              Case: 18-13263    Date Filed: 05/07/2019   Page: 1 of 9


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13263
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:17-cv-23227-RNS



JAMES ERIC MCDONOUGH,

                                                                Plaintiff-Appellant,

VANESSA MCDONOUGH,

                                                                          Plaintiff,

                                      versus

CITY OF HOMESTEAD,
a Florida Municipal Corporation,
JEFF PORTER,
Individually, and in his capacity as Mayor for the City of Homestead;
Homestead, Florida,
GEORGE GRETSAS,
Individually, and in his capacity as City Manager for the City of Homestead;
Homestead, Florida,
ALEXANDER ROLLE,
Individually, and in his capacity as Chief of Police for the Homestead
Police Department of the City of Homestead; Homestead, Florida,
ALEJANDRO MURGUIDO,
Individually, and in his capacity as Police Officer for the Homestead
Police Department of the City of Homestead; Homestead, Florida, et al.,
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                                                               Defendants-Appellees,

ANTONIO AQUINO, et al.,

                                                                          Defendants.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                    (May 7, 2019)

Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

      James Eric McDonough appeals the dismissal of his complaint with

prejudice and the denial of his pro se Federal Rule of Civil Procedure Rule 59(e)

and 60 motions. After careful review, we affirm the district court’s dismissal of

McDonough’s complaint.

                                          I.

      McDonough first brought his lawsuit through counsel on October 28, 2016.

See McDonough v. City of Homestead, No. 16-24524-CIV-WILLIAMS (S.D. Fla.

Oct. 28, 2016) (“McDonough I”). He amended his complaint as a matter of right

on January 26, 2017, alleging fifty-nine separate counts against thirty-seven

defendants, including the City of Homestead, Florida, the Mayor of Homestead,

Florida, Monroe County, Florida, Miami-Dade County, Florida, and numerous

Florida police officers, alleging violations of his constitutional rights. Most of the
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defendants filed motions to dismiss arguing, among other things, that

McDonough’s complaint was an impermissible shotgun pleading. McDonough

then filed a motion for leave to amend his complaint on March 28, 2017 but did not

respond to any of the defendants’ motions to dismiss. A magistrate judge granted

McDonough’s motion for leave to amend on May 19, 2017, stating only that

McDonough “must separately and timely re-file the amended complaint” by May

29, 2017.

      McDonough failed to do so. As a result, the district court undertook a sua

sponte review of the lawsuit approximately two months later on July 31, 2017.

The district court dismissed McDonough’s complaint without prejudice because:

(1) McDonough “ha[d] violated [the magistrate judge’s May 19, 2017] order and

the Local Rules by failing to timely submit an amended complaint”; (2)

McDonough “failed to diligently prosecute his claims”; and (3) “[a] cursory review

of [McDonough’s first amended complaint] . . . indicate[d] that many of [his]

claims [were] frivolous . . . [a]lthough some of [his] claims may survive if they are

properly pled.”

      McDonough filed a new complaint on August 25, 2017 in district court,

starting a second case. This case was assigned to a different district court judge.

Although the substance of his new complaint was nearly identical to his previous

complaint, the complaint had been rewritten. McDonough raised numerous

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constitutional violations in thirty-two counts against thirty-six defendants. His new

complaint removed one defendant from his first complaint. Like before, the

defendants moved to dismiss McDonough’s complaint, arguing, among other

things, that the complaint was an impermissible shotgun pleading. McDonough

responded to each defendant’s motion to dismiss, arguing in response that his

complaint was not a shotgun pleading.

      The district court then entered an omnibus order granting the defendants’

motions to dismiss McDonough’s claims. The district court stated McDonough’s

complaint was “a particularly egregious example of a shotgun pleading,” and that,

in any event, most of McDonough’s claims were time-barred by Florida’s four-

year statute of limitations for tort claims. It noted McDonough had previously

filed a similar complaint before a different district court judge that had been

dismissed without prejudice. The district court also stated that although

McDonough requested leave to amend his complaint in response to some of the

defendants’ motions to dismiss, he did not request leave to amend as a matter of

right or formally under Federal Rule of Civil Procedure Rule 15. As a result, the

district court dismissed McDonough’s complaint with prejudice.

      McDonough’s counsel then moved to withdraw, and the district court

granted counsel’s motion on June 22, 2018. From there, McDonough proceeded

pro se. He first filed a motion for reconsideration under Rule 59(e) and requested

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leave to file an amended complaint, both of which the district court denied.

McDonough then filed a motion under Rule 60 to suspend the district court’s July

3, 2018 judgment; to alter or amend the district court’s July 3, 2018 judgment; for

relief from the district court’s judgment; and for leave to file a proposed amended

complaint. The district court denied McDonough’s motions. McDonough now

appeals the dismissal of his complaint with prejudice and the denial of his motions

for reconsideration under Rules 59 and 60. See Fed. R. Civ. P. 59(e), 60(b).

                                          II.

      We review a district court’s dismissal of a complaint on grounds of shotgun

pleading for an abuse of discretion. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291,

1294 (11th Cir. 2018). We review the denial of a Rule 59(e) motion for an abuse

of discretion. Jacobs v. Tempur-Pedic Int’l., Inc., 626 F.3d 1327, 1343 n.20 (11th

Cir. 2010). We also review Rule 60(b) motions for abuse of discretion. Sloss

Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007). An abuse of discretion

review requires this Court to affirm unless it “determine[s] that the district court

has made a clear error of judgment, or has applied an incorrect legal standard.”

Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 996–97 (11th Cir.

2004) (per curiam) (quotation marks omitted).




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                                           III.

      Shotgun pleadings are characterized by: (1) multiple counts that each adopt

the allegations of all preceding counts; (2) conclusory, vague, and immaterial facts

that do not clearly connect to a particular cause of action; (3) failing to separate

each cause of action or claim for relief into distinct counts; or (4) combing multiple

claims against multiple defendants without specifying which defendant is

responsible for which act. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d

1313, 1321–23 (11th Cir. 2015). Shotgun pleadings violate Rule 8(a)(2)’s “short

and plain statement” requirement by “failing . . . to give the defendants adequate

notice of the claims against them and the grounds upon which each claim rests.”

Vibe Micro, 878 F.3d at 1294–5 (quotation marks omitted and alteration adopted);

see also Fed. R. Civ. P. 8(a)(2).

      McDonough concedes on appeal that his complaint was a shotgun pleading.

He argues instead the district court abused its discretion when it dismissed his

complaint with prejudice as a shotgun pleading without (1) giving him the

opportunity to amend and (2) explaining how his complaint was a shotgun

pleading. In response, the defendants argue the district court did not abuse its

discretion because McDonough had already been given an opportunity to amend

his complaint in McDonough I and the defendants raised and explained the




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complaint’s shotgun pleading problems through their numerous motions to dismiss

in that case.

       This Court recently articulated the standard for dismissing shotgun pleadings

when a plaintiff is represented by counsel. Specifically, this Court said:

       When a litigant files a shotgun pleading, is represented by counsel, and
       fails to request leave to amend, a district court must sua sponte give him
       one chance to replead before dismissing his case with prejudice on non-
       merits shotgun pleading grounds. In the repleading order, the district
       court should explain how the offending pleading violates the shotgun
       pleading rule so that the party may properly avoid future shotgun
       pleadings.

Vibe Micro, 878 F.3d at 1296 (footnote omitted).

       Our Court recently applied this rule in Jackson v. Bank of America, N.A.,

898 F.3d 1348 (2018). In Jackson, the defendants moved for a more definite

statement of the plaintiffs’ complaint, arguing the complaint was a shotgun

pleading. Id. at 1358. Plaintiffs were represented by counsel throughout the

litigation. Id. at 1353–56. The defendants’ motions “fully explained the

complaint’s defects,” and the plaintiffs did not oppose the defendants’ motions. Id.

at 1358. The district court granted the defendants’ motions and ordered the

plaintiffs to file a new complaint. Id. However, the district court did not explain

how the plaintiffs’ complaint was a shotgun pleading. Id. at 1359. Despite the

defendants’ explanations in their motions, the Jackson plaintiffs’ amended

complaint did not remedy any of the shotgun pleading problems found in the first

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complaint. Id. at 1358–59. It only “attempt[ed] halfheartedly to cure . . . one of

the [complaint’s] many ailments.” Id. at 1359.

      Although this Court affirmed the dismissal of the Jackson plaintiffs’

complaints on other grounds, it explained that the district court “would not have

abused its discretion if it had dismissed the amended complaint with prejudice.”

Id. at 1359. Even though the district court did not “further elaborate[e] on [the

complaint’s] deficiencies,” the plaintiffs had been put on notice of the complaint’s

shotgun pleading defects through the defendants’ motions for a more definite

statement. Id. The plaintiffs “failure to oppose [the defendants’ motions] operated

as an acknowledgment of [the complaint’s shotgun pleading defects],” and

plaintiffs were given the opportunity to amend their complaint but chose not to do

so. Id. at 1358–59. As a result, this Court said the requirements of Vibe Micro

would have been satisfied, and the district court could have dismissed the

plaintiffs’ complaint with prejudice. Id. at 1359.

      Like in Jackson, the principles of Vibe Micro have been satisfied on this

record. McDonough received notice of his complaint’s defects through the

defendants’ motions to dismiss in McDonough I and acknowledged those defects

by failing to oppose defendants’ motions to dismiss in that case. See id. at 1358–

59. Further, after the defendants moved to dismiss his complaint in McDonough I,

McDonough filed a motion for leave to amend his complaint. The magistrate

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judge granted that motion, giving McDonough an opportunity to fix his

complaint’s shotgun pleading problems. But McDonough failed to act on that

opportunity because he did not file an amended complaint at all, and the district

court then dismissed his complaint without prejudice as a result.

      Thus, when McDonough refiled his lawsuit, it was his second chance to file

a permissible, amended complaint. See id. at 1358 (“A chance to amend a

complaint [may] come in the form of a dismissal without prejudice”). He clearly

did not, as evidenced by the fact that he admits on appeal his complaint was a

shotgun pleading. As a result, we cannot say the district court abused its discretion

when it dismissed McDonough’s complaint with prejudice in this case. See Vibe

Micro, 878 F.3d at 1296 (stating that “after that one opportunity to replead comes

and goes . . . the district court [may] dismiss with prejudice if the party has still

neither filed a compliant pleading nor asked for leave to amend” (citations

omitted)).

      McDonough also argues on appeal that the district court abused its discretion

when it denied his Rule 59 and 60 motions because dismissing his complaint with

prejudice was error. Because we hold the district court did not err in dismissing

his complaint with prejudice, we also affirm the denial of his Rule 59 and Rule 60

motions.

      AFFIRMED.

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