United States District Court, N.D. Alabama, Western Division
MEMORANDUM OPINION AND ORDER
M.'BORDEN UNITED STATES MAGISTRATE JUDGE
before the court is Defendant's Motion to Dismiss. Doc.
5. Additionally pending are Defendant's Motion to Stay
Discovery (Doc. 9) and Plaintiff's Motion to Compel
Discovery. Doc. 11. Plaintiff James McConico, Jr. filed suit
against Defendant Wal-Mart Stores Incorporated alleging
fraudulent practices relating to Wal-Mart's money cards.
Doc. 1-1. Pursuant to 28 U.S.C. § 636(c), the parties
have consented to the jurisdiction of a United States
Magistrate Judge. After careful consideration of the
parties' filings and the relevant law, and for the
reasons stated below, the court concludes that the Motion to
Dismiss (Doc. 5) is due to be granted. As a result, the
Motion to Stay Discovery (Doc. 9) and the Motion to Compel
Discovery (Doc. 11) are moot.
JURISDICTION AND VENUE
court has subject matter jurisdiction over the claims in this
lawsuit pursuant to 28 U.S.C. § 1332. The parties do not
contest personal jurisdiction or that venue is proper in the
Northern District of Alabama. The court finds adequate
allegations to support both.
facts alleged in the complaint follow. McConico applied for a
Wal-Mart money card in 2017. Doc. 1-1 at 2. His application
was approved, and the card was mailed to his residence. Doc.
1-1 at 2. At the time, McConico was incarcerated in the
custody of the Alabama Department of Corrections. Doc. 1-1 at
2. He used the card to purchase necessities for his
grandchild. Doc. 1-1 at 2. Later, McConico's mother, who
is in her 80s, accidentally threw away the money card. Doc.
1-1 at 2-3. At the time, McConico had at least $1200 in his
account. Doc. 1-1 at 3.
called Wal-Mart to explain the situation. Doc. 1-1 at 3. A
Wal-Mart employee, Mary Doe, cancelled his old card and
mailed a new one to him. Doc. 1-1 at 3. When McConico
attempted to activate the new card, he was informed that he
must have his driver's license, passport, and other forms
of identification to do so. Doc. 1-1 at 3. McConico explained
to Doe that he was incarcerated without identification and
ordered her to close his account and mail a check to his
family's residence. Doc. 1-1 at 3. Doe then informed
McConico that the money could not be released until he
provided identification. Doc. 1-1 at 3. On these facts,
McConico alleges that Wal-Mart's false and misleading
advertising fraudulently induced him to purchase the money
card. Doc. 1-1 at 3-4. McConico also alleges that Wal-Mart
has been unjustly enriched. Doc. 1-1 at 3.
initially filed this complaint in the Circuit Court of Bibb
County as case number 07-CV-2019-000009. Defendant removed
that action to federal court, where it has been assigned the
case caption McConico v. Wal-Mart Stores, Inc.,
7:19-cv-1600-GMB (N.D. Ala.). Plaintiff filed the same
complaint a second time in Bibb County as case number
07-CV-2019-000010. Doc. 1. Defendant also removed the second
action to federal court, resulting in the instant federal
action. Defendant now seeks to dismiss this case because it
is duplicative of McConico's first suit.
STANDARD OF REVIEW
considering a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the court must
“take the factual allegations in the complaint as true
and construe them in the light most favorable to the
plaintiff.” Pielage v. McConnell, 516 F.3d
1282, 1284 (11th Cir. 2008). To survive a motion to dismiss,
a complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
“plausible on its face” if “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The complaint “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. Factual allegations need
not be detailed, but “must be enough to raise a right
to relief above the speculative level, ”
Twombly, 550 U.S. at 555, and “unadorned,
the-defendant-unlawfully-harmed-me accusation[s]” will
not suffice. Iqbal, 556 U.S. at 678.
addition to the pleading requirements of Twombly and
Iqbal, a plaintiff's pro se status must
be considered when evaluating the sufficiency of a complaint.
“A document filed pro se is ‘to be
liberally construed,' and ‘a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Yet any leniency cannot serve as a
substitute for pleading a proper cause of action. See
Odion v. Google Inc., 628 Fed.Appx. 635, 637 (11th Cir.
2015) (recognizing that although courts must show leniency to
pro se litigants, “this 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”) (internal quotation marks
omitted). “While the pleadings of pro se
litigants are liberally construed, they must still comply
with procedural rules governing the proper form of
pleadings.” Hopkins v. St. Lucie County Sch.
Bd., 399 Fed.Appx. 563, 565 (11th Cir. 2010) (internal
citations and quotation marks omitted).
case is due to be dismissed as duplicative of Plaintiff's
other pending federal action. “It is well established
that . . . the general principle is to avoid duplicative
litigation.” I.A. Durbin, Inc. v. Jefferson Nat.
Bank, 793 F.2d 1541, 1551 (11th Cir. 1986) (internal
citations and quotation marks omitted). And it “is well
settled that a plaintiff may not file duplicative complaints
in order to expand [his] legal rights.” Vanover v.
NCO Fin. Servs. Inc., 857 F.3d 833, 841 (11th Cir. 2017)
(internal citation and quotation marks omitted). “This
doctrine rests on considerations of wise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.”
Id. “Although no precise test has been
articulated for making this determination that litigation is
duplicative, the general rule is that a suit is duplicative
of another suit if the parties, issues and available relief
do not significantly differ between the two actions.”
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