Andrew P. Moore, II v. John E. Potter , 141 F. App'x 803 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 08, 2005
No. 04-15079
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00286-CV-J-25-HTS
ANDREW P. MOORE, II, an individual,
Plaintiff-Appellant,
versus
JOHN E. POTTER, and successors, officially,
MARSHA HARRISON, individually, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2005)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Andrew P. Moore, II, proceeding pro se, appeals the district court’s order
granting the defendants’ motions to dismiss his second amended complaint. A
U.S. Postal Service employee, Moore has alleged that appellees engaged in a litany
of criminal acts, conspiracies and violations of his constitutional rights, all arising
out of a workers’ compensation dispute. Moore also appeals various discovery
orders and the district court’s denial of his Rule 60(b) motion. Because we find
Moore’s arguments without merit, we affirm the district court.
I. Dismissal of Complaint for Failure to State a Claim
Moore argues that the district court erred in dismissing his complaint. His
seven-count, second amended complaint alleged: (1) violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.,
(Counts One and Two); (2) a claim for false light invasion of privacy, (Count
Three); (3) a Bivens action for violations of his rights under the First, Fifth, and
Ninth Amendments, (Count Four); (4) conspiracy to obstruct justice, in violation of
42 U.S.C. § 1985(2), (Count Five); (5) neglect to prevent the conspiracy alleged in
Count Five, in violation of 42 U.S.C. § 1986, (Count Six); and (6) aiding and
abetting and vicarious liability (Count Seven).
We review de novo the district court’s dismissal of a complaint for failure to
state a claim, accepting the complaint’s allegations as true, and construing them in
the light most favorable to the plaintiff. Spain v. Brown & Williamson Tobacco
Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). “[A] complaint should not be
2
dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, the
complaint must meet minimal pleading requirements, and “unsupported
conclusions of law or of mixed fact and law have long been recognized not to
prevent a Rule 12(b)(6) dismissal.” Marsh v. Butler County, Ala., 268 F.3d 1014,
1036 n.16 (11th Cir. 2001) (en banc).
A. Counts One and Two: RICO Act
The RICO Act provides a private civil remedy to recover treble damages to
“[a]ny person injured in his business or property by reason of a violation” of the
substantive provisions contained in § 1962 of the RICO Act. 18 U.S.C. § 1964(c).
“The four elements of civil RICO liability are (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.” Langford v. Rite Aid of Ala.,
Inc., 231 F.3d 1308, 1311 (11th Cir. 2000). While a civil RICO plaintiff must
show that the racketeering activity caused him to suffer an injury, see 18 U.S.C.
§ 1964(c), a claim stemming from “personal injury, or pecuniary losses resulting
from personal injury” is “not cognizable under RICO.” Pilkington v. United
Airlines, 112 F.3d 1532, 1536 (11th Cir. 1997); see also Grogan v. Platt, 835 F.2d
844, 847 (11th Cir. 1988) (“In our view, the ordinary meaning of the phrase
3
‘injured in his business or property’ excludes personal injuries, including the
pecuniary losses therefrom.”). Furthermore, we have held that plaintiffs “cannot
recover under RICO for those pecuniary losses that are most properly understood
as part of a personal injury claim.” Grogan, 835 F.2d at 848.
B. Count Three: False Light Invasion of Privacy
Florida law recognizes a claim for false light invasion of privacy under the
tort of invasion of privacy. See Agency for Health Care Admin. v. Associated
Indus. of Fla., Inc., 678 So.2d 1239, 1252 n.20 (Fla. 1996) (identifying “false light
in the public eye – publication of facts which place a person in a false light even
though the facts themselves may not be defamatory,” as one of the “four types of
wrongful conduct” that can be remedied by an action for invasion of privacy). A
person will be held liable for false light invasion of privacy if “(a) the false light in
which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.”
See Restatement (Second) of Torts § 652E. Under Florida law this “ tort of
invasion of privacy must be accompanied by publication to the public in general or
to a large number of persons.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d
1311, 1315 (11th Cir. 1989).
4
C. Count Four: Bivens claim
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, the
Supreme Court provided for the possibility of a cause of action for monetary
damages against federal officials in their individual capacities for a violation of a
federal constitutional right. 403 U.S. 388, 395-97 (1971). However, the Supreme
Court has held that a federal employee cannot maintain a cause of action against
his supervisor for violations of his First Amendment rights, noting that the Civil
Service Reform Act (CSRA) established a remedy for federal employees’
employment-related constitutional claims. Bush v. Lucas, 462 U.S. 367, 385-90,
(1983); see also Wells v. Federal Aviation Administration, 755 F.2d 804, 809-10
(11th Cir.1985) (applying same analysis in the context of a Fifth Amendment due
process challenge); Stephens v. Dep’t of Health and Human Servs., 901 F.2d 1571,
1577 (11th Cir. 1990) (stating that “this court has recognized that the
comprehensive statutory scheme established by Congress relating to federal
employment (CSRA) precludes the maintenance of job-related Bivens actions by
federal employees.”).
D. Counts Five and Six: Conspiracy to Obstruct Justice
In relevant part, 42 U.S.C. § 1985(2) makes it a violation if
two or more persons in any State or Territory conspire to deter, by
force, intimidation, or threat, any party or witness in any court of the
5
United States from attending such court, or from testifying to any
matter pending therein, freely, fully, and truthfully, or to injure such
party or witness in his person or property on account of his having so
attended or testified . . . .
42 U.S.C. § 1985(2). Section 1986 provides, in relevant part,
Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be liable to the party
injured . . . .
42 U.S.C. § 1986.
The elements of a conspiracy claim under § 1985(2) are: (1) a conspiracy;
(2) to deter a witness by force, intimidation, or threat from attending or testifying
before a United States court; (3) that results in injury to the plaintiff. Morast v.
Lance, 807 F.2d 926, 929-30 (11th Cir. 1987). “[A] § 1986 action is predicated on
a successful conspiracy action under § 1985.” Id. at 930.
E. Count Seven: Vicarious Liability
Under Florida law, “vicarious liability involves the imposition of liability on
one person for the actionable conduct of another, based solely on a relationship
between the two persons.” National R.R. Passenger Corp. v. Rountree Transport
and Rigging, Inc., 286 F.3d 1233, 1262 (11th Cir. 2002) (quotation omitted).
F. Moore’s Claims
6
Upon review of the entire record, including Moore’s second amended
complaint, the defendants’ motions to dismiss, and the parties’ briefs, we hold that
the district court did not err in dismissing the complaint pursuant to Fed .R. Civ. P.
12(b)(6) for failure to state a claim. Throughout his complaint, Moore failed to
allege facts remotely sufficient to support the necessary elements, outlined above,
for any of his claims. Accordingly, we affirm the district court’s order granting the
defendants’ motions to dismiss Moore’s second amended complaint.
II. Discovery Orders
Moore argues that (1) the magistrate judge erred when he granted the
defendants’ joint motion for an enlargement of time to respond to discovery;
(2) the magistrate erred when he denied Moore’s motion for a protective order
covering his wife’s deposition; (3) the district court erred when it granted the
defendants’ motion for a stay of discovery; and (4) the district court erred when it
struck his motion for summary judgment.
We review “the district court’s discovery rulings . . . for an abuse of
discretion.” Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir.
2004). In general, district courts have “broad discretion in deciding how best to
manage the cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d
1353, 1366 (11th Cir. 1997).
7
A. Enlargement of Time to Respond to Discovery
Pursuant to Fed. R. Civ. P. 6(b), the district court, “for cause shown,” may in
its discretion order an extension of time to comply with a required act if a request
“is made before the expiration of the period originally prescribed.” We accord the
district court “broad discretion” over pre-trial matters such as discovery and
scheduling. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269
(11th Cir. 2001).
B. Protective Order
Upon motion by a party, and for good cause shown, a district court can limit
discovery and “make any order which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense . . . .”
Fed. R. Civ. P. 26(c).
C. Stay of Discovery and Proceedings
As the district court noted, we have instructed that:
Facial challenges to the legal sufficiency of a claim or defense, such
as a motion to dismiss based on failure to state a claim for relief,
should . . . be resolved before discovery begins. Such a dispute
always presents a purely legal question; there are no issues of fact
because the allegations contained in the pleading are presumed to be
true. Therefore, neither the parties nor the court have any need for
discovery before the court rules on the motion.
Chudasama, 123 F.3d at 1367 (footnote and citation omitted). We further
8
explained that delaying a ruling on the motion to dismiss “encourages abusive
discovery and, if the court ultimately dismisses the claim, imposes unnecessary
costs,” and advised that “any legally unsupported claim that would unduly enlarge
the scope of discovery should be eliminated before the discovery stage, if
possible.” Id. at 1368 (footnote omitted).
D. Moore’s Arguments
After the district court imposed a stay on discovery and all other proceedings
pending the resolution of the motions to dismiss, Moore filed a motion for
summary judgment. Thereafter, the district court struck Moore’s motion for
summary judgment, as it was filed in violation of the stay. We find no error in the
district court’s imposition of a stay, nor in its order to strike Moore’s summary
judgment motion.
Moreover, upon review of the record and the relevant discovery-related
orders to which Moore objects, we hold that neither the magistrate nor the district
court erred. First, since the district court properly dismissed the complaint under
Fed. R. Civ. P. 12(b)(6), its discovery rulings are moot. Second, applying the
standards discussed above, the district court did not abuse its broad discretion.
Accordingly, we affirm as to all of its orders.
III. Motion for Relief from Judgment
9
We review “the district court’s order denying relief under Rule 60(b) for
abuse of discretion.” Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300,
1309 (11th Cir. 2003). We have explained:
To obtain relief from a final judgment based upon fraud under Rule
60(b)(3), the moving party must prove by clear and convincing
evidence that the adverse party obtained the verdict through fraud,
misrepresentations, or other misconduct. The moving party must also
demonstrate that the conduct prevented them from fully presenting his
case.
Id. (citations omitted).
Moore’s allegations of fraud are without merit, and are far from clear and
convincing evidence that the judgment against Moore was obtained by fraud. See
Waddell, 329 F.3d at 1309. Moreover, Moore did not show that he was prevented
from fully presenting his case. See id. Accordingly, we hold that the district court
did not err in denying Moore’s motion to reopen, or in terminating his motion for
relief from judgment, and affirm.
IV. Conclusion
Based on the foregoing, we affirm the district court’s dismissal of Moore’s
complaint as well as its related discovery and post-judgment relief orders.
AFFIRMED.
10