DJM LOGISTICS, INC. v. FEDEX GROUND PACKAGE SYSTEM, INC.
No. 21-3289
United States Court of Appeals For the Seventh Circuit
ARGUED JUNE 3, 2022 — DECIDED JULY 6, 2022
Bеfore SYKES, Chief Judge, and FLAUM and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:20-cv-01311-BHL — Brett H. Ludwig, Judge.
I
This case‘s procedural history prescribes its outcome, so we relay it in some detail.
In late 2009, Fairway contracted with FedEx Ground to deliver packages to its Milwaukee-area customers. Brandi Johnson, who is African-American and Native-American, co-owns Fairway.
About a month later, now represented by counsel, Johnson again sued FedEx Ground.2 This second case listed Johnson and Fairway Delivery, Inc. as plaintiffs. Like the first case, it claimed that FedEx Ground breached its contract with Fairway as well as violated
In March 2020, plaintiffs’ then-counsel gave notice that Johnson and Fairway had voluntarily dismissed the second case under
The next month, Johnson, representing herself, filed a third case against FedEx Ground.4 She was the sole plaintiff. This complaint involved similar facts and arguments as her two previоus lawsuits and the arbitration, including a
FedEx Ground moved to dismiss this third case under
In a September 27, 2021 written order, the district court granted FedEx Ground‘s motion to dismiss this third case. The court concluded that Johnson‘s complaint failed to state a claim under
Nevertheless, the district court granted Johnson a reprieve. Based on her surreply and her statements at the motion hearing, she was granted two weeks to amend her complaint. The court‘s order gave Johnson precise and emphatic directions:
The Court strongly cautions Johnson, however, not to file an amended complaint asserting this new theory unless she has proof of these new allegations. If the record later shows that Johnson never asked FedEx to approve an assignment of the Fairway contract to Johnson individually, and she nevertheless proceeds with a claim that such a request was denied, she may face possible sanctions for making false reрresentations to the Court in violation of the
Federal Rule of Civil Procedure 11(b) .
(Emphases in original.)
Eight days later, on October 5, 2021, Johnson filed an amended complaint in which she replaced herself as the plaintiff with a corporation, DJM Logistics Inc., the appellant here. Johnson asserted she “was to be the majority shareholder and owner” of DJM.
This was the fourth complaint, each alleging the same claims, that Johnson and/or one of her companies had filed: the complaints by Fairway and Johnson as plaintiffs prior to the arbitration, and the complaints by Johnson and DJM as plaintiffs after the arbitration. This fourth complaint did not allege that FedEx Ground had blocked an attempted assignment of contract rights to Johnson individually, as she had said in her surreply and at the motion hearing. Instead, the pleading alleged a different version of the facts in which FedEx Ground blocked an assignment to DJM. FedEx Ground immediately moved to dismiss this fourth complaint under
The district court dismissed this fourth complaint with prejudice in December 2021. The court stated “[n]either this argument nor any other argument in the amended complaint conform[ed] to the requirements specified in the Court‘s previous order or otherwise stat[ed] a claim under Federal Rule of Civil Procedure 8(a).” This “failure alоne [was] sufficient ... to grant FedEx‘s motion to dismiss the amended complaint.” The fourth complaint was defective for two other reasons, the court ruled. First, it “name[d] DJM as the plaintiff instead of Johnson, and Johnson again made the filing without representation of counsel.” Second, the “four-year statute of limitations for Johnson‘s Section 1981 claim ha[d] elapsed.”
Johnson was also ordered to show cause why, given her conduct, sanctions were not appropriate. She responded by counsel, arguing the district court had only required she allege a discriminatory refusal of assignment. That requirement was satisfied, she said, when she claimed DJM was refused the assignment. For the first time she also asserted that the two weeks the court had granted her within which to file an amended complaint were inadequate for her to retain counsel. Finding Johnson‘s response deficient, the district court “admonished her for proceeding with her litigation.”
This appeal followed. We review de novo the challenge to the district court‘s
II
A
DJM argues the district court erroneously dismissed its amended complaint for failure to state a claim upon which relief could be granted. This pleading met the rеquirements of
DJM‘s arguments fall short for a number of reasons. “Any claim brought under
Further, between her third and fourth complaints, Johnson switched the party to whom FedEx Ground had allegedly blocked an attempted assignment of the delivery contract. On September 27, 2021, the district court granted Johnson leave to amend her third complaint. If she had proof of new allegations, she could bring a new claim that FedEx Ground discriminated against her when it refused to allow Fairway to assign its contract to her. This leave was with specific bold and underlined conditions, relayed above. Presumably, the district court granted Johnson this opportunity out of patience, notwithstanding that Johnson rаised this contention in an unauthorized surreply, and then reiterated it during the motion hearing.
Still, the amended fourth complaint that Johnson filed for DJM in October 2021 did not include factual support for her tardy contention that she was denied an assignment of the Fairway contract. Instead, that pleading alleged FedEx Ground interfered with Fairway‘s attempt to assign its contract to DJM. Johnson therefore failed to comply with the court‘s September 27, 2021 order, as well as Rule 8(a) and what was required to claim a violation of
The fourth complaint is also deficient because the four-year statute of limitations for a
B
DJM also argues that the district court abused its discretion by dismissing the fourth complaint with prejudice, without leave to amend, аnd without sufficient time to retain counsel.
The district court did afford Johnson the chance to amend her third complaint. She was granted 14 days to amend from the court‘s September 27, 2021 order dismissing that complaint without prejudice. Johnson filed her fourth complaint eight days later. She did not seek leave to further amend her complaint before, during, or after this time period. A court does “not abuse its discretion by failing to order, sua sponte, an amendment” when the plaintiff does not request one. Wagner v. Teva Pharms. USA, 840 F.3d 355, 359 (7th Cir. 2016). Here, the district court did not abuse its discretion for failing to grant a request that was never made.
DJM also contends that the amendment process was affected because Johnson could not afford counsel, and she was concerned that FedEx Ground imprоperly influenced her former attorneys. But DJM did not ask the district court for more time to retain counsel to file an amended complaint. And Johnson and her related companies knew how to retain counsel—recall, Johnson and Fairway retained counsel for her second complaint in Eastern District of Wiscоnsin case no. 20-cv-342, as well as during the arbitration. Even more, DJM responded to the district court‘s September 27, 2021 order granting leave to amend on October 5, 2021—six days before the court-imposed deadline of October 11, 2021. DJM‘s assertions on this point are too late and offered without evidence of any attempts to rеtain counsel during that time frame.
Dismissal with prejudice of the fourth complaint was warranted because the amendment of the third complaint failed to comply with the district court‘s earlier order. Johnson knew from the district court‘s dismissal of her first complaint in Eastern District of Wisconsin case no. 20-cv-114 that only an attorney could represent a corporation in court. Yet when Johnson amended her third complaint, she substituted a corporation, DJM, for herself, and she did so on a form captioned, ”AMENDED COMPLAINT (for non-prisoner filers without lawyers).” Johnson knew
Given the opportunities Johnson was afforded in four complaints over three cases, the district court offered a reasonable explanation and thus did not abuse its discretion when it dismissed the fourth complaint with prejudice.
C
We close with some comments about Johnson‘s conduct and sanctions. “We recognize that litigatiоn presents significant challenges for all pro se plaintiffs.” Pruitt v. Mote, 503 F.3d 647, 660 (7th Cir. 2007) (en banc). Pro se litigants should be granted appropriate latitude in their dealings with courts and counsel for correct and honorable reasons. “But being a pro se litigant does not give a party unbridled license to disregard clearly communicated court orders.” Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir. 1996).
Based on Johnson‘s conduct during the histоry of this dispute, the district court was well within its discretion to sanction Johnson and/or her corporations. Indeed, that court could have gone further and awarded FedEx Ground the reasonable attorneys’ fees it incurred in defending Johnson‘s various suits and complaints. Latitude with a pro se plaintiff can be limited, and patience cаn be exhausted, in the face of persistent violative conduct.
After two pleading attempts, one of which was dismissed for violating the requirement that an attorney must represent a corporation, Johnson voluntarily dismissed her claim, which was then apparently settled after an arbitration. Notwithstanding that resolution, the next month Johnson had returned to court and filed her third case trying to make the same claims. That third case reached the cusp of dismissal when she raised an assignment-denial theory in an unauthorized surreply and which she reiterated during a court hearing. So, the district court granted her—with clear and emphatic directions—а fourth opportunity to plead her claim. In response, Johnson violated those instructions. She reverted to her previous behavior and filed a fourth complaint on behalf of a different corporation in which she pleaded different facts than she had previously represented to the court in writing and orally. She also violated the requirement that only an attorney can represent a corporation—a rule she was aware of from a previous dismissal in this same dispute—and she did so on a form with a caption that states in bold it was to be used by nonlawyers, so it could not be used for a corporate plaintiff. These circumstances justifiably frustrated FedEx Ground, as the goal of a “speedy” and “expensive” determination of this dispute was not met. See
* * *
For these reasons, we AFFIRM the district court‘s judgment. The costs of this appeal are to be taxed against the aрpellant pursuant to