Williams v. Birmingham, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARYL WILLIAMS, )

)

Plaintiff, )

)

v. ) Case No. 2:23-cv-1416-GMB

)

CITY OF BIRMINGHAM, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Darryl Williams filed his First Amended Complaint (Doc. 24) as a

matter of course under Federal Rule of Civil Procedure 15(a)(1)(B). See Doc. 22. In

response, the City of Birmingham filed a motion to dismiss. Doc. 27. Shortly

thereafter, the other two defendants—the Water Works and Sewer Board of the City

of Birmingham (“the Board”) and Vincent Covington—filed their own motion to

dismiss the First Amended Complaint. Doc. 29. Williams then filed a motion for

leave to amend his complaint for a second time and attached a proposed second

amended complaint. Docs. 37 & 37-1. For the following reasons, Williams’ motion

to amend (Doc. 37) is due to be granted in part and denied in part. The City’s motion

to dismiss (Doc. 27) will be granted, but the court will deny the Board and

Covington’s motions to dismiss. Doc. 29.

I. RELEVANT BACKGROUND

A. First Amended Complaint

Williams owns real property within the City of Birmingham that he purchased

with the expectation of developing it “consistent with its commercial zoning.”

Doc. 24 at 2. At some point after purchasing it,1 however, Williams discovered that

the defendants were using his lot without his permission to store supplies and

equipment, and that they had damaged some of the pavement on the lot in the

process. See Doc. 24 at 3. After this discovery, Williams went to the Board’s

headquarters, where he spoke with a man named Doug Stockham, who admitted that

the “Board ha[d] taken his lot without his permission and placed pipes, supplies and

equipment on it . . . without just compensation.” Doc. 24 at 3. Stockham promised

Williams that Covington2 would call him “to work out a remedy and compensation.”

Doc. 24 at 3.

Covington did call Williams, but he told Williams that the Board “had gotten

permission to put the pipes, supplies and equipment on the lot from a person that

they though[t] was the owner of the land.” Doc. 24 at 3. Covington also refused to

move the materials or to compensate Williams. Doc. 24 at 3, 4. He did, however,

tell Williams that “the defendants would repair any damage to the property.”

1 The complaint does not include any of the relevant dates.

2 Williams alleges that Covington “oversaw the initial taking of the lot.” Doc. 24 at 3.

Doc. 24 at 4. The materials “stayed on the lot for six months” after this conversation.

Doc. 24 at 3. “During those six months, the [Board] used the lot exclusive[ly], and

tore up the pavement on the lot.” Doc. 24 at 3. Williams could not use his lot during

this time. Doc. 24 at 3, 4.

The amended complaint alleges that the Board is a public corporation created

under Alabama Code § 11-40-230, et seq., and that it performs the “municipal

function” of supplying water and sewerage. Doc. 24 at 2. It further alleges that the

Board “is incorporated under Article 8 of Title 11, Chapter 50 of the Alabama Code

and is in that sense an agency of the city.” Doc. 24 at 2. According to the amended

complaint, the Board “is a public agency of the City of Birmingham, and its

employees are public employees of the City of Birmingham.” Doc. 24 at 2.

The amended complaint includes five3 counts: (1) declaratory judgment;

(2) mandamus or inverse condemnation; (3) a violation of 42 U.S.C. § 1983;

(4) trespass; and (5) conversion. Doc. 24 at 4–7. The first count requests a

declaration that the defendants violated the takings clauses of the United States and

Alabama Constitutions. Doc. 24 at 4–5. “If the defendants’ taking of plaintiff’s lot

is held to constitute a valid exercise of police power,” Count Two asks the court for

an order directing the City “to commence condemnation proceedings” consistent

3 The court does not include Count Six in this discussion because it contains only a request for

attorneys’ fees and costs—a potential remedy and not a separate cause of action.

with Alabama law. Doc. 24 at 5. Count Three alleges violations of 42 U.S.C. § 1983

and of the takings, due process, and just compensation clauses of the United States

Constitution. Doc. 24 at 5–6. Counts Four and Five allege trespass and conversion

claims under Alabama law. Doc. 24 at 5.

The counts do not single out the defendants they are stated against; they lump

“the defendants” together throughout. Doc. 24 at 4–6. Based on the style of the

amended complaint, Williams is attempting to state his claims against Covington in

both his official and individual capacities. Doc. 24 at 1. And in his prayer for relief,

Williams asks the court to declare that the defendants have violated his rights under

the United States and Alabama Constitutions, to provide him with just compensation

for the taking of his property, and to award monetary damages, including attorneys’

fees and costs. Doc. 24 at 7.

B. Proposed Second Amended Complaint

The proposed second amended complaint does not make any material changes

to the first amended complaint’s factual allegations. See Doc. 37-1 at 2–4. It does,

however, add two allegations to the “factual background” section. First, Williams

claims in the proposed second amended complaint that “all Defendants were acting

on behalf of themselves individually and on behalf of, and for the benefit of the City

of Birmingham.” Doc. 37-1 at 4. Williams also alleges that “each Defendant was

acting in concert, both as an agent and/or a principal, for and on behalf of all the

other Defendants, so that the acts of one Defendant were the acts of all Defendants,

thus making all the Defendants jointly and/or severally liable.” Doc. 37-1 at 4.

The first two counts remain the same in the second amended complaint.

Doc. 37-1 at 4–5. The amendments begin with Count Three, where Williams would

add a clam for a “violation of the taking clause of the U.S. Constitution.” Doc. 37-1

at 6. Despite the title of the cause of action, Williams also alleges in this count that

his substantive and procedural due process rights have been violated. Doc. 37-1 at

6. And Count Four, although captioned as a “violation of 42 U.S.C. § 1983,” is a

verbatim recitation of his allegations in Count Two for inverse condemnation.

Compare Doc. 37-1 at 5, with Doc. 37-1 at 7. And within this count, Williams

invokes Alabama Code sections on condemnation proceedings, as well as “the just

compensation requirement of condemnation as required by Alabama law and the

taking clause of the U.S. Constitution.” Doc. 37-1 at 7. There is no reference to

Williams’ due process rights in this count. See Doc. 37-1 at 7. The final two counts

for trespass and conversion under Alabama law,4 along with the prayer for relief,

remain the same as those in the first amended complaint. Doc. 37-1 at 7–9.

As with the amended complaint, the proposed second amended complaint

generically refers to “the defendants” in each count. Doc. 37-1 at 4–8. Likewise, the

4 The proposed second amended complaint contains the same “count” for attorneys’ fees and costs.

Doc. 37-1 at 8.

style of the second amended complaint reflects that Williams states his claims

against Covington in his official and individual capacities. Doc. 37-1 at 1.

II. LEGAL STANDARDS

A. Motion to Amend

When a party is not entitled to amend its pleading as a matter of course, it

must obtain the opposing party’s consent or the court’s permission to file an

amendment. Fed. R. Civ. P. 15(a)(2). The court should “freely” give leave to amend

a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Although a

discretionary decision, the Eleventh Circuit has explained that “district courts should

generally exercise their discretion in favor of allowing amendments to reach the

merits of a dispute.” Pinnacle Advert. & Mktg. Grp., Inc. v. Pinnacle Advert. & Mktg.

Grp., LLC, 7 F.4th 989, 1000 (11th Cir. 2021). In fact, “unless there is a substantial

reason to deny leave to amend, the discretion of the district court is not broad enough

to permit denial.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.

1999) (citation omitted).

Generally, “where a more carefully drafted complaint might state a claim, a

plaintiff must be given at least one chance to amend the complaint before the district

court dismisses the action with prejudice.” Garcia v. Chiquita Brands Int’l, Inc., 48

F.4th 1202, 1220 (11th Cir. 2022) (emphasis in original) (citation omitted). There

are three exceptions to this rule: “(1) where there has been undue delay, bad faith,

dilatory motive, or repeated failure to cure deficiencies by amendments; (2) where

allowing amendment would cause undue prejudice to the opposing party; or

(3) where amendment would be futile.” Id. (citation and alteration omitted).

Leave to amend a complaint is considered futile “when the complaint as

amended would still be properly dismissed or be immediately subject to summary

judgment for the defendant.” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.

2007). The burden falls on the party opposing amendment to establish futility.

See Tims v. Golden, 2016 WL 1312585, at *13 n.20 (S.D. Ala. Apr. 4, 2016)

(collecting cases). If a proposed amendment is not clearly futile, then denial of leave

to amend is improper. See 6 Wright & Miller, Federal Practice and Procedure § 1487

(3d ed. July 2022).

B. Motions to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” That rule

must be read together with Rule 8(a), which mandates that a pleading contain only

a “short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Similarly, Rule 10(b) requires “numbered

paragraphs, each limited as far as practicable to a single set of circumstances,” and

that “each claim founded on a separate transaction or occurrence . . . be stated in a

separate count or defense.” The “self-evident” purpose of these rules is “to require

the pleader to present his claims discretely and succinctly, so that . . . his adversary

can discern what he is claiming and frame a responsive pleading.” Weiland v. Palm

Beach County Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015) (quotation marks

and citation omitted).

In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must

“take the factual allegations in the complaint as true and construe them in the light

most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th

Cir. 2008). To survive a motion to dismiss, a complaint must include “enough facts

to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 550 (2007). A claim is “plausible on its face” if “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 complaint “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555. Factual allegations need not be detailed, but “must be enough to raise a right

to relief above the speculative level,” id., and “unadorned, the-defendant-

unlawfully-harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 678.

III. DISCUSSION

In their responses to the motion for leave to amend, the defendants contend

that any amendment would be futile and that the federal claims stated against them

in either version of the complaint are due to be dismissed. See Docs. 39 & 40. The

court will begin, however, with a more fundamental problem with the proposed

second amended complaint (as well as the first amended complaint).

A. Shotgun Pleading

Shotgun pleadings violate Rule 8 by “fail[ing] to one degree 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 1323 (defining the four types of

shotgun pleadings). One type of shotgun pleading is a complaint that contains

“multiple counts where each count adopts the allegations of all preceding counts,

causing each successive count to carry all that came before and the last count to be

a combination of the entire complaint.” Id. at 1321. The second type is one that is

“replete with conclusory, vague, and immaterial facts not obviously connected to

any particular cause of action.” Id. at 1322. The third fails to separate the causes of

action or claims for relief into different counts. Id. at 1322–23. Finally, the fourth

type of shotgun pleading asserts the claims against multiple defendants without

specifying which defendant is responsible for which act or omission. Id. at 1323.

Williams’ proposed second amended complaint falls squarely within the first,

third, and fourth categories of shotgun pleadings. First, Williams begins each cause

of action by incorporating the allegations contained in the preliminary sections of

the complaint. Doc. 37-1 at 4–8. This type of incorporation by reference is

problematic in that it “force[s] the court [and defendants] to guess what conduct the

counts are referring to because ‘the answer is always everything that the [pleader]

has previously mentioned anywhere in [any of the pleadings].’” United States ex rel.

Wallace v. Exactech, Inc., 2020 WL 4500493, at *8 (N.D. Ala. Aug. 5, 2020)

(quoting Estate of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1356 n.5 (11th Cir.

2020)).

Next, the complaint improperly combines causes of action. The law requires

a plaintiff to separate his or her claims and to organize them “discretely and

succinctly so that [an] adversary can discern what [the plaintiff] is claiming and

frame a responsive pleading.” Weiland, 792 F.3d at 1320 (quoting T.D.S. Inc. v.

Shelby Mut. Ins. Co., 760 F.2d 1520, 1544 n.14 (11th Cir. 1985) (Tjoflat, J.,

dissenting)). Here, the federal counts include multiple causes of action within a

singular count. For example, Count Three of the proposed second amended

complaint purports to state a cause of action for a “violation of the taking clause of

the U.S. Constitution” but also complains about violations of Williams’ substantive

and procedural due process rights. Doc. 37-1 at 6. Elsewhere, Count Four, which is

captioned as relating to 42 U.S.C. § 1983, does not contain relevant allegations

relating to federal law and instead is a verbatim restatement of the second count for

inverse condemnation. And the last count describes a remedy, not a cause of action.

Finally, each count lumps together all of the defendants without distinguishing

among them by specifying who is responsible for every act or omission. The second

amended complaint thus runs afoul of the Eleventh Circuit’s explicit instructions on

shotgun pleadings. Weiland, 792 F.3d at 1323 (stating that a complaint is deficient

as a shotgun pleading if it “assert[s] multiple claims against multiple defendants

without specifying which of the defendants are responsible for which acts or

omissions, or which of the defendants the claim is brought against”).

B. Futility of Amendment

Notwithstanding the above discussion, the court will analyze the futility of

allowing Williams to file his proposed amended complaint. Considering each of the

arguments presented in the motions to dismiss, the court agrees with the City that

any amendment would be futile as to the claims stated against it. But while

Covington and the Board may have meritorious arguments for the dismissal of the

claims against them, the deficiencies in the proposed operative pleading prevent the

court from resolving those arguments at this time.

As to the City, the proposed second amended complaint does not allege that

it or any of its employees took direct actions with respect to Williams’ property.

Instead, as best the court can tell, Williams asserts constitutional violations against

the City based on the claim that “all Defendants were acting . . . for the benefit of

the City.” Doc. 37-1 at 4. More specifically, Williams alleges:

The Birmingham Water Works and Sewer Board is a public agency of

the City of Birmingham, and its employees are public employees of the

City of Birmingham. The City of Birmingham incorporated

Birmingham Water Works and Sewerage Board as a public

incorporation and agency. In so doing, the City of Birmingham

delegated the water and sewerage functions of the City to the

Birmingham Water Works and Sewerage Board. At all times

mentioned herein, the Birmingham Water Works and Sewerage Board

was engaged in the business and activities of [carrying out] the

sewerage and water functions of the city of Birmingham.

Doc. 37-1 at 2.

“To prove municipal liability under § 1983, a plaintiff ‘must show that the

local government entity . . . has authority and responsibility over the governmental

function at issue.’” Teagan v. City of McDonough, 949 F.3d 670, 675 (11th Cir.

2020) (quoting Grech v. Clayton County, 335 F.3d 1326, 1330 (11th Cir. 2003)).

The question of whether an official or entity acts on behalf of a municipality is

“dependent on an analysis of state law.” McMillian v. Monroe County, Ala., 520

U.S. 781, 786 (1997). Here, to determine whether the City possessed sufficient

authority over the area in question, the court “must ‘respect state and local law’s

allocation of policymaking authority,’ and not ‘assume that final policymaking

authority lies in some entity other than that in which state law places it.’” Turquitt v.

Jefferson County, Ala., 137 F.3d 1285, 1288 (11th Cir. 1998) (quoting McMillian v.

Johnson, 88 F.3d 1573, 1577 (11th Cir. 1996)).

Despite Williams’ arguments and conclusory allegations in the proposed

second amended complaint about the relationship between the City and the Board,

there is a clear legal distinction between the City and the Board. Alabama has long

recognized “[t]he independence of a public-utility corporation . . . from the

municipality it serves.” Water Works Bd. of City of Arab v. City of Arab, 231 So. 3d

265, 271 (Ala. 2016) (citing Water Works Board of Leeds v. Huffstutler, 299 So. 2d

268 (1974)). In fact, the Alabama Supreme Court has held explicitly that a water

works board formed under § 11-50-230 is “not a mere agency of the [municipality

it serves] but a public corporation entirely separate and independent from [that

municipality].” Id. at 272.

This settled principle of Alabama law is fatal to Williams’ claims against the

City. The proposed second amended complaint alleges that the Board “is a public

corporation created pursuant to § 11-50- 230 et seq., Ala. Code 1975.” Doc. 37-1 at

2. As such, the Board is a separate entity from the City under Alabama law. The

proposed second amended complaint does not allege that the City took any action

relating to Williams or his property. Instead, it only links the City to the actions of

the Board and Covington by virtue of the Board’s municipal functions. These

allegations are insufficient as a matter of law. Accordingly, any amendment would

be futile, and Williams’ claims against the City are due to be dismissed with

prejudice.

C. Leave to Amend

The court will give Williams one more chance to file an amended complaint

that cures the deficiencies in his claims against the City and Covington. When

amending his complaint, Williams should take note of his obligations under the

Federal Rules of Civil Procedure. As explained above, Rule 8 requires that a

complaint “must contain . . . a short and plain statement of the claim showing that

the pleader is entitled to relief” and “[e]ach allegation must be simple, concise, and

direct.” And Rule 10 requires that a complaint contain “numbered paragraphs, each

limited as far as practicable to a single set of circumstances.” Williams’ amended

complaint must clearly set forth the facts concerning any incident about which he

complains in separately numbered paragraphs. The amended complaint must

contain a separate count for each claim that contains a factual basis for that claim

only. Each count should identify the specific defendant(s) against whom the claim

is asserted and the statute or law under which the claim is brought. In addition, he

must (1) identify each defendant he alleges participated in the violation of his rights;

(2) describe what each defendant did that amounted to a violation of his rights;

(3) state when and where the incidents underlying the violation of his rights

occurred; (4) describe how the acts or omissions of each defendant resulted in harm

to him; (5) identify the nature of that harm (for example, loss of money, income, or

property; bodily injury; or interference with his right to engage in or refrain from

some activity); and (6) state the specific relief he seeks from each defendant (for

example, compensatory or punitive damages, or some form of injunctive relief,

including any request for attorneys’ fees, costs, and expenses).

Finally, the amended complaint must be a stand-alone pleading and must set

forth each and every allegation and claim without reincorporating allegations and

claims from any other pleading. The court will not permit Williams to resurrect

claims dismissed with prejudice by this order.

IV. CONCLUSION

For these reasons, it is ORDERED as follows:

1. The City’s motion to dismiss (Doc. 27) is GRANTED, and all claims

stated against the City are DISMISSED with prejudice;

2. The Board and Covington’s motion to dismiss (Doc. 29) is DENIED;

3. The motion for leave to amend (Doc. 37) is GRANTED in part and

DENIED in part; and

4. Williams shall file his amended complaint on or before July 24, 2024.

Failure to file an amended complaint by this deadline will result in the dismissal of

this action for failure to state a claim and failure to prosecute.

DONE and ORDERED on July 10, 2024.

COP xn

GRAY M.BORDEN

UNITED STATES MAGISTRATE JUDGE

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