Morris v. S. Intermodal Xpress, LLC
| Decision Date | 09 June 2020 |
| Docket Number | CIVIL ACTION NO. 20-00126-KD-B |
| Parties | DAVID MORRIS, Plaintiff, v. SOUTHERN INTERMODAL XPRESS, LLC, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
This case is before the Court on Defendant Southern Intermodal Xpress, LLC's motion to dismiss (Doc. 2), Plaintiff David Morris's response, which the Court construes as a motion to remand (Doc. 6), and Defendant's reply (Doc. 7). The motions, which are ripe for resolution, have been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). Upon consideration of all matters presented, the undersigned RECOMMENDS, for the reasons stated herein, that Plaintiff's motion to remand be DENIED, that Defendant's motion to dismiss be DENIED without prejudice, and that Plaintiff be afforded an opportunity to amend his complaint.
On December 16, 2019, Plaintiff David Morris ("Morris"), proceeding pro se, filed the instant lawsuit in the Circuit Court of Mobile County, Alabama. (Doc. 1-1 at 6-15). Morris's complaint lists as defendants Southern Intermodal Xpress, LLC ("SIX") and ten fictitious parties, A, B, C, D, E, F, G, H, I, and K, "to be added as discovery warrant[s]." (Id. at 6, 9, 12). Morris utilizes a form "EEOC Complaint" and attaches thereto another form civil rights complaint that he labels "Add Complaint", along with an EEOC right-to-sue notice. (See id. at 6-15).
Morris's EEOC Complaint states: (Id. at 6, 9). Morris checks a box stating that the acts complained of in his lawsuit concern the termination of his employment. (Id.). Morris further alleges that he was discharged after being employed by SIX for "[m]any years." (Id. at 7, 10). Morris also checks boxes indicating that "Defendant(s)' conduct is discriminatory with respect to" his race, sex, and age. (Id.).
In response to a question on the EEOC Complaint form seeking the name, race, sex, and position or title of each individual who allegedly discriminated against him during his employment with SIX, Morris states: (Id.). When asked to describe "the manner in which the individual(s) named abovediscriminated against [him] in terms of the conditions of [his] employment," Morris states, in an apparent reference to the attached "Add Complaint": (Id.).
On the "Add Complaint", when instructed to "[s]tate the facts on which you base your allegation that your constitutional rights have been violated," Morris avers:
Defendants are all white persons and defendants conduct towards plaintiff was extreme and outrageous. Defendants acts caused plaintiff severe emotional distress. Defendants breached an oral insurance contract. Plaintiff asserte [sic] race discrimination based on unequal pay, hostile work environment, retaliation. Also, fraud practiced against plaintiff by defendants. Defendants practiced age discrimination against plaintiff. Plaintiff is a member if a procted [sic] class; plaintiff was subjected to an adverse employment action; the employer treated similarly situated employees who were not members of the plaintiff class [sic] more favorably; and plaintiff was qualified for the job and benefit at issue. Plaintiff was terminated and plaintiff did not receive insurance benefits.
(Id. at 12). Morris seeks recovery of back pay, reinstatement to his former job, and "any other relief that may be appropriate, including injunctive orders, damages, costs, and attorneys fees." (Id. at 8, 11).
SIX was served with Morris's lawsuit on February 13, 2020. (Id. at 30-32). On March 3, 2020, SIX removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. (Doc. 1). A day later, SIX filed the instant motion to dismiss Morris'scomplaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 2). In its motion, SIX asserts that Morris's complaint fails to state a claim upon which relief can be granted because it contains only conclusory allegations and is devoid of supporting facts. (Id. at 1, 4-6). SIX further asserts that Morris's fraud claim fails because Morris did not plead it with particularity as required by Federal Rule of Civil Procedure 9(b). (Id. at 1, 5).
The Court ordered Morris to file a response to SIX's motion to dismiss on or before March 24, 2020. (Doc. 3). On March 24, 2020, Morris filed a sworn and notarized handwritten document that states, in relevant part:
I.
The fully name Defendant(s)/A-K are in default of Plaintiff civil action complaint. Plaintiff moves this Honorable Court for default judgment on state and federal law claims asserted by the Plaintiff.
II.
Defendants/A-K has failed to serve adverse Plaintiff with any pleading which may or may not appear of record before the above described Courts.
III.
(Doc. 4 at 1-2). In light of Morris's assertion, which SIX vehemently denies,1 that he was not provided with a copy of the documents SIX filed with this Court, the undersigned, out of an abundance of caution, directed the Clerk of Court to send Morris a copy of SIX's motion to dismiss and extended the deadline for Morris to respond to the motion to April 30, 2020. (Doc. 5).
On April 30, 2020, Morris filed another sworn and notarized handwritten document entitled "David Morris Affidavit/Special-Limited Appearance for Cause". (Doc. 6). Morris's most recent filing makes no mention of SIX or its pending motion to dismiss; instead, he lists only fictitious party defendants in the caption and body. (See id.). In the affidavit, Morris states that he "does not agree that this Court has jurisdiction over David Morris cause of action against A.; B.; C.; and D.; E.; F.; and G.; H.; I.; and J.; K.; et. al." (Id. at 3). Morris also "adopts" his March 24, 2020 filing and declares "his determination" to pursue "his entire cause of action in select court." (Id. at 2-3).
On May 15, 2020, SIX filed a reply to Morris's filing. (Doc. 7). In its reply, SIX asserts that the Court should construe Morris's "Affidavit/Special-Limited Appearance for Cause" as amotion to remand, and that the Court should deny Morris's request for remand as untimely and without merit. (Id. at 1). SIX also points out that Morris failed to address any of the arguments in its motion to dismiss and contends that the Court should therefore grant its motion and dismiss Morris's complaint. (Id.).
As a preliminary matter, the undersigned observes that when considering a pro se litigant's filings, a court gives them a liberal construction, holding them to a less stringent standard than those drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have "license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Furthermore, a pro se litigant "is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure." Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
In light of the foregoing, Morris's filing (Doc. 6) is being construed as a motion to remand. Both SIX's motion to dismiss (Doc. 2) and Morris's motion to remand (Doc. 6) are ripe for resolution.
Any civil action brought in a State court over which the district court would have original jurisdiction may be removed by the defendant to the district court for the district in which the action is pending. 28 U.S.C. § 1441(a). Under 28 U.S.C. § 1331, federal district courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. To determine whether original jurisdiction exists under 28 U.S.C. § 1331, "a court must look to the well-pleaded complaint alone." Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1295 (11th Cir. 2008). Thus, the removing defendant must show that the plaintiff's complaint, "as it existed at the time of removal, provides an adequate basis for the exercise of federal jurisdiction." Id. "If a complaint sets forth multiple causes of action, and '[one cause of action] comes within the original jurisdiction of the federal courts, [then] removal was proper as to the whole case.'" Furlowe v. W. Fraser, Inc., 2011 U.S. Dist. LEXIS 43486, at *4, 2011 WL 1540153, at *1 (S.D. Ala. Apr. 5, 2011) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983)), report and recommendation adopted, 2011 U.S. Dist. LEXIS 43542, 2011 WL 1539973 (S.D. Ala. Apr. 21, 2011); see 28 U.S.C. § 1441(c).
On a motion to remand, the "removing defendant bears the burden of proving proper federal jurisdiction." Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). Removal statutes are construed narrowly, and any uncertainties about the propriety of federal jurisdiction are resolved in favor of remand to state court. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
In addition, 28 U.S.C. § 1447(c) provides, in relevant part, that:
A motion to remand the case on the basis of any defect other than lack of subject matter...
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