Danette Marshall v. Aryan Unlimited Staffing Solution/Faneuil Inc/Mac Andrews Holding

Case: 13-14538 Date Filed: 01/14/2015 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 13-14538
Non-Argument Calendar
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D.C. Docket No. 9:12-cv-81404-DTKH

DANETTE MARSHALL,

Plaintiff-Appellant,

versus

ARYAN UNLIMITED STAFFING SOLUTION/FANEUIL INC/
MAC ANDREWS HOLDING,
FANEUIL INC/MAC ANDREWS & FORBS HOLDING,
D&D ARY ENTERPRISES INC, CORP,
Sabrina Ary as President and Agent,
HARLAND CLARKE HOLDINGS CORP,

Defendants-Appellees,

AMS STAFF LEASING/COMPANION
PROPERTY AND CASUALTY EMPLOYER,

Defendant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 14, 2015)
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Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:

Danette Marshall appeals from the district court’s dismissal with prejudice

of her sixth amended complaint and from the denial of her motion to file a seventh

amended complaint in an employment discrimination action brought under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,

and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. After

defendants Faneuil, Inc., MacAndrews & Forbes Holdings, Inc., and Harland

Clarke Holdings Corporation moved to dismiss, the district court dismissed with

prejudice her complaint against all defendants, citing Marshall’s repeated failure,

after multiple warnings, to file a complaint that complied with procedural rules and

the court’s orders cautioning against shotgun pleadings. The court also noted that,

while Marshall referred to right-to-sue letters from the Equal Employment

Opportunity Commission in the section of her complaint entitled “Exhaustion of

Administrative Remedies,” she did not include copies of those letters in the

20 pages of exhibits attached to her complaint.

On appeal, Marshall argues that she sufficiently alleged exhaustion of her

administrative remedies, that her complaint would not have been subject to

dismissal if the court had granted her leave to file a seventh amended complaint

severing her claims against non-moving defendants, and that the court overlooked

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information in her complaint that would have shown she stated claims against the

defendants.

Upon a thorough review of the record, and after consideration of the parties’

briefs, we affirm.

We review for an abuse of discretion a district court’s exercise of its

authority to dismiss an action under Federal Rule of Civil Procedure 41(b) for

failure to comply with court orders or federal rules. Goforth v. Owens, 766 F.2d

1533, 1535 (11th Cir. 1985). Dismissal with prejudice “is considered a sanction of

last resort, applicable only in extreme circumstances,” where there is a “clear

record of delay or willful contempt and a finding that lesser sanctions would not

suffice.” Id. (citations omitted). We have “repeatedly held that an issue not raised

in the district court and raised for the first time in an appeal will not be considered

by this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th

Cir. 2004) (quotations and citation omitted).

Under Federal Rule of Civil Procedure 8(a)(2), a complaint “must

contain . . . a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2)’s purpose is to “give the

defendant fair notice of what the claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d

929 (2007) (citation and ellipsis omitted). Therefore, a complaint’s “[f]actual

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allegations must be enough to raise a right to relief above the speculative level.”

Id., 127 S.Ct. at 1965. Further, the allegations in the complaint “must be simple,

concise, and direct.” Fed.R.Civ.P. 8(d)(1). Federal Rule of Civil Procedure 10

provides that the complaint also must “state its claims . . . in numbered paragraphs,

each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P.

10(b).

In contrast, a “shotgun pleading” is one in which “it is virtually impossible

to know which allegations of fact are intended to support which claim(s) for

relief.” Anderson v. Dist. Bd. of Trs. of Ctr. Fla. Cmty. Coll., 77 F.3d 364, 366

(11th Cir. 1996). We have repeatedly condemned shotgun pleadings. See, e.g.,

PVC Windoors, Inc. v. Babbitbay Beach Constr. N.V., 598 F.3d 802, 806 n.4 (11th

Cir. 2010); Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54

(11th Cir. 2008).

Where a more carefully drafted complaint might state a claim, a pro se

plaintiff “must be given at least one chance to amend the complaint before the

district court dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d

1161, 1163 (11th Cir. 2001) (citation omitted). A district court, however, is not

required to permit amendment if, inter alia, “there has been . . . repeated failure to

cure deficiencies by amendments previously allowed” or “amendment would be

futile.” Id.

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The district court “may properly on its own motion dismiss an action as to

defendants who would have not moved to dismiss where such defendants are in a

position similar to that of moving defendants or where claims against such

defendants are integrally related.” Loman Dev. Co., Inc. v. Daytona Hotel & Motel

Suppliers, Inc., 817 F.2d 1533, 1537 (11th Cir. 1987) (citation omitted).

The district court did not abuse its discretion in dismissing with prejudice

Marshall’s sixth amended complaint. Her complaint did not make a short and

plain statement of her claims; instead, it was a shotgun pleading that made it

impossible to know which allegations of fact were intended to support which

claims of relief. Although the district court provided Marshall with numerous

opportunities to file an amended complaint that complied with the court’s orders

and basic procedural rules, Marshall failed to cure the deficiencies in her

complaint, despite the court’s warnings that such a failure would result in dismissal

with prejudice.

Additionally, allowing Marshall another opportunity to amend her complaint

would have been futile because her proposed seventh amended complaint would

not have cured the deficiencies in her sixth amended complaint, but would have

added only an additional demand for vicarious, joint, direct, and several liability.

Accordingly, we affirm.

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AFFIRMED. 1

1
We DENY Marshall’s motion to file a reply brief with excess words and DENY AS
MOOT the Appellees’ motion to strike Marshall’s proposed reply brief.
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