United States District Court, S.D. Georgia
LISA GODBBY WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF GEORGIA
the Court are Defendant Dish Network, L.L.C.'s Motion to
Dismiss, dkt. no. 6, and Motion for Oral Argument, dkt. no.
15, and Plaintiff Robbie Dotson's Motion to Amend his
Complaint, dkt. no. 19. These motions have been fully briefed
and are ripe for review. For the reasons set forth below,
Plaintiff's Motion to Amend is GRANTED.
Defendant's Motions are DENIED AS MOOT.
December 31, 2018, Plaintiff filed a Complaint in the
Magistrate Court of Glynn County seeking damages for alleged
violations of the Telephone Consumer Protection Act in an
amount not less than $14, 800, punitive damages, and
attorney's fees. Dkt. No. 1-1. The Complaint-a two-page
document with five paragraphs-states that Defendant
"violated the Plaintiff's rights under the Telephone
Consumer Protection Act on multiple occasions."
Id. ¶ 2. The Complaint continues by alleging
that Defendant "failed and refused to cease calls to
him, which therefore indicates that Defendant has willfully
violated the law and the rights of the Plaintiff."
Id. ¶ 3. These two sentences encompass the
entire extent of Plaintiff's allegations in the
February 13, 2019, Defendant filed a notice of removal to
this Court. Dkt. No. 1. Following the removal of the case,
the clerk's office mailed notice of the removal to
Plaintiff's counsel, which included a notification that
"PLAINTIFF'S COUNSEL INTENDING TO APPEAR IN
THE REFERENCED MATTER MUST ENTER A NOTICE OF APPEARANCE OR A
MOTION FOR ADMISSION PRO HAC VICE NO LATER THAN TEN (10) DAYS
AFTER THE ISSUANCE OF THIS NOTICE." Dkt. No. 2.
On February 18, 2019, Defendant filed a Motion to Dismiss
arguing that Plaintiff's Complaint fails to state a claim
upon which relief can be granted. Dkt. No. 6. On February 27,
2019, the clerk sent a notice of filing deficiency to
Plaintiff's counsel, W. Douglas Adams, for failure to
enter a notice of appearance in the case within ten days of
the notice of removal. Dkt. No. 13. A week later, on March 6,
2019, W. Douglas Adams filed a notice of appearance on behalf
of Plaintiff. Dkt. No. 14. Over three weeks after that, on
March 29, 2019, Defendant filed a Motion for Oral Argument
requesting oral argument because "no response to
DISH's Motion appears in the record, and the Complaint
does not suggest any grounds upon which Plaintiff would
challenge DISH's Motion." Dkt. No. 15. On April 2,
2019, Defendant indicated to the Court in an Amended
Certificate of Service that "[o]n March 29, 2019,
counsel for Plaintiff informed attorneys for Defendant that
he had not received the [Motion to Dismiss] (Doc. No. 6)
through the CM/ECF system." Dkt. No. 16. Counsel for
Defendant then certified that as of that day, he sent a copy
of the motion to Plaintiff's counsel via mail.
April 12, 2019, over a month after the deadline to respond
had passed, Plaintiff filed a response to Defendant's
Motion to Dismiss, dkt. no. 18, and a Motion to Amend his
Complaint, dkt. no. 19. However, Plaintiff gave no
explanation for his failure to timely enter a notice of
appearance or respond to Defendant's Motion to Dismiss.
Rule of Civil Procedure 8(a) requires that a plaintiff s
complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a). When ruling on a motion to dismiss brought
pursuant to Rule 12(b)(6), a district court must accept as
true the facts set forth in the complaint and draw all
reasonable inferences in the plaintiff's favor.
Randall v. Scott, 610 F.3d 701, 705 (11th Cir.
2010). Although a complaint need not contain detailed factual
allegations, it must contain "enough facts to state a
claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court accepts the allegations in the complaint as
true and draws all reasonable inferences in favor of the
plaintiff. Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1347 (11th Cir. 2016). However, the Court does not
accept as true threadbare recitations of the elements of the
claim and disregards legal conclusions unsupported by factual
allegations. Iqbal, 556 U.S. at 678-79. At a
minimum, a complaint should "contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory." Fin. Sec. Assurance, Inc. v. Stephens,
Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007) (per
curiam) (quoting Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
not Plaintiff's counsel's first failure to meet
deadlines. See Smith v. Roundtree, 2:15-cv-4, Dkt.
27 at 3-4 (July 28, 2015) ("The Court notes that far too
often in his cases before this Court, Plaintiff's counsel
has failed to timely serve the complaint and requested
additional time for service." (citing Motions, Smith
v. Roundtree, 2:15-cv-4, ECF Nos. 6, 16 (S.D. Ga.);
Motions, Lewis v. City of Brunwsick, 2:14-cv-122,
ECF No's 5, 8, 13, 17 (S.D. Ga); Motions, Jackson v.
Glynn County, 2:14-cv-42, ECF Nos. 4, 7 (S.D. Ga.);
Motion, Cummings v. Douberly, 2:13-cv-59, ECF No. 5
(S.D. Ga.); Motions, Mitchell v. City of Nahunta,
5:13-cv-12 ECF Nos. 5, 7, 10 (S.D. Ga.); Orders, Alday v.
Groover, 2:12-cv-108, ECF Nos. 19, 21 (S.D. Ga.);
Order, Cupp v. United States, 5:12-cv-5, ECF No. 5
(S.D. Ga.)). Therefore, although the Court grants
Plaintiff's motion to amend in this case, Plaintiff's
counsel is on notice that such leeway will not be granted for
future failures to meet deadlines in this case, absent some
legitimate extenuating circumstance.