Vogt v. Raymond James Financial Services Inc

Filing 116

ORDER signed by Judge J P Stadtmueller on 8/20/09: denying with prejudice 113 plaintiff's Motion for Leave to File Final Amended Complaint; granting 15 33 defendants' Motions to Dismiss; and dismissing this action on the merits and together with costs as taxed by the clerk of court. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ D O N N A MARIE VOGT, P l a i n t if f , v. R A Y M O N D JAMES FINANCIAL SERVICES, INC., R A Y M O N D JAMES FINANCIAL, INC., T E R R A N C E A. BOSTIC, JOHN STEPHEN PUTNAM, U S BANCORP, EMMANUAL MAMALAKIS, D A V ID COHEN, JOHN HYLAND, GREGORY EVERTS, a n d SAMUEL EDGERTON, D e fe n d a n ts . ____________________________________________ Case No. 09-CV-83

ORDER
O n January 22, 2009, plaintiff filed suit in this district against Raymond James F in a n c ia l Services, Inc. Thereafter, the case was assigned to the Green Bay

D ivis io n . On January 27, 2009, Judge W illia m Griesbach, finding that the case had n o connection to the Green Bay Division, transferred the case to the Milwaukee D ivis io n . Subsequently, on March 17, 2009, prior to any responsive pleadings from th e defendant, plaintiff amended her complaint, adding various claims as well as s e ve ra l additional defendants. On April 14, 2009, Raymond James Financial

S e r vic e s , Inc., Raymond James Financial, Inc, Terrance Bostic, John Stephen P u tn a m and Samuel Edgerton filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 1 2 (b )( 2 ) and 12(b)(6). (Docket #15). On May 15, 2009, Emmanual Mamalakis ("M a m a la k is ") filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). (Docket

# 3 3 ).

On the same date, plaintiff filed a Motion for Leave to File Amended

C o m p la in t. (Docket #37). T h e re a fte r, plaintiff literally inundated the court (and the defendants as well) w ith filings, including: Motion to Amend/Correct Final Amended Complaint and M o tio n for Order to Require an Answer to the Final Amended Complaint (Docket # 6 3 ); Motion to File Amended Complaint (Docket #82); Motion to Strike Previous C o rre c te d Final Complaint (Docket #85); and Motion for Leave to File Final A m e n d e d Complaint (Docket #113). Further complicating matters is the fact that, th ro u g h an apparent misunderstanding in the clerk of the court's office, plaintiff was p ro vid e d summonses for additional prospective defendants. Though the court has a t no time granted any of plaintiff's motions for leave to amend, plaintiff nonetheless s e rv e d these summonses upon parties who were not named in the properly a m e n d e d complaint (Docket #12), but rather were named only in the proposed a m e n d e d complaint. Since these parties were not named in a complaint that has e ve r been properly filed (as the court has not granted leave for such filing), they s h o u ld have never been served. G ive n that plaintiff has filed numerous motions to amend the properly filed a m e n d e d complaint, the court will treat her most recent filing as the final proposed a m e n d e d complaint. Accordingly, the court will examine this final proposed

a m e n d e d complaint to determine if plaintiff should be allowed to amend. If justice s o requires, the court will then order that the attached complaint be filed, after which p la in tiff may then properly serve the defendants named therein. The court will -2-

fu rth e r proceed to evaluate whether the properly amended complaint should be d is m is s e d pursuant to defendants' applicable motions. M O T IO N FOR LEAVE TO AMEND In considering whether to allow plaintiff to amend her complaint to include the va rio u s proposed additional claims and defendants, the court is guided by the p re m is e that "[w]hile [Fed. R. Civ. P.] 15(a) states that 'leave shall be freely given w h e n justice so requires,' the court should not allow the plaintiff to amend [her] c o m p la in t when to do so would be futile." Moore v. State of Indiana, 999 F.2d 1125, 1 1 2 8 (7th Cir. 1993). Amendment is futile when the "new claim[s] . . . would not w ith s ta n d a motion to dismiss." Vargas-Harrison v. Racine Unified Sch. Dist., 272 F .3 d 964, 974 (7th Cir. 2001). Similarly, amendment is also clearly futile when the c o u rt would not have jurisdiction over the amended complaint. P la in tiff's proposed amended complaint (Docket #113, Exhibit 1) asserts some fe d e ra l claims against certain defendants, and many different state law claims a g a in s t every defendant. Plaintiff states that the court has subject matter jurisdiction o ve r the claims within the proposed amended complaint pursuant to 28 U.S.C. §§ 1 3 3 1 , 1343(a), and § 1367. 28 U.S.C. § 1331 provides for federal question

ju r is d ic tio n , § 1343(a) provides for jurisdiction over claims arising from a conspiracy to deprive a person of any right or privilege of citizenship, as such conspiracy is m e n tio n e d in 42 U.S.C. § 1985. 28 U.S.C. 1367 provides for supplemental

ju ris d ic tio n over state law claims that are so related to the claims over which the c o u rt has original jurisdiction, so as to be part of the same case or controversy. -3-

P la in tiff's proposed amended complaint also states that the court has subject m a tte r jurisdiction pursuant to 28 U.S.C. § 1332, diversity jurisdiction, because the a m o u n t in controversy exceeds $75,000 and the action is between citizens of d iffe re n t states. However, what this assertion fails to appreciate is that several of the p ro p o s e d defendants named in the proposed amended complaint are citizens of W is c o n s in , as is plaintiff. "For a case to be within the diversity jurisdiction of the fe d e ra l courts, diversity must be `complete,' meaning that no plaintiff may be a c itiz e n of the same state as any defendant." Fidelity & Deposit Co. of Md. v. City of S h e b o y g a n Falls, 713 F.2d 1261, 1264 (7th Cir.1983) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)). Clearly, complete diversity would not e xis t under the proposed amended complaint, thus, the court could not have ju ris d ic tio n under the provisions found in 28 U.S.C. § 1332. Therefore, the only p o s s ib le way the court could have jurisdiction over the numerous state law claims a s s e rte d within the proposed amended complaint would be if each of those state law c la im s were subject to supplemental jurisdiction pursuant to the claims over which the court has original jurisdiction. The two alleged bases for original jurisdiction are § 1331 and § 1343(a). 2 8 U.S.C. § 1331 provides federal question jurisdiction over claims arising u n d e r the laws of the United States. The only claims asserted in plaintiff's proposed a m e n d e d complaint that would be subject to federal question jurisdiction are: p la in tiff's claim of sex discrimination, plaintiff's claim of age discrimination, plaintiff's c la im of retaliatory discrimination, and plaintiff's claim of due process violation. As -4-

fo r the first three of these claims, they are clearly time-barred.1

Plaintiff was

te rm in a te d on June 17, 2003. (Prop. Am. Compl. at 4). According to 42 U.S.C. § 2000e-5, plaintiff was required to file her administrative charge with the EEOC w ith in 300 days of her firing. As defendants point out, any claim that the time-bar s h o u ld not apply because defendant only later concluded that her firing may have s t e m m e d from discriminatory animus is ultimately meritless because the action a c c ru e d at the time plaintiff discovered she was injured, not at the time she d e te rm in e d that the injury was unlawful. Thelen v. Marc's Big Boy Corp., 64 F.3d 2 6 4 , 267-68 (7th Cir. 1995). Because she did not file her charge within 300 days of h e r termination, her discrimination claims are time-barred, hence they cannot serve a s the anchor for supplemental jurisdiction over plaintiff's various state law claims. F u rth e r, even if the discrimination claims were not time-barred, and if properly a lle g e d , many of these claims set forth in the proposed amended complaint ­ s p e c ific a lly, the claims against: Everts, Hyland, U.S. Bancorp, Mamalakis, Great A m e ric a n Advisors, Voit Investments and the Milwaukee Journal Sentinel ­ are not p a rt of the same case and controversy as the federal discrimination claims. The th re e federal discrimination claims allege plaintiff's employer fired her for d is c rim in a to ry reasons. Clearly the various state law claims 2 against the several a d d itio n a l defendants listed above ­ none of which were ever an employer of plaintiff

W e r e they not tim e - b a r r e d , they would still fail, for they are woefully inadequately pled, consisting e n tir e ly of conclusory statem e n ts that do not even allege each elem e n t necessary to state a discrim in a tio n c la im .
2 Those state law claim s are too m a n y to warrant listing here, suffice it to say that they have nothing to do with whether or not plaintiff was fired for discrim in a to r y reasons.

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­ would in no way "derive from a common nucleus of operative fact", United Mine W o rk e rs of America v. Gibbs, 383 U.S. 715, 725 (1966), as claims that plaintiff's e m p lo y e r fired her for discriminatory reasons. It is clear that the discrimination claims fail to supply a basis for supplemental ju ris d ic tio n for the myriad of reasons above. Thus, in order for the court to have s u p p le m e n ta l jurisdiction, the state law claims must be part of the case or c o n tro ve rs y of the only other federal claim, plaintiff's due process claim. Although in a rtfu lly pled, giving the proposed amended complaint an exceedingly liberal c o n s tr u c t io n , one could possibly infer a claim that plaintiff was denied the due p ro c e s s of law by defendant Cohen, acting in his official capacity with the W is c o n s in D e p a rtm e n t of Financial Institutions, when he allegedly fabricated facts about her d u rin g a DFI investigation. This alleged violation of due process is also the only b a s is for plaintiff's claim that the court has jurisdiction pursuant to § 1343(a), which c o n fe rs original jurisdiction upon district courts on claims based upon 42 U.S.C. § 1985, alleging a conspiracy to deprive a person of civil rights. As the due process c la im is the only alleged civil rights violation the court could decipher from plaintiff's p ro p o s e d amended complaint, the court is left to assume that the actions of Cohen m u s t, therefore, underlie plaintiff's § 1985 claim. However, not only does plaintiff fail to state a § 1985 claim,3 she also fails to state a claim for a violation of due process.

Under § 1985(2) plaintiff m u s t allege that two or m o r e persons form e d an agreem e n t to inflict injury o n her, and that this agreem e n t culm in a t e d in an overt act that caused her dam a g e . Sampson v. Yellow Cab C o . , 55 F. Supp. 2d 867, 869 (N.D. Ill. 1999). However, it is not enough to sim p ly state that a conspiracy e x is t e d , as plaintiff has done, for "even a pro se litigant is required to allege som e t h i n g in the way of facts b e f o r e [her] allegations of conspiracy m a y be deem e d to state a claim ." Tarkowski v. Robert Bartlett Realty C o ., 644 F.2d 1204, 1208 (7th Cir. 1980).

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T o state a due process claim, a person must allege that they had a cognizable p ro p e rty or liberty interest, that they were deprived of that interest, and that the d e p riva tio n occurred without due process. Plaintiff has not articulated any

c o g n iz a b le liberty or property interest, nor has she alleged that she was deprived of a n y such interest. To the extent that it is possible to interpret her proposed

a m e n d e d complaint as alleging that Cohen's investigation deprived her of a license o r the ability to participate in her previous profession, such allegation is plainly selfre fu te d , for plaintiff states that the NASD had already "permanently [put her] out of th e business." (Prop. Am. Compl. at 31). Thus, plaintiff's due process violation c la im can neither operate to grant the court original jurisdiction under § 1331, nor c a n it operate as the civil right of which plaintiff was deprived by a conspiracy in o rd e r to give the court jurisdiction under § 1343(a). Of course, if the claim were not d e fic ie n t, and it could serve as a basis for original jurisdiction, it nonetheless could n o t serve as a basis for supplemental jurisdiction, because none of the state law c la im s derive from any of the same facts as the due process claim derives. B e c a u s e all of the federal claims fail, ­ and, separately but also sufficiently, b e c a u s e none of the federal claims derive from the same operative facts as the state la w claims ­ the court would not have jurisdiction over the claims set forth in the p ro p o s e d amended complaint. Thus, the court must deny plaintiff's motion for leave to amend. Further, because plaintiff's proposed amended complaint is

u n s a lva g e a b le despite numerous attempts at amending, and despite having many o f its flaws being earlier pointed out to plaintiff by defendants through various filings, -7-

it is clear that any further efforts to amend would be futile. Therefore, the court's d e n ia l shall be with prejudice. M O T IO N TO DISMISS G ive n that the court is denying, with prejudice, plaintiff's motion for leave to a m e n d , the properly filed first amended complaint (Docket #12) is inescapably now th e governing complaint in this case. As previously stated, numerous defendants h a ve filed motions to dismiss that complaint. P la in tiff's amended complaint also lacks complete diversity, and it also c o n ta in s numerous state law claims. Thus, it will only survive if there is both original ju ris d ic tio n and supplemental jurisdiction. Similar to the proposed amended

c o m p la in t, plaintiff alleges jurisdiction based on § 1331 and on § 1343(a). Her c la im s purporting to fall under § 1331 are the same discrimination claims that the c o u rt has already found to be time-barred. Moreover, they are insufficiently pled. H e r due process claim, which would also justify § 1331 jurisdiction, and could p o s s ib ly assist her conspiracy claim in order to obtain jurisdiction under § 1343(a), is ­ as in the proposed amended complaint ­ insufficiently pled. It is impossible to d e te rm in e what cognizable interest she possessed, and whether or not she was in fa c t deprived of any interest by Cohen. Furthermore, in the proposed amended c o m p la in t, she alleged that he lied about her during proceedings (this ostensibly p e rh a p s fulfilling the third element of pleading a due process violation), but in the a m e n d e d complaint, it appears that she is saying that he lied about her to the press, th o u g h the court cannot be sure given the general incoherence that characterizes -8-

a ll of plaintiff's filings. W h a t is clear is that none of the few federal claims alleged in th e amended complaint survive defendants' motions to dismiss. Thus, the court is w ith o u t jurisdiction to entertain the remaining state law claims. A c c o r d in g ly , IT IS ORDERED that plaintiff's Motion for Leave to File Final Amended C o m p la in t (Docket #113) be and the same is hereby DENIED with PREJUDICE; and IT IS FURTHER ORDERED that defendants' Motions to Dismiss (Docket #'s 1 5 , 33) be and the same are hereby GRANTED; and IT IS FURTHER ORDERED that this action be and the same is herewith D IS M IS S E D on the merits and together with costs as taxed by the clerk of court. T h e clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 20th day of August, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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