USCA11 Case: 22-12637 Document: 23-1 Date Filed: 04/21/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12637
Non-Argument Calendar
____________________
JAMES ERIC MCDONOUGH,
VANESSA MCDONOUGH,
Plaintiffs - Appellants,
versus
CITY OF HOMESTEAD, FLORIDA,
GEORGE GRETSAS,
HOMESTEAD CHIEF OF POLICE,
TOM MEAD,
RICKY RIVERA,
Defendants - Appellees.
____________________
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2 Opinion of the Court 22-12637
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-21538-KMM
____________________
Before JORDAN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
James and Vanessa McDonough appeal a district court’s
decision to dismiss their federal claims with prejudice, to refuse to
exercise supplemental jurisdiction over their state law claims, and
to deny their motion for reconsideration. We affirm. The posture
of the case—and our resolution—is almost identical to our earlier
decision in McDonough v. City of Homestead,
771 F. App’x 952
(11th Cir., May 7, 2019). Even putting aside any new concerns
about res judicata, the McDonoughs (again) impermissibly refused
to amend their shotgun pleadings after receiving adequate notice,
and did not properly argue on appeal why their other federal
counts stated a claim. Dismissal with prejudice was appropriate.
I.
Counsel for James and Vanessa McDonough filed the
complaint on appeal in April 2021, alleging seven counts against the
City of Homestead and four of its employees. Counts I and II (one
for each spouse) present § 1983 claims against all five defendants
(including Monell claims against the city), each premised on alleged
violations of First, Fourth, and Fourteenth Amendment rights.
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22-12637 Opinion of the Court 3
Counts III and IV (one for each spouse) allege violations of the
federal Drivers Privacy Protection Act. See
18 U.S.C. § 2721. The
last three counts assert state law claims.
The district court granted the defendants’ motions to
dismiss. By comparing the facts in this complaint to the
McDonoughs’ previously dismissed actions, it concluded that all
four federal claims were barred by res judicata. See, e.g.,
McDonough, 771 F. App’x at 953–54. Alternatively, it held that
Counts I and II were impermissible shotgun pleadings, and that
Counts III and IV failed to state a claim upon which relief could be
granted. The court then declined to exercise supplemental
jurisdiction to consider the state law claims.
Unlike the state law counts, the federal claims were
dismissed with prejudice. The court’s initial order did not explain
its reasoning for dismissing with prejudice, but did cite our 2019
unpublished opinion in McDonough. There, we dismissed another
of the McDonoughs’ complaints with prejudice on shotgun
pleading grounds after it had been refiled as a separate action. Id.
at 955–56. Here, the McDonoughs filed a motion for
reconsideration, asserting in part that the dismissal with prejudice
on shotgun pleading grounds was improper without an
opportunity to amend and notice of the pleading’s deficiencies.
The district court denied the motion. It discussed (as one of
several justifications) how the McDonoughs filed their April 2021
complaint in response to a court order in a separate district court
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case. There, in February 2021, the McDonoughs had banded
together with three other plaintiffs to assert six claims against the
same five defendants. That district court explained how
defendants moved to dismiss, alleging that the omnibus complaint
“is a shotgun pleading and fails to state a claim upon which relief
can be granted.” Plaintiffs did not respond to the motions. So the
court issued an order offering plaintiffs the “opportunity to cure
the purported pleading defects” by granting them leave to amend
or to sever. The McDonoughs opted for severance, filed the instant
complaint by the court-appointed severance deadline in April, and
were dismissed from the February action the next day.
They now appeal the district court’s dismissal with prejudice
of their April 2021 complaint, and its denial of reconsideration.
They are pursuing their appeal pro se.
II.
We review a district court’s application of res judicata de
novo. Griswold v. Cnty. of Hillsborough,
598 F.3d 1289, 1292 (11th
Cir. 2010). Dismissals for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6) are also reviewed de novo. Magluta v.
Samples,
375 F.3d 1269, 1273 (11th Cir. 2004). We review
dismissals on shotgun pleading grounds for abuse of discretion.
Vibe Micro, Inc. v. Shabanets,
878 F.3d 1291, 1294 (11th Cir. 2018).
Likewise, we consider a district court’s denial of a motion to
reconsider for abuse of discretion. Richardson v. Johnson,
598 F.3d
734, 740 (11th Cir. 2010).
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III.
On appeal, the McDonoughs mostly contest the district
court’s application of res judicata. But even if they (somehow)
succeeded in arguing that all four claims were not precluded, we
would still affirm.
There is no discussion in the McDonoughs’ initial appellate
brief about the alternate holding that, even if not precluded,
Counts III and IV failed to state a claim. They only contested that
point in their reply brief after the defendants discussed it. The
McDonoughs’ arguments came too late and are consequently
abandoned, so we affirm the dismissal of Counts III and IV. United
States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004).
And we agree with the district court that Counts I and II are
“classic” examples of shotgun pleadings. Most obviously, each
count asserts complaints against five defendants—one of whom is
a city and would be subject to Monell liability, unlike the other
§ 1983 claims asserted against the four individuals. We construe
complaints that do not separate “into a different count each cause
of action or claim for relief” as shotgun pleadings. Weiland v. Palm
Beach Cnty. Sheriff’s Off.,
792 F.3d 1313, 1323 (11th Cir. 2015).
Besides the fact that all defendants are lumped together, there is no
specificity as to who is responsible for certain acts or omissions.
See
id. at 1323 & n.14. Each count alleges First, Fourth, and
Fourteenth Amendment violations. And the counts vacillate
between holding “each” defendant responsible for the alleged
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constitutional violations, and claiming that only “some” of them
participated. Overall, the complaint is “replete with conclusory,
vague, and immaterial facts not obviously connected to any
particular cause of action.”
Id. at 1322; see also
id. at 1322 n.12.
Defendants are often left to guess which of them did what in the
McDonoughs’ eyes—which is the “unifying characteristic” of all
shotgun pleadings.
Id. at 1323. The district court rightfully
identified these counts as prohibited pleadings.
Our precedent states that when “a litigant files a shotgun
pleading, is represented by counsel, and fails to request leave to
amend, a district court must sua sponte give him one chance to
replead before dismissing his case with prejudice on non-merits
shotgun pleading grounds.” Vibe Micro,
878 F.3d at 1296. In its
repleading order, the district court “should explain how the
offending pleading violates the shotgun pleading rule so that the
party may properly avoid future shotgun pleadings.”
Id. Here, the
McDonoughs were represented by counsel, filed a shotgun
pleading, and did not request leave to amend before the dismissal.
But even though there is only one complaint on the docket before
us, the McDonoughs titled it the “AMENDED COMPLAINT”
because even they agreed that they had the requisite notice and
chance to replead.
We have encountered this same situation before. See
McDonough, 771 F. App’x at 955–56. There, we held that
“McDonough received notice of his complaint’s defects through
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the defendants’ motions to dismiss in McDonough I and
acknowledged those defects by failing to oppose defendants’
motions to dismiss in that case.” Id. at 956 (citing Jackson v. Bank
of Am., N.A.,
898 F.3d 1348, 1358–59 (11th Cir. 2018)). Thus “when
McDonough refiled his lawsuit, it was his second chance to file a
permissible, amended complaint.”
Id. So too here. And the slight
factual differences here actually cut against the McDonoughs—for
example, the repleading order in the February 2021 lawsuit
explicitly discusses shotgun pleadings, unlike the initial order we
addressed in our earlier unpublished opinion. 1
Id. at 953–54.
That unpublished case’s approach has firm roots in our
published precedent. In Jackson, we stated that the chance to
amend a complaint contemplated in Vibe Micro may “come in the
form of a dismissal without prejudice.” Jackson,
898 F.3d at 1358.
More broadly, we held that what matters is “function, not form:
the key is whether the plaintiff had fair notice of the defects and a
1 The only other noteworthy factual difference is that in our earlier 2019 case,
McDonough filed a motion for leave to amend his initial complaint, which
was granted. McDonough, 771 F. App’x at 953. But that fact is legally
irrelevant. McDonough never actually amended his complaint, leading to a
dismissal without prejudice (with no mention of shotgun pleading concerns).
Id. at 953–54. McDonough then filed a second separate complaint, which was
dismissed on shotgun pleading grounds. Id. at 954. It was the opportunity to
file that second complaint—coupled with the notice about shotgun pleading
concerns from the defendants’ motions-to-dismiss in the initial action—that
supplied the requisite notice and chance to amend contemplated in Vibe
Micro. All of that is present in the case before us today.
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meaningful chance to fix them. If that chance is afforded and the
plaintiff fails to remedy the defects, the district court does not abuse
its discretion in dismissing the case with prejudice.” Id. It does not
matter whether the severance order in the initial action was
stylized as a dismissal without prejudice or not—what matters
under Jackson is that it enabled the McDonoughs to refile. And
when plaintiffs “did not oppose Defendants’ motions” raising
shotgun pleading concerns, “their failure to oppose operated as an
acknowledgement of these defects.” Id.
As in Jackson and our 2019 case involving McDonough, no
further notice or explanation from either district court was
required for a dismissal with prejudice to be proper. Because the
McDonoughs had an opportunity to amend and were on notice
about shotgun pleading concerns—and nevertheless chose to refile
defective claims in the complaint under review—we affirm its
dismissal with prejudice.
When all federal claims are dismissed prior to trial, we have
“encouraged” district courts to dismiss state law claims rather than
exercise supplemental jurisdiction. Raney v. Allstate Ins. Co.,
370
F.3d 1086, 1089 (11th Cir. 2004). The district court did not err by
dismissing the McDonoughs’ three remaining state law claims
here. Nor did it abuse its discretion in denying reconsideration
given the lack of any newly discovered evidence or manifest errors
of law or fact. Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007).
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* * *
We AFFIRM the district court’s dismissal of the
McDonoughs’ federal claims with prejudice, and its decision not to
exercise supplemental jurisdiction over the state law claims.
