Danette Marshall v. Aryan Unlimited Staffing Solution/Faneuil Inc/Mac Andrews Holding , 599 F. App'x 896 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14538
Non-Argument Calendar
________________________
D.C. Docket No. 9:12-cv-81404-DTKH
DANETTE MARSHALL,
Plaintiff-Appellant,
versus
ARYAN UNLIMITED STAFFING SOLUTION/FANEUIL INC/
MAC ANDREWS HOLDING,
FANEUIL INC/MAC ANDREWS & FORBS HOLDING,
D&D ARY ENTERPRISES INC, CORP,
Sabrina Ary as President and Agent,
HARLAND CLARKE HOLDINGS CORP,
Defendants-Appellees,
AMS STAFF LEASING/COMPANION
PROPERTY AND CASUALTY EMPLOYER,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 14, 2015)
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Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Danette Marshall appeals from the district court’s dismissal with prejudice
of her sixth amended complaint and from the denial of her motion to file a seventh
amended complaint in an employment discrimination action brought under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,
and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. After
defendants Faneuil, Inc., MacAndrews & Forbes Holdings, Inc., and Harland
Clarke Holdings Corporation moved to dismiss, the district court dismissed with
prejudice her complaint against all defendants, citing Marshall’s repeated failure,
after multiple warnings, to file a complaint that complied with procedural rules and
the court’s orders cautioning against shotgun pleadings. The court also noted that,
while Marshall referred to right-to-sue letters from the Equal Employment
Opportunity Commission in the section of her complaint entitled “Exhaustion of
Administrative Remedies,” she did not include copies of those letters in the
20 pages of exhibits attached to her complaint.
On appeal, Marshall argues that she sufficiently alleged exhaustion of her
administrative remedies, that her complaint would not have been subject to
dismissal if the court had granted her leave to file a seventh amended complaint
severing her claims against non-moving defendants, and that the court overlooked
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information in her complaint that would have shown she stated claims against the
defendants.
Upon a thorough review of the record, and after consideration of the parties’
briefs, we affirm.
We review for an abuse of discretion a district court’s exercise of its
authority to dismiss an action under Federal Rule of Civil Procedure 41(b) for
failure to comply with court orders or federal rules. Goforth v. Owens, 766 F.2d
1533, 1535 (11th Cir. 1985). Dismissal with prejudice “is considered a sanction of
last resort, applicable only in extreme circumstances,” where there is a “clear
record of delay or willful contempt and a finding that lesser sanctions would not
suffice.” Id. (citations omitted). We have “repeatedly held that an issue not raised
in the district court and raised for the first time in an appeal will not be considered
by this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th
Cir. 2004) (quotations and citation omitted).
Under Federal Rule of Civil Procedure 8(a)(2), a complaint “must
contain . . . a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2)’s purpose 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, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d
929 (2007) (citation and ellipsis omitted). Therefore, a complaint’s “[f]actual
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allegations must be enough to raise a right to relief above the speculative level.”
Id., 127 S.Ct. at 1965. Further, the allegations in the complaint “must be simple,
concise, and direct.” Fed.R.Civ.P. 8(d)(1). Federal Rule of Civil Procedure 10
provides that the complaint also must “state its claims . . . in numbered paragraphs,
each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P.
10(b).
In contrast, a “shotgun pleading” is one in which “it is virtually impossible
to know which allegations of fact are intended to support which claim(s) for
relief.” Anderson v. Dist. Bd. of Trs. of Ctr. Fla. Cmty. Coll., 77 F.3d 364, 366
(11th Cir. 1996). We have repeatedly condemned shotgun pleadings. See, e.g.,
PVC Windoors, Inc. v. Babbitbay Beach Constr. N.V., 598 F.3d 802, 806 n.4 (11th
Cir. 2010); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54
(11th Cir. 2008).
Where a more carefully drafted complaint might state a claim, a pro se
plaintiff “must be given at least one chance to amend the complaint before the
district court dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d
1161, 1163 (11th Cir. 2001) (citation omitted). A district court, however, is not
required to permit amendment if, inter alia, “there has been . . . repeated failure to
cure deficiencies by amendments previously allowed” or “amendment would be
futile.” Id.
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The district court “may properly on its own motion dismiss an action as to
defendants who would have not moved to dismiss where such defendants are in a
position similar to that of moving defendants or where claims against such
defendants are integrally related.” Loman Dev. Co., Inc. v. Daytona Hotel & Motel
Suppliers, Inc., 817 F.2d 1533, 1537 (11th Cir. 1987) (citation omitted).
The district court did not abuse its discretion in dismissing with prejudice
Marshall’s sixth amended complaint. Her complaint did not make a short and
plain statement of her claims; instead, it was a shotgun pleading that made it
impossible to know which allegations of fact were intended to support which
claims of relief. Although the district court provided Marshall with numerous
opportunities to file an amended complaint that complied with the court’s orders
and basic procedural rules, Marshall failed to cure the deficiencies in her
complaint, despite the court’s warnings that such a failure would result in dismissal
with prejudice.
Additionally, allowing Marshall another opportunity to amend her complaint
would have been futile because her proposed seventh amended complaint would
not have cured the deficiencies in her sixth amended complaint, but would have
added only an additional demand for vicarious, joint, direct, and several liability.
Accordingly, we affirm.
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AFFIRMED. 1
1
We DENY Marshall’s motion to file a reply brief with excess words and DENY AS
MOOT the Appellees’ motion to strike Marshall’s proposed reply brief.
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