Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gialto v. Bush

April 19, 2007

TERRY L. GIALTO
v.
GEORGE W. BUSH, ET AL.,



MEMORANDUM DECISION and ORDER

This matter has been referred to me for all further proceedings, including the entry of a final judgment pursuant to 28 U.S.C § 636(c), the consent of the parties, and the order of Senior United States District Judge Frederick J. Scullin, Jr., dated February 20, 2007. (Dkt. No. 11). Presently before the court is the defendants' motion for a more definite statement pursuant to FED. R. CIV. P. 12(e). (Dkt. No. 8). Plaintiff has responded in opposition to defendants' motion. (Dkt. No. 9).

The court notes that although defendants made a motion for a more definite statement, which under the rules would contemplate plaintiff filing an amended complaint, the motion actually asks for dismissal at the end of the memorandum of law, rather than asking the court to order plaintiff to file an amended complaint as an alternative to dismissal. (Dkt. No. 8 at p.3). Regardless of the label that defendants have placed on their motion, this court agrees that this complaint should be dismissed without the opportunity to amend.

DISCUSSION

1. Motion for a More Definite Statement

Rule 12(e) of the Federal Rules of Civil Procedure provides that if a pleading to which a responsive pleading is permitted is so vague or ambiguous that the party cannot reasonably be required to formulate a response, the party may move for a more definite statement before filing the responsive pleading. FED. R. CIV. P.12(e). Rule 12(e) is designed to "remedy unintelligible pleadings." Columbia Ins. Co. v. Brown Shoe Co., 233 F.R.D. 250, 251 (D. Conn. 2005)(citation omitted).

In order to grant a motion under Rule 12(e), the court must find that the complaint does not comply with the requirement under Rule 8 of a "short and plain statement" of the claim. Id. Motions under Rule 12(e) are generally disfavored and are not intended as a substitute for the "normal discovery process." Id. (quoting Allstate Ins. Co. v. Seigel, 312 F. Supp. 2d 260, 277 (D. Conn. 2004))(internal quotation marks omitted). When a motion for a more definite statement is brought, it must contain a statement of the defects of which the party complains and of the details desired. FED. R. CIV. P. 12(e).

Rule 8 of the Federal Rules provides that a pleading that sets forth a claim for relief shall include a "short and plain" statement of the claim, showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). A "short and plain" statement is sufficient as long as it puts the defendant on notice of the plaintiff's claims against that defendant. Id. See Phillips v. Girdich, 408 F.3d 124, 127 (2d Cir. 2005)(discussing Rules 8 and 10 and sua sponte dismissal). Pro se pleadings must be "construed liberally" and should not be dismissed unless it is "'clear that the plaintiff would not be entitled to relief under any set of facts that could be proven consistent with the allegations.'" Id. (citing Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997)).

In Phillips, the Second Circuit specifically stated that the court will overlook "technical pleading irregularities" and "harmless" violations of Rule 10, which requires a complaint to contain separate, numbered paragraphs for each statement. Id. at 128. The court will overlook these violations "as long as they neither undermine the purpose of notice pleading nor prejudice the adverse party." Id. (citing Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004); Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986)).

Notwithstanding this policy of liberality, the court has the discretion to dismiss frivolous claims, whether or not the plaintiff is proceeding in forma pauperis. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)(district court had the power to dismiss an action sua sponte notwithstanding payment of the filing fee). In deciding whether an action is frivolous, the court must determine whether the complaint lacks an "arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A complaint is "factually" frivolous if it includes allegations that are "fanciful, fantastic, and delusional." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A complaint is based on an "indisputably meritless" legal theory if the claim lacks an arguable basis in law or when a dispositive defense clearly exists on the face of the complaint. Curry, 2006 U.S. Dist. LEXIS 74014 at *6-7 (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)). Finally, the court notes that in almost every case, if a pro se pleading is insufficient for any reason, the court must give the pro se plaintiff the opportunity to amend or to submit a more definite statement of his claims. See Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991). For the following reasons, however, I find that this complaint is frivolous, fails to meet the standards articulated in Rule 8, but also find that plaintiff should not be given another chance to replead.

2. Complaint

The complaint in this case names three defendants: George W. Bush, the current President of the United States; George H.W. Bush, Sr., the former President of the United States; and Alberto Gonzales, the United States Attorney General. (Dkt. No. 1). The complaint is a rambling series of paragraphs in which plaintiff appears to allege, among other things, that he is the owner of various businesses such as the Fox Television Network, the WWE World Wrestling Entertainment, M & T Bank, Soldier of Fortune Magazine, Dick's Sporting Goods, Sprint, Nextel, and MCI. Complaint at p.12. At one point in the complaint, plaintiff alleges that the former President of the United States interfered with plaintiff's businesses, preventing plaintiff from attempting to prosper. Complaint at p.10.

Plaintiff also refers at various times in his complaint to military justice and alleges that he was approached and asked to become a military judge of the "GENERAL COURTS MARTIAL SESSION" in Houston, Texas. Complaint at p.5. Plaintiff also states that the "jury" discovered a "fourth civil case" that was about the use of plaintiff's military records without permission. Complaint at p.6. Plaintiff also states in the section of the complaint allegedly covering the current President, that plaintiff's ex-wife sold MCI for $34 billion dollars, and that the entire amount should belong to plaintiff. Complaint at p.15. Plaintiff claims although he is the founder and sole owner of Sprint Telephone, the current President of the United States denied plaintiff access to this company, and plaintiff states that he wrote to defendant George W. Bush telling him that plaintiff did not wish to acquire Nextel, but that defendant Bush did not respond to plaintiff's letter. Id.

This court has carefully reviewed this complaint and agrees with defendants that it would be impossible for them to formulate an answer to this complaint because it is impossible to understand and is clearly based on some "fanciful" claims at best. Although, as stated above, the court would generally allow an amendment or would grant defendant's motion for a more ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.