                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                         OCTOBER 16, 2007
                            No. 07-12598                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

              D. C. Docket No. 07-00236-CV-ORL-31-KRS

MICHAEL TAYLOR,
MARY C. FOX,


                                                 Plaintiffs-Appellants,

                                 versus

LEE M. SPAZIANO,
a real estate broker licensed by the
State of Florida,
HONORABLE CYNTHIA Z. MACKINNON,
of the State of Florida, in her
individual capacity,
ROBERT N. LERNER,
licensed by the Florida Bar of the
State of Florida,

                                            Defendants-Appellees.
                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                           (October 16, 2007)
Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

       In this civil case, plaintiff-appellants Michael Taylor and Mary C. Fox, pro

se, appeal the district court's May 16, 2007 dismissal order. After review, we

affirm.

                                  I. BACKGROUND

       Because plaintiff-appellants’ federal action is based on events in a state court

case, we review the state court case first.

A.     State Court Case

       In Florida state court, appellants Taylor and Fox filed a complaint against

defendant Lee Spaziano, a real estate broker, alleging fraud in a real estate

transaction. In the state court action, defendant Robert Lerner was Spaziano’s

attorney and defendant Cynthia MacKinnon was the judge.

       Appellants served Spaziano with their state court complaint on October 3,

2006. Spaziano’s answer was due in twenty days, or by October 23, 2006, under

Florida’s rules of civil procedure. Spaziano, however, filed a motion for an

extension of time to file an answer. It is Spaziano’s motion for an extension of

time that gives rise to appellants’ action filed in federal district court.

       According to appellants, Spaziano and his attorney, Lerner, failed to timely



                                              2
file their motion for a time extension under the Florida civil rules. Appellants

contend that the motion did not appear on the state court’s docket as of October 24,

2006, but did appear on the docket on October 30, 2006 as filed on October 23,

2006. According to appellants, Spaziano and Lerner conspired with Judge

MacKinnon to back-date the motion so that it appeared to have been timely filed

and Spaziano could avoid a default judgment. Appellants also contend that Judge

MacKinnon failed to schedule a hearing on appellants’ motion for default

judgment and refused to enforce the twenty-day deadline for filing an answer, as

required by Florida’s civil rules.

B.    Federal Court Action

      Appellants, proceeding pro se, filed this action in federal district court

seeking damages and injunctive relief against Spaziano, Lerner and Judge

MacKinnon. The complaint alleged violations of unspecified constitutional rights,

brought pursuant to 42 U.S.C. § 1983 (Count I); a violation of appellants’ first

amendment right to access to the courts (Count II); a violation of the Truth in

Lending Act, 15 U.S.C. § 1601 et seq., (Count III); a violation of 4 U.S.C. §§ 101-

102 (requiring state legislators and executive and judicial officers to swear an oath

to support the United States Constitution) (Count IV); a conspiracy to violate

appellants’ civil rights, in violation of 42 U.S.C. § 1985 (Count V); and a state law



                                           3
claim of fraud (Count VI).

      In lieu of an answer, defendants Spaziano and Lerner filed separate, but

identical, motions to dismiss for failure to state a claim or, alternatively, for a more

definite statement. Defendant MacKinnon filed a motion to dismiss, asserting,

among other things, that she was entitled to judicial immunity. All three motions

to dismiss argued that appellants’ complaint contained vague and conclusory

allegations. In addition, defendants Spaziano and Lerner argued that appellants’

complaint was a “shotgun pleading” and failed to comply with Federal Rules of

Civil Procedure 8 and 10.

      While these motions were pending, appellants filed a motion for leave to

amend their complaint and response to defendants’ motions to dismiss. Along with

their motion to amend, appellants provided a proposed first amended complaint

with numerous exhibits attached. The district court docket clerk entered the

appellants’ motion to amend on the court’s docket with a parenthetical notation

that “[v]oluminous proposed amended complaint placed in brown accordion folder

pending ruling.”

      The district court granted the defendants’ motions to dismiss. The district

court: (1) dismissed with prejudice all claims against Judge MacKinnon; (2)

dismissed “without leave to amend” Count IV, the claim based on 4 U.S.C. §§ 101-



                                            4
102, “because no such cause of action exists”; and (3) dismissed “without leave to

amend” Count III, the Truth in Lending Act claim, and Count VI, the state fraud

claim, “because they are already pending in the state court suit.” Furthermore, the

district court dismissed without prejudice Counts I, II and V, which contained the

§ 1983, First Amendment and conspiracy-to-violate-civil-rights claims.

      The district court’s order noted a number of deficiencies in appellants’

complaint. Specifically, the district court concluded that the complaint was a

“prototypical ‘shotgun pleading’” and did not satisfy the “short and plain

statement” requirement of Rule 8(a) or the organizational requirements of Rule

10(b). The district court further noted that “[e]ach of these shortcomings is an

independent basis for dismissal of the complaint.”

      The district court directed appellants to file an amended complaint, if any,

on or before April 15, 2007, but advised the appellants that the amended complaint

“must comply with Rule 8(a) and Rule 10(b), must not include any claims against

Judge MacKinnon, and must not raise the claims that have been dismissed without

leave to amend.” Thus, the district court left appellants’ case open for the filing of

an amended complaint as to Counts I, II and V. The district court warned

appellants that the “[f]ailure to follow these requirements may result in sanctions

including but not limited to dismissal with prejudice.” The district court also



                                           5
denied appellants’ “currently pending motion for leave to amend” that had

accompanied appellants’ proposed amended complaint.

      On April 13, 2007, appellants filed an “Objection” to the district court’s

order granting the defendants’ motions to dismiss. After first noting the district

court’s instructions to file an amended complaint by April 15, 2007, appellants

argued that they had already filed an amended complaint with attached exhibits on

April 2, 2007. Appellants contended that their amended complaint was a timely

amendment as of right under Federal Rule of Civil Procedure 15(a). They also

complained that their amended complaint and exhibits had been wrongly omitted

from the court’s civil docket, citing Federal Rule of Civil Procedure 79(a).

Appellants contended that the district court should consider their amended

complaint filed on April 2, 2007.

      On April 23, 2007, the district court construed appellants’ “Objection” as a

motion for reconsideration of the April 4 dismissal order and summarily denied it.

Appellants took no further action in the case.

      On May 16, 2007, the district court entered a final order dismissing and

closing appellants’ case, without prejudice, for failure to prosecute. At the time of

the May 16, 2007 order, counts I, II and V had been dismissed without prejudice in

the April 4, 2007 order and what remained was appellants’ right to file an amended



                                          6
complaint that complied with the instructions in the April 4, 2007 order. The

district court’s May 16, 2007 dismissal order emphasized that the district court had

granted appellants’ motion to dismiss, had denied appellants’ motion for

reconsideration and had given appellants until April 15 to file an amended

complaint, but appellants had failed to file an amended complaint.

      Appellants filed this appeal.

                                  II. DISCUSSION

      At the outset, we note what appellants are not challenging on appeal. First,

appellants do not appeal the district court’s April 4, 2007 order granting

defendants’ motions to dismiss and denying their motion for leave to amend their

complaint. Nor do appellants appeal the district court’s April 23, 2007 order

denying their “Objection,” construed as a motion for reconsideration.

Accordingly, we do not address the merits of these rulings. The sole order on

appeal is the district court’s May 16, 2007 order dismissing without prejudice and

closing appellants’ case for failure to prosecute.

      We review a district court’s dismissal for want of prosecution for abuse of

discretion. Morewitz v. W. of Eng. Ship Owners Mut. Prot. & Indem. Ass’n, 62

F.3d 1356, 1366 (11th Cir. 1995). A district court may impose a dismissal with

prejudice for want of prosecution only if there is a “clear record of delay or



                                           7
contumacious conduct by the plaintiff.” Id. (quotation marks omitted). Here,

however, the district court dismissed appellants’ case without prejudice, which was

not an adjudication on the merits. See Fed. R. Civ. P. 41(b) (providing that an

involuntary dismissal for failure to prosecute is an adjudication on the merits,

unless the district court “otherwise specifies”). Under these facts, we cannot say

the district court abused its discretion in dismissing what remained of appellants’

case without prejudice in its May 16, 2007 order.

       The district court’s April 4 order identified several serious deficiencies in

appellants’ complaint that needed to be cured. First, with regard to appellants’

claims that were dismissed with leave to amend, the district court found appellants’

allegations insufficient to state a claim.1 The district court explained that

appellants’ claims against Spaziano and Lerner “alleged, at worst, nothing more

than violations of the Florida Rules of Civil Procedure.” The district court

concluded that, even construing appellants’ complaint to include an “implied

allegation” that one of the defendants back-dated the state court motion for a time

extension, appellants did not state a claim for a violation of their constitutional

rights because appellants alleged no facts “from which one could conclude that



       1
       We do not address appellants’ claims dismissed with prejudice or without leave to
amend because the district court instructed appellants not to include these claims in any amended
complaint, and appellants do not appeal the April 4, 2007 order that dismissed them.

                                                8
Lerner was acting under color of law for purposes of Section 1983.” As to

Spaziano, the district court explained that “the worst that is alleged is that he

cheated the Plaintiffs in a real estate transaction” and that none of the facts alleged

“could conceivably constitute a violation by Spaziano of the Plaintiffs’

constitutional rights.”

      The district court also concluded that appellants’ complaint failed to comply

with Rules 8(a) and 10(b) and was a “prototypical ‘shotgun pleading.’” The

district court noted that the complaint contained “a rambling recitation full of

factual allegations that could not possibly be material to any of the causes of action

[plaintiffs] assert.” Notably, appellants’ original complaint included 43 separate

paragraphs of factual allegations, with each count incorporated by reference all 43

paragraphs, and did not differentiate which facts formed the basis for liability for

each count.

      The district court warned appellants that each of these deficiencies

constituted a separate ground for dismissal and then instructed appellants, if they

desired to continue with the litigation, to file an amended complaint that addressed

all of these deficiencies. The district court also instructed appellants to omit all

claims against Judge MacKinnon and any claims the district court had dismissed

without leave to amend (namely, the Truth In Lending Act and fraud claims and



                                            9
the claim asserting a violation of 4 U.S.C. §§ 101 and 102).

       Despite these explicit instructions, appellants did not file an amended

complaint by April 15 as required by the district court. Instead, on April 13,

appellants filed an “Objection” in which they insisted that the district court

consider their already-filed proposed amended complaint. However, appellants’

proposed amended complaint was drafted and filed on April 2 and thus before the

district court’s April 4 order and, not surprisingly, did not comply with instructions

in the April 4 order. Indeed, the proposed amended complaint contained all of the

same counts, claims and defendants and essentially the same facts, with some

minor word changes, as the original complaint. Accordingly, the proposed

amended complaint contained all of the same deficiencies as the original complaint

and included all the claims, including those against Judge MacKinnon, that the

district court had instructed appellants to omit. See Hall v. United Ins. Co. of Am.,

367 F.3d 1255, 1262-63 (11th Cir. 2004) (explaining that a district court properly

denies leave to amend if the complaint as amended would be subject to dismissal,

i.e. would be futile).

       Appellants insisted that they be permitted to proceed on the proposed

amended complaint despite the fact that it did not comply with the April 4 order.2


       2
       Appellants note that, under Rule 15(a), they had an automatic right to amend their
complaint because defendants had not yet filed answers. See Fortner v. Thomas, 983 F.2d 1024,

                                             10
When the district court refused to do so by denying their “Objection,” appellants

did nothing further. They did not file another amended complaint attempting to

comply with the district court’s April 4 order or ask for more time to do so.

Nonetheless, the district court waited until May 16, 2007, three weeks after it had

denied appellants’ “Objection” and one month after a compliant amended

complaint was due, before dismissing appellants’ case for failure to prosecute.

Under these circumstances, the district court’s dismissal without prejudice was not

an abuse of discretion.3

1032 (11th Cir. 1993). Although appellants could have amended as of right, they instead sought
leave to amend from the district court and filed a motion to amend, which the district court
denied on April 4, 2007. Appellants have not appealed that order, much less shown that the
district court abused its discretion in denying that motion especially since appellants’ proposed
amended complaint contained the same deficiencies as the original complaint and was subject to
dismissal on the same grounds given by the district court in dismissing the claims in their
original complaint.
         Furthermore, the district court’s April 4 order dismissed without prejudice those claims
for which the pleading deficiencies might be cured and granted leave to file yet another amended
complaint, which appellants failed to do.
       3
          Appellants also strenuously object to the district court clerk’s failing to enter their
proposed amended complaint and exhibits into the docket with a separate file number and,
instead, placing the proposed amended complaint in an accordion folder pending the district
court’s ruling on the motion for leave to amend the complaint. Appellants contend that the
district court clerk’s action shows that the district court “disregarded” their proposed amended
complaint and exhibits. In this regard, appellants have also not shown any reversible error for
several reasons. First, the district court expressly denied appellants’ motion for leave to file an
amended complaint, and the court docket contains a notation that the proposed amended
complaint was placed in an accordion folder, which, at a minimum, infers that the district court
was aware of the proposed amended complaint. Even assuming arguendo that the district court
was not aware, as appellants contend, it is clear that the proposed amended complaint provided
to the district court clerk contained the exact same defects as the original complaint and did not
comply, in any event, with the district court’s April 4 order regarding amending the complaint.
More importantly, after receiving the district court’s April 4 order pointing out defects,
appellants never filed another amended complaint complying with the district court’s order as to

                                                11
       AFFIRMED.




those counts for which leave to amend was granted. Thus, we cannot say the district court
abused its discretion in dismissing on May 16, 2007 what remained of appellants’ case without
prejudice for failure to prosecute.

                                              12
