Case: 12-15869 Date Filed: 10/18/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-15869 Non-Argument Calendar ________________________
D.C. Docket No. 1:12-cv-22164-FAM
DAVID G. KENNEDY, on behalf of himself and all others which voluntarily join this case,
Plaintiff - Appellant,
versus
BELL SOUTH TELECOMMUNICATIONS, INC. (AT&T), a Florida Corporation and its Agents entities, SECURITAS SECURITY SERVICES (USA) INC., a foreign international company registered in the U.S.A. providing security services in several States, including Florida,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 18, 2013) Case: 12-15869 Date Filed: 10/18/2013 Page: 2 of 6
Before TJOFLAT and WILSON, Circuit Judges. *
PER CURIAM:
David Kennedy, a pro se appellant, appeals the district court’s (1) denial of
his motion to remand this action to state court; (2) denial of his motion to recuse
the district judge presiding over his case; and (3) dismissal of his second amended
complaint with prejudice for failure to comply with Federal Rule of Civil
Procedure 10(b)’s one-claim-per-count rule. After considering the parties’ briefs,
we affirm. We address each argument in turn.
I.
After an action has been removed from state court to federal court, we
review a district court’s denial of a motion to remand to de novo. Henderson v.
Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). “An action in state
court may be removed to federal court when the federal courts have diversity or
federal question jurisdiction.” Id.; see 28 U.S.C. § 1441(a). The defendant must
file a notice of removal within 30 days following receipt of the initial pleading
setting forth the claim for relief. 28 U.S.C. § 1446(b). Under the “last-served”
defendant rule, now codified at 28 U.S.C. § 1446(b)(2)(B)–(C), each defendant
may “file a timely motion for removal within [30] days of receipt of service by that
individual defendant.” Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202,
* This opinion is issued by a quorum. See 28 U.S.C. § 46(d). 2 Case: 12-15869 Date Filed: 10/18/2013 Page: 3 of 6
1204 (11th Cir. 2008). In other words, “earlier-served defendants who may have
waived their right to independently seek removal . . . may nevertheless consent to a
timely motion by a later-served defendant.” Id.
Here, Kennedy’s state-court action alleged violations of several federal laws,
including Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e to 2000e–17; the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621–634; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Section
1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Therefore, the district
court had federal question jurisdiction. Kennedy served Securitas Security
Services (USA) Inc. (“Securitas”) on April 16, 2012, and Bell South
Telecommunications, Inc. (AT&T) (“Bell South”) on May 11, 2012.1 Bell South
filed its notice of removal on June 8, 2012; therefore the notice of removal was
within 30 days and timely. Because the removal was both timely and based on
federal question jurisdiction, the district court did not err in denying Kennedy’s
motion to remand the case to state court.
II.
We review a district court’s denial of a motion for recusal for abuse of
discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (per
1 Kennedy first attempted to serve Bell South on April 16 in South Florida, but did not perfect service because Kennedy tried to serve the company in South Florida, and it no longer conducted business there. 3 Case: 12-15869 Date Filed: 10/18/2013 Page: 4 of 6
curiam). Under the abuse of discretion standard, we will affirm the district court’s
decision unless we “conclude that the impropriety is clear and one which would be
recognized by all objective, reasonable persons.” Id.; see 28 U.S.C. § 455(b)
(describing circumstances under which a federal judge must recuse himself). Here,
Kennedy only points to three orders by the district judge that supposedly show
bias: (1) an order denying motions by Kennedy for sanctions and objecting to the
notice of removal; (2) an order dismissing his first amended complaint without
prejudice; and (3) the order dismissing his second amended complaint with
prejudice. Our review of the record leads us to conclude that no objective,
reasonable person could question the district court’s impartiality, because each
order articulated a legitimate legal basis for the action. See In re Walker, 532 F.3d
1304, 1311 (11th Cir. 2008) (per curiam) (“Adverse rulings are grounds for appeal
but rarely are grounds for recusal . . . .). Moreover, there was no evidence of bias
from “extrajudicial sources.” Id. at 1310 (internal quotation marks omitted).
Therefore, the district court did not abuse its discretion in denying Kennedy’s
motion to recuse.
III.
A district court may sua sponte dismiss an action for failure to obey a court
order under Federal Rule of Civil Procedure 41(b). See Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). We review a district
4 Case: 12-15869 Date Filed: 10/18/2013 Page: 5 of 6
court’s dismissal of an action for failure to comply with a court order or the
Federal Rules of Civil Procedure for abuse of discretion. Gratton v. Great Am.
Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999) (per curiam).
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading set forth “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Rule 10(b) requires that a party “state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” We
discourage consideration of “shotgun” pleadings where the plaintiff asserts
multiple claims of relief in single counts and “it is virtually impossible to know
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Case: 12-15869 Date Filed: 10/18/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-15869 Non-Argument Calendar ________________________
D.C. Docket No. 1:12-cv-22164-FAM
DAVID G. KENNEDY, on behalf of himself and all others which voluntarily join this case,
Plaintiff - Appellant,
versus
BELL SOUTH TELECOMMUNICATIONS, INC. (AT&T), a Florida Corporation and its Agents entities, SECURITAS SECURITY SERVICES (USA) INC., a foreign international company registered in the U.S.A. providing security services in several States, including Florida,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 18, 2013) Case: 12-15869 Date Filed: 10/18/2013 Page: 2 of 6
Before TJOFLAT and WILSON, Circuit Judges. *
PER CURIAM:
David Kennedy, a pro se appellant, appeals the district court’s (1) denial of
his motion to remand this action to state court; (2) denial of his motion to recuse
the district judge presiding over his case; and (3) dismissal of his second amended
complaint with prejudice for failure to comply with Federal Rule of Civil
Procedure 10(b)’s one-claim-per-count rule. After considering the parties’ briefs,
we affirm. We address each argument in turn.
I.
After an action has been removed from state court to federal court, we
review a district court’s denial of a motion to remand to de novo. Henderson v.
Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). “An action in state
court may be removed to federal court when the federal courts have diversity or
federal question jurisdiction.” Id.; see 28 U.S.C. § 1441(a). The defendant must
file a notice of removal within 30 days following receipt of the initial pleading
setting forth the claim for relief. 28 U.S.C. § 1446(b). Under the “last-served”
defendant rule, now codified at 28 U.S.C. § 1446(b)(2)(B)–(C), each defendant
may “file a timely motion for removal within [30] days of receipt of service by that
individual defendant.” Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202,
* This opinion is issued by a quorum. See 28 U.S.C. § 46(d). 2 Case: 12-15869 Date Filed: 10/18/2013 Page: 3 of 6
1204 (11th Cir. 2008). In other words, “earlier-served defendants who may have
waived their right to independently seek removal . . . may nevertheless consent to a
timely motion by a later-served defendant.” Id.
Here, Kennedy’s state-court action alleged violations of several federal laws,
including Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e to 2000e–17; the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621–634; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); and Section
1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Therefore, the district
court had federal question jurisdiction. Kennedy served Securitas Security
Services (USA) Inc. (“Securitas”) on April 16, 2012, and Bell South
Telecommunications, Inc. (AT&T) (“Bell South”) on May 11, 2012.1 Bell South
filed its notice of removal on June 8, 2012; therefore the notice of removal was
within 30 days and timely. Because the removal was both timely and based on
federal question jurisdiction, the district court did not err in denying Kennedy’s
motion to remand the case to state court.
II.
We review a district court’s denial of a motion for recusal for abuse of
discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (per
1 Kennedy first attempted to serve Bell South on April 16 in South Florida, but did not perfect service because Kennedy tried to serve the company in South Florida, and it no longer conducted business there. 3 Case: 12-15869 Date Filed: 10/18/2013 Page: 4 of 6
curiam). Under the abuse of discretion standard, we will affirm the district court’s
decision unless we “conclude that the impropriety is clear and one which would be
recognized by all objective, reasonable persons.” Id.; see 28 U.S.C. § 455(b)
(describing circumstances under which a federal judge must recuse himself). Here,
Kennedy only points to three orders by the district judge that supposedly show
bias: (1) an order denying motions by Kennedy for sanctions and objecting to the
notice of removal; (2) an order dismissing his first amended complaint without
prejudice; and (3) the order dismissing his second amended complaint with
prejudice. Our review of the record leads us to conclude that no objective,
reasonable person could question the district court’s impartiality, because each
order articulated a legitimate legal basis for the action. See In re Walker, 532 F.3d
1304, 1311 (11th Cir. 2008) (per curiam) (“Adverse rulings are grounds for appeal
but rarely are grounds for recusal . . . .). Moreover, there was no evidence of bias
from “extrajudicial sources.” Id. at 1310 (internal quotation marks omitted).
Therefore, the district court did not abuse its discretion in denying Kennedy’s
motion to recuse.
III.
A district court may sua sponte dismiss an action for failure to obey a court
order under Federal Rule of Civil Procedure 41(b). See Betty K Agencies, Ltd. v.
M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). We review a district
4 Case: 12-15869 Date Filed: 10/18/2013 Page: 5 of 6
court’s dismissal of an action for failure to comply with a court order or the
Federal Rules of Civil Procedure for abuse of discretion. Gratton v. Great Am.
Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999) (per curiam).
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading set forth “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Rule 10(b) requires that a party “state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” We
discourage consideration of “shotgun” pleadings where the plaintiff asserts
multiple claims of relief in single counts and “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 Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir.
1996). Although dismissal of a case for failure to comply with pleading rules “is a
severe sanction, its imposition is justified when a party chooses to disregard the
sound and proper directions of the district court.” Friedlander v. Nims, 755 F.2d
810, 813 (11th Cir. 1985).
Kennedy’s original and amended complaints did not confine individual
claims to separate counts, incorporated hundreds of paragraphs by reference, and
generally failed to identify the factual or legal bases for many of the alleged
violations of federal law. Twice, the district court dismissed Kennedy’s complaint
without prejudice, providing Kennedy with opportunities to amend his complaint.
5 Case: 12-15869 Date Filed: 10/18/2013 Page: 6 of 6
Finally, after Kennedy’s second amended complaint failed to satisfy the district
court’s pleading requirements, the court dismissed Kennedy’s complaint with
prejudice. Although we must liberally construe pro se pleadings, Rule 41(b)
dismissal may be warranted “where there is a clear record of delay or
contumacious conduct by the plaintiff.” Hepperle v. Johnston, 590 F.2d 609, 612
(5th Cir. 1979) (internal quotation marks omitted).2 The district court repeatedly
told Kennedy how to comply with its pleading requirements, and Kennedy
repeatedly ignored those instructions. Moreover, Kennedy gave no indication that
he would be willing and able to comply if given another opportunity, but rather
insisted—and still insists—that his complaints were in substantial compliance.
Under the circumstances of this case, the district court did not abuse its discretion
in dismissing Kennedy’s second amended complaint with prejudice.
AFFIRMED.
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October 1, 1981. 6