United States District Court, S.D. Georgia, Brunswick Division
R. STAN BAKER, Magistrate Judge.
This matter is before the Court on Plaintiff Laura McKinley's Motion for Leave to Proceed in Forma Pauperis (doc. 4), Motion to Proceed Pro Per (Doc. 7), and Motion for Entry of Default (doc. 8). For the reasons set forth below, the Court DEFERS ruling on McKinley's Motion for Leave to Proceed in Forma Pauperis (doc. 4) and ORDERS her to file an amended complaint that complies with the Federal Rules of Civil Procedure within fourteen (14) days of the date of this Order. McKinley's Motion to Proceed Pro Per (doc. 7) is DENIED AS MOOT, as she may represent herself in this civil action but does not need an order of the Court to do so. Lastly, McKinley's Motion for Entry of Default (doc. 8) is DENIED for numerous reasons set forth below.
McKinley, a former President and Chief Executive Officer of Oglethorpe Bank, filed this action against Defendant Federal Deposit Insurance Corporation ("the FDIC"), as Receiver of Oglethorpe Bank, on June 10, 2015. (Doc. 1.) McKinley filed this action without legal representation and titled her initial pleading, "Counterclaim/Counter Complaint Pursuant to FRCP 13 and O.C.G.A. 9-11-13." (Id.) At the time of initiating this action, McKinley also filed a Motion for Leave to Proceed in Forma Pauperis. (Doc. 4.)
This action is not the first litigation between McKinley and the FDIC. The FDIC, as Receiver of Oglethorpe Bank, brought suit against McKinley and ten other defendants, and that case remains pending in this Court. FDIC v. Cross-McKinley, No. 2:14-cv-2 (S.D. Ga. Jan. 9, 2014) (hereinafter "FDIC v. McKinley"). At the time McKinley filed this action, she was represented by counsel in FDIC v. McKinley. However, on June 30, 2015, at McKinley's request, her counsel was permitted to withdraw from representing her, and she is now representing herself in that lawsuit. Oral Order, FDIC v. Cross-McKinley, No. 2:14-cv-2, ECF No. 101.
In addition, McKinley previously sued the FDIC on October 19, 2011. Cross-McKinley v. FDIC, No. 2:11-cv-172 (S.D. Ga. Oct. 19, 2011) (hereinafter "McKinley v. FDIC 1"). In that action, McKinley sought to recover from the FDIC, in its capacity as receiver of Oglethorpe Bank, severance pay that she alleged she was owed under her employment agreement with Oglethorpe Bank. Complaint, McKinley v. FDIC 1, No. 2:11-cv-172, ECF No. 1. On March 7, 2013, the Court granted the FDIC summary judgment in McKinley v. FDIC 1 and dismissed all of McKinley's claims. Order at 24, McKinley v. FDIC 1, No. 2:11-cv-172, ECF No. 43. Specifically, the Court found that McKinley sought payment pursuant to a "golden parachute agreement" and that federal regulations forbid such a payment. Id . McKinley did not appeal or seek reconsideration of that Order and dismissal.
McKinley's Complaint in the action now before the Court is difficult to follow. She begins with what appears to be a rewording of the conclusion of the Court's summary judgment ruling in McKinley v. FDIC 1, though she does not reference that case. Compare (Doc. 1, p. 2) with Order at 24, McKinley v. FDIC 1, No. 2:11-cv-172, ECF No. 43. She then includes information regarding Federal Rules of Civil Procedure 13 and 15 and O.C.G.A. § 9-11-13. (Doc. 1, pp. 2-5.) In several enumerated paragraphs, McKinley then appears to attack the FDIC's claims in FDIC v. McKinley, though the Complaint does not reference that case either. (Id. at pp. 5-13.) The Complaint then includes a lengthy argument section that cites to Federal Rule of Civil Procedure 12 and states why various claims should be dismissed. (Id. at pp. 13-37.) Though it is not clear, it appears that this argument section also refers to the claims pending against McKinley and her codefendants in FDIC v. McKinley. (See id.) McKinley concludes her Complaint with a request that she be "personally released from FDIC's lawsuit" and that her contract, "which was not voided, [ ] be paid out in full." (Id. at p. 37.) She also requests that the Court "reverse [the] prior denial of summary judgement [sic]." (Id.)
After filing her Complaint and Motion for Leave to Proceed in Forma Pauperis in this action, McKinley filed a Motion to Proceed Pro Per. (Doc. 7.) In this pleading, McKinley explains that she has unsuccessfully contacted lawyers to represent her in her litigation against the FDIC and that she seeks to represent herself. (Id. at p. 1.) This Motion goes on to acknowledge certain rights that largely do not apply in this civil case. (See, e.g., id. at pp. 2-3 ("I understand that I have an absolute right to have an attorney represent me in these proceedings.... I understand that if need investigative services, expert services, waivers of fees, research, secretarial services, or any other assistance, I must petition the Court for whatever relief or assistance I deem appropriate.").) McKinley concludes her Motion with a citation to this Court's Local Criminal Rule 44.2. (Id. at p. 3.)
Lastly, on July 15, 2015, McKinley filed a Motion for a Clerk's Entry of Default pursuant to Federal Rule of Civil Procedure 55(a). (Doc. 8.) In this Motion and supporting affidavit, McKinley states that the Complaint in this action and a summons were served on the FDIC on the same date that the Complaint was filed, June 10, 2015. (Id. at p. 2.) She swears that this service is reflected by a proof of service on the Court's docket sheet. (Id.) She contends that the FDIC was required to respond to the Complaint by July 10, 2015, and has not done so. (Id.)
The Court will address each of McKinley's pending Motions in turn. In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) ("Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys." (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003))). However, McKinley's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) ("We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.").
I. Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Doc. 4)
Through her Motion for Leave to Proceed in Forma Pauperis, McKinley asserts that she does not have the resources to pay the civil filing fee, and, therefore, she seeks to proceed without the prepayment of that fee. (Doc. 4.) Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of her assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that she is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); Grayson v. Mayview State Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002) (non-prisoner indigent plaintiffs are "clearly within the scope of § 1915(e)(2)"); Dutta-Roy v. Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at *2 (N.D.Ga. May 5, 2014) (frivolity review of indigent non-prisoner plaintiff's complaint).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8 ("A pleading that states a claim for relief must contain [among other things]... a short and plain statement of the claim showing that the pleader is entitled to relief."); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) "if it is without arguable merit either in law or fact.'" Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.2001)). Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Fernandez Rundle, 393 F.Appx. 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" suffice. Twombly, 550 U.S. at ...