Michael Taylor v. Lee M. Spaziano , 251 F. App'x 616 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 16, 2007
No. 07-12598 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00236-CV-ORL-31-KRS
MICHAEL TAYLOR,
MARY C. FOX,
Plaintiffs-Appellants,
versus
LEE M. SPAZIANO,
a real estate broker licensed by the
State of Florida,
HONORABLE CYNTHIA Z. MACKINNON,
of the State of Florida, in her
individual capacity,
ROBERT N. LERNER,
licensed by the Florida Bar of the
State of Florida,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 16, 2007)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
In this civil case, plaintiff-appellants Michael Taylor and Mary C. Fox, pro
se, appeal the district court's May 16, 2007 dismissal order. After review, we
affirm.
I. BACKGROUND
Because plaintiff-appellants’ federal action is based on events in a state court
case, we review the state court case first.
A. State Court Case
In Florida state court, appellants Taylor and Fox filed a complaint against
defendant Lee Spaziano, a real estate broker, alleging fraud in a real estate
transaction. In the state court action, defendant Robert Lerner was Spaziano’s
attorney and defendant Cynthia MacKinnon was the judge.
Appellants served Spaziano with their state court complaint on October 3,
2006. Spaziano’s answer was due in twenty days, or by October 23, 2006, under
Florida’s rules of civil procedure. Spaziano, however, filed a motion for an
extension of time to file an answer. It is Spaziano’s motion for an extension of
time that gives rise to appellants’ action filed in federal district court.
According to appellants, Spaziano and his attorney, Lerner, failed to timely
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file their motion for a time extension under the Florida civil rules. Appellants
contend that the motion did not appear on the state court’s docket as of October 24,
2006, but did appear on the docket on October 30, 2006 as filed on October 23,
2006. According to appellants, Spaziano and Lerner conspired with Judge
MacKinnon to back-date the motion so that it appeared to have been timely filed
and Spaziano could avoid a default judgment. Appellants also contend that Judge
MacKinnon failed to schedule a hearing on appellants’ motion for default
judgment and refused to enforce the twenty-day deadline for filing an answer, as
required by Florida’s civil rules.
B. Federal Court Action
Appellants, proceeding pro se, filed this action in federal district court
seeking damages and injunctive relief against Spaziano, Lerner and Judge
MacKinnon. The complaint alleged violations of unspecified constitutional rights,
brought pursuant to 42 U.S.C. § 1983 (Count I); a violation of appellants’ first
amendment right to access to the courts (Count II); a violation of the Truth in
Lending Act, 15 U.S.C. § 1601 et seq., (Count III); a violation of 4 U.S.C. §§ 101-
102 (requiring state legislators and executive and judicial officers to swear an oath
to support the United States Constitution) (Count IV); a conspiracy to violate
appellants’ civil rights, in violation of 42 U.S.C. § 1985 (Count V); and a state law
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claim of fraud (Count VI).
In lieu of an answer, defendants Spaziano and Lerner filed separate, but
identical, motions to dismiss for failure to state a claim or, alternatively, for a more
definite statement. Defendant MacKinnon filed a motion to dismiss, asserting,
among other things, that she was entitled to judicial immunity. All three motions
to dismiss argued that appellants’ complaint contained vague and conclusory
allegations. In addition, defendants Spaziano and Lerner argued that appellants’
complaint was a “shotgun pleading” and failed to comply with Federal Rules of
Civil Procedure 8 and 10.
While these motions were pending, appellants filed a motion for leave to
amend their complaint and response to defendants’ motions to dismiss. Along with
their motion to amend, appellants provided a proposed first amended complaint
with numerous exhibits attached. The district court docket clerk entered the
appellants’ motion to amend on the court’s docket with a parenthetical notation
that “[v]oluminous proposed amended complaint placed in brown accordion folder
pending ruling.”
The district court granted the defendants’ motions to dismiss. The district
court: (1) dismissed with prejudice all claims against Judge MacKinnon; (2)
dismissed “without leave to amend” Count IV, the claim based on 4 U.S.C. §§ 101-
4
102, “because no such cause of action exists”; and (3) dismissed “without leave to
amend” Count III, the Truth in Lending Act claim, and Count VI, the state fraud
claim, “because they are already pending in the state court suit.” Furthermore, the
district court dismissed without prejudice Counts I, II and V, which contained the
§ 1983, First Amendment and conspiracy-to-violate-civil-rights claims.
The district court’s order noted a number of deficiencies in appellants’
complaint. Specifically, the district court concluded that the complaint was a
“prototypical ‘shotgun pleading’” and did not satisfy the “short and plain
statement” requirement of Rule 8(a) or the organizational requirements of Rule
10(b). The district court further noted that “[e]ach of these shortcomings is an
independent basis for dismissal of the complaint.”
The district court directed appellants to file an amended complaint, if any,
on or before April 15, 2007, but advised the appellants that the amended complaint
“must comply with Rule 8(a) and Rule 10(b), must not include any claims against
Judge MacKinnon, and must not raise the claims that have been dismissed without
leave to amend.” Thus, the district court left appellants’ case open for the filing of
an amended complaint as to Counts I, II and V. The district court warned
appellants that the “[f]ailure to follow these requirements may result in sanctions
including but not limited to dismissal with prejudice.” The district court also
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denied appellants’ “currently pending motion for leave to amend” that had
accompanied appellants’ proposed amended complaint.
On April 13, 2007, appellants filed an “Objection” to the district court’s
order granting the defendants’ motions to dismiss. After first noting the district
court’s instructions to file an amended complaint by April 15, 2007, appellants
argued that they had already filed an amended complaint with attached exhibits on
April 2, 2007. Appellants contended that their amended complaint was a timely
amendment as of right under Federal Rule of Civil Procedure 15(a). They also
complained that their amended complaint and exhibits had been wrongly omitted
from the court’s civil docket, citing Federal Rule of Civil Procedure 79(a).
Appellants contended that the district court should consider their amended
complaint filed on April 2, 2007.
On April 23, 2007, the district court construed appellants’ “Objection” as a
motion for reconsideration of the April 4 dismissal order and summarily denied it.
Appellants took no further action in the case.
On May 16, 2007, the district court entered a final order dismissing and
closing appellants’ case, without prejudice, for failure to prosecute. At the time of
the May 16, 2007 order, counts I, II and V had been dismissed without prejudice in
the April 4, 2007 order and what remained was appellants’ right to file an amended
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complaint that complied with the instructions in the April 4, 2007 order. The
district court’s May 16, 2007 dismissal order emphasized that the district court had
granted appellants’ motion to dismiss, had denied appellants’ motion for
reconsideration and had given appellants until April 15 to file an amended
complaint, but appellants had failed to file an amended complaint.
Appellants filed this appeal.
II. DISCUSSION
At the outset, we note what appellants are not challenging on appeal. First,
appellants do not appeal the district court’s April 4, 2007 order granting
defendants’ motions to dismiss and denying their motion for leave to amend their
complaint. Nor do appellants appeal the district court’s April 23, 2007 order
denying their “Objection,” construed as a motion for reconsideration.
Accordingly, we do not address the merits of these rulings. The sole order on
appeal is the district court’s May 16, 2007 order dismissing without prejudice and
closing appellants’ case for failure to prosecute.
We review a district court’s dismissal for want of prosecution for abuse of
discretion. Morewitz v. W. of Eng. Ship Owners Mut. Prot. & Indem. Ass’n, 62
F.3d 1356, 1366 (11th Cir. 1995). A district court may impose a dismissal with
prejudice for want of prosecution only if there is a “clear record of delay or
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contumacious conduct by the plaintiff.” Id. (quotation marks omitted). Here,
however, the district court dismissed appellants’ case without prejudice, which was
not an adjudication on the merits. See Fed. R. Civ. P. 41(b) (providing that an
involuntary dismissal for failure to prosecute is an adjudication on the merits,
unless the district court “otherwise specifies”). Under these facts, we cannot say
the district court abused its discretion in dismissing what remained of appellants’
case without prejudice in its May 16, 2007 order.
The district court’s April 4 order identified several serious deficiencies in
appellants’ complaint that needed to be cured. First, with regard to appellants’
claims that were dismissed with leave to amend, the district court found appellants’
allegations insufficient to state a claim.1 The district court explained that
appellants’ claims against Spaziano and Lerner “alleged, at worst, nothing more
than violations of the Florida Rules of Civil Procedure.” The district court
concluded that, even construing appellants’ complaint to include an “implied
allegation” that one of the defendants back-dated the state court motion for a time
extension, appellants did not state a claim for a violation of their constitutional
rights because appellants alleged no facts “from which one could conclude that
1
We do not address appellants’ claims dismissed with prejudice or without leave to
amend because the district court instructed appellants not to include these claims in any amended
complaint, and appellants do not appeal the April 4, 2007 order that dismissed them.
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Lerner was acting under color of law for purposes of Section 1983.” As to
Spaziano, the district court explained that “the worst that is alleged is that he
cheated the Plaintiffs in a real estate transaction” and that none of the facts alleged
“could conceivably constitute a violation by Spaziano of the Plaintiffs’
constitutional rights.”
The district court also concluded that appellants’ complaint failed to comply
with Rules 8(a) and 10(b) and was a “prototypical ‘shotgun pleading.’” The
district court noted that the complaint contained “a rambling recitation full of
factual allegations that could not possibly be material to any of the causes of action
[plaintiffs] assert.” Notably, appellants’ original complaint included 43 separate
paragraphs of factual allegations, with each count incorporated by reference all 43
paragraphs, and did not differentiate which facts formed the basis for liability for
each count.
The district court warned appellants that each of these deficiencies
constituted a separate ground for dismissal and then instructed appellants, if they
desired to continue with the litigation, to file an amended complaint that addressed
all of these deficiencies. The district court also instructed appellants to omit all
claims against Judge MacKinnon and any claims the district court had dismissed
without leave to amend (namely, the Truth In Lending Act and fraud claims and
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the claim asserting a violation of 4 U.S.C. §§ 101 and 102).
Despite these explicit instructions, appellants did not file an amended
complaint by April 15 as required by the district court. Instead, on April 13,
appellants filed an “Objection” in which they insisted that the district court
consider their already-filed proposed amended complaint. However, appellants’
proposed amended complaint was drafted and filed on April 2 and thus before the
district court’s April 4 order and, not surprisingly, did not comply with instructions
in the April 4 order. Indeed, the proposed amended complaint contained all of the
same counts, claims and defendants and essentially the same facts, with some
minor word changes, as the original complaint. Accordingly, the proposed
amended complaint contained all of the same deficiencies as the original complaint
and included all the claims, including those against Judge MacKinnon, that the
district court had instructed appellants to omit. See Hall v. United Ins. Co. of Am.,
367 F.3d 1255, 1262-63 (11th Cir. 2004) (explaining that a district court properly
denies leave to amend if the complaint as amended would be subject to dismissal,
i.e. would be futile).
Appellants insisted that they be permitted to proceed on the proposed
amended complaint despite the fact that it did not comply with the April 4 order.2
2
Appellants note that, under Rule 15(a), they had an automatic right to amend their
complaint because defendants had not yet filed answers. See Fortner v. Thomas, 983 F.2d 1024,
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When the district court refused to do so by denying their “Objection,” appellants
did nothing further. They did not file another amended complaint attempting to
comply with the district court’s April 4 order or ask for more time to do so.
Nonetheless, the district court waited until May 16, 2007, three weeks after it had
denied appellants’ “Objection” and one month after a compliant amended
complaint was due, before dismissing appellants’ case for failure to prosecute.
Under these circumstances, the district court’s dismissal without prejudice was not
an abuse of discretion.3
1032 (11th Cir. 1993). Although appellants could have amended as of right, they instead sought
leave to amend from the district court and filed a motion to amend, which the district court
denied on April 4, 2007. Appellants have not appealed that order, much less shown that the
district court abused its discretion in denying that motion especially since appellants’ proposed
amended complaint contained the same deficiencies as the original complaint and was subject to
dismissal on the same grounds given by the district court in dismissing the claims in their
original complaint.
Furthermore, the district court’s April 4 order dismissed without prejudice those claims
for which the pleading deficiencies might be cured and granted leave to file yet another amended
complaint, which appellants failed to do.
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Appellants also strenuously object to the district court clerk’s failing to enter their
proposed amended complaint and exhibits into the docket with a separate file number and,
instead, placing the proposed amended complaint in an accordion folder pending the district
court’s ruling on the motion for leave to amend the complaint. Appellants contend that the
district court clerk’s action shows that the district court “disregarded” their proposed amended
complaint and exhibits. In this regard, appellants have also not shown any reversible error for
several reasons. First, the district court expressly denied appellants’ motion for leave to file an
amended complaint, and the court docket contains a notation that the proposed amended
complaint was placed in an accordion folder, which, at a minimum, infers that the district court
was aware of the proposed amended complaint. Even assuming arguendo that the district court
was not aware, as appellants contend, it is clear that the proposed amended complaint provided
to the district court clerk contained the exact same defects as the original complaint and did not
comply, in any event, with the district court’s April 4 order regarding amending the complaint.
More importantly, after receiving the district court’s April 4 order pointing out defects,
appellants never filed another amended complaint complying with the district court’s order as to
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AFFIRMED.
those counts for which leave to amend was granted. Thus, we cannot say the district court
abused its discretion in dismissing on May 16, 2007 what remained of appellants’ case without
prejudice for failure to prosecute.
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