Opinion
Case No.: 03-60201-CFV-ALTONAGA/Bandstra
September 16, 2003
ORDER OF DISMISSAL
THIS CAUSE came before the Court upon Plaintiff, Betty O. Muka's Motion to Vacate the July 8, 2003 Omnibus Order of Judge Zloch and for Some Other Judge to Reconsider Most of the Motions Decided After Holding an Evidentiary Hearing To Receive Evidence of the Facts (D.E. 93), filed on July 21, 2003. Plaintiff's Motion requests, among other things, that the Court vacate Judge Zloch's February 28, 2003 (D.E. 4) and April 2, 2003 (D.E. 70) Orders requiring Plaintiff to file a RICO Case Statement, and Judge Zloch's July 8, 2003 Order denying Plaintiffs Motion to Remand (D.E. 88). The Court has carefully reviewed the entire case file.
The record reflects that on February 28, 2003, within fourteen days of this case being removed to this Court from state court, the Court Ordered Plaintiff to file a RICO Case Statement. The Court's Order set forth in detail the information that Plaintiff was required to provide in the RICO Case Statement. Furthermore, it was within the Court's discretion to require such a statement because Plaintiffs Complaint purports to raise claims under 18 U.S.C. § 1961, et seq. To date, Plaintiff has not filed the RICO Case Statement required by Judge Zloch's Order.
For example, paragraph 6 of Plaintiff s Verified Complaint alleges that "this 'action' is brought under . . . Title 18 ("Crimes and Criminal Procedure") of the United States Code." In addition, paragraph 7 alleges that "[e]ach defendant at bar engaged in "Prohibited Activities" by violation of one or more parts of 18 U.S.C. § 1962(a), (b), (c) and/or (d), and/or Fla. Stats. 772.103(1), (2), (3) and/or (4), and/or 895.03(1)."
On March 20, 2003 (D.E. 37), Plaintiff moved for an enlargement of time to furnish the RICO Case Statement, claiming that she needed assistance as well as additional time within which to comply. On April 2, 2003 (D.E. 70), the Court denied Plaintiffs motion for an enlargement of time and ordered Plaintiff to "immediately file a RICO Case Statement as required by the Court's prior Order." On May 12, 2003 (D.E. 79), Plaintiff moved to vacate the Court's February 28, 2003 and April 2, 2003 Orders, arguing that she could not file the Statement because it would constitute a concession that the federal courts have jurisdiction over this case, which Plaintiff does not concede. In the same paper, Plaintiff also moved to remand the case to state court for lack of subject matter jurisdiction, urging this Court to find it did not have jurisdiction over Plaintiffs Florida RICO claims, and implying that Plaintiff was relinquishing her claims under the federal RICO statute. On July 8, 2003 (D.E. 88), the Court denied Plaintiff's motion to vacate and Plaintiffs motion to remand. Finally, on July 21, 2003 (D.E. 93), Plaintiff filed the Motion now before the Court to vacate the Court's July 8, 2003 Order.
Plaintiff is in clear violation of three Court Orders to file a RICO Case Statement. If Plaintiff is no longer raising claims under the federal RICO statute, as Plaintiff has suggested in some of her filings, then the Complaint must be amended to remove the allegations of violations of this statute. Otherwise, Plaintiff must comply with the Court's Order requiring a detailed statement of her RICO claims under federal law.
Moreover, with regard to Plaintiff's Motion to Remand, it is obvious that Plaintiff, who is pro se, misunderstands the grounds for federal jurisdiction. The Notice of Removal (D.E. 1) indicates that this case was not removed based on the nature or statutory source of Plaintiff s claims, i.e., the case was not removed based on Plaintiff's allegations under the federal RICO statute, although Plaintiffs allegations under this statute would be sufficient to confer jurisdiction upon this Court under 28 U.S.C. § 1331. Instead, the case was removed because the Verified Complaint raises claims against Judge Wilkie D. Ferguson, Jr., who was a United States District Judge, as well as other federal judicial officers. The fact that these federal officers are included in this lawsuit as defendants renders this case removeable to federal court under 28 U.S.C. § 1442(a)(3), which provides that
A civil action or criminal prosecution commenced in a State Court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place where it is pending . . .
(3) Any officer of the courts of the United States , for any act under color of office or in the performance of his duties .
(emphasis added).
In Magnin v. Teledyne Continental Motors, 81 F.3d 1424, 1427 (11th Cir. 1996), the Eleventh Circuit recognized that proper removal of an action under section 1442 requires the satisfaction of two separate requirements: (1) defendant must advance a "'colorable defense arising out of [his] duty to enforce federal law'"; and (2) defendant must establish that there is a "'causal connection between what the officer has done under asserted official authority' and the action against him." See also Jefferson County v. Acker, 137 F.3d 1314, 1317 (11th Cir. 1998), rev'd on other grounds, 527 U.S. 423 (1999) (holding that federal district judges, sued in state court by the county for delinquent privilege taxes, could remove this action to federal court where there was (1) direct causal connection between the judges' acts under official authority and the state court action brought against them, and (2) the judges raised a colorable immunity defense for their refusal to pay taxes). Thus, if a federal officer is sued in state court for any act under color of office and raises a colorable federal defense, the right of removal under 28 U.S.C. § 1442 "is made absolute." Willingham v. Morgan, 395 U.S. 402, 406-07 (1969) (holding that federal jurisdiction under 28 U.S.C. § 1442 rests on the federal interest in enforcement of federal law through federal officials and having the validity of a defense of official immunity tried by a federal court).
It is alleged in the Verified Complaint that Wilkie D. Ferguson, Jr., a now deceased United States District Court Judge, presided over the judgment enforcement proceedings that are the subject of this lawsuit, and that in that judicial role, he "failed and refused to perform his duties" and engaged in a conspiracy to obstruct justice during the proceedings. It is also alleged that United States Magistrate Judge, Lurana Snow, and several other federal judicial officers, were engaged in the conspiracy. Accordingly, federal subject matter jurisdiction exists under 28 U.S.C. § 1442(a)(3) because Plaintiff has sued the named federal Defendants, who were all officers of the courts of the United States at the relevant time, for acts "under color of office" or "in the performance of then-duties." Moreover, like the judges in the Jefferson case, Judges Snow and Ferguson have raised colorable judicial immunity defenses in their pending motion to dismiss the Verified Complaint (D.E. 72).
In addition to conferring an absolute right of removal upon federal officers sued in their official capacity, 28 U.S.C. § 1442 grants subject matter jurisdiction to the federal district court. Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55 (2nd Cir. 1985); Freiberg v. Swinerton Walberg Property Servs., Inc., 245 F. Supp.2d 1144, 1150 (D.Colo. 2002).
Several of the Defendants have filed motions to dismiss the Verified Complaint that are currently pending before the Court. The undersigned has reviewed these Motions, but in this Order does not render a decision on the merits of these Motions to Dismiss.
The allegations of the Verified Complaint under Florida law against the federal Defendants and other Defendants do not extinguish the federal subject matter jurisdiction that is conferred by 28 U.S.C. § 1442. See Winters v. Diamond Shamrock Chemical Co., 941 F. Supp. 617, 620 (E.D. Tex. 1996) (holding that a federal court's role in an action which is removed to federal district court on the grounds that a federal officer is being sued is similar to that of a federal court sitting in diversity, and accordingly, the federal court applies the choice of law rules of the forum state to determine applicable law); State of New Jersey v. Bazin, 912 F. Supp. 106, 113 (D. NJ. 1995) (holding that removal of an action to federal court under 28 U.S.C. § 1442 does not revise or alter the underlying law to be applied). In other words, were the Plaintiff to file an Amended Complaint that states a claim upon which relief may be granted, the federal court would apply Florida law, statutory and common law, to any of Plaintiffs claims to which Florida substantive law applies under Florida's choice of law rules.
For all the foregoing reasons, it is
ORDERED AND ADJUDGED that Plaintiffs Motion to Vacate (D.E. 93) is DENIED, and it is further ORDERED AND ADJUDGED as follows:
1. The case is DISMISSED without prejudice for Plaintiffs failure to comply with Court Orders. Pro se litigants, like all litigants, must comply with the Court's orders.
2. Within twenty (20) days of the date of this Order, Plaintiff shall either (1) file an Amended Complaint that incorporates all of the numbered items set forth by the Court, and referred to as a RICO Case Statement, in the Court's February 28, 2003 Order (D.E. 4); or (2) file an Amended Complaint that does not include any allegations under 18 U.S.C. § 1961, et seq. No extensions of this deadline will be permitted, and failure to comply will result in the entry of a dismissal with prejudice without further notice from the Court.
3. All pending motions are DENIED as moot, although if any Amended Complaint filed does not cure the deficiencies noted, Defendants may adopt as arguments for a dismissal their already filed motions to dismiss.
It is further ORDERED that the pro se litigant shall comply with all Federal Rules of Civil Procedure and Local Rules for the Southern District of Florida. The Local Rules can be obtained from the Clerk of the Court. Failure to comply with the federal and local rules may result in sanctions being imposed against the pro se litigant.
Some of the requirements of these rules are as follows:
1. Every pleading, motion, memorandum or other paper required and/or permitted to be filed with the Court must be filed directly to the Clerk of the Court. No letters, pleadings, motions or other documents may be sent directly to the District Judge or Magistrate Judge's chambers. Any papers improperly delivered directly to chambers will be returned and disregarded by the Court.
2. All papers filed must include the case style, case number, and appropriate title in the format required by the Local Rules. See Sample Form Following Local Rule 5.1. The signature block of each pleading must also contain the pro se litigant's name, address and telephone number.
3. All papers filed with the Clerk of Court must also be served on the opposing counsel, or the opposing side if the opposing side is not represented by counsel. Each filing must include a certificate of service indicating the name and address of the attorney served. If a pro se plaintiff cannot serve the complaint on a defendant due to lack of information, the case will be dismissed with respect to that defendant.
4. Litigants must promptly notify the Court of any change in address by filing a "Notice of Change of Address," which also must be served on opposing counsel. Failure to promptly notify the Court of any change in address may result in dismissal of the case for lack of prosecution.
5. Motions to Dismiss and Motions for Summary Judgment are dispositive motions which, if granted, could resolve the case in its entirety. A pro se litigant who wishes to oppose these motions must respond in writing within the time periods provided by the rules of procedure.
6. Any litigant and his or her family, friends, or acquaintances may not call any Judge's chambers for legal advice about the case. Briefcase status information contained on the docket sheet may be available from the Clerk of Court.
7. A pro se plaintiff bears responsibility for actively pursuing his or her case and must obtain any essential discovery, file all necessary pleadings and motions, comply with all scheduling orders, and prepare the case for trial.
Although the Court must afford a litigant proceeding pro se wide leeway in pleadings, a pro se litigant must nonetheless satisfy essential burdens. See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1991). In particular, pro se plaintiffs are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See Riddle v. Mondrago, 83 F.3d 1197, 1201-02 (10th Cir. 1996).
Accordingly, in redrafting the complaint, Plaintiff must be particularly mindful of Federal Rules of Civil Procedure 8 and 10(b). Rule 8 of the Federal Rules of Civil Procedure sets forth the pleading requirements for pleadings filed in federal court. Rule 8 provides that a pleading which sets forth a claim, such as a complaint, shall contain all of the following: (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks. Fed.R.Civ.P. 8, see Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001).
Rule 10(b) requires that a well-pleaded complaint contain only one claim per count, e.g., if a plaintiff is alleging a Florida RICO claim and a federal RICO claim, those claims must be set forth in separate counts. Further, each count shall state with specificity both the factual and legal basis for the claim it sets forth. Other numbered paragraphs may be incorporated by reference but this must be done with particularity so that only relevant paragraphs are referenced. It is impermissible to attempt a wholesale incorporation by reference of all preceding paragraphs.