Filed: Dec. 10, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 18-11272 Date Filed: 12/10/2018 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-11272 Non-Argument Calendar _ D.C. Docket No. 0:16-cv-60960-WPD JOHN M. BARONE, Plaintiff - Appellant, versus WELLS FARGO BANK, N.A., a.k.a. Wells Fargo Home Mortgage, a.k.a. Wells Fargo Home Lending, Defendant - Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (December 10, 2018) Before TJOFLAT, JORDAN, and RO
Summary: Case: 18-11272 Date Filed: 12/10/2018 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 18-11272 Non-Argument Calendar _ D.C. Docket No. 0:16-cv-60960-WPD JOHN M. BARONE, Plaintiff - Appellant, versus WELLS FARGO BANK, N.A., a.k.a. Wells Fargo Home Mortgage, a.k.a. Wells Fargo Home Lending, Defendant - Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (December 10, 2018) Before TJOFLAT, JORDAN, and ROS..
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Case: 18-11272 Date Filed: 12/10/2018 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11272
Non-Argument Calendar
________________________
D.C. Docket No. 0:16-cv-60960-WPD
JOHN M. BARONE,
Plaintiff - Appellant,
versus
WELLS FARGO BANK, N.A.,
a.k.a. Wells Fargo Home Mortgage,
a.k.a. Wells Fargo Home Lending,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 10, 2018)
Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 18-11272 Date Filed: 12/10/2018 Page: 2 of 13
John Barone, proceeding pro se, appeals the district court’s dismissal with
prejudice of his lawsuit against Wells Fargo Bank, N.A. (“Wells Fargo”), for failure
to file a second amended complaint that cured the deficiencies identified by the court
in a prior dismissal order. After careful review, we affirm the district court.
I.
Barone brought this federal action in May 2016, complaining of Wells Fargo’s
conduct both before and after Wells Fargo obtained a foreclosure judgment against
him in October 2013. The district court dismissed the complaint in August 2016.
The court concluded that it lacked subject-matter jurisdiction under the Rooker-
Feldman 1 doctrine because Barone appeared to be challenging the foreclosure
judgment. Alternatively, it found that abstention was warranted due to a similar
lawsuit Barone had filed in state court.
We vacated the dismissal and remanded for further proceedings. Barone v.
Wells Fargo Bank, N.A., 709 F. App’x 943 (11th Cir. 2017). We concluded that
abstention was not warranted and that the Rooker-Feldman doctrine did not appear
to “require the dismissal of Barone’s entire action, even if it applies to some or most
of his claims.” Id. at 947. We noted that Barone had alleged wrongdoing by Wells
1
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and D.C. Court of Appeals v.
Feldman,
460 U.S. 462 (1983).
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Fargo after the foreclosure judgment and that “at least some of the claims . . . do not
appear to invite review of the correctness of the state foreclosure judgment.” Id.
However, because Barone’s complaint—containing 811 numbered
paragraphs and 165 pages of exhibits—was a “shotgun pleading” that did not
provide fair notice of its claims, we were “unable to delineate with more precision
the claims to which the Rooker-Feldman doctrine does not apply.”
Id. at 947, 951–
52. We found two deficiencies that, combined, made it virtually impossible to know
which allegations of fact were intended to support which claims for relief: (1) his
“complaint contains ‘multiple counts where each count adopts the allegations of all
preceding counts, causing each successive count to carry all that came before and
the last count to be a combination of the entire complaint,’”
id. at 951 (quoting
Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1323 (11th Cir. 2015));
and (2) his “rambling, disjointed, and often redundant complaint ‘is guilty of the
venial sin of being replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action,’”
id. (quoting Weiland, 792
F.3d at 1322).
Despite these deficiencies, we concluded that Barone should be afforded an
opportunity to replead his complaint. Accordingly, we vacated the judgment and
remanded for the district court to allow Barone that opportunity. We cautioned,
however, that if he “fails to make meaningful changes to his complaint after an
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opportunity to replead, the court may dismiss the complaint under either Rule 41(b),
Fed. R. Civ. P, or the court’s inherent power to manage its docket.” Id. at 952.
On remand, the district court entered an order permitting Barone to file an
amended complaint that complied with two requirements: (1) it could allege only
claims that are not subject to dismissal under the Rooker-Feldman doctrine; and (2)
it had to comply with the pleading requirements of the Federal Rules.
Barone timely filed an amended complaint. He cut the total number of
paragraphs by more than half, and for some of the counts he attempted to reference
the specific factual allegations supporting the claim. Still, Barone’s complaint
spanned 87 pages and included an additional 354 pages of exhibits, and he continued
to attack repeatedly the validity of the foreclosure judgment Wells Fargo obtained
against him in October 2013. See, e.g., Doc. 46 ¶ 15(“Wells Fargo committed
numerous unlawful acts in procuring a wrongful judgement against the Barone[s] . .
. .”); id. ¶ 18 (“Wells Fargo initiated the wrongful foreclosure by falsely asserting
that it was the party to which the debt was owed as the owner of the note . . . .”).
Wells Fargo moved to dismiss the case with prejudice, asserting that Barone
had not cured the deficiencies in his complaint or complied with the district court’s
order. Barone responded, in pertinent part, that he had reduced the length of the
complaint and had more clearly outlined which allegations pertained to each count.
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The district court granted in part the motion to dismiss, finding that the
complaint still suffered from the same flaws we had identified in Barone’s first
appeal. Far from providing a “short and plain statement of the claim,” the court
explained, Barone’s complaint was “disjointed, meandering, [and] often redundant,”
with allegations “not clearly connected to any particular causes of action.”
Additionally, the court found that the complaint still contained multiple counts
where each count adopted the allegations of all preceding counts.
The district court further stated that Barone had violated its prior order
permitting amendment by alleging many claims that were subject to dismissal under
the Rooker-Feldman doctrine. The court noted that the complaint appeared to attack
the foreclosure and invite review of the correctness of the state foreclosure judgment.
But the claims barred by Rooker-Feldman could not be discerned easily, the court
explained, because “[a]llegations covering events both before and after Wells Fargo
obtained a state-court foreclosure judgment in October of 2013 are still incorporated
into and/or alleged in each of the thirteen counts.”
Concluding that the amended complaint, like the initial complaint, was a
shotgun pleading, the district court dismissed it. Although Wells Fargo requested
dismissal with prejudice, the court found that because Barone was pro se he should
be given one last opportunity to file an amended complaint that corrected the flaws
identified by the court. The court permitted Barone to file a second amended
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complaint within 10 days. But the court warned that the failure to file a second
amended complaint that complied with the court’s order would result in dismissal
with prejudice.
Instead of filing a second amended complaint, Barone filed a motion to recuse
the district judge under 28 U.S.C. § 455(a). Barone argued that the judge’s
impartiality could reasonably be questioned because of the “judge’s relationship
with Wells Fargo,” the initial wrongful dismissal, and the current dismissal in Wells
Fargo’s favor. He sought either to vacate the dismissal order or to have it
reconsidered by a different district judge.
The district court denied the motion, finding that recusal was not warranted.
The court explained that adverse rulings did not provide a basis for recusal and that
the judge’s home mortgage with Wells Fargo Home Mortgage had been disclosed to
Barone at the outset of the case, and he had not objected earlier. The district court
then entered judgment dismissing the action with prejudice for Barone’s failure to
file a second amended complaint. Barone now brings this appeal.
II.
We review for an abuse of discretion a district court’s dismissal for failure to
comply with a court order or with the rules of court. Betty K Agencies, Ltd. v. M/V
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MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005); Goforth v. Owens,
766 F.2d 1533,
1535 (11th Cir. 1985). “Discretion means the district court has a range of choice,
and that its decision will not be disturbed as long as it stays within that range and is
not influenced by any mistake of law.” Betty
K, 432 F.3d at 1337 (quotation marks
omitted).
Pro se pleadings are to be construed liberally. Evans v. Ga. Reg’l Hosp., 850
F.3d 1248, 1253 (11th Cir.), cert. denied,
138 S. Ct. 557 (2017). However, 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 Jamaica Ltd.,
760 F.3d 1165, 1168–69 (11th Cir. 2014)
(quotation marks omitted).
III.
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Although there is no “technical form” required, the plaintiff’s allegations “must be
simple concise, and direct.” Fed. R. Civ. P 8(d)(1). The purpose of these rules is
“to give the defendant fair notice of what the claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation, ellipsis,
and quotation marks omitted). What this Court has deemed “shotgun” pleadings
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fail, to varying degrees and in various ways, to fulfill that essential purpose.
Weiland, 792 F.3d at 1323.
“A district court has the inherent authority to control its docket and ensure the
prompt resolution of lawsuits, which includes the ability to dismiss a complaint on
shotgun pleading grounds.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295
(11th Cir. 2018) (quotation marks omitted). In the case of a dismissal on shotgun-
pleading grounds, “we have required district courts to sua sponte allow a litigant one
chance to remedy such deficiencies.”
Id. But where a plaintiff is afforded that
chance and “fails to make meaningful modifications to her complaint, a district court
may dismiss the case under the authority of either Rule 41(b) or the court’s inherent
power to manage its docket.”
Weiland, 792 F.3d at 1321 n.10; see Fed. R. Civ. P.
41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any claim against it.”).
Whether the district court acts under Rule 41(b) or its inherent authority to
manage its docket, a dismissal with prejudice is an extreme sanction that “may be
properly imposed only when (1) a party engages in a clear pattern of delay or willful
contempt (contumacious conduct); and (2) the district court specifically finds that
lesser sanctions would not suffice.” Betty K, 432 F.3d at 1337–38 (quotation marks
omitted). A finding that lesser sanctions would not suffice may be implicit in the
court’s order. Mingo v. Sugar Cane Growers Co-op of Fla.,
864 F.2d 101, 102 (11th
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Cir. 1989). While dismissal with prejudice is an extreme sanction, “dismissal upon
disregard of an order, especially where the litigant has been forewarned, generally
is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989). Additionally, “the harsh sanction of dismissal with prejudice is thought to be
more appropriate in a case where a party, as distinct from counsel, is culpable.” Betty
K, 432 F.3d at 1338.
Here, the district court did not abuse its discretion by dismissing Barone’s
action with prejudice. To begin with, we see no error in the district court’s dismissal,
with leave to amend, of Barone’s first amended complaint. Barone claims that the
district court failed to give his pleading the liberal construction to which it was due,
but we agree with the district court that Barone’s complaint, even liberally construed,
was unmanageable and failed to give fair notice of its claims.
Despite Barone’s attempt to fix some of the problems with his initial
complaint, his first amended complaint still suffered from the same flaws we had
identified in Barone’s first appeal. The first amended complaint, like the initial
complaint, contained a multitude of factual allegations that were difficult to follow
and not clearly connected to any particular cause of action, as well as multiple counts
where each count adopted the allegations of all preceding counts.
While Barone cut the 811 paragraphs of the initial complaint by more than
half, he more than doubled its 165 pages of exhibits. Additionally, despite a court
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order to remove any claims that were subject to dismissal under the Rooker-Feldman
doctrine, Barone continued to attack the foreclosure and invite review of the
correctness of the state foreclosure judgment. And the claims barred by Rooker-
Feldman could not be easily discerned because, as the court explained, “[a]llegations
covering events both before and after Wells Fargo obtained a state-court foreclosure
judgment in October of 2013 are still incorporated into and/or alleged in each of the
thirteen counts.” This was essentially the same problem we had noted on appeal in
regard to Barone’s initial complaint. Barone, 709 F. App’x at 947.
In short, the district court reasonably concluded that Barone had failed to
“make meaningful modifications to [his] complaint.” Weiland, 792 F.3d at 1321
n.10 (emphasis added). Although the court was required to liberally construe the
complaint, it was not required, or permitted, to “rewrite an otherwise deficient
pleading in order to sustain an action.”
Campbell, 760 F.3d at 1168–69.
Accordingly, the court was authorized to “dismiss the case under the authority of
either Rule 41(b) or the court’s inherent power to manage its docket.”
Weiland, 792
F.3d at 1321 n.10.
Further, we conclude that the “extreme sanction” of dismissal with prejudice
was justified under the circumstances. When the district court dismissed Barone’s
first amended complaint, giving Barone another opportunity to cure the deficiencies,
the court expressly warned Barone that the failure to file a second amended
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complaint that complied with the court’s order would result in dismissal with
prejudice. But Barone failed to file any second amended complaint, let alone a
compliant one. Instead, he sought to disqualify the district judge based primarily on
the judge’s rulings against him.
Because Barone willfully disregarded the district court’s order, despite being
warned about the consequences, it was not an abuse of discretion to dismiss the
complaint with prejudice. See Moon, 863 F.2d at 839. In addition, Barone, and not
any attorney, was the culpable party, which further supports the appropriateness of
“the harsh sanction of dismissal with prejudice.” See Betty
K, 432 F.3d at 1338. The
record also supports the district court’s implicit finding that lesser sanctions than
dismissal would not have served the interests of justice. See
Mingo, 864 F.2d at 102.
Barone had multiple opportunities to plead his claims, and permitting him another
chance would have prejudiced Wells Fargo. See
Goforth, 766 F.2d at 1535. We
therefore conclude that the district court acted within the bounds of its discretion by
dismissing Barone’s complaint with prejudice. See Betty
K, 432 F.3d at 1337
IV.
Barone also appeal the denial of his recusal motion. We review a judge’s
recusal decision for an abuse of discretion. Murray v. Scott, 253 F.3d 1308, 1310
(11th Cir. 2001). Recusal is required in any proceeding in which the judge’s
impartiality might reasonably be questioned—that is, where an objective, fully
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informed lay observer would entertain significant doubt about the judge’s
impartiality. 28 U.S.C. § 455(a); Curves, LLC v. Spalding Cty., Ga., 685 F.3d 1284,
1287 (11th Cir. 2012).
Here, the district court did not abuse its discretion by denying Barone’s
recusal motion. First, Barone primarily sought recusal based on the judge’s adverse
rulings, but “except where pervasive bias is shown, a judge’s rulings in the same or
a related case are not a sufficient basis for recusal.” Bolin v. Story, 225 F.3d 1234,
1239 (11th Cir. 2000). No such pervasive bias has been shown here.
Second, Barone appears to have sought recusal in part based on the judge’s
personal home mortgage with Wells Fargo, but standard consumer transactions
made in the ordinary course of business generally do not warrant recusal. See Delta
Air Lines, Inc. v. Sasser, 127 F.3d 1296, 1297–98 (11th Cir. 1997). And there is no
indication that the judge’s home mortgage could be “substantially affected” by the
outcome of this proceeding. See
id.
Finally, Barone knew of the judge’s home mortgage as early as May 2016,
but he did not raise that issue to the district court until 2018, after an adverse ruling.
A party who seeks to have a judge disqualified under § 455 must do so in a timely
manner upon learning of the grounds for disqualification. Summers v. Singletary,
119 F.3d 917, 920 (11th Cir. 1997). Barone’s failure to raise the issue in a timely
manner further supports the judge’s refusal to recuse.
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V.
For the reasons stated, we affirm the district court’s dismissal with prejudice
of Barone’s action against Well Fargo and the denial of his recusal motion.
AFFIRMED.
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