Filed: Nov. 02, 2016
Latest Update: Nov. 02, 2016
Summary: Entry TANYA WALTON PRATT , District Judge . Plaintiff Scott A. Kiefner's Motion for Clarification [dkt. 33] is granted consistent with the following: On August 28, 2008 Plaintiff brought this cause of action pursuant to 42 U.S.C. 1983 alleging violations of his Fourth Amendment rights. On December 23, 2008 Plaintiff filed a motion to stay proceedings or in the alternative dismiss cause without prejudice so that he could resolve his pending criminal matters, in light of Heck v. Humphrey
Summary: Entry TANYA WALTON PRATT , District Judge . Plaintiff Scott A. Kiefner's Motion for Clarification [dkt. 33] is granted consistent with the following: On August 28, 2008 Plaintiff brought this cause of action pursuant to 42 U.S.C. 1983 alleging violations of his Fourth Amendment rights. On December 23, 2008 Plaintiff filed a motion to stay proceedings or in the alternative dismiss cause without prejudice so that he could resolve his pending criminal matters, in light of Heck v. Humphrey,..
More
Entry
TANYA WALTON PRATT, District Judge.
Plaintiff Scott A. Kiefner's Motion for Clarification [dkt. 33] is granted consistent with the following: On August 28, 2008 Plaintiff brought this cause of action pursuant to 42 U.S.C. § 1983 alleging violations of his Fourth Amendment rights. On December 23, 2008 Plaintiff filed a motion to stay proceedings or in the alternative dismiss cause without prejudice so that he could resolve his pending criminal matters, in light of Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff's motion was granted and this action was dismissed without prejudice on December 29, 2009 [dkt. 19 and 20]. Because the matter was dismissed without prejudice, Plaintiff is now seeking to re-open this action. However, he is not permitted to do so. A dismissal without prejudice does not permit a party to re-open a dismissed action, rather, a motion to dismiss without prejudice simply means there was no decision on the merits and the parties are free to litigate the matter in a subsequent action without the defendant invoking the doctrine of res judicata in any later action by the plaintiff on the subject matter. There is nothing in the judgment that was entered in this action on December 29, 2008, that prevents the Plaintiff from filing a new action on the subject matter. However, the Plaintiff must follow the proper procedure to open a new action which is set forth below.
There is one and only one means by which to commence a civil action in federal court. That means is through the filing of a complaint. In re Allied Signal Corp., 915 F.2d 190, 192 (6th Cir. 1990) ("an action is commenced with the filing of a complaint rather than a motion"); 1 James Wm. Moore et al., MOORE'S FEDERAL PRACTICE § 3.02[1] (3d ed.2000) ("an action is not commenced by . . . filing a motion with the court . . . .").
The Plaintiff's motion for clarification does not constitute a complaint. Accordingly, it presents nothing for the Court to act upon. According to Rule 3 of the Federal Rules of Civil Procedure, a civil action is commenced upon the filing of a complaint with the Court. If the Plaintiff wishes to file a lawsuit, he must file a complaint, and in doing so he shall be guided by the following: (a) the complaint shall comply with the requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ."; (b) the complaint shall comply with the requirement of Rule 10 that the allegations in a complaint be made in numbered paragraphs, each of which should recite, as far as practicable, only a single set of circumstances; (c) the complaint must identify what legal injury he claims to have suffered and what persons are responsible for each such legal injury; and (d) the complaint shall contain a clear statement of the relief which is sought. If the plaintiff takes that step (submitting a complaint) he contemporaneously must either pay the $400.00 filing fee or move for leave to proceed in forma pauperis and demonstrate that he lacks the financial ability to pay the fee.
The clerk is instructed to attach a copy of a blank pro se prisoner complaint form to this Entry.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
for the
________District of _________
Case No.
______________
(to be filled in by the Clerk's Office)
Plaintiff(s)
(Write the full name of each plaintiff who is filing this complaint. Jury Trial: (check one) □ Yes □ No
If the names of all the plaintiffs cannot fit in the space above,
please write "see attached" in the space and attach an additional
page with the full list of names.)
-v-
Defendant(s)
(Write the full name of each defendant who is being sued. If the
names of all the defendants cannot fit in the space above, please
write "see attached" in the space and attach an additional page
with the full list of names.)
COMPLAINT FOR A CIVIL CASE
I. The Parties to This Complaint
A. The Plaintiff(s)
Provide the information below for each plaintiff named in the complaint. Attach additional pages if needed.
Name _______________________________________________
Street Address _____________________________________
City and County ____________________________________
State and Zip Code _________________________________
Telephone Number ___________________________________
E-mail Address _____________________________________
B. The Defendant(s)
Provide the information below for each defendant named in the complaint, whether the defendant is an individual, a government agency, an organization, or a corporation. For an individual defendant, include the person's job or title (if known). Attach additional pages if needed.
Defendant No. 1
Name ________________________________________________________
Job or Title (if known) ____________________________
Street Address ______________________________________________
City and County _____________________________________________
State and Zip Code __________________________________________
Telephone Number ____________________________________________
E-mail Address (if known) __________________________
Defendant No. 2
Name __________________________________________________________
Job or Title (if known) ______________________________
Street Address ________________________________________________
City and County _______________________________________________
State and Zip Code ____________________________________________
Telephone Number ______________________________________________
E-mail Address (if known) ____________________________
Defendant No. 3
Name __________________________________________________________
Job or Title (if known) ______________________________
Street Address ________________________________________________
City and County _______________________________________________
State and Zip Code ____________________________________________
Telephone Number ______________________________________________
E-mail Address (if known) _____________________________
Defendant No. 4
Name ________________________________________________________
Job or Title (if known) ____________________________
Street Address ______________________________________________
City and County _____________________________________________
State and Zip Code __________________________________________
Telephone Number ____________________________________________
E-mail Address (if known) __________________________
II. Basis for Jurisdiction
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation and the amount at stake is more than $75,000 is a diversity of citizenship case. In a diversity of citizenship case, no defendant may be a citizen of the same State as any plaintiff.
What is the basis for federal court jurisdiction? (check all that apply)
□ Federal question □ Diversity of citizenship
Fill out the paragraphs in this section that apply to this case.
A. If the Basis for Jurisdiction Is a Federal Question
List the specific federal statutes, federal treaties, and/or provisions of the United States Constitution that are at issue in this case. _______________________________________________________________________________
B. If the Basis for Jurisdiction Is Diversity of Citizenship
1. The Plaintiff(s)
a. If the plaintiff is an individual
The plaintiff, (name) ____________________________________________, is a citizen of the
State of (name) _________________________________________.
b. If the plaintiff is a corporation
The plaintiff, (name) ________________________________________, is incorporated
under the laws of the State of (name) ____________________________, and has its principal place of business in the State of (name)
(If more than one plaintiff is named in the complaint, attach an additional page providing the same information for each additional plaintiff.)
2. The Defendant(s)
a. If the defendant is an individual
The defendant, (name) ________________________________, is a citizen of the State of (name)_______________________________. Or is a citizen of (foreign nation) _________________________.
b. If the defendant is a corporation
The defendant, (name) _________________________________________________________, is incorporated under the laws of the State of (name) _______________________________________________, and has its principal place of business in the State of (name) ____________________________. Or is incorporated under the laws of (foreign nation) _________________________, and has its principal place of business in (name) _____________________________.
(If more than one defendant is named in the complaint, attach an additional page providing the same information for each additional defendant.)
3. The Amount in Controversy
The amount in controversy-the amount the plaintiff claims the defendant owes or the amount at stake-is more than $75,000, not counting interest and costs of court, because (explain):
III. Statement of Claim
Write a short and plain statement of the claim. Do not make legal arguments. State as briefly as possible the facts showing that each plaintiff is entitled to the damages or other relief sought. State how each defendant was involved and what each defendant did that caused the plaintiff harm or violated the plaintiff's rights, including the dates and places of that involvement or conduct. If more than one claim is asserted, number each claim and write a short and plain statement of each claim in a separate paragraph. Attach additional pages if needed.
IV. Relief
State briefly and precisely what damages or other relief the plaintiff asks the court to order. Do not make legal arguments. Include any basis for claiming that the wrongs alleged are continuing at the present time. Include the amounts of any actual damages claimed for the acts alleged and the basis for these amounts. Include any punitive or exemplary damages claimed, the amounts, and the reasons you claim you are entitled to actual or punitive money damages.
V. Certification and Closing
Under Federal Rule of Civil Procedure 11, by signing below, I certify to the best of my knowledge, information, and belief that this complaint: (1) is not being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) is supported by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Rule 11.
A. For Parties Without an Attorney
I agree to provide the Clerk's Office with any changes to my address where case-related papers may be served. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Date of signing: ____________________
Signature of Plaintiff _______________________________
Printed Name of Plaintiff ___________________________
B. For Attorneys
Date of signing: ___________________________
Signature of Attorney ______________________
Printed Name of Attorney ___________________
Bar Number _________________________________
Name of Law Firm ___________________________
Street Address _____________________________
State and Zip Code _________________________
Telephone Number ___________________________
E-mail Address _____________________________
