benefit of past and future victims of human
Id., p. 22.
Apple and its co-conspirators are few in number. They can be
readily identified. They must be regulated. They must be
regulated through filters and top level domain down solutions,
which I personally be [sic] having a come to Jesus meeting with
ICANN. Failure to regulate the Device Makers and Internet
Service Providers in this regard makes our Nation and World less
free. It reduces us to a fish on the grass as a Nation sexually and
culturally. We as a people deserve better. The Court needs to give
me what I’m asking for.
Id., p. 5.
We humans are not merely animated pieces of meat. We are not
just accidental particles.
Id., p. 4.
Plaintiff sues Defendant under the following theories: strict liability/products liability;
products liability (defective design: failure to warn); simple negligence; breach of the duty of
good faith and fair dealing (negligent failure to test and warn, negligent failure to filter, strict
liability); res ipsa looquitur [sic] relating to personal injury (negligent failure to warn, negligent
failure to test, fraud, strict liability, improper burden shifting, failure to follow obscenity laws;
breach of manufacturers’ duties, deceptive trade practices, including failure to warn, failure to
test, sale of defective and unreasonably dangerous products (strict liability, negligence, and
breach of implied warranty); violation of state consumer protection statutes (unfair,
unconscionable, and deceptive acts or practices); civil conspiracy; false advertising (Tennessee
common law); negligent misrepresentation; intentional infliction of emotional distress; negligent
infliction of emotional distress; outrageous conduct; breach of contract; “Rule 9 causes of action”
violations of the racketeer influenced and corrupt organization statute (18 U.S.C. § 1962(c));
conspiracy to violate 18 U.S.C. § 1962(c); obscenity violations and racketeering; racketeering
and sex trafficking; violation of 15 U.S.C. § 1051 et seq.; and Lanham Act for false advertising.
He further seeks 8 pages of relief, including the following:
2(e) Order each defendant [sic] to disclose, disseminate, and make
available to the Department of Justice, Morality In Media, Family
Research counsel, the States’ Attorney General’s Offices in all 50
states, Department of Human Services in all 50 states, and such
public health and regulatory authorities as the Court may select, all
documents relating to research previously conducted directly or
indirectly by themselves and their respective agents, affiliates,
servants, officers, directors, employees, and all persons acting in
concert with them, that relate to the health consequences of
interfacing with pornography and pornography addiction, and the
ability to develop, update, and maintain custom made filters that
will make effort to block pornographic images in websites;
2(k) Order the Defendant to custom make and develop filtering
software that makes a reasonable attempt to block pornography.
Order the ISPs to zone pornography to the unused ports. Order the
ISPs to sell their services with customers opted out of pornography.
Require the Defendant customers [sic] to provide proof of ID in
person before being allowed to opt-into interacting with
Docket No. 214, p. 83-85.
Plaintiff further sets forth 6 claims for relief that he asserts “[i]f allowed to proceed on
behalf of the United States.” Id., p. 86. The Court knows of no authority for the proposition that
Plaintiff could proceed on behalf of the United States, nor does the Court believe Plaintiff has
ever moved to do so.
Plaintiff also seeks attorneys fees under 18 U.S.C. § 1982 stating, “For anyone to even
suggest that I cannot practice law is a ratification of a corrupt scheme ran [sic] by Nancy Jones,
Krisann Hodges, and members of the Tennessee Supreme Court, who should be held accountable
for service discrediting fraud.” Docket No. 214, p. 86.
As discussed above, Plaintiff has filed a “Response to the Question Presented by the
Decision in Google.” Docket No. 223. Plaintiff’s Response suffers from the same deficiencies
as those of his Third Amended Complaint. It is essentially 25 pages of more of the same. For
example, Plaintiff begins his argument regarding Rule 8 with the following statement:
I believe in the constitutionally fundamental right to travel and I
also have standing against other members of the enterprise that are
domiciled outside of this routinely disappointing jurisdiction,
which has repeatedly failed me. Let me begin by conclusively
putting a death nail [sic] in the coffin of Apple’s, Google’s, and the
Court’s procedural tap dance and game playing through full
disclosure of a prospective litigation strategy. I do not want there
to be any doubt that setting procedural boobie traps is not an astute
Docket No. 223, p. 9.
He proceeds to make a threat that Mrs. Lauren Dixon “is going to immediately file
suit . . . if Judge Sharp does not vacate the abusive decision in Google.” He states, “I’ve
personally met with Senator Markey’s senior political advisors at the Capitol,” who “is [sic]
watching both Courts for good cause.” Id., p. 9-10. He continues:
To save the Court time, it should understand that if it tries to pull
off the same abuse of discretion and procedural stunt here, Apple
will also be named in Mrs. Dixon’s litigation. Actually, Mrs.
Dixon could name Apple regardless. Perhaps Judge Trauger could
be assigned the case and a totally different outcome could manifest,
since she is a female and pornography objectifies women.
Id., p. 11.
If Mrs. Dixon is compelled to sue because of Judge Knowles
scheming, I would expect the court to also render an opinion on
criminal liability for the state’s district attorney’s office to consider
under T.C.A. § 39-17-902(a). District Attorney Glen Funk owes
me a whole lot and I do not mind cashing in all chips to make him
consider arresting the heads of tech companies for breaking state
Id., p. 12.
Plaintiff also argues that the Court is required to hold him to lower pleading standards
because he is “technically not a lawyer.” He further threatens:
If the Court finds me to be an attorney subjected to advanced
pleading standards, I will immediately file class action lawsuits
against the defendants for the victims at She’s Somebody’s
Daughter. . . . In the event that the Court does decide that I am a
lawyer and that my complaint fails under rule 8, I will immediately
file a lawsuit under 42 USC Sec. 1983 for violations of the 14th
amendment against a host of TN state Judges in district court in the
souther [sic] district of New York. If that occurs, Judge Ash,
Judge Fishburn, Judge Smith, Judge Moreland, can personal [sic]
thank Judge Knowles for the litigation I will put them through.
But my advice to this court is to let me fight this controversy and
not that one even though I have cultivated a zero tolerance policy
for judicial activism and judicial misconduct. The toxic reach of
the self-enriching good ole boy network hasn’t made it’s way far
enough to my city of Manhattan.
Id., p. 14.
On occasion I enjoy a good government thrashing because I know
that trials produce character. Yet, over all, I do not really like
getting treated like a patronized child. If anyone will do the
bullying and the patronizing here it will be me against either the
Court or the Defendant. I am an ardent opponent of pornography
because of its direct link and tie to human trafficking and for how
it personally injured me and my family. I have bombarded the
Court’s docket with plausible and credible evidence that
establishes that the filterless products sold by the Defendant has
[sic] a direct correlation with the demand side of human
trafficking. I expect and demand that this action be allowed to
advance forward. Judge Knowles should likely pack up and take
his implausible values elsewhere. I expect Judge Sharp to vacate
the unlawful and pro-sex trafficking decision in 3:14-cv-1313
[Google] which is rife with judicial arrogance and activism.2
Id., p. 23-24 (footnote added).
He also states:
Emperor Obama’s values are patently anti-American and it is not a
stretch to find that so are Judge Knowles, if he does not allow me
to proceed forward. I expect to see a manifest change of heart or I
will pin him to the wall with the law for the sake of children and to
Plaintiff’s statement that he has “bombarded the Court’s docket” is entirely correct.
Throughout the course of this litigation, Plaintiff has filed various lengthy notices, memoranda,
and exhibits, many of which are clearly not responsive to any filing made by Defendant. These
include: Docket No. 89 (169 pages), Docket No. 92 (326 pages), Docket No. 103 (147 pages),
Docket No. 104 (169 pages), Docket No. 108 (153 pages), Docket No. 113 (297 pages), Docket
No. 124 (178 pages), Docket No. 147 (291 pages), and many others.
protect the integrity of Constitution and other laws.
Docket No. 223, p. 5.
Plaintiff’s Response also includes almost 6 pages of something Plaintiff refers to as the
“note section of the statute,” which apparently pertains to a “first draft of Tennessee filter
legislation” that Plaintiff has authored. Docket No. 223, p. 18-23. The relevance of this material
to the issues before the Court is unclear.
In one of the few statements in his Response that has any bearing on the issues before the
Court, he states: “Let’s face it, (1) Rule 8 is at best ‘aspirational . . . .’” Docket No. 223, p. 15
The Court has set forth some of the allegations of Plaintiff’s Complaint above. As the
undersigned stated in Google, however, “It would be virtually impossible for the Court to convey
the truly incredible nature of Plaintiff’s Complaint. . . . The majority of the allegations are simply
bizarre.” Case No. 3:14-cv-1313, Docket No. 210, p. 4. Moreover, the precise basis of
Plaintiff’s claims is largely indecipherable due to the incredibly verbose and sermonizing nature
of his pleading.
As Judge Sharp recognized in Google, Fed. R. Civ. P. 41(b) authorizes the dismissal of
an action where a Plaintiff has failed to comply with the Federal Rules of Civil Procedure,
including Fed. R. Civ. P. 8(a)(2) and (d)(1). Docket No. 235, Case No. 3:14-cv-01313. A
number of authorities agree with this proposition. See Wynder v. McMahon, 360 F.3d 73, 77-78
(2nd Cir. 2004); Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir. 1988); Nevijel v. North Coast
Life Insurance Co., 651 F.2d 671, 673 (9th Cir. 1981); Galindo v. Lampela, 2013 U.S. App.
LEXIS 5413, *3 (10th Cir.). See also Plymale v. Freeman, 191 U.S. App. LEXIS 6996 (6th Cir.)
(Affirming dismissal for failure to comply Rule 8(a)); Jones v. National Communications &
Surveillance Networks, 266 Fed. Appx. 31, 32 (2nd Cir. 2008) (same); Flayter v. Wisconsin
Department of Corrections, 16 Fed. Appx. 507, 509 (7th Cir. 2001) (same).
“Taken together, Rules 8(a) and 8(e)(1) [now Rule 8(d)(1)] underscore the emphasis
placed on clarity and brevity by the federal pleading rules.” Ciralsky v. C.I.A., 355 F.3d 661, 669
(D.C. Cir. 2004) quoting In Re Westinghouse Securities Litigation, 90 F.3d 696, 702 (3rd Cir.
1996) (further citations omitted). Moreover, “[a] complaint which fails to comply with rules 8(a)
and 8(e) [now 8(d)] may be dismissed with prejudice pursuant to rule 41(b)’” Nevijel, 651 F.2d
Additionally, courts have found that a complaint violates Rule 8 and should be dismissed
where it is unnecessarily lengthy, disorganized, argumentative, or includes inappropriate
extraneous allegations. See Morales v. New York, 2014 U.S. Dist. LEXIS 71137, *14 (S.D.N.Y.
May 22, 2014) (observing that “complaints that are argumentative, disjointed and needlessly
ramble have routinely been dismissed . . . .”); Smith v. City of Chattanooga, 2010 U.S. Dist.
LEXIS 134171, *4-5 (E.D. Tenn. Dec. 17, 2010) (dismissing complaint that is “replete with so
much irrelevant information that the Court is unable to determine the precise nature of
[plaintiff’s] claims.”); Barnard v. Beckstrom, 2007 U.S. Dist. LEXIS 38864. *9 (E.D. Ky. May
29, 2007) (finding complaint violated Rule 8 where it contained “circuitous diatribes far removed
from the heart of the claim . . . .”); Brown v. Knoxville News-Sentinel, 41 F.R.D. 283 (E.D. Tenn.
1966) (dismissing 117 page complaint because it is “so prolix, loosely drawn and involved to as
to be unintelligible”).
“[A] complaint that is prolix and/or confusing makes it difficult for the defendant to file a
responsive pleading and makes it difficult for the trial court to conduct orderly litigation.”
Schied v. Daughtrey, 2008 U.S. Dist. LEXIS 104697, *4 (E.D. Mich. Dec. 29, 2008) (“When
faced with voluminous pleadings, neither the Court nor opposing counsel should be required to
expend time and effort searching through large masses of conclusory, argumentative, evidentiary
and other extraneous allegations in order to discovery whether the essentials of claims asserted
can be found in such a melange.”); see also Nevijel, 651 F.2d at 674 (dismissing, with prejudice,
a complaint that was “verbose, confusing and almost entirely conclusory.”). Apple should not be
required to sort through the Third Amended Complaint in order to attempt to decipher the basis
for Plaintiff’s claims.
Dismissal of such improper complaints is necessary as a result of the undue burden that is
placed on both the parties responding to the complaint and on the court. See Jones, 266 Fed.
Appx. at 32 (“The statement should be short because unnecessary prolixity in a pleading places
an unjustified burden on the court and the party who must respond to it because they are forced to
select the relevant material from a mass of verbiage.”) (internal quotation marks and citations
omitted); Flayter, 16 Fed. Appx. at 509 (“A prolix and confusing complaint should be dismissed
because it makes it difficult for the defendant to file a responsive pleading and for the court to
conduct orderly litigation.”) (citation omitted); Smith, 2010 U.S. Dist. LEXIS 134171 at *4
(explaining that improper pleadings “place an intolerable toll on the Court’s docket, lead to
unnecessary discovery, and impose unwarranted expense on the litigants, the Court, and the
Court’s personnel and resources.”).
In Flayter, the plaintiff filed a complaint that was 116 pages long, in which he alleged
that the Wisconsin Department of Corrections and several of its employees were liable under 42
U.S.C. § 1983 as a result of their failure to provide the plaintiff with proper medical care.
Flayter, 16 Fed. Appx. at 508. Although the court was able to discern the basis of the plaintiff’s
claims and acknowledged that the plaintiff’s allegations were organized in chronological detail, it
nevertheless found that due to the complaint’s “length and level of detail,” the defendants would
be burdened in attempting to file a responsive pleading. Id at 508-509.3 As a result, the court
concluded that the complaint was not a “short and plaint statement” of the plaintiff’s claim, and
was thus subject to dismissal for violating Rule 8. Id. at 509.
The Third Amended Complaint is neither short nor plain. It’s allegations are not simple,
concise, and direct. It is 90 pages in length and contains 100 footnotes. The Court recognizes
that length alone is not the problem, but the Third Amended Complaint is essentially a thesis or
dissertation discussing Plaintiff’s personal beliefs regarding a multitude of irrelevant and
improper topics. Given these factors, responding to the Third Amended Complaint would place
an undue burden on Apple, and the continuation of this action would impose a huge burden on
the Court in attempting to manage this case.
Plaintiff’s pro se status does not save his Complaint. Although pro se complaints are
generally held to less stringent pleading standards, Plaintiff is an attorney and, therefore his
filings are not entitled to such deference. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.
2001) (“Smith is a lawyer proceeding pro se. While we are generally obliged to construe pro se
pleadings liberally, we decline to do so here because Smith is a licensed attorney.”) (citations
omitted); Larsen v. JBC Legal Group, P.C., 533 F. Supp. 2d 290, 295, n.2 (E.D.N.Y. 2008)
The Third Amended Complaint likewise contains excruciating detail – not regarding
factual allegations in support of any cognizable legal claim, but rather regarding myriad
(“[T]he rules afforded pro se litigants are not relaxed when that litigant is also an attorney”);
Richards v. Duke Univ., 480 F. Supp. 2d 222, 234 (D.D.C. 2007) (“Because plaintiff is an
attorney, she is not automatically subject to the very liberal standards afforded to a non-attorney
pro se plaintiff because an attorney is presumed to have a knowledge of the legal system . . . .”).
As indicated above, a dismissal under Rule 41(b), for failure to comply with Rule 8, may
be with prejudice. See Hearns v. San Bernardino Police Dep’t., 530 F.3d 1124, 1129 (9th Cir.
2008) (“Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint
with prejudice for failure to comply with Rule 8(a).”) (citing Nevijel, 651 F.2d at 673). In the
present case, the Third Amended Complaint should be dismissed with prejudice because its
violation of Rule 8 is so extraordinary. The complaint in Nevijel was sufficiently verbose to be
dismissed with prejudice, but it was a mere 48 pages. 651 F.2d at 672-73.
Moreover, the extraneous content that makes up a great deal of the Complaint’s 90
pages is not merely irrelevant, but to a large extent is also gratuitously insulting to numerous
individuals and organizations, including many who clearly have nothing at all to do with the
pornography-access issues the Third Amended Complaint attempts to raise.
Apple also raises a second reason why the instant Complaint should be dismissed, namely
Fed. R. Civ. P. 12(b)(1). The Sixth Circuit has stated:
[A] district court may at any time, sua sponte dismiss a complaint
for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure when the allegations of the
complaint are totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion.
Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) citing Hagans v. Lavine, 415 U.S. 528, 536-37
It is readily apparent that Plaintiff’s Third Amended Complaint is subject to dismissal
pursuant to Fed. R. Civ. P 12(b)(1) and Glenn.
For all the foregoing reasons, the undersigned recommends that the instant Motion
(Docket No. 219) be GRANTED and that this action be DISMISSED WITH PREJUDICE. Any
pending Motions should be DENIED AS MOOT.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
E. Clifton Knowles
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?