United States District Court, M.D. Alabama, Northern Division
PATRICK L. EDWARDS, TERESA K. EDWARDS Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE.
before the Court is a Second Amended Complaint (Doc. 8) filed
by pro se plaintiffs Patrick Edwards and Teresa
Edwards (“Plaintiffs”). The facts of the
Complaint are difficult to follow, but on its face, the
undersigned concludes that the Second Amended Complaint
should be dismissed both for lack of subject-matter
jurisdiction and for failure to state a claim on which relief
can be granted.
March 7, 2018, this Court granted Plaintiffs' Motion to
Proceed in forma pauperis (Doc. 4) and ordered
Plaintiffs to file an Amended Complaint that would address
the Court's concerns regarding jurisdiction and the
clarity of the claims. At that point, this Court also
dismissed Plaintiffs' original Complaint for failure to
state claims for relief on a number of grounds; chiefly, this
Court found that Plaintiffs' claims were based in
criminal statutes that did not provide a private cause of
action, and thus, federal question jurisdiction was lacking.
Additionally, the Court found that Plaintiffs appeared to be
collaterally attacking various judgments and outcomes from
unrelated litigation in state court and federal bankruptcy
court. Plaintiffs filed an Amended Complaint on March 21,
2018. (Doc. 5). Prior to the Court's review of that
Amended Complaint, Plaintiffs filed a motion for leave to
amend, which this Court granted. (Docs. 6 and 7,
respectively). Plaintiffs then filed this Second Amended
Complaint (Doc. 8), which is pending § 1915(e) review.
See Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir.
2002) (applying § 1915(e) in non-prisoner action). That
statute instructs the court to dismiss any action wherein it
is determined that an in forma pauperis
applicant's suit is “frivolous or malicious,
” “fails to state a claim on which relief may be
granted, ” or “seeks monetary relief against a
defendant who is immune from such relief.” §
1915(e)(2)(B)(i)-(iii). After careful review of the Second
Amended Complaint (Doc. 8), the undersigned concludes that it
is due to be DISMISSED.
review of the sufficiency of the Second Amended Complaint for
purposes of § 1915(e)(2)(B)(ii) begins with analysis of
whether it complies with the pleading standard applicable to
all civil complaints in federal courts. See Thompson v.
Rundle, 393 Fed.Appx. 675, 678 (11th Cir. 2010)
(citations omitted) (“A dismissal under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal under Federal Rule of Civil Procedure 12(b)(6).
Dismissal for failure to state a claim is appropriate when
the facts as pleaded do not state a claim for relief that is
‘plausible' on its face.”). Rule 8 of the
Federal Rules of Civil Procedure requires that a plaintiff
file a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In general, then, a pleading is insufficient if it
offers only mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action[.]” Twombly, 550 U.S. at 555; see
also Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557) (a complaint does not suffice under Rule
8(a) “if it tenders ‘naked assertion[s]'
devoid of ‘further factual enhancement.'”).
Thus, in order to satisfy Rule 8(a), the Complaint
“‘must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief which is
plausible on its face.'” Urquilla-Diaz v.
Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678). “A claim is
factually plausible where the facts alleged permit the court
to reasonably infer that the defendant's alleged
misconduct was unlawful. Factual allegations that are
‘““merely consistent with” a
defendant's liability,' however, are not facially
plausible.” Id. (quoting Iqbal, 556
U.S. at 678).
general matter, “[i]n the case of a pro se
action . . . the court should construe the complaint more
liberally than it would formal pleadings drafted by
lawyers.” Powell v. Lennon, 914 F.2d 1459,
1463 (11th Cir. 1990). However, although district courts must
apply a “less stringent standard” to the
pleadings submitted by a pro se plaintiff, such
“‘leniency 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 Jamaica Ltd., 760 F.3d 1165, 1168-69
(11th Cir. 2014) (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)).
Accordingly, the Second Amended Complaint before the Court,
even if liberally construed, must minimally satisfy the
dictates of Rule 8(a) of the Federal Rules of Civil Procedure
in order to survive review under § 1915(e).
face, the Second Amended Complaint abandons its efforts to
invoke federal question jurisdiction and instead invokes this
Court's diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a). (Doc. 8) at 1-2. However, at least two of the
defendants, Nicholas C. Hughes and Kary Bryant Wolfe, appear
to be domiciled in Alabama for purposes of subject-matter
jurisdiction, as do Plaintiffs. Id. Diversity
jurisdiction has long required complete diversity between all
plaintiffs and all defendants. Palmer v. Hosp. Auth. of
Randolph Cty., 22 F.3d 1559, 1564 (11th Cir. 1994)
(“Diversity jurisdiction, as a general rule, requires
complete diversity - every plaintiff must be diverse from
every defendant.”) (citing Strawbridge v.
Curtiss, 7 U.S. 267 (1806)).
only remaining basis for this Court's jurisdiction is
Plaintiff's previously-abandoned federal question
jurisdiction. The Second Amended Complaint only asserts one
federal claim, a violation of the Fair Debt Collections
Practices Act (“FDCPA”) (15 U.S.C. §
1692(e)(9)), against only one of the many Defendants,
Birmingham law firm Sirote & Permutt
(“Sirote”). The portion of the FDCPA relied upon
by Plaintiffs prohibits distributing written communications
that falsely purport to be court documents. Plaintiffs seem
to allege that Sirote made a false representation in some of
the prior legal proceedings. As best the undersigned can
tell, this is in reference to the events in state court on
February 5, 2016. (Doc. 8) at 4, ¶19. However, the Fair
Debt Collections Practices Act has a one-year statute of
limitations. 15 U.S.C. § 1692(k)(d). Plaintiffs filed
their original Complaint on January 29, 2018. (Doc. 1). Even
assuming that all applicable statutes of limitations were
tolled on that date, Plaintiffs would need to identity some
conduct by Sirote occurring after January 29, 2017, to
sustain this claim. After reviewing the Second Amended
Complaint, the Court can find no such references to any
alleged malfeasance by Sirote after this date.
Second Amended Complaint is due to be dismissed without
opportunity to amend because the statute of limitations makes
amendment futile, and the court has previously allowed
Plaintiffs ample opportunity to amend.
this reason, the undersigned
that the Second Amended Complaint (Doc. 8) be DISMISSED. It
that the Plaintiffs are DIRECTED to file any objections to
the said Recommendation on or before September 18,
2019. A party must specifically identify the factual
findings and legal conclusions in the Recommendation to which
objection is made; frivolous, conclusive, or general
objections will not be considered. Failure to file written
objections to the Magistrate Judge's findings and
recommendations in accordance with the provisions of 28
U.S.C. § 636(b)(1) shall bar a party from a de
novo determination by the District Court of legal and
factual issues covered in the Recommendation and waives the
right of the party to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions accepted or adopted by the District Court except
upon grounds of plain error or manifest injustice.
Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982);
11th Cir. R. 3-1; see Stein v. Lanning ...