Saretta Mildred Gross v. United Parcel Service, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10808
Non-Argument Calendar
____________________
SARETTA MILDRED GROSS,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE,
TEAMSTERS LOCAL 728,
Defendants-Appellees,
TRUCK DRIVERS AND HELPERS LOCAL 728,
Defendant.
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2 Opinion of the Court 23-10808
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-01247-SEG
____________________
Before WILSON , J ORDAN , and L AGOA, Circuit Judges.
PER CURIAM:
This case involves a series of workplace-related disputes be-
tween Saretta Gross, various United Parcel Service (UPS) supervi-
sors, and Teamsters Local 728 (the Union) (collectively, the De-
fendants). Among other things, Gross alleges that certain UPS su-
pervisors subjected her to repeated sexual harassment. She further
claims that these supervisors changed her employee records, with-
held timecards, and submitted false write-ups. Gross asserts that,
although she is a dues-paying Union member, its representatives
failed to advocate for her over the course of the harassment and
went so far as to falsify her grievance paperwork.
After receiving right-to-sue letters from the Equal Employ-
ment Opportunity Commission (EEOC), Gross proceeded pro se
in the Northern District of Georgia with a panoply of claims against
Defendants. After her motion for appointment of counsel was de-
nied, Gross filed five different complaints over the course of seven
months. When faced with dismissal of Gross’s second amended
complaint, the district court adopted the magistrate’s recommen-
dation, and found “no hesitation in labeling [her complaints] as
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23-10808 Opinion of the Court 3
improper shotgun pleadings” that place “tremendous burden” on
both the court and Defendants “to attempt to sort through and dis-
cern the specific claims that Defendants need to address and defend
against.” However, as a pro se litigant, the court granted Gross an
opportunity to address these issues and provided guidance—in-
cluding examples—of how to properly structure the complaint.
Gross subsequently filed her fourth amended complaint,
which she organized into four counts.1 The district court adopted
the magistrate’s recommendation and dismissed her federal claims
with prejudice: the amended complaint still qualifies as a shotgun
pleading, lacking adequate factual allegations via “a lengthy series
of confusing, often conclusory, and largely tangential statements
and events presented in a stream-of-consciousness style.” Without
the federal claims, the court then declined to exercise supplemental
jurisdiction over her state law breach of contract claim, and dis-
missed without prejudice for lack of subject matter jurisdiction.
She timely appealed.
On appeal, and proceeding with counsel, Gross challenges
both the dismissal of her fourth amended complaint and denial of
her motion for appointment of counsel. She makes three argu-
ments. First, she contends that all five of her complaints, as
1 (1) “Race Discrimination in Violation of Title VII Against (Both Defend-
ants)”; (2) “Unlawful Retaliation in Violation of Title VII (Desperate Treat-
ment) (Both Defendants)”; (3) “Age Discrimination in the employment Act of
1967, 29 U.S.C. 621 et seq, (ADEA) Teamsters local 728”; and (4) “Breach of
Contract code section O.C.G.A, 13-6-14 (2010).” Doc. 66 at 20–27.
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4 Opinion of the Court 23-10808
incorporated in the fourth amended complaint, sufficiently state a
plausible claim for hostile work environment and retaliation under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq..
Second, she alleges that the district court failed to construe her
state breach of contract claim as a federal claim for breach of col-
lective bargaining agreement and breach of union’s duty of fair rep-
resentation under § 301 of the Labor Management Relations Act
(LMRA), 29 U.S.C. § 185. Finally, she argues that her inability to
comply with the district court’s pleading directives demonstrates
her need for appointment of counsel.
After thorough review of the record and parties’ briefing, we
affirm.
I. Title VII Claims
We review a district court’s order granting a motion to dis-
miss de novo. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).
However, we review the district court’s dismissal of a complaint as
a Rule 8 “shotgun” pleading for an abuse of discretion. See Weiland
v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015).
The district court does not abuse its discretion “so long as [its]
choice does not constitute a clear error of judgment.” Henderson v.
Ford Motor Co., 72 F.4th 1237, 1242 (11th Cir. 2023) (quotations
omitted).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” However, so-called “shotgun”
pleadings do not provide a short and plain statement of a claim
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23-10808 Opinion of the Court 5
under Rule 8. Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.
2001) (per curiam). Such pleadings violate Rule 8 because “they fail
to one degree or another, and in one way or another, to give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Weiland, 792 F.3d at 1322–
23 (listing categories of shotgun pleadings, including complaints
that: (1) are “replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action”; or
(2) neglect to separate each cause of action or claim for relief into
separate counts). Shotgun pleadings “waste scarce judicial re-
sources, inexorably broaden[] the scope of discovery, wreak havoc
on appellate court dockets, and undermine[] the public’s respect for
the courts.” Vibe Micro Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th
Cir. 2018) (quotation marks omitted, alterations in original). A
plaintiff’s attempt to “incorporate[] by reference the factual allega-
tions and legal claims in the two previous complaints and then
pile[] on them a slew of claims stated in only the most conclusory
fashion” constitutes a shotgun pleading. Cook v. Randolph Cnty., 573
F.3d 1143, 1151 (11th Cir. 2009).
A district court can dismiss a complaint on shotgun pleading
grounds under its “inherent authority to control its docket and en-
sure the prompt resolution of lawsuits.” Vibe Micro Inc., 878 F.3d
at 1295 (quotations omitted). In such cases, we generally require
the district court allow the litigant one chance to remedy the defi-
ciency before dismissing the case with prejudice. See id. at 1296.
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6 Opinion of the Court 23-10808
The Federal Rules further provide that “[a] party may
amend its pleading once as a matter of course,” and then requires
“the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(1)–(2). While Rule 15 does not discuss the effect of
an amended pleading on the previous pleading, the local rules in-
struct that “[i]n those instances where reproduction of the entire
pleading as amended would be unduly burdensome, parties fil-
ing . . . an amendment to a pleading shall be permitted to incorpo-
rate relevant provisions of prior pleadings by reference.” N.D. Ga.
L.R. 15.1. An amended complaint supersedes the original unless it
specifically refers to or adopts the earlier pleadings by reference.
See Roy v. Ivy, 53 F.4th 1338, 1352–53 (11th Cir. 2022) (citing Varnes
v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d 1365, 1370 n.6 (11th
Cir. 1982)).
Pro se pleadings are held to a less stringent standard than
those drafted by attorneys and will be liberally construed. Campbell
v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But “this leni-
ency does not give a court license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to sus-
tain an action.” Id. at 1168–69 (quotations omitted). Even pro se
litigants are required to comply with applicable procedural rules.
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam).
In the present case, Gross argues that the district court failed
to consider all five of her complaints when dismissing her Title VII
claims. She claims she incorporated all of them by reference, and
when reviewed in the collective, plausibly state hostile work
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23-10808 Opinion of the Court 7
environment and retaliation claims. Defendants argue that Gross
may not incorporate every allegation of every pleading previously
filed into a final amended complaint, and the fourth amended com-
plaint remains a shotgun pleading.
We find no error in the district court’s dismissal of Gross’s
fourth amended complaint. Gross’s attempt to merge her four
prior complaints fails both the district court’s order and local rules’
guidance on specific incorporation. See N.D. Ga. L.R. 15.1. As a
result, the district court was within its discretion to conclude that
her fourth amended complaint superseded all prior pleadings and
limited its review therein. See Varnes, 674 F.2d at 1370 n.6. Indeed,
Gross’s attempt to incorporate every allegation contained in all
four preceding complaints by writing (1) that she had filed a pro se
complaint in 2021; (2) “A copy of those Charges of Discrimination
has already been filed with the Court as well as the Original com-
plaint, along with exhibits is in corporate [sic] herein by reference”;
and (3) then referring to the same events as in her prior pleadings
throughout, renders the fourth amended complaint a shotgun
pleading. See Cook, 573 F.3d at 1151. Even under the leniency of a
pro se standard, her fourth amended complaint still results in plead-
ings “replete with conclusory, vague, and immaterial facts” at-
tached to legal labels that risk waste of judicial sources. Weiland,
792 F.3d at 1322. Therefore after affording Gross an opportunity
to amend, the district court acted within its discretion to dismiss
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8 Opinion of the Court 23-10808
Gross’s fourth amended complaint with prejudice.2 See Vibe Micro
Inc., 878 F.3d at 1296.
II. Contract Claim
Next, we review a district court’s decision to decline supple-
mental jurisdiction over a state law claim for an abuse of discretion.
Shotz v. City of Plantation, 344 F.3d 1161, 1185 (11th Cir. 2003).
The LMRA authorizes federal actions for a “violation of con-
tracts between an employer and a labor organization representing
employees.” 29 U.S.C. § 185(a). To ensure the uniform interpre-
tation of collective bargaining agreements, the LMRA “completely
preempts state-law claims . . . that require the interpretation or ap-
plication of a [collective bargaining agreement].” Atwater v. Nat’l
Football League Players Ass’n, 626 F.3d 1170, 1176 (11th Cir. 2010).
Therefore, when the resolution of a state law claim is substantially
dependent upon the terms of a collective bargaining agreement,
the claim should be treated as a § 301 claim. See Bartholomew v. AGL
Res., Inc., 361 F.3d 1333, 1342 (11th Cir. 2004). We previously
found that a complaint meets the requirements of Rule 8 even
where it does not specifically mention a collective bargaining
agreement, but where the “terms of the collective-bargaining
agreement will determine whether the Union[] or the employer
2 Moreover, the district court adopted the magistrate’s finding that “the factual
allegations of the Complaint, to the extent understandable, continue to fail to
support any inference of . . . retaliation against protected activity.” We note
that our judgment remains the same for dismissal under Federal Rule of Civil
Procedure 12(b)(6) based upon the district court’s well-reasoned opinion.
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23-10808 Opinion of the Court 9
held those duties.” Sams v. United Food & Com. Workers Int’l Union,
AFL-CIO, CLC, 866 F.2d 1380, 1384–85 (11th Cir. 1989).
A hybrid claim exists where an employee sues their em-
ployer for breach of the collective bargaining agreement and the
union for breach of its duty of fair representation. See DelCostello v.
Int’l Brotherhood of Teamsters, 462 U.S. 151, 164–65 (1983). Such
claims operate under a six-month statute of limitations. Bartholo-
mew, 361 F.3d at 1342. We measure “from the date on which the
employee knew or should have known of the union’s final action
or the date on which the employee knew or should have known of
the employer’s final action, whichever occurs later.” Hill v. Ga. Power
Co., 786 F.2d 1071, 1075 (11th Cir. 1986) (emphasis in original and
quotations omitted).
As a preliminary matter, the district court potentially erred
in failing to construe Gross’s state law breach of contract claim as
a hybrid claim under the LMRA. While Gross explicitly titled her
claim as “Breach of Contract code section O.C.G.A, 13-6-14,” she
named both Defendants in the heading of that section, and in-
cluded allegations related to the collective bargaining agreement
and fair representation.3 See DelCostello, 462 U.S. at 164–65. How-
ever, any such claim under the LMRA is barred by its statute of
limitations. The latest date she alleges an adverse action by UPS’s
3 See, e.g., Doc. 66 at 28–29 (“Both defendants never used the JUST CAUSE
EFFECT when discipling an employee[,] . . . refus[ed] to grant an employee’s
request for a Union Steward,” failed to fairly bargain, and breached fiduciary
duties.).
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10 Opinion of the Court 23-10808
termination and the Union’s representation during the alleged dis-
putes is August 24, 2020, and she did not file her original complaint
until March 25, 2021, over a month past the statute of limitations
period. See Bartholomew, 361 F.3d at 1342; Hill, 786 F.2d at 1075.
Any remand based on the district court’s misconstruction of her
hybrid LMRA claim would be futile.
III. Appointment of Counsel
We ordinarily review a district court’s decision not to ap-
point counsel for abuse of discretion. Smith v. Sch. Bd. of Orange
Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007) (per curiam). However,
we lack jurisdiction to hear appeals directly from orders of federal
magistrate judges, as an appeal from a magistrate judge’s ruling
must first be to the district court. United States v. Renfro, 620 F.2d
497, 500 (5th Cir. 1980).4 We previously applied Renfro in cases
where a magistrate judge issues a non-dispositive order, a party
fails to object to the order, and the same party subsequently appeals
from the final judgment. See United States v. Schultz, 565 F.3d 1353,
1359–62 (11th Cir. 2009) (per curiam). Therefore, this jurisdictional
rule applies to non-dispositive matters, and with or without notice
that any objections must be filed within the applicable time limits.
Id. at 1361–62. Relevant here, any objections to a magistrate
judge’s non-dispositive pretrial order are to be made within 14
4 We adopted all decisions of the former Fifth Circuit as binding when handed
down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
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23-10808 Opinion of the Court 11
days, and that a party “may not assign as error a defect in the order
not timely objected to.” Fed. R. Civ. P. 72(a).
We lack jurisdiction to review the magistrate judge’s order
denying Gross’s motion for appointment of counsel. She never ap-
pealed that decision to the district court, Renfro, 620 F.2d at 500,
and all litigants—including those proceeding pro se—are required
to comply with applicable procedural rules. Albra, 490 F.3d at 829.
Because Gross failed to abide by Rule 72(a)’s 14-day requirement,
we are required to dismiss that portion of her appeal.
IV. Conclusion
Accordingly, we AFFIRM the district court’s dismissal of
Gross’s fourth amended complaint, and we DISMISS the appeal as
to her motion for appointment of counsel for lack of jurisdiction.
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