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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11722
Non-Argument Calendar
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D.C. Docket No. 0:14-cv-60270-WJZ
RAYMOND H. PIERSON, III,
Plaintiff-Appellant,
versus
BRUCE S. ROGOW, J.D.,
CYNTHIA GUNTHER,
BRUCE S. ROGOW, PA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 31, 2014)
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Before TJOFLAT, MARCUS, and BLACK, Circuit Judges.
PER CURIAM:
In Pierson v. Orlando Regional HealthcareSystems, Inc., 451 F. App’x 862
(11th Cir. 2012), Raymond H. Pierson, III, the appellant here, sued Orlando
Regional Healthcare Systems, Inc. (“ORHS”) and several physicians “alleging a
multitude of causes of action arising from the hospital’s investigation of
complaints regarding his emergency room usage lodged against Pierson by nurses,
technicians, and physicians at ORHS’s hospitals.” The District Court dismissed
some of the claims for failure to state a claim for relief and the remainder on
summary judgment, and we affirmed. Pierson, 451 F. App’x at 863–64.
On January 31, 2014, Pierson, proceeding pro se, filed a lawsuit against the
lawyers who represented him in that appeal, Bruce S. Rogow and Cynthia Gunther,
the appellees here, in the United States District Court for the Eastern District of
California, invoking that court’s diversity jurisdiction under 28 U.S.C. § 1332. His
complaint alleged that Rogow and Gunther had provided him with “grossly
deficient legal advocacy” in his prior appeal to this court and that such “negligence
and legal malpractice was a primary contributing cause to the failure of [that]
appeal.” Doc. 1, at 2. Pursuant to 28 U.S.C. § 1404(a), the District Court
transferred the case to the United States District Court for the Southern District of
Florida, the district in which Rogow and Gunther reside.
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On February 5, 2014, the District Court, acting sua sponte, dismissed the
case without prejudice on the ground that Pierson’s complaint “fail[ed] sufficiently
[to] allege the citizenship of any Party . . . in order for the Court to determine
whether it ha[d] jurisdiction over” the case. Doc. 7, at 3.
On February 25, 2014, Pierson, still proceeding pro se, filed (in the
dismissed case) a First Amended Complaint against Rogow and Gunther. Doc. 8.
On April 7, 2014, the District Court, again acting sua sponte, entered an order
dismissing the First Amended Complaint and directing the Clerk to strike it from
the record because the case had “not been reopened following its dismissal,” Doc.
9, at 1, and Pierson had not moved the court to reopen the case so that he could file
an amended complaint. Pierson appeals the ruling.
We vacate the District Court’s order and remand the case with the
instruction that the District Court treat Pierson’s First Amended Complaint as the
commencement of a brand new lawsuit on February 25, 2014. When the court
dismissed Pierson’s complaint on February 5, 2014, it “closed” the case, meaning
that the case no longer existed on the court’s docket. The First Amended
Complaint—which Pierson was at liberty to file because the earlier dismissal was
without prejudice—began a new case. As such, the case was not subject to
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dismissal on the ground (implicit in the April 7, 2014, order) that it was an attempt
to file, without leave of court, an amended complaint in the closed case. 1
VACATED and REMANDED, with instruction.
1
Since Pierson has initiated a new case, he will have to perfect service of process on the
defendants.
4