Shibley v. Nat'l Bank of Commerce (In re Shibley)

• Decision Date: 03 February 2022
• Docket Number: 18-68584-LRC,Adversary Proceeding 19-05229-LRC
• Parties: IN THE MATTER OF: JON MICHAEL HAYES SHIBLEY, Debtor. v. NATIONAL BANK OF COMMERCE, DBA, PRIVATE BANK OF BUCKHEAD, DANIEL R. SMITH, PRIVATE PLUS MORTGAGE, JONES AND WALDEN PC LESLIE PINEYRO, Defendants. JON MICHAEL HAYES SHIBLEY, Plaintiff/Debtor,
• Court: U.S. Bankruptcy Court — Northern District of Georgia

IN THE MATTER OF: JON MICHAEL HAYES SHIBLEY, Debtor.

JON MICHAEL HAYES SHIBLEY, Plaintiff/Debtor, v. NATIONAL BANK OF COMMERCE, DBA, PRIVATE BANK OF BUCKHEAD, DANIEL R. SMITH, PRIVATE PLUS MORTGAGE, JONES AND WALDEN PC LESLIE PINEYRO, Defendants.

No. 18-68584-LRC

Adversary Proceeding No. 19-05229-LRC

United States Bankruptcy Court, N.D. Georgia, Atlanta Division

February 3, 2022

IN PROCEEDINGS UNDER CHAPTER 7 OF THE BANKRUPTCY CODE

Jon Michael Hayes Shibley

Aaron R. Anglin

Jones & Walden, LLC

Aleksas A. Barauskas

Akerman LLP

Leslie M. Pineyro

Jones and Walden,

Evan M. Altman

Evan M. Altman, Attorney at Law

Cameron M. McCord

Jones & Walden, LLC

William Russell Patterson, Jr.

Ragsdale Beals Seigler Patterson & Gray

ORDER

Lisa Ritchey Craig, U.S. Bankruptcy Court Judge.

Before the Court is the Motion for Plaintiff's Right to Seek Leave to AmendComplaint Pursuant to Court Order(Doc. 73)(the "Motion").The Motion seeks leave to amend a complaint(the "Complaint") filed by John Michael Hayes Shibley("Plaintiff") against National Bank of Commerce ("NBC") d/b/a Private Bank of Buckhead, Daniel Smith("Smith"), Jones & Walden PC ("JW"), Leslie Pineyro("Pineyro"), and Private Plus Mortgage seeking a declaration regarding the validity of a deed to secure debt (the "DSD") on his residence, 770 and 780 Clubside Drive, Roswell, Georgia (the "Property"), and damages for fraud (the "Complaint") arising from attempts to enforce the DSD, including the filing of a motion for relief from the automatic stay in the related bankruptcy case (the "Motion for Relief").SeeBankruptcyCase No. 18-68584(the "Bankruptcy Case"), Doc. 194, as supplemented byDoc. 200.("B&S").The proposed amended complaint (the "PAC") appears to attempt to restate a claim for damages under multiple legal theories against the existing defendants and a new defendant, attorney Leon Jones("Jones").

Defendants Smith, South State Bank, N.A., as successor by merger to CenterState Bank, N.A., as successor by merger to NBC ("SSB"), Pineyro, JW, and Jones oppose the Motion, and Defendants SSB, Pineyro, JW, and Jones have additionally moved for the dismissal of the PAC.See Docs. 77, 78.89.The Court has also considered Plaintiff's Response, in Opposition to Defendants' Motion to Dismiss Amended Complaint(Doc. 87)."Essentially, Plaintiff seeks leave to demand that the Court(and Defendants) sift through [his 236]-page complaint to determine which facts apply to which claims and which claims are alleged against which defendant. . . .The Court is not required to undertake this task.To do so would be to condone a shotgun pleading, which the Eleventh Circuit has instructed District Courts not to do."Mack v. Delta Air Lines, Inc., 2014 WL 12629940, at *11(N.D.Ga.Jan. 16, 2014), report and recommendation adopted sub nom. Mack v. Mack, 2014 WL 12633521(N.D.Ga.May 14, 2014).The PAC "is an impermissible shotgun pleading," and, even if it were not, it fails to state a claim for damages and, therefore, the Court will not grant leave to amend the Complaint.

I.Rule 15

As Plaintiff's right to amend the Complaint as a matter of course has expired, seeFed. R. Civ. P. 15(a)(1), Plaintiff may amend the Complaint only with Defendants' consent or with leave of the Court, which, "Federal Rule of Civil Procedure 15(a) dictates . . . shall be freely given 'when justice so requires.'"Foster v. DeLuca, 545 F.3d 582, 583-84(7^th Cir.2008)."When adding parties, motions for leave to amend under Rule 15 are simultaneously governed by Rule 20(a)."Stenzel v. Equifax Info. Servs., LLC, 2020 WL 60156, at *2(M.D. Fla.Jan. 6, 2020)."A plaintiff may join unrelated claims and various defendants in one action if the claims arise 'out of the same transaction, occurrence, or series of transactions or occurrences,' and 'any question of law or fact common to all defendants will arise in the action.'"Id.(citingFed.R.Civ.P. 20(a)(2)).

"A motion for leave to amend may be denied '(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment would be futile.'"Id. at *1(citingIn re Engle Cases, 767 F.3d 1082(11th Cir.2014));see alsoRosen v. TRW, Inc., 979 F.2d 191, 194(11th Cir.1992).However, the Court properly denies a motion for leave to file an amended complaint"where the new claims asserted would be subject to dismissal as a matter of law."Hall v. United Ins. Co. of America,367 F.3d 1255, 1263(11th Cir.2004)(citingBurger King Corp. v. Weaver, 169 F.3d 1310, 1320(11th Cir.1999));see alsoHalliburton & Assocs., Inc. v. Henderson, Few & Co.,774 F.2d 441, 444(11th Cir.1985)("If a complaint as amended is still subject to dismissal, leave to amend need not be given.");No Straw, LLC v. Stout St. Funding, LLC, 2013 WL 2951064, at *7(N.D.Ga.June 14, 2013) ("Since 'justice does not require district courts to waste their time on hopeless cases, leave may be denied if a proposed amendment fails to correct the deficiencies in the original complaint or otherwise fails to state a claim.'"(quotingMizzaro v. Home Depot, Inc., 544 F.3d 1230, 1255(11th Cir.2008));Deverze v. McCalla Raymer, LLC, 2017 WL 9963558, at *12(N.D.Ga.Apr. 24, 2017), report and recommendation adopted, 2017 WL 9963556(N.D.Ga.Sept. 5, 2017)("The denial of leave to amend is justified 'when the [amended] complaint is still subject to dismissal, '. . . and 'leave may be denied if a proposed amendment fails to correct the deficiencies in the original complaint or otherwise fails to state a claim.'")."Courts also deny leave to amend when granting the motion would cause significant added expense and burden on the non-moving party."Bailey v. City of Douglasville,2014 WL 12634308, at *4(N.D.Ga.Feb. 14, 2014), report and recommendation adopted, No. 1:13-CV-0941-RWS, 2014 WL 12634932(N.D.Ga.Mar. 6, 2014).

In considering the Motion, the Court recognizes that "'[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and are liberally construed.'"Cornelius v. Bank of Am., NA,585 Fed.Appx. 996, 999(11th Cir.2014)(quotingBingham v. Thomas, 654 F.3d 1171, 1175(11th Cir.2011))."Liberal construction, however, does not mean that a pro se plaintiff can file an impermissible shotgun pleading."Stenzel v. Equifax Info. Servs., LLC, 2020 WL 60156, at *1(M.D. Fla.Jan. 6, 2020).The Eleventh Circuit Court of Appeals has defined a "shotgun pleading" as one that fails, "to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests."Weiland v. Palm Beach Cty. Sheriff's Off., 792 F.3d 1313, 1323(11th Cir.2015).Examples given include complaints that contain "multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint"; complaints that are "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action"; complaints that do not separate "into a different count each cause of action or claim for relief;" and complaints that assert "multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against."Id. at 1321-23.In short, such complaints "require the court to sift through the allegations in an attempt to separate the meritorious claims from the unmeritorious, resulting in a 'massive waste of judicial and private resources.'"Jones v. Washington Mut. Bank, 2011 WL 5041163, at *2(N.D.Ga.Oct. 21, 2011).

While the PAC may not specifically align with any one of the four identified forms of "shotgun" pleadings, it is "intolerably confusing."Schaeffer v Bevil, 2021 WL 5826394, at *2(M.D. Fla.Dec. 8, 2021).For example, the PAC contains numerous "judicial notes," whose purpose is unexplained.It provides a "Legal Note" that states, impossibly, that "Shibley's ch 7 is in violation of the contract between Plaintiff and Shibley."At the same time, it contains too much and too little.The "Facts"sections of the PAC are "rife with legal conclusions,"Khader v. Nationstar Mortg., LLC,2012 WL 12871809, at *6(N.D.Ga.Dec. 28, 2012), report and recommendation adopted, 2013 WL 12109461(N.D.Ga.Jan. 18, 2013)."The counts are . . .duplicative and overlapping."Allen-Armbrister v. Colonial Pipeline Co., 2018 WL 11260469, at *3(N.D.Ga.June 15, 2018).It includes citations to and quotations from case law and treatises, repetitive, lengthy sections of "legal argument," and explanations of what evidence Plaintiff will rely upon to prove his allegations.Additionally, multiple "cut and paste errors" have resulted in the inclusion of extraneous, misplaced text and the repetition of huge swaths of the document.Neither the pages nor the paragraphs are numbered, thus failing to provide any means by which the Defendants or the Court could identify or refer to specific allegations, and the exhibits attached are not consistently numbered.In short, "Defendants cannot be expected to frame a responsive pleading."Hayes v. Bank of New York Mellon,2014 WL 3887922, at *8(N.D.Ga.Aug. 6, 2014), aff'd, 592 Fed.Appx. 891(11th Cir.2015).Contrary to Plaintiff's position, the PAC has more issues than just "bad formatting."Justice does not require the Court to spend the exorbitant amount of time that would be required to decipher the PAC, and the Court cannot in good conscience...