USCA11 Case: 23-10896 Document: 24-1 Date Filed: 11/08/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10896
Non-Argument Calendar
____________________
JUNIOR GALETTE,
Plaintiff-Appellant,
versus
ROGER GOODELL,
SEATTLE SEAHAWKS,
LOS ANGELES RAMS,
LAS VEGAS RAIDERS,
CLEVELAND BROWNS FOOTBALL COMPANY, LLC, et al.,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-10896
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cv-61565-BB
____________________
Before NEWSOM, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Junior Galette, a former professional football player, appeals
the district court’s dismissal of his pro se second amended complaint
against seven constituent teams of the National Football League
(“NFL”), the NFL’s Commissioner Roger Goodell, and the NFL
Players Association (“NFLPA”). The district court dismissed
Galette’s second amended complaint with prejudice because,
despite being given an opportunity to fix pleading deficiencies,
Galette still failed to allege facts sufficient to plausibly state a claim.
After review, we affirm.
I. BACKGROUND FACTS
A. Original Complaint
In August 2022, Galette, proceeding pro se, filed his original
complaint. In addition to the NFLPA and Goodell, Galette named
as defendants: (1) the Seattle Seahawks, (2) the Los Angeles Rams,
(3) the Las Vegas Raiders, (4) the Cleveland Browns, (5) the Kansas
City Chiefs, (6) the Carolina Panthers, and (7) the Washington
Football Team (formerly known as the Redskins and now known
as the Commanders). We refer to the Washington Football Team
as the Washington Redskins given that was its name at the time of
the relevant events.
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23-10896 Opinion of the Court 3
We recount the factual allegations. Galette’s original
complaint alleged that in March 2018, the Buffalo Bills signed his
former white teammate on the Washington Redskins, Trent
Murphy, to a three-year deal worth up to $30 million. Murphy
“played behind” Galette in the same position but had not played in
2017 due to an injury. Meanwhile, the Redskins offered Galette,
who is African American, a two-year, $4 million contract, even
though Galette was healthy and coming off a strong 2017 season.
Shortly after Galette complained about the Redskins’s offer on
social media, calling it a “slave deal,” the Redskins withdrew the
offer without explanation.
Over the next few months, Galette spoke to, met with, and
worked out for other NFL teams, including the teams named as
defendants. However, the only offers Galette received were for
“veteran’s minimum” contracts of $660,000. Hoping for
something better, Galette did not take the first such offer made by
the Oakland Raiders. Later, Galette decided to accept a similar
offer from the Los Angeles Rams. But when he flew to Los Angeles
to practice with the team, Galette was told there had “been a
change of plans,” and he was taken back to the airport. Unable to
play in the NFL, Galette believed that he was blacklisted by the
NFL owners, “just like Colin Kaepernick,” in retaliation for
complaining about the Washington Redskins’s racially
discriminatory offer.
Galette’s pro se complaint alleged that all of the defendants:
(1) discriminated against him based on his race, in violation of
42
U.S.C. § 1981 (Count I); (2) violated his free speech rights under the
U.S. Constitution and the constitutions of Florida and Virginia
(Count II); and (3) conspired to breach the anti-discrimination
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provision in the NFL-NFLPA collective bargaining agreement
(“CBA”) (Count III). 1
B. Dismissal of Original and First Amended Complaints
The defendants moved to dismiss Galette’s original
complaint under Federal Rule of Civil Procedure 12(b)(1) and (6)
and attached excerpts from the 2011 and 2020 CBA. The district
court granted in part and denied in part the defendants’ motions.
The district court dismissed Count III with prejudice
because Galette’s CBA claim was subject to the CBA’s mandatory
arbitration clause. As to Counts I and II, the district court identified
numerous pleading deficiencies but determined they were not
insurmountable. Therefore, the district court dismissed Counts I
and II with leave for Galette to file an amended complaint that
cured those deficiencies and that omitted Count III. The district
court warned Galette that failure to comply with its order would
result in sua sponte dismissal.
Galette filed an amended complaint that, despite the district
court’s instructions, included allegations as to Count III. The
district court sua sponte dismissed Galette’s amended complaint
under Federal Rule of Civil Procedure 41(b) for failure to comply
with its prior order. The district court granted Galette leave to file
a second amended complaint that complied with its prior order.
1 Count I of Galette’s complaint alleged the defendants violated §§ 1 and 2 of
the Civil Rights Act of 1866. The district court found that the “essence of
Count I” was that Galette’s former, white teammate was offered a better
contract even though Galette was an equal or better player. The district court
therefore liberally construed Count I as alleging a claim under
42 U.S.C. § 1981
because it is where the relevant portion of the Civil Rights Act of 1866—
prohibiting race discrimination in contracts—is now codified.
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C. Dismissal of Second Amended Complaint
Galette then filed his second amended complaint, which was
far from a model of clarity. Rather than replead the facts and
counts, Galette merely set out his “response and amendment to”
Counts I and II and referred back to his original complaint several
times. Galette also alleged as to Count I that the defendant NFLPA
was aware of NFL owners’ and general managers’ acts of
discrimination and retaliation and had a contractual obligation to
defend his rights, but failed to do so.
The defendants again moved to dismiss under Rule 12(b)(6),
arguing that Galette did not cure the pleading deficiencies
identified by the district court and still failed to state a plausible
claim. The NFLPA also argued that to the extent Galette sought
to assert a new claim that it breached the duty of fair
representation, the second amended complaint’s allegations were
wholly conclusory, and the claim was untimely.
The district court granted the defendants’ motions and
dismissed Galette’s second amended complaint with prejudice.
After discussing the pleading standards of Rules 8(a)(2) and
12(b)(6), the district court concluded as to Count I that Galette
“failed to cure any of the five deficiencies that this Court previously
noted regarding Count I of Galette’s original Complaint.” The
district court found the second amended complaint’s allegations of
race discrimination “even more conclusory than those within the
original Complaint.” The district court stressed that the second
amended complaint alleged that all defendants were liable for
discrimination based on the Washington Redskins’s less lucrative
offer than the offer given to an inferior white teammate by a team
(the Buffalo Bills) that was not a defendant. The district court
concluded that these allegations, even if true, failed to state a claim
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“because, among other reasons previously discussed, they fail to
specify a discriminatory act taken by a Defendant.”
As to Galette’s free speech claim in Count II, the district
court again concluded the second amended complaint “failed to
cure the primary deficiency” identified in the original complaint,
namely it lacked “a credible allegation of state action.” Because
Galette was given specific instructions about these pleading
deficiencies and yet was unable to cure them, the district court
determined “that further amendment would be futile.” This
appeal followed.
II. DISCUSSION
A. General Principles
Rule 8(a)(2) requires a complaint to “contain . . . a short and
plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), a defendant may
move to dismiss a complaint if it “fail[s] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule
12(b)(6) motion, a complaint must contain sufficient facts, accepted
as true, to state a facially plausible claim for relief. Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 555, 570 (2007); Ashcroft v. Iqbal,
556 U.S. 662,
678 (2009). A claim is facially plausible if it “pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at
678; see also Randall v. Scott,
610 F.3d 701, 707 n.2 (11th Cir. 2010)
(stating that under the Twombly-Iqbal plausibility standard, the
complaint must “contain either direct or inferential allegations
respecting all the material elements necessary to sustain a recovery
under some viable legal theory”).
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“[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not
do.” Twombly,
550 U.S. at 555 (cleaned up). A complaint’s factual
allegations must be sufficient “to raise a right to relief above the
speculative level.”
Id. Although pro se pleadings are liberally
construed and held to less stringent standards than those drafted by
attorneys, they still must suggest some factual basis for a claim.
Jones v. Fla. Parole Comm’n,
787 F.3d 1105, 1107 (11th Cir. 2015). 2
An appellant, even a pro se appellant, who fails to brief
adequately an issue by “plainly and prominently” raising it in his
opening brief, abandons that claim. See Sapuppo v. Allstate Floridan
Ins., Co.,
739 F.3d 678, 681 (11th Cir. 2014); Timson v. Sampson,
518
F.3d 870, 874 (11th Cir. 2008); Access Now, Inc. v. Sw. Airlines Co.,
385
F.3d 1324, 1330 (11th Cir. 2004). Although we liberally construe a
pro se litigant’s pleadings, we still require conformity with
procedural rules. Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir.
2007). Liberal construction of pro se pleadings “does not give a
court license to serve as de facto counsel for a party, or to rewrite an
otherwise deficient pleading in order to sustain an action.”
Campbell v. Air Jam. Ltd.,
760 F.3d 1165, 1168-69 (11th Cir. 2014)
(quotation marks omitted).
B. Galette’s Preserved Claims on Appeal
On appeal, Galette’s pro se opening brief primarily attacks
the district court’s dismissal order on grounds that wholly lack
2 We review de novo a district court’s dismissal of a complaint for failure to
state a claim. Chua v. Ekonomou,
1 F.4th 948, 952 (11th Cir. 2021). In reviewing
the dismissal, “[w]e accept the allegations in the complaint as true and con-
strue them in the light most favorable to the plaintiff.”
Id.
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merit and warrant little discussion. The grounds include that:
(1) the defendants’ motions to dismiss constituted inadmissible
hearsay and violated the prohibition against an attorney acting as a
witness because they were prepared by the defendants’ attorneys;
(2) the defendants’ motions to dismiss failed to rebut or dispute his
complaint with admissible evidence, such as depositions or
affidavits; (3) the district court’s dismissal order violated his
constitutional right to a jury trial; and (4) the district court violated
his due process rights by not being impartial.
Many of these arguments misunderstand the role of the
Rule 12(b)(6) motion in federal civil litigation. At the motion-to-
dismiss stage, the district court does not evaluate any evidence or
determine whether there is a factual dispute between the parties
that a jury must decide. Instead, both the defendant moving to
dismiss and the district court accept the plaintiff’s factual
allegations in the complaint as true, and the district court merely
determines whether those allegations are sufficient to state a claim
for relief.
Thus, the statements in a defendant’s motion to dismiss do
not constitute evidence, much less hearsay evidence, and the
attorney drafting the motion is not acting as a witness. Moreover,
a district court’s proper dismissal of a complaint under Rule
12(b)(6) does not violate a plaintiff’s constitutional right to a jury
trial. See Jefferson v. Sewon Am., Inc.,
891 F.3d 911, 919-20 (11th Cir.
2018) (holding that a grant of summary judgment under Rule 56
does not violate the Seventh Amendment even though it prevents
the parties from having a jury rule upon the facts); Garvie v. City of
Fort Walton Beach,
366 F.3d 1186, 1190 (11th Cir. 2004) (explaining
that a plaintiff had no right to a jury trial when no factual dispute
existed for a jury to resolve).
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23-10896 Opinion of the Court 9
As to Galette’s bald assertion that the district court was not
impartial and was a “co-opted judge,” a district court’s adverse
rulings alone are insufficient to demonstrate the court’s partiality
absent a showing of pervasive bias. Bolin v. Story,
225 F.3d 1234,
1239 (11th Cir. 2000). Galette does not point to anything in the
record demonstrating bias, let alone pervasive bias, on the part of
the district court.
Liberally construed, Galette’s opening brief also argues that
the district court erred in dismissing his “duty to defend” claim
against the NFLPA. Galette argues that the NFLPA had “a contrac-
tual obligation and duty to defend [his] rights . . . and failed to do
so.”
The district court did not err in dismissing this claim. Mixed
in with his racial discrimination claim in Count I, Galette’s second
amended complaint states in passing that the NFLPA was aware of
the NFL defendants’ actions and failed to defend his rights. This
threadbare allegation does not provide fair notice to the NFLPA
under Rule 8(a)(2) of a separate claim for breach of the duty of fair
representation under the National Labor Relations Act. See
Twombly,
550 U.S. at 555.
C. Galette’s Abandoned Claims
Importantly, Galette’s opening brief does not challenge the
district court’s rulings that his second amended complaint failed to
allege sufficient facts to state a plausible claim of racial
discrimination under § 1981 or for the violation of his free speech
rights under either federal or state law. Indeed, apart from
conclusory references to the violation of his rights under the U.S.
Constitution, the constitutions of all fifty states, and the Civil
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Rights Act of 1866, Galette’s brief fails to raise any argument on
appeal expressly challenging the merits of the district court’s
dismissal order.
Even construing Galette’s brief liberally, as we do with pro se
litigants, these conclusory statements, without more, do not
plainly and prominently raise any issue as to the district court’s
dismissal of Counts I and II. At best, they are “passing references,”
raising claims in a “perfunctory manner without supporting
arguments and authority.” See Sapuppo,
739 F.3d at 681-82.
Accordingly, Galette has abandoned any issue as to the district
court’s dismissal of Counts I and II for failure to plausibly state a
claim. See
id. at 681.
Galette’s brief makes no mention at all of the district court’s
dismissal of Count III in his original complaint. Therefore, he also
abandoned any challenge to that ruling.
III. CONCLUSION
For all these reasons, Galette has shown no reversible error
in the district court’s Rule 12(b)(6) dismissal of his second amended
complaint for failure to state a claim.
AFFIRMED.
