Kelly v. Montgomery Water Works and Sanitary Sewer Board (MAG+)

• Court: District Court, M.D. Alabama
• Decided: January 2, 2025
• Docket: 2:24-cv-00348
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

GREGORY KELLY, ) ) Plaintiff, ) ) v. ) CASE NO. 2:24-cv-348-RAH-JTA ) (WO) THE WATER WORKS AND ) SANITARY SEWER BOARD OF THE ) CITY OF MONTGOMERY, et al., ) ) Defendants. )

ORDER Before the court is the document filed by pro se Plaintiff Gregory Kelly on August 30, 2024 entitled “Plaintiff’s Notice Regarding Order to Show Cause; or in the Alternative a Summary Judgement Due to No Undisputed Genuine Facts in this Case” (Doc. No. 37 (sic).) The court CONSTRUES the document as containing Kelly’s response to Defendants’ August 15, 2024 motion to dismiss,1 as containing a motion for summary judgment, and as containing a motion for default judgment. Also before the court is Kelly’s December 10, 2024 motion (Doc. No. 38) entitled “2nd Show Cause Motion Seeking Default Judgment Against the Defendants for Failing to Answer a Complaint Within 14 Days or In the Alternative Motion for Summary Judgement Against the Defendants Due to No Undisputed Genuine Facts in the Case” (Doc. No. 38), which the court CONSTRUES

1 Defendants’ August 15, 2024 motion to dismiss is Document Number 34 on the docket sheet. as containing a motion for summary judgment and a motion for default judgment. On today, the court entered an order striking the amended complaint (Doc. No. 21) as a shotgun

pleading and ordering Kelly to file an amended complaint. Therefore, the motions for default judgment and motions for summary judgment are due to be denied as moot. In the motions, Kelly argues that he is entitled to judgment as a matter of law because, he contends, Defendants failed to timely answer or otherwise respond to his amended complaint within the time allotted by Rule 15 of the Federal Rules of Civil Procedure. However, Defendants timely filed their August 15, 2024 motion to dismiss by

the deadline set by the court. (See Docs. No. 23, 31 (orders extending time for the filing of Defendants’ motion to dismiss).) Rule 15 permits such court action. See Fed. R. Civ. P. 15(a)(3) (“Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.” (emphasis

added)). Multiple times, the court has explained to Kelly that, under the circumstances, a motion to dismiss is timely filed, and the court has warned him that continuing to file “motions for summary judgment” on such grounds is frivolous and violates his obligations under Rule 11 of the Federal Rules of Civil Procedure.2 The court has also previously

2 Kelly filed his first motion for default judgment and motion for summary judgment on August 30, 2024. (Doc. No. 37.) By then, he had been told at least twice that such arguments were frivolous. See Kelly v. Montgomery Hous. Auth., No. 2:24-CV-166-MHT-JTA, 2024 WL 3240637 (M.D. Ala. June 28, 2024). Kelly filed his second motion for default judgment and motion for summary judgment on December 10, 2024. (Doc. No. 38.) By then, he had been told at least three “ADVISED [Kelly] that he will_be_ subject to sanctions if he continues to clutter the dockets with motions and other filings containing repeat attempts at raising the same frivolous arguments.” See Kelly v. Elite Roofing, LLC, No. 2:24-CV-388-MHT-JTA, 2024 WL 4994508, at *3 (M.D. Ala. Dec. 5, 2024) (emphasis in original). Because the motions for default judgment and motions for summary judgment are moot in this instance, and to conserve judicial resources, the court will not initiate the sanctions process against Kelly at this time. However, Kelly is ADVISED that, if he again raises the same frivolous arguments in support of any motion in this or any other action before the undersigned, he will be subject to sanctions, which may include monetary sanctions and will include a recommendation that this action be dismissed with prejudice. Accordingly, it is ORDERED as follows: 1. Plaintiff's motions for default judgment (Docs. No. 37, 38) are DENIED as moot. 2. Plaintiff's motions for summary judgment (Docs. No. 37, 38) are DENIED as moot. DONE this 2nd day of January, 2025.

ma T. ADAMS UNIJ/PED STATES MAGISTRATE JUDGE

times that such arguments were frivolous. See Kelly v. Elite Roofing, LLC, No. 2:24-CV-388- MHT-JTA, 2024 WL 4994508, at *3 (M.D. Ala. Dec. 5, 2024).