Spataru v. Federal Aviation Administration
| Valentin Spataru |
| Federal Aviation Administration |
| 4:2020cv10087 |
| July 29, 2020 |
| US District Court for the Southern District of Florida |
| K Michael Moore |
| Airplane |
| 28 U.S.C. ยง 1983 |
| Plaintiff |
Docket Report
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Filing 10
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Motion to Amend Complaint. #7 . On July 29, 2020, Plaintiff filed a Complaint against the Federal Aviation Administration ("FAA") for failing to investigate the pilots that flew a helicopter too close to his sailboat. #1 . On the same day, Plaintiff moved to proceed in forma pauperis. #3 . On August 13, 2020, the Court dismissed the Complaint pursuant to 28 U.S.C. 1915(e) because district courts do not have jurisdiction to review the actions of the FAA. #6 at 3. Now, Plaintiff requests that the Court grant him leave to amend his complaint to bring claims against defendants other than the FAA. #7 . Specifically, Plaintiff seeks to bring claims against the unknown pilots of the helicopter. Id. However, on the same day, Plaintiff failed a notice of appeal of the Court's Order dismissing the Complaint. #8 . "Although a notice of appeal typically deprives the district court of jurisdiction over a case, 'a premature notice of appeal does not.'" Pinkston v. Univ. of S. Fla. Bd. of Tr., 715 F. App'x 877, 880 (11th Cir. 2017) (citation omitted). An order of dismissal without prejudice, in and of itself, is not an appealable final order. See Sarhan v. Miami Dade Coll., No. 18-12351-F, 2018 WL 4253109, at *1 (11th Cir. Aug. 10, 2018) (holding that an order dismissing the plaintiffs third amended complaint without prejudice and permitting a fourth amended complaint was not a final order because it "did not end the case on the merits"). Accordingly, the Notice of Appeal #8 has not divested the Court of jurisdiction over this case. Nevertheless, the Court declines to permit Plaintiff leave to amend his Complaint. Federal Rule of Civil Procedure 15(a)(2) permits a party to amend its pleadings by leave of court or by written consent of the adverse party. Fed. R. Civ. P. 15(a)(2). "The policy of the federal rules is to permit liberal amendment to facilitate determination of claims on the merits and to prevent litigation from becoming a technical exercise in the fine points of pleading." Castros v. Signal Fin. Co. LLC, 1:17-cv-21870-KMM, 2018 WL 1137099, at *1 (S.D. Fla. Feb. 4, 2018) (citation omitted). "The decision whether to grant the motion is within the discretion of the district court, but should be granted unless there is a substantial reason to deny." Edwards v. Apple Computer, Inc., 645 F. App'x 849, 852 (11th Cir. 2016). A substantial reason could include "undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of the amendment." Grayson v. Kmart Corp., 79 F.3d 1086, 1110 (11th Cir. 1996). "Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed or immediately subject to summary judgment for the defendant." Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (citation omitted). Moreover, "leave to amend should not be denied on the grounds of futility unless the proposed amendment is clearly insufficient or frivolous on its face." Montes v. M & M Mgmt. Co., No. 15-80142-CIV, 2015 WL 11254703, at *1 (S.D. Fla. May 12, 2015) (citation omitted).Here, Plaintiff attaches the proposed amended complaint to his Motion. [7-1]. Therein, he seeks to bring claims against the unknown pilots. Id. "As a general matter, fictitious-party pleading is not permitted in federal court." Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997)). A limited exception to this rule exists "when the plaintiff's description of the defendant is so specific as to be 'at the very worst, surplusage.'" Id. (quoting Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992)). And, Plaintiff does not provide an adequate description of the unknown pilots for their identity to be mere "surplusage." [7-1]. Thus, the Court finds that Plaintiff's proposed amendment is futile. Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion to Amend the Complaint #7 is DENIED. Signed by Chief Judge K. Michael Moore on 9/21/2020. (mgh)
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| Filing 9 Acknowledgment of Receipt of NOA from USCA re #8 Notice of Appeal, filed by Valentin Spataru. Date received by USCA: 9/14/20. USCA Case Number: 20-13429-F. (hh) |
| Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re #8 Notice of Appeal. Notice has been electronically mailed. (hh) |
| Filing 8 Notice of Appeal by Valentin Spataru as to #6 Order Dismissing Case. Filing fee $ 505.00 Receipt#: FEE NOT PAID. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (hh) |
| Filing 7 MOTION to Amend my July 29th, 2020 complaint to sue in this Court only the Defendants who are not FAA or employed by FAA re #1 Complaint by Valentin Spataru. Responses due by 9/25/2020 (Attachments: #1 Amended Complaint)(mee) |
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Filing 6
ORDER DISMISSING CASE Signed by Chief Judge K. Michael Moore on 8/13/2020. See attached document for full details. (mgh)
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| Filing 5 Consent by Pro Se Litigant (Non-Prisoner) Valentin Spataru to receive Notices of Electronic Filing at email address: valespa@outlook.com (cbr) |
| Filing 4 MOTION for Referral to Volunteer Attorney Program by Valentin Spataru. (cbr) |
| Filing 3 MOTION for Leave to Proceed in forma pauperis by Valentin Spataru. (cbr) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Jacqueline Becerra is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (cbr) |
| Filing 1 COMPLAINT for Damages for Violation of Rights, and Request for Jury Trial against Federal Aviation Administration. Filing fees $ 400.00. IFP Filed, filed by Valentin Spataru. (Attachments: #1 Civil Cover Sheet)(cbr) |
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