Kemi Guo v. Gary Rosen

USCA11 Case: 21-13823 Document: 54-1 Date Filed: 02/21/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13823
Non-Argument Calendar
____________________
KEMI GUO,
Plaintiff-Appellant,
versus
GARY ROSEN,
LINDA ROSEN,
CERTIFIED MOLD FREE CORP,
a.k.a. Certified Mold & Allergen Free,
ROBERT SHOENFELT,
ACCUPRO INSPECTION SERVICES, INC.,
Defendants-Appellees.
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2 Opinion of the Court 21-13823
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-62363-JIC
____________________
Before WILSON, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Kemi Guo, proceeding pro se, appeals the district court’s or-
der dismissing with prejudice his Second Amended Complaint
(SAC), which alleged violations of the Racketeering Influenced and
Corrupt Organizations Act (RICO), mail and wire fraud, and vari-
ous state tort law claims and violations of Florida statutes, as an
impermissible shotgun pleading.1 On appeal, Guo first argues that
the district court abused its discretion by dismissing his SAC be-
cause it was an improvement from his prior complaints in that it
was substantially shorter and the court misunderstood critical facts,
ignored newly proposed claims, and misapplied evidence in its
haste to “clean its docket.” Second, Guo argues that that the dis-
trict court abused its discretion by failing to render a decision on
his proposed Third Amended Complaint as he had continued to
improve his complaints by shortening them and he submitted new
1 A shotgun pleading violates the Rule 8 mandate to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a).
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21-13823 Opinion of the Court 3
evidence in the form of two depositions that the court refused to
consider. Third, Guo argues that the district court judge should
have been disqualified because various statements in his orders
showed his pervasive bias.
I.
We review the district court’s dismissal of a complaint on
shotgun pleading grounds for abuse of discretion. Weiland v. Palm
Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015).
However, we liberally construe pro se pleadings. Pinson v. JPMor-
gan Chase Bank, N.A., 942 F.3d 1200, 1206 (11th Cir. 2019).
A complaint must contain “a short and plain statement of
the claim” showing that the plaintiff is entitled to relief.
Fed. R. Civ. P. 8(a)(2). Further, claims should be stated “in num-
bered paragraphs, each limited as far as practicable to a single set
of circumstances.” Fed. R. Civ. P. 10(b).
Shotgun pleadings include complaints that: (1) contain mul-
tiple counts where each count adopts the allegations of all preced-
ing counts; (2) are “replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of action”;
(3) do not separate each cause of action or claim for relief into sep-
arate counts; or (4) assert multiple claims against multiple defend-
ants without specifying which of the defendants are responsible for
which acts or omissions. Weiland, 792 F.3d at 1321–23. All these
types of shotgun pleadings are characterized by their failure “to
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4 Opinion of the Court 21-13823
give the defendants adequate notice of the claims against them and
the grounds upon which each claim rests.” Id. at 1323.
A district court can dismiss a complaint on shotgun pleading
grounds under its “inherent authority to control its docket and en-
sure the prompt resolution of lawsuits.” Vibe Micro, Inc. v. Sha-
banets, 878 F.3d 1291, 1295 (11th Cir. 2008) (quotation marks omit-
ted). If the court permits the plaintiff to amend and explains in its
re-pleading order how the offending complaint violates the shot-
gun pleading rule, but the plaintiff still fails to remedy the shotgun
pleading issues, the court does not abuse its discretion in dismissing
the case with prejudice. Id. at 1295–96.
In the context of non-habeas civil cases, we have stated that
dismissal with prejudice “is an extreme sanction” that is only ap-
propriate when “a party engages in a clear pattern of delay or will-
ful contempt . . . [and] the district court specifically finds that lesser
sanctions would not suffice.” Betty K Agencies v. M/V Monada,
432 F.3d 1333, 1337–38 (11th Cir. 2005) (quotation marks omitted).
However, “dismissal upon disregard of an order, especially where
the litigant has been forewarned, generally is not an abuse of dis-
cretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Here, the district court provided Guo the opportunity to
amend his complaint after advising him of its deficiencies and
warning him that failure to cure the deficiencies would result in the
complaint’s dismissal. Despite this second chance to amend, Guo’s
SAC was still replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action. For this
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21-13823 Opinion of the Court 5
reason, the district court was within its discretion when it dismissed
Guo’s SAC with prejudice. See id.II.
We review a district court’s ruling upon a Rule 60(b)(4) mo-
tion de novo “because the question of the validity of a judgment is
a legal one.” Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001)
(quotation marks omitted). Review under Rule 60(b) “is narrow in
scope, addressing only the propriety of the denial or grant of relief
and does not raise issues in the underlying judgment for review.”
Maradiaga v. United States, 679 F.3d 1286, 1291 (11th Cir. 2012)
(quotation marks omitted). “The losing party ‘must do more than
show that a grant of [the] motion might have been warranted’; he
‘must demonstrate a justification for relief so compelling that the
district court was required to grant [the] motion.’” Id. (alterations
in original). “A motion for reconsideration cannot be used to relit-
igate old matters, raise argument or present evidence that could
have been raised prior to the entry of judgment.” Cummings v.
Dep’t of Corr., 757 F.3d 1228, 1234 (11th Cir. 2014) (internal quo-
tation marks omitted).
We generally review the denial of a motion to amend a com-
plaint for an abuse of discretion. Coventry First, LLC v. McCarty,
605 F.3d 865, 869 (11th Cir. 2010) (per curiam). Prior to the dismis-
sal of the case, a party may amend its complaint “once as a matter
of course within 21 days after serving it,” and, in all other cases,
“only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(1), (2). The Supreme Court has stated
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6 Opinion of the Court 21-13823
that under Rule 15, leave to amend “should be freely given,” if the
“underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief.” Foman v. Davis, 371 U.S. 178, 182
(1962). However, a court may deny leave to amend the complaint
“when such amendment would be futile.” Hall v. United Ins. Co.
of Am., 367 F.3d 1255, 1263 (11th Cir. 2004). An amendment is
futile when the complaint as amended would still be subject to dis-
missal. Id.Here, the district court did not err in in denying Guo’s “Ex-
pedited Motion to Reconsider And Leave to File Third Amended
Complaint,” pursuant to Rule 60(b)(4), or otherwise abuse its dis-
cretion in denying that motion and Guo’s motion to supplement
newly discovered evidence because he failed to show that he was
entitled to reconsideration pursuant to any of the Rule 60(b) provi-
sions, and any amendment to his SAC would have been futile.
III.
We generally review the district court’s denial of a recusal
motion for an abuse of discretion. Loranger v. Stierheim, 10 F.3d
776, 779 (11th Cir. 1994) (per curiam). Recusal is governed by two
federal statutes, 28 U.S.C. §§ 144 and 455. Under the former, a
judge must recuse himself when a party to a district court proceed-
ing “files a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either
against him or in favor of any adverse party.” 28 U.S.C. § 144. Un-
der § 455(a), a judge “shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” Id. §
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21-13823 Opinion of the Court 7
455(a). The test under § 455(a) is “whether an objective, disinter-
ested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant
doubt about the judge’s impartiality.” Parker v. Connors Steel Co.,
855 F.2d 1510, 1524 (11th Cir. 1988). Under § 455(a), “a judge has
a self-enforcing obligation to recuse himself where the proper legal
grounds exist.” Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir.
2001) (quotation marks omitted).
Generally, bias sufficient to disqualify a judge must stem
from extrajudicial sources. Hamm v. Members of Bd. of Regents,
708 F.2d 647, 651 (11th Cir. 1983). However, an exception exists
where a judge’s remarks in a judicial context demonstrate perva-
sive bias and prejudice against a party. Id. Absent evidence of per-
vasive bias and prejudice, “a judge’s rulings in the same or a related
case may not serve as the basis for a recusal motion.” McWhorter
v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990) (per cu-
riam).
After reviewing the district court's prior orders, we do not
find any evidence to support pervasive bias and prejudice, nor does
Guo’s arguments point us to any specific evidence. Thus, the dis-
trict court judge did not abuse his discretion in not recusing him-
self. Accordingly, we affirm.
AFFIRMED.