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U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
JUL 3 O 2013
CITY OF FOREST HILL, ET AL.,
CLERK, U.S. DISTRICT COURT
:By __ .,,,.._,_ __ _
Before the court for decision is the Rule 12(b) (6) motion to
dismiss filed by defendants, City of Forest Hill, Sheye Ipaye,
and Damian Dalcour, on July 27, 2013. After having considered
such motion, plaintiff's opposition thereto, all other parts of
the record, and pertinent legal authorities, the court has
concluded that such motion should be granted.
Background and Procedural History
Initiation of Action in State Court and Its Removal to This
This action was initiated by plaintiff, James Gosey, by the
filing on March 8, 2013, in the District Court of Tarrant County,
Texas, 153rd Judicial District, of his original petition. His
petition had sketchy allegations consistent with the Texas "Fair
Notice" standard for pleading. See Horizon/CMS Healthcare Corp.
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v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). On May 14, 2013, two of
the defendants, City of Forest Hill ("City") and Sheye Ipaye
("Ipaye") filed their notice of removal, causing plaintiff's
state court action to be removed to this court. 1
The Court's May 16, 2013 Order Requiring Repleading
Consistent with Federal Court Pleading Requirements
On May 16, 2013, the court issued an order directing that
plaintiff file by May 30, 2013, an amended complaint in
compliance with Rules 8(a) and 10 of the Federal Rules of Civil
Procedure. The order was issued pursuant to the authority of
Rule 8l(c) of the Federal Rules of Civil Procedure, which
provides that in a removed action "repleading is unnecessary
unless the court orders it." The court pointed out in the order
that the federal rules of pleading differ from Texas state court
rules, and explained that:
. require that a complaint contain
Federal courts .
sufficient facts to show that a plaintiff's right to
relief is plausible. Ashcroft v. Igbal, 556 U.S. 662
(2009). Further, the court does not accept conclusory
allegations or speculative deductions as true. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
May 16, 2013 Order at 2.
The May 16 order concluded with a warning, in the form of an
order, that failure to comply with the terms of the order "may
1The notice of removal explained that the third defendant, Damian Dalcour, was not a party to
the removal because he had not been served with process.
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result in the imposition of sanctions, including dismissal of the
. . , without further notice."
Id. at 3.
The Document Filed by Plaintiff on May 30, 2013
On May 30, 2013, plaintiff filed a document titled
"Plaintiff's Amended Complaint and Jury Demand," presumably in
purported compliance with the directive of the May 16, 2013 order
that plaintiff file an amended pleading in compliance with the
federal requirements, including the requirements spelled out in
Ashcroft v. Iqbal and Bell Atl. Corp. v. Twombly.
In fact, the
May 30 "amended complaint" for all practical purposes completely
ignored the instructions given in the May 16 order relative to
the court's expectations in the ordered amended complaint.
A comparison of the allegations of the pleading by which
plaintiff initiated this action in state court, which appears
under Tab 2 of the exhibits to the notice of removal, with those
in the document filed May 30 discloses that plaintiff chose to
defy the expectations the court expressed in the May 16 order by
repeating almost verbatim in the May 30 filing the contents of
the pleading by which plaintiff had initiated the action in state
court. Except for the change in one word, the wording of the
substantive allegations in the two documents appears to be
identical. So far as the court can tell, the wording under the
heading "Facts" in the two documents is identical. The only
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difference is a format change.
In the state court pleading, the
"Facts" section is in narrative form, while in the document filed
May 30 exactly the same words and sentences are used but instead
of being in narrative form, each sentence is treated as a
separate paragraph with a separate paragraph number. The same is
true of the allegations under the headings, in both pleadings,
"Causes of Action," "Damages," "Attorneys' Fees," and "Prayer."
The only difference between the wording of the document filed May
30 and the state court pleading is that in the first sentence
under the heading "Causes of Action" the word "Texas" used in the
state court pleading was changed to the word "Federal" in the May
Stay of the Proceedings at Plaintiff's Request
On May 31, 2013, plaintiff filed a motion to stay the
proceedings in this action pending expiration of his active duty
and deployment to Afghanistan as a member of the Army Reserves.
On June 5, 2013, the court granted plaintiff's motion to stay,
and directed him to inform the court by appropriate written
filing of the completion of his deployment to Afghanistan. On
June 13, 2013, all defendants filed a motion titled "Motion to
Reconsider Order Granting Stay of Proceedings" asking the court
to modify its June 5 stay order for the limited purpose of
allowing defendants to file a Rule 12(b) (6) motion to dismiss. A
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copy of the proposed motion was attached as an exhibit to the
motion asking for permission to file it. The June 13 motion
alerted plaintiff to the awareness of defendants that plaintiff
had failed to comply with the requirements of the May 16
repleading order, alleging, in that regard, the following:
On May 16, 2013, the Court sua sponte issued
its Order requiring Plaintiff to file, by May 30, 2013,
an amended complaint that complied with the
requirements of Rules 8(a) and 10, Fed. R. civ. Pro.,
and the Local Rules of the Court. Specifically, the
Court noted that the amended complaint must comply with
the requirement set out in Ashcroft v. Iqbal, 556 U.S.
662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007), that it contain sufficient facts (as
opposed to conclusory allegations or speculative
deductions) to show that plaintiff's right to relief is
plausible . . . .
Plaintiff timely filed his Amended Complaint
on May 30, 2013. ECF Doc. No. 7.
Plaintiff's Amended Complaint does not show
that plaintiff's right to relief is plausible and does
not state a claim upon which relief may be granted.
Specifically, the Amended Complaint does not, with
regard to [plaintiff's] claim under 42 U.S.C. § 1983,
identify any underlying Constitutional or federal law
right alleged to have been violated nor does it allege
facts sufficient to plausibly support a claim that any
such deprivation of federal rights as taken under color
of state law.
Mot. to Reconsider at 2, ~~ 2, 3, and 5.
On June 26, plaintiff filed a notice informing the court
that his term of duty in Afghanistan had expired. Plaintiff
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requested that the stay order be continued in effect until he has
been released from his duty to the United States and has returned
to Tarrant County permanently in 2014. By order signed June 27,
2013, the court lifted the stay of proceedings, and permitted the
parties to go forward with the litigation. 2
E. Defendants' Rule 12(b) (6) Motion to Dismiss
On June 27, 2013, defendants filed their Rule 12(b) (6)
motion to dismiss in the form of the proposed motion to dismiss
that was attached to the defendants' June 13 filing as an
exhibit. The grounds of the motion centered on plaintiff's
failure to comply with the pleading standards of Rule 8(a) of the
Federal Rules of Civil Procedure, as interpreted by the Supreme
Court in Ashcroft v. Igbal and Bell Atl. Corp. v. Twombly. Put
another way, defendants pointed out, in some detail, the reasons
why the conclusion must be reached that plaintiff ignored the
requirements of, and violated, the May 16 order requiring
plaintiff to replead.
F. Brief in Opposition
On July 18, 2013, plaintiff filed a "Brief in Opposition to
Defendants' Motion to Dismiss and in Support of Motion to Amend
'The court is including information concerning the stay of the proceedings in the interest of
completeness. Plaintiff has not suggested that his military service was a factor in his failure to comply
with the court's May 16 order or for the court to consider as to whether a dismissal should be ordered at
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In that document, plaintiff defined the issue to be
ruled upon as "[w]hether Plaintiff has sufficiently alleged
facts, or can allege facts supporting a plausible claim for
relief under 42 U.S.C. § 1983 against Defendants." Br. at 2. He
then proceeds with arguments, based in part on facts that are not
alleged in his complaint, that simply do not address the
inadequacies of the complaint under the Rule 8(a) standard, as
interpreted by the Supreme Court.
In other words, plaintiff does
not make a meaningful response to defendants' motion to dismiss,
nor does he provide any explanation as to why he failed to comply
with the directives of the May 16 replead order. The brief ends
with a "Conclusion" section that reads in its entirety as
The Plaintiff submits this Brief in Opposition to
Defendants' Motion to Dismiss to demonstrate to the
Court that he is able to amend his Complaint to comply
with the Federal Rules of Civil Procedure and state a
claim against the Defendants in either or both of their
official and individual capacity and seeks leave to do
Br. at 7-8.
Dismissal is Appropriate for Two Reasons
Plaintiff virtually admits in the conclusion of his brief
that he has not pleaded a cause of action. He, in effect, says
no more than that if given an opportunity to file an amended
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complaint, he would be able "to comply with the Federal Rules of
Civil Procedure and state a claim against the Defendants
Id. at 8. Considering plaintiff's concession, the court is not
devoting time to a greater explanation as to why defendants'
motion to dismiss has merit, and should be granted.
The second reason why a dismissal is appropriate is found in
Rule 41(b) of the Federal Rules of Civil Procedure, which, in
pertinent part, reads as follows:
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.
Fed. R. Civ. P. 41(b).
While the Rule authorizes such a dismissal upon motion of a
defendant, the Supreme Court in Link v. Wabash R.R. Co., 370 U.S.
626, 630-32 (1962), held that a motion is not required, and that
a dismissal authorized by the Rule can be made by the court
acting on its own initiative.
Plaintiff's conduct in failing to comply with the May 16
order was a flagrant disregard of this court's authority. Thus,
a dismissal for failure to properly prosecute the action would be
appropriate. The conduct of defendant and his counsel of trying
to disguise their failure to comply with the order by
restructuring the sentences of the first pleading into numbered
paragraphs, with one word change, in the amended pleading
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constitutes contumacious conduct on the part of plaintiff that
inevitably served to delay the proceedings and increase the cost
of defense to the defendants. An alternative basis for dismissal
of the action at this time is the dismissal authority contained
in Rule 41(b), which the court exercises. No lesser sanction
would adequately address plaintiff's failure to comply with the
directives of the May 16 order.
A Further Amended Pleading is Not Appropriate
On May 16, the court ordered plaintiff to file an amended
pleading in compliance with the federal pleading requirements.
He has not given any justification for his noncompliance.
Therefore, the court has no reason to give him a further pleading
Moreover, although his brief says that it is in support of a
motion to amend complaint, he has not filed such a motion. Other
than the introductory sentence of the brief stating that it is
being filed as a response in opposition to defendants' motion to
dismiss and in support of plaintiff's motion to file a second
amended complaint, no mention whatsoever is made in the brief of
an amended complaint before the feeble statement in the
conclusionary sentence on pages 7-8 that the brief is being
submitted "to demonstrate to the Court that [plaintiff] is able
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to amend his Complaint to comply with the Federal Rules of Civil
Procedure and state a claim against the Defendants."
Putting such a request for leave to amend in the
conclusionary sentence of plaintiff's brief does not begin to
comply with the rules of this court. While the rules of this
court authorize a document to contain more than one motion,
"[a]ny such document must clearly identify each included . .
in its title." Rule LR 5.l(c) of the Local civil
Rules of the U.S. Dist. Court for the N. Dist. of Tex.
Therefore, the "Conclusion" cannot be treated as a motion.
Moreover, even if the court were to treat the wording of the
conclusion as a motion for leave to amend, it nevertheless would
be ineffective because of noncompliance with Rule LR 15.l(a) of
the Local Civil Rules, which requires any motion for leave to
amend to be accompanied by the proposed amended complaint.
Obviously, if plaintiff was serious about this case, he would
have filed a proper motion for leave to amend, and would have
included with it his proposed amended complaint.
Rule 15(a) (2) of the Federal Rules of civil Procedure states
that a court "should freely give leave [to amend] where justice
so requires." Fed. R. Civ. P. 15(a) (2). The court concludes
that justice does not require allowing plaintiff to replead in
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For the reasons given above,
The court ORDERS that the above-captioned action be, and is
SIGNED July 30, 2013.