USCA11 Case: 19-12585 Date Filed: 04/20/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12585
Non-Argument Calendar
____________________
ELISHA GILBERT, JR.,
Trustee; Under Agreement with Elisha Gilbert,
Jr., Trust,
Plaintiff-Appellant,
versus
CITY OF PINE LAKE, GEORGIA,
GEORGIA DEPARTMENT OF DRIVER SERVICES,
DEKALB COUNTY GOVERNMENT,
PUBLIC FINANCIAL MANAGEMENT INC. (PFM),
et al,
PINE LAKE POLICE DEPARTMENT, et. al.,
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2 Opinion of the Court 19-12585
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-00495-TWT
____________________
Before BRANCH, BRASHER, and MARCUS, Circuit Judges.
PER CURIAM:
Elisha Gilbert, Jr., proceeding pro se, appeals from the dis-
trict court’s dismissal of his civil complaint under 42 U.S.C. § 1983
for failing to state a claim as a matter of law, and because it was a
“shotgun” pleading. Gilbert’s complaint alleged that the defend-
ants -- DeKalb County Government (“DeKalb County”), the City
of Pine Lake, Georgia (“Pine Lake”), Public Financial Management,
Inc. (“PFM”), and the Georgia Department of Driver Services
(“DDS”) -- kidnapped him and stole his property when a Pine Lake
police officer issued him three traffic citations and State Court of
DeKalb County officials later arrested him for his courtroom be-
havior. On appeal, he argues that the district court: (1) erred in
dismissing his complaint, because he was not bound by federal or
state law; and (2) abused its discretion when it denied his motions
for a default judgment and in setting aside the clerk’s entry of
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19-12585 Opinion of the Court 3
default as to PFM and DDS, because he properly served them. Af-
ter careful review, we affirm.1
We review the district court’s grant of a motion to dismiss
for insufficient service of process under Fed. R. Civ. P. 12(b)(5) by
applying a de novo standard to the law and a clear error standard
to any findings of fact. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007). We also review de novo a district court’s grant of a mo-
tion to dismiss, under Fed. R. Civ. P. 12(b)(6), for failure to state a
claim. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir.
2006). In so doing, we accept the allegations in the complaint as
true and construe them in the light most favorable to the plaintiff.
Id. We may affirm the district court on any basis the record sup-
ports. See Devengoechea v. Bolivarian Republic of Venezuela, 889
F.3d 1213, 1220 (11th Cir. 2018). Pro se pleadings are held to a
less-strict standard than counseled pleadings, and are liberally con-
strued. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
We review a district court’s denial of a motion for default
judgment for abuse of discretion. Mitchell v. Brown & Williamson
Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002). Likewise, we
review a district court’s ruling on a motion to set aside an entry of
1 As an initial matter, we conclude that we have jurisdiction over Gilbert’s
appeal because the district court’s dismissal order disposed of all the claims
against all the served parties. Indeed, DDS was never served and has never
appeared in this matter; accordingly, we assume that no further proceedings
will occur as to DDS, so the action is final for purposes of our appellate juris-
diction. See Insinga v. LaBella, 817 F.2d 1469, 1469–1470 (11th Cir. 1987).
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4 Opinion of the Court 19-12585
default for abuse of discretion. Compania Interamericana v. Com-
pania Dominicana, 88 F.3d 948, 950–51 (11th Cir. 1996).
First, we are unpersuaded by Gilbert’s argument that the dis-
trict court erred in dismissing his § 1983 complaint. Under 42
U.S.C. § 1983, no person acting under color of state law may de-
prive another of their rights under the Constitution. 42 U.S.C.
§ 1983. Section 1983 provides a cause of action by private citizens
against government actors for violating their constitutional rights.
Id. The conduct complained of must have: (1) deprived the plaintiff
of a right secured by the Constitution or laws of the United States,
and (2) been committed by a person acting under color of state law.
See Focus on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1276–77 (11th Cir. 2003).
“Person,” as used in § 1983, includes municipalities and local
government entities. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978). A municipality is liable under § 1983 if the plaintiff
shows that: (1) her constitutional rights were violated; (2) the mu-
nicipality had a custom or policy indicating deliberate indifference
to the right; and (3) the policy or custom caused the violation.
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004); see also
Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (en
banc). The plaintiff must prove the existence of such a policy, not
through one incident, but by evidence of a “longstanding and wide-
spread practice . . . deemed authorized by the policymaking offi-
cials because they must have known about it but failed to stop it.”
Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.
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19-12585 Opinion of the Court 5
1991). Further, a “municipality cannot be held liable solely be-
cause it employs a tortfeasor -- or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior the-
ory.” Monell, 436 U.S. at 691. As we’ve said, a local governmental
entity “does not incur § 1983 liability for injuries caused solely by
its employees. Nor does the fact that a plaintiff has suffered a dep-
rivation of federal rights at the hands of a municipal employee infer
municipal culpability and causation.” McDowell, 392 F.3d at 1289
(citations omitted).
Additionally, the State of Georgia is afforded sovereign im-
munity from suit, which “can only be waived by an Act of the Gen-
eral Assembly which specifically provides that sovereign immunity
is thereby waived and the extent of such waiver.” Ga. Const. art.
I, § 2, para. IX. This sovereign immunity also applies to Georgia’s
counties. Gilbert v. Richardson, 452 S.E.2d 476, 479 (Ga. 1994); see
also O.C.G.A. § 36-1-4 (“A county is not liable to suit for any cause
of action unless made so by statute.”).
Notably, the procedural requirement of service of process
must be satisfied before a federal court may exercise personal juris-
diction over a defendant. De Gazelle Grp., Inc. v. Tamaz Trading
Establishment, 817 F.3d 747, 748 (11th Cir. 2016). A defendant’s
actual notice is insufficient to cure defective service. Albra, 490 F.3d
at 829. Nonetheless, objections to service of process can be waived.
Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990).
Under Rule 12(b)(5), a defendant may assert by motion the defense
of insufficient service of process. See id.; Fed. R. Civ. P. 12(b)(5).
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6 Opinion of the Court 19-12585
The defense will be waived if (1) the party filed a previous motion
and the defense “was available to the party but omitted from its
earlier motion”; or (2) the party fails to either file a motion under
Rule 12(b)(5) or include the defense in a responsive pleading. See
id. 12(g)(2), (h)(1).
A plaintiff is responsible for having the summons and the
complaint served to each defendant within 90 days after the com-
plaint is filed. Id. 4(c), 4(m); see also id. 4(c)(2) (providing that a
party to an action cannot itself serve a complaint or summons). If
service is not effectuated within 90 days, “the court -- on motion or
on its own after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that service be
made within a specified time.” Id. 4(m). But “notice does not con-
fer personal jurisdiction on a defendant when it has not been served
in accordance with Rule 4.” De Gazelle, 817 F.3d at 750.
Under the Federal Rules of Civil Procedure, a state or local
government or any other state-created governmental organization
must be served in accordance with the laws of the state or by deliv-
ering a copy of the summons and complaint to its chief executive
officer. See Fed. R. Civ. P. 4(j)(2). Under Georgia law, to effect
service on a governmental organization, the plaintiff must serve a
proper person, like the Chairman of the Board of Commissioners,
the Mayor or City Manager of the city, or an agent authorized by
appointment to receive service of process. O.C.G.A. § 9-11-4(e)(5).
Further, under the Federal Rules of Civil Procedure, a plain-
tiff must serve process on a corporation by delivering the summons
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19-12585 Opinion of the Court 7
and complaint to an officer or authorized agent, or by complying
with any means allowed under state law. Fed. R. Civ. P. 4(h)(1).
Sending copies of the summons and complaint to defendants by
certified mail may be done in addition to delivering the summons
and complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service
of process. Id. 4(h)(1)(B). Under Georgia law, service of process
must be made on a corporation by personally serving “the presi-
dent or other officer of such corporation or foreign corporation, a
managing agent thereof, or a registered agent thereof.” O.C.G.A.
§ 9-11-4(e)(1)(A). However, if service on the listed agents cannot
be had, the Georgia Secretary of State is deemed an agent of the
corporation for purposes of service of process. Id. To perfect ser-
vice on the Secretary of State, the plaintiff must deliver a copy of
the process to the Secretary of State or other agent designed by the
Secretary of State “along with a copy of the affidavit to be submit-
ted to the court pursuant to [the Georgia Civil Practice Act].” Id.
The Federal Rules of Civil Procedure also require that a
complaint contain “a short and plain statement of the claim show-
ing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Each claim must be presented in a separate numbered paragraph,
“each limited as far as practicable to a single set of circumstances,”
and “each claim founded on a separate transaction or occurrence .
. . must be stated in a separate count.” Id. 10(b). While a complaint
need not detail its factual allegations, it must provide the grounds
for relief, which “requires more than labels and conclusions, and a
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8 Opinion of the Court 19-12585
formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Factual allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555. In order to state a claim, the
plaintiff must allege enough facts to make the claim “plausible on
its face.” Id. at 570. A complaint does not “suffice if it tenders na-
ked assertion[s] devoid of further factual enhancement.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
Complaints that violate Rule 8(a)(2) and 10(b) are called
“shotgun” pleadings. Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1320 (11th Cir. 2015). A common form a “shotgun”
pleading takes is a complaint that is “replete with conclusory,
vague, and immaterial facts not obviously connected to any partic-
ular cause of action.” Id. at 1322. In those cases, where “it is virtu-
ally impossible to know which allegations of fact are intended to
support which claim[s] for relief,” a dismissal under Rules 8(a)(2)
and 10(b) is appropriate. Id. at 1325 (quotations omitted).
To reverse a district court judgment that was based on mul-
tiple, independent grounds, the appellant “must convince us that
every stated ground for the judgment against him is incorrect.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014). If the appellant fails to properly challenge one of the
grounds on which the judgment was based, “he is deemed to have
abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed.” Id. A party does not adequately
brief a district court’s alternative holdings where he fails to plainly
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19-12585 Opinion of the Court 9
and prominently raise it, or where he makes only passing refer-
ences to them in the “statement of the case” or “summary of the
argument” and fails to advance arguments or cite authority estab-
lishing that those holdings were in error. Id. at 681. Additionally,
an issue is abandoned when references to it are conclusory asser-
tions or “mere background to the appellant’s main arguments or
when [it] is buried within those arguments.” Id. at 682.
Here, the district court did not err in dismissing Gilbert’s
complaint. For starters, Gilbert fails to challenge, on appeal, some
of the independent grounds that the court relied on in its dismissal
order, including: (1) that his claims failed as a matter of law for fail-
ure to state a claim for relief; and (2) that the complaint was subject
to dismissal as a “shotgun” pleading. Id. at 680–81. Because Gilbert
needed to properly challenge each of these grounds to avoid aban-
donment and affirmance of the district court’s judgment, but he
failed to do so, we affirm on this basis.
But even if Gilbert had preserved his challenge to the district
court’s dismissal, we hold, in the alternative, that it did not err in
dismissing his complaint against the defendants -- DeKalb County,
Pine Lake, and PFM -- for failure to state a claim. To prevail on his
§ 1983 claim, Gilbert needed to show that: (1) his constitutional
rights were violated; (2) the governmental defendants had a cus-
tom or policy reflecting deliberate indifference to those rights; and
(3) the policy or custom caused the violation of his rights. McDow-
ell, 392 F.3d at 1289. But Gilbert did not allege any specific unlaw-
ful behavior -- by a Pine Lake officer, DeKalb County, or otherwise
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10 Opinion of the Court 19-12585
-- that violated his constitutional rights, nor did he identify a policy
or custom that caused a deprivation of his rights. Indeed, a Pine
Lake police officer’s single interaction with Gilbert, or the state
court’s holding him in contempt, alone, could not prove a custom
or practice, since the policy had to be so widespread as to be
“deemed authorized by the policymaking officials . . . [who] must
have known about it but failed to stop it.” Brown, 923 F.2d at 1481.
Gilbert also failed to establish -- or even allege -- that DeKalb
County or Pine Lake waived sovereign immunity as to any claim
under state law. Ga. Const. art. I, § 2, para. IX.; see also O.C.G.A. §
36-1-4. And even if we were to liberally construe his complaint to
establish respondeat superior liability, a county or city “cannot be
held liable solely because it employ[ed] a tortfeasor.” Monell, 436
U.S. at 691. Thus, his 42 U.S.C. § 1983 complaint against DeKalb
County and Pine Lake failed to state a viable claim for this reason
too. Iqbal, 556 U.S. at 678.
Further, as for PFM, not only did Gilbert fail to allege spe-
cific factual allegations giving rise to a cause of action against it, but
he failed to verify its relation, even tenuously, to any of his claims.
Id. In other words, PFM’s alleged role and how it acted under
“color of state law” -- as required by 42 U.S.C. § 1983 -- was absent
from Gilbert’s complaint. Pinellas Suncoast Transit Auth., 344 F.3d
at 1276–77. Because Gilbert relied only on speculation to hold PFM
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19-12585 Opinion of the Court 11
liable, his claims against it were properly dismissed under Rule
12(b)(6) as a matter of law. Twombly, 550 U.S. at 555. 2
Globally, Gilbert’s complaint contained scattered accusa-
tions, making it uncertain, even when liberally construed, what his
claims were, and to whom they pertained. See Fed. R. Civ. P.
10(b). And not only did the complaint lack crucial information,
but, most importantly, it failed to allege any of the necessary ele-
ments of a § 1983 claim. Id.; Grech, 335 F.3d at 1329. Instead, Gil-
bert merely alleged that state and federal law did not bind him, and
he provided no pertinent law to support his proposition. Because
his complaint cited nonbinding or otherwise irrelevant authorities
that did not clarify or support his contentions and contained con-
clusory and vague assertions, it did not set forth a basis for relief.
See Fed. R. Civ. P. 8(a)(2); Weiland, 792 F.3d at 1322. As a result,
Gilbert’s complaint violated Rules 8(a)(2) and 10(b) and was subject
to dismissal as a “shotgun” pleading as well. Thus, the district court
properly found that Gilbert failed to state a plausible claim for relief
2 In addition, dismissal of Gilbert’s claims against PFM and Pine Lake was
proper since Gilbert failed to serve either party in accordance with the law. As
for PFM, service of process on a corporation solely by certified mail is not al-
lowed. Fed. R. Civ. P. 4(h); O.C.G.A. § 9-11-4(e)(1)(A). As for Pine Lake, the
record shows that Gilbert himself improperly served process on an adminis-
trative agent unauthorized to receive service. See Fed. R. Civ. P. 4(c)(2), (j)(2);
O.C.G.A. § 9-11-4(c), (e)(5). However, because DeKalb County does not argue
on appeal that Gilbert failed to serve it, nor did it in its first responsive motion
in the district court, it has abandoned any challenge to Gilbert’s improper ser-
vice. See Sapuppo, 739 F.3d at 681; see also Fed. R. Civ. P. 12(g)(2), (h)(1).
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12 Opinion of the Court 19-12585
and that his complaint was a “shotgun” pleading, and we affirm the
district court’s order granting DeKalb County’s, Pine Lake’s, and
PFM’s motions to dismiss. 3
We also find no merit to Gilbert’s claim that the district
court abused its discretion when it denied his motions for a default
judgment and to set aside the clerk’s entry of default as to PFM and
DDS. An entry of a default is appropriate when a party against
whom relief is sought has failed to plead or otherwise defend
against a complaint. Fed. R. Civ. P. 55(a). Where, as here, the
plaintiff’s complaint does not request a sum certain, he must re-
quest a default judgment from the court. Fed. R. Civ. P. 55(b)(2).
A default judgment should be used sparingly, however, as it “is a
drastic remedy which should be used only in extreme situations.”
Mitchell, 294 F.3d at 1316–17 (quotations omitted). Further, entry
of default judgment is warranted only when there is a sufficient ba-
sis in the pleadings for the judgment entered. Surtain v. Hamlin
Terrace Found., 789 F.3d 1239, 1244–45 (11th Cir. 2015). A “suffi-
cient basis” is akin to that necessary to survive a motion to dismiss
3 We recognize that, ordinarily, a district court must give a pro se plaintiff at
least one chance to amend his complaint before dismissal. See Bank v. Pitt,
928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo
Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc)). How-
ever, Gilbert has not challenged the district court’s apparent failure to allow
him to amend his complaint. Nor does he argue that he was entitled to amend
his complaint. See Sapuppo, 739 F.3d at 681. Accordingly, he abandoned this
issue, and we do not consider it on appeal. See id. at 680.
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19-12585 Opinion of the Court 13
for failure to state a claim. Id. Generally, however, “where service
of process is insufficient, the court has no power to render judg-
ment and the judgment is void.” In re Worldwide Web Sys., Inc.,
328 F.3d 1291, 1299 (11th Cir. 2003).
Federal Rule of Civil Procedure 55(c) provides, in relevant
part, that: “[t]he court may set aside an entry of default for good
cause.” Fed. R. Civ. P. 55(c). To determine what constitutes good
cause, courts consider, among other things, the willfulness of the
default, whether setting it aside would prejudice the adversary, and
whether the defaulting party would have a meritorious defense.
Compania Interamericana, 88 F.3d at 951.
Here, the district court did not abuse its discretion in deny-
ing Gilbert’s motions for a default judgment against PFM and DDS,
nor in setting aside the clerk’s entry of default against them. As
we’ve noted, Gilbert’s service upon PFM was improper because
service of process on a corporation solely by certified mail is not
allowed. Fed. R. Civ. P. 4(h); O.C.G.A. § 9-11-4(e)(1)(A). The dis-
trict court also correctly held that Gilbert failed to properly serve
DDS, which has never appeared in the case. See Fed. R. Civ. P.
4(j)(2); O.C.G.A. § 9–11–4(e)(5). And not only has Gilbert failed to
properly serve them, he has not even attempted to perfect service
in the two and half years since he filed his initial complaint. Be-
cause Gilbert did not properly serve either party, a default judg-
ment against either of them would have been void. In re World-
wide Web Sys., Inc., 328 F.3d at 1299.
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14 Opinion of the Court 19-12585
This is especially true since the record indicates that PFM did
not receive notice of the complaint until after the clerk’s entry of
default. Upon notice, however, it responded to Gilbert’s complaint
within several weeks, showing that it defaulted unwilfully and
promptly corrected the default. Compania Interamericana, 88 F.3d
at 951. Further, merits-based hearings are preferrable to the “dras-
tic remedy” of default judgments. Mitchell, 294 F.3d at 1316–17.
And as we’ve explained, PFM had a meritorious defense to Gil-
bert’s suit. Compania Interamericana, 88 F.3d at 951. Accordingly,
the district court did not abuse its discretion in denying Gilbert’s
motions for default judgment against PFM and DDS nor in setting
aside the clerk’s entry of default against them.
Accordingly, we affirm.
AFFIRMED.