Case: 13-14748    Date Filed: 06/13/2014   Page: 1 of 13


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14748
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:11-cv-23492-MGC



YOUNES KABBAJ,
individually and as “Next Friend,”

                                                               Plaintiff-Appellant,

OMAR ABDEL RAHMAN,

                                                                         Plaintiff,

                                     versus

BARACK H. OBAMA,
GEORGE W. BUSH,
Presidents, United States of America,
DEPARTMENT OF JUSTICE,
DEPARTMENT OF STATE,
CENTRAL INTELLIGENCE AGENCY, et al.,

                                                            Defendants-Appellees,
              Case: 13-14748      Date Filed: 06/13/2014     Page: 2 of 13


METROPOLITAN POLICE DEPARTMENT, et al.,

                                                                              Defendants.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                     (June 13, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

       Younes Kabbaj pro se appeals the district court’s dismissal of his fourth

amended complaint alleging constitutional violations and an unlawful conspiracy

under 42 U.S.C. §§ 1983, 1985, 1986, and Bivens, 1 and claims under the Federal

Torts Claim Act, 28 U.S.C. § 1346, and the Privacy Act, 5 U.S.C. § 552a. After

review, we: (1) affirm the dismissal with prejudice as to Defendants the United

States, the Department of Justice, Federal Bureau of Investigation (“FBI”), the

Department of State, the six state defendants, Anthony Scalia, Jim Bruinsma,

Steven Berger, David Forteza, Amanda Curet, Jose Martin, as well as the federal

defendants, Perry Cuocci, Matthew Foster, Thomas T. Riley, Robert P. Jackson,

Donald E. Gonneville, Donald Baily, Jimmy Arroyo, Ken Bradley, Shamus Skelly,

Scott Mclellun, Lanny A. Breuer and Michael Reigle, sued in their official


       1
        Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

, 91 S.
Ct. 1999 (1971).
                                                2
              Case: 13-14748     Date Filed: 06/13/2014    Page: 3 of 13


capacities; and (2) vacate in part and remand so the district court can amend the

judgment to dismiss without prejudice the claims against Defendants Cuocci,

Foster, Riley, Jackson, Gonneville, Baily, Arroyo, Bradley, Skelly, Mclellun,

Breuer, and Reigle, sued in their individual capacities, whom Kabbaj never served.

                           I. BACKGROUND FACTS

A.    Dismissal of Original Complaint Without Prejudice

      In this civil rights action, Kabbaj filed a total of five complaints, all of which

in essence allege that federal and state officials: (1) conspired for almost two

decades to thwart him from solving innumerable crimes, preventing terrorist

attacks, and revealing the location of Osama Bin Laden years before his capture;

and (2) prosecuted him, provided confidential information about him to state and

foreign governments to facilitate his prosecution and to hospitals in order to have

him involuntarily committed, and constantly watched and harassed him. Kabbaj

contends that the defendants’ conspiratorial actions violated his equal protection

and due process rights; his rights under the First, Fourth, Fifth, Eighth, and

Fourteenth Amendments and the Privacy Act; and constituted malicious

prosecution, unlawful imprisonment, negligence, and fraud.

      Kabbaj’s original complaint was 177 pages long, named 156 defendants, and

had 122 pages of attached exhibits. The district court dismissed the original

complaint without prejudice because, inter alia, it did not comply with Federal


                                              3
             Case: 13-14748     Date Filed: 06/13/2014   Page: 4 of 13


Rule of Civil Procedure 8’s requirement for a short and plain statement of his

claims. The district court explained that Kabbaj’s complaint was repetitive,

provided a lot of irrelevant information, contained conclusory allegations, “lumped

together” conspiracy allegations “so that the individual defendants [did] not have

adequate notice of what [were] the specific allegations against each of them,” and

was so large that it was “a daunting task for each defendant to comprehend exactly

what factual allegations relate[d] to each of [Kabbaj’s] causes of action.” The

district court gave Kabbaj leave to file an amended complaint.

B.    Dismissal of Second Amended Complaint Without Prejudice

      Kabbaj filed an amended complaint that was 126 pages long and named 150

defendants. Shortly thereafter, Kabbaj filed a nearly identical, second amended

complaint with the court’s permission. The second amended complaint was 131

pages long and named 152 defendants. The district court dismissed the second

amended complaint without prejudice, again for failure to comply with Rule 8.

The district court noted that the second amended complaint contained 372

paragraphs, was repetitive, and contained irrelevant information. The court

explained that the second amended complaint was a classic “shotgun” complaint,

in which Kabbaj had “lump[ed] his allegations against the defendants together,

even though it [was] clear that they could not all have committed the same acts.”




                                            4
              Case: 13-14748     Date Filed: 06/13/2014    Page: 5 of 13


The district court granted Kabbaj leave to file a third amended complaint to cure

the noted deficiencies.

C.    Kabbaj’s Fourth Amended Complaint

      Kabbaj filed a third amended complaint and then an identical fourth

amended complaint. Kabbaj’s fourth amended complaint, which is the focus of

this appeal, contained the same, albeit condensed, allegations as the preceding four

complaints. Kabbaj’s fourth amended complaint was 78 pages long, contained 213

numbered paragraphs, and named 28 defendants, including four federal entities—

the United States, the Department of Justice, the FBI , and the Department of State;

twelve agents and officers of those federal agencies and six state officials in their

individual and official capacities; and six “John Doe” defendants.

      Throughout, the fourth amended complaint refers to the defendants

collectively, such as “the Defendants,” the “Named Defendants,” the “Federal

Defendants,” or “[e]ach Defendant named in this Complaint,” but does not identify

what allegedly unlawful action each defendant took with respect to each claim.

Instead, in the portion of the complaint addressing Kabbaj’s “CAUSES OF

ACTION,” the fourth amended complaint “incorporates all the above stated

paragraphs” containing factual allegations replete with collective averments.

      Kabbaj failed to perfect service upon the twelve federal employees sued in

their individual capacities and never identified or served the “John Doe”


                                              5
              Case: 13-14748     Date Filed: 06/13/2014    Page: 6 of 13


defendants. Affidavits reflect that a process server delivered a copy of the

summons and complaint to the authorized agent for each of the twelve federal

employees’ respective agencies. Kabbaj moved for an extension of time to serve

the individual federal defendants. Kabbaj stated that he had served the twelve

defendants at their respective places of business, but he acknowledged that this

service was inadequate because he was suing those defendants in their individual

capacities. Kabbaj requested more time to discover the home address of the twelve

defendants.

      The served defendants moved to strike or dismiss Kabbaj’s fourth amended

complaint because, inter alia, Kabbaj had failed to comply with the district court’s

prior orders to cure the deficiencies in his complaint, which still violated Rule 8’s

requirement of a short, plain statement of his claims. In his responses to the

defendants’ motions to dismiss, Kabbaj continued to refer to the defendants

collectively, such as the “Original Defendants,” the “pre-911 Defendants,” and the

“post-911 Defendants,” without identifying each defendant’s allegedly wrongful

conduct related to each specific claim.

D.    Dismissal of Fourth Amended Complaint With Prejudice

      The district court dismissed Kabbaj’s fourth amended complaint with

prejudice, citing Kabbaj’s failure to cure the specifically identified pleading

deficiencies noted in its prior two dismissal orders. In particular, the district court


                                               6
                Case: 13-14748       Date Filed: 06/13/2014       Page: 7 of 13


determined that the complaint “continue[d] to run afoul of” Rule 8, was repetitive,

and contained “largely irrelevant factual assertions” that were asserted against the

defendants “lump[ed] . . . together, even though it is clear that they could not all

have committed the same acts.” The district court noted that the counts, although

labeled, incorporated by reference all the previous factual allegations, and made

conclusory allegations without “a factual basis or information needed to state a

claim against each Defendant.”

       The district court concluded that Kabbaj’s fourth amended complaint was

“still a shotgun pleading” that “d[id] not permit any of the Defendants to

adequately answer the allegations charged against them.” The district court further

found that Kabbaj’s allegations of a decades-long conspiracy to prevent Kabbaj

from thwarting terrorist attacks or disclosing Bin Laden’s location, without more,

were implausible. The district court explained that it was dismissing the fourth

amended complaint with prejudice because Kabbaj had “filed five Complaints over

two years and there is no indication that a sixth complaint could state a valid cause

of action and cure the deficiencies identified in the dismissal orders entered in this

case.” 2 In granting the motions to dismiss, the district court denied as moot all



       2
         Alternatively, the district court granted the defendants’ motion to dismiss Kabbaj’s
fourth amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), because it
failed to state viable claims. Because we affirm the dismissal on Rule 8 grounds, we do not
address this Rule 12(b)(6) ruling.
                                                    7
               Case: 13-14748    Date Filed: 06/13/2014     Page: 8 of 13


pending motions, including Kabbaj’s motion for an extension of time to effect

service.

                                  II. DISCUSSION

A.    Rule 8

      Under Rule 8(a)(2), a complaint “must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). Rule 8(a)(2)’s purpose is to “give the defendant fair notice of what the

claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 

, 555, 

, 1964 (2007) (quotation marks and ellipsis omitted).

Therefore, “a complaint’s factual allegations must be enough to raise a right to

relief above the speculative level.” Davis v. Coca-Cola Bottling Co. Consol., 

, 974 (11th Cir. 2008) (internal quotation marks and alterations omitted).

      Further, the allegations in the complaint “must be simple, concise, and

direct,” Fed. R. Civ. P. 8(d)(1), and the complaint must “state its claims . . . in

numbered paragraphs, each limited as far as practicable to a single set of

circumstances.” Fed. R. Civ. P. 10(b). A “shotgun pleading”—one in which “it is

virtually impossible to know which allegations of fact are intended to support

which claim(s) for relief”—does not comply with the standards of Rules 8(a) and

10(b). Anderson v. Dist. Bd. of Trs. of Ctr. Fla. Cmty. Coll., 

, 366-67

(11th Cir. 1996); see also Magluta v. Samples, 

, 1284 (11th Cir.


                                               8
                Case: 13-14748       Date Filed: 06/13/2014       Page: 9 of 13


2001). This Court has repeatedly condemned shotgun pleadings. See PVC

Windoors, Inc. v. Babbitbay Beach Constr., N.V., 

, 806 n.4 (11th Cir.

2010); 

.

       Where a more carefully drafted complaint might state a claim, a pro se

plaintiff “must be given at least one chance to amend the complaint before the

district court dismisses the action with prejudice.” Bryant v. Dupree, 

, 1163 (11th Cir. 2001) (quotation marks omitted); see also Bank v. Pitt, 

, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy

Indus. Am. Corp., 

, 542 & n.1 (11th Cir. 2002) (en banc) (concluding

that the district court is not require to sua sponte grant leave to counseled plaintiffs,

but noting that its holding does not disturb a pro se litigant’s opportunity to amend

under Bank v. Pitt). A district court, however, is not required to permit

amendment if, inter alia, “there has been . . . repeated failure to cure deficiencies

by amendments previously allowed.” 

(citing Foman v.

Davis, 

, 182, 

, 230 (1962)). 3

B.     Served Defendants

       Here, as to the defendants who were served and filed responsive pleadings,

the district court’s dismissal with prejudice was not an abuse of discretion.

Kabbaj’s fourth amended complaint is 78 pages long and contains 213 numbered

       3
         We review a district court’s decision whether to grant leave to amend for abuse of
discretion. Troville v. Venz, 

, 1259 (11th Cir. 2002).
                                                    9
             Case: 13-14748      Date Filed: 06/13/2014   Page: 10 of 13


paragraphs. The first 66 pages of the complaint consist of 179 paragraphs of

factual allegations. In the portion of the complaint labeled “causes of action,” the

complaint incorporates by reference all of those 179 paragraphs of factual

allegations, without identifying which factual allegations relate to which claims.

Moreover, the complaint refers to the defendants collectively, making it impossible

to identify which particular defendant engaged in what allegedly wrongful conduct.

In other words, Kabbaj’s fourth amended complaint is a classic shotgun pleading.

See 

. As such, it does not comply with Rule 8(a), and the

district court properly dismissed it.

      Kabbaj argues that, due to his pro se status and the seriousness of his

allegations, he should have been allowed to amend his fourth amended complaint

to cure any pleading deficiencies. Although “pro se pleadings are held to a less

strict standard than pleadings filed by lawyers and thus are construed liberally,”

Alba v. Montford, 

, 1252 (11th Cir. 2008), this liberal construction

“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.” GJR Invs., Inc. v.

Cnty. of Escambia, 

, 1369 (11th Cir. 1998) (citation omitted),

overruled on other grounds by Ashcroft v. Iqbal, 

, 

(2009). Even a pro se litigant is required to comply with the rules of procedure,




                                             10
               Case: 13-14748       Date Filed: 06/13/2014      Page: 11 of 13


McNeil v. United States, 

, 113, 

, 1984 (1993),

particularly after twice being expressly directed to do so.

       Kabbaj had already filed four deficient complaints. The district court gave

Kabbaj two prior opportunities to cure the Rule 8 deficiencies, but he failed to do

so. Under these circumstances, the district court did not abuse its discretion in

dismissing Kabbaj’s fourth amended complaint with prejudice.

C.     Unserved Defendants

       On appeal, Kabbaj argues that he should be given an opportunity to seek an

entry of default against the twelve federal defendants sued in their individual

capacities. Kabbaj’s argument is based on the faulty premise that he properly

served them.

       Kabbaj attempted to serve these twelve individual federal defendants by

serving the registered agents for their respective federal agencies. 4 However,

neither Federal Rule of Civil Procedure 4(e) nor the law of Florida or the District

of Columbia (where the district court is located and where service was made,

respectively) allows for personal service via delivery of the summons and

complaint to the registered agent of the defendant’s place of business. See Fed. R.

Civ. P. 4(e), (i)(3); Fla. Stat. § 48.031; D.C.R.C.P. 4(e)(1), (2). Consequently, as


       4
        These twelve defendants included one federal prosecutor, three FBI agents, three agents
of the Drug Enforcement Administration, two Secret Service agents, and three State Department
employees.
                                                  11
              Case: 13-14748       Date Filed: 06/13/2014      Page: 12 of 13


Kabbaj acknowledged in the district court, he failed to perfect personal service on

these defendants to the extent they were sued in their individual capacities.

       Furthermore, while the United States filed a motion to dismiss the fourth

amended complaint, it did so representing only itself, the three named federal

agencies, and the individual federal defendants sued in their official capacities.

The motion to dismiss the fourth amended complaint explicitly stated that, to the

extent the twelve individual federal defendants were sued in their individual

capacities, they had not been properly served and did not “respond to the

Complaint at this time.” Thus, the twelve federal defendants sued in their

individual capacities never entered an appearance or filed a motion or other

responsive pleading that waived insufficient service of process. See In re

Worldwide Web Sys., Inc., 

, 1299-1300 (11th Cir. 2003) (explaining

that where service of process is insufficient, the court lacks personal jurisdiction

over the defendant and has no power to render a judgment against that defendant

unless the objection to personal jurisdiction was waived in a pre-answer motion or

other responsive pleading or by general appearance). 5

       Because Kabbaj did not properly serve these twelve individual federal

defendants, the district court lacked jurisdiction to dismiss the individual-capacity


       5
         On appeal, Kabbaj does not refer to the unserved “John Doe” defendants or challenge
their dismissal and thus has abandoned any claim as to these defendants. See Timson v.
Sampson, 

, 874 (11th Cir. 2008).
                                                  12
             Case: 13-14748     Date Filed: 06/13/2014   Page: 13 of 13


claims against them with prejudice. See Pardazi v. Cullman Med. Ctr., 

, 1317 (11th Cir. 1990) (explaining that service of process is a jurisdictional

requirement); Fed. R. Civ. P. 4(m) (providing that where the plaintiff fails to

execute service, the district court “must dismiss the action without prejudice

against that defendant or order that service be made within a specified time”).

Further, because on appeal Kabbaj does not challenge the district court’s denial of

his motion for an extension of time to effect service, he has abandoned this issue.

                               III. CONCLUSION

      Accordingly, we affirm the district court’s dismissal with prejudice as to the

served defendants. We vacate the judgment with respect to the twelve unserved

federal defendants and remand for the purpose of amending the judgment to show

that the dismissal of the individual-capacity claims against those twelve defendants

is without prejudice.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                             13