Monkemeier v. Internal Revenue Service et al
Filing
10
OPINION AND ORDER granting 6 Motion for More Definite Statement. Plaintiff shall file an amended complaint within 20 days. Failure to comply may result in dismissal of this action.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES MONKEMEIER,
§
§
PRO SE Plaintiff,
§
§
VS.
§
§
INTERNAL REVENUE SERVICE, INC., §
et al.,
§
§
Defendant.
§
CIVIL ACTION H-12-2574
OPINION AND ORDER
Pending before the Court in the above referenced cause,
appearing
to
prohibit
Defendants
from
providing
Plaintiff’s
property, information, documents or papers to the Internal Revenue
Service and from collecting a debt, is Defendant New York Life
Insurance
Company’s
(“NYL’S”)
motion
for
a
more
definitive
statement (instrument #6) under Federal Rule of Civil Procedure.
Pro se Plaintiff James Monkemeier has failed to file a response.
The Court agrees with NYL that the complaint is not adequately
pleaded.
Under Rule 12(e),
A party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but
which is so vague or ambiguous that the party cannot
reasonably prepare a response. The motion must be made
before filing a responsive pleading and must point out
the defects complained of and the details desired. If
the court orders a more definite statement and the order
is not obeyed within 14 days after notice of the order or
within the time the court sets, the court may strike the
pleading or issue any other appropriate order.
-1-
Motions
for
more
definite
statement
are
“used
to
remedy
an
unintelligible pleading; they are not used to clarify a pleading
that lacks detail, and they are not intended to serve as a
substitute for discovery.”
Allstate Ins. Co. v. Donovan, Civ. A.
No. H-12-0432, 2012 WL 2577536, *19 (S.D. Tex. July 3, 2012, citing
Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959).
The district court has considerable discretion in deciding whether
to grant such a motion.
Ditcharo v. United Parcel Service, Inc.,
376 Fed. Appx. 432, 440 n.9 (5th Cir. 2010), citing Old Time
Enterprises, Inc. v. International Coffee Corp., 862 F.2d 1213,
1217 (5th Cir. 1989).
The Court agrees that Plaintiff’s complaint
is not comprehensible and needs to be amended not just as to NYL,
but as to all named Defendants.
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
pursuant
When a district court reviews a motion to dismiss
to
Fed.
R.
Civ.
P.
12(b)(6),
it
must
construe
the
complaint in favor of the plaintiff and take all well-pleaded facts
as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009).
“While a complaint . . . does not need detailed factual
allegations,
.
.
.
a
plaintiff’s
-2-
obligation
to
provide
the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .”
Twombly,
127
S.
Ct.
1955,
1964-65
Bell Atlantic Corp. v.
(2007)(citations
omitted).
“Factual allegations must be enough to raise a right to relief
above the speculative level.”
Id. at 1965, citing 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”).
“Twombly . . . require[s] that a
complaint allege enough facts to state a claim that is plausible on
its face.”
St. Germain v. Howard,556 F.3d 261, 263 n.2 (5th Cir.
2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007).
“‘A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable
inference
alleged.’”
that
the
defendant
is
liable
for
the
misconduct
Montoya v. FedEx Ground Package System, Inc., 614 F.3d
145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal, 129 S. Ct.
1937, 1940 (2009).
Dismissal is appropriate when the plaintiff
fails to allege “‘enough facts to state a claim to relief that is
plausible on its face’” and therefore fails to “‘raise a right to
relief above the speculative level.’”
Montoya, 614 F.3d at 148,
quoting Twombly, 550 U.S. at 555, 570.
“[T]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
-3-
statements do not suffice” under Rule 12(b).
1949.
The
plaintiff
must
plead
Iqbal, 129 S. Ct. at
specific
conclusory allegations, to avoid dismissal.
facts,
not
merely
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
The district court is to construe liberally the briefs of pro
se litigants and apply less stringent standards to them than to
parties represented by counsel.
Erickson v. Pardus, 551 U.S. 89,
94 (2007)(reciting the long-established rule that documents filed
pro se are to be liberally construed and “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers”); Andrade v. Gonzales, 459 F.3d 538,
543 (5th Cir. 2006); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.
1995).
Nevertheless, “[e]ven a liberally construed pro se civil
rights complaint . . . must set forth facts giving rise to a claim
on which relief can be granted.”
Johnson v. Atkins, 999 F.2d 99,
100 (5th Cir. 1993).
When a plaintiff’s complaint fails to state a claim, the court
should generally give the plaintiff at least one chance to amend
the complaint under Rule 15(a) before dismissing the action with
prejudice.
Great Plains Trust Co v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002)(“District courts often afford
plaintiffs at least one opportunity to cure pleading deficiencies
before dismissing a case, unless it is clear that the defects are
incurable
or
the
plaintiffs
advise
-4-
the
court
that
they
are
unwilling
or
unable
to
amend
in
a
manner
that
will
avoid
dismissal.”).
Accordingly, the Court
ORDERS that NYL’s motion for more definitive statement is
GRANTED.
Plaintiff shall file an amended complaint within twenty
days of entry of this order.
Failure to comply may result in
dismissal of this action.
SIGNED at Houston, Texas, this
23rd
day of
October , 2012.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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