Opinion

Kelly v. Montgomery Water Works and Sanitary Sewer Board (MAG+)

Court
District Court, M.D. Alabama
Filed
Jan 2, 2025
Cited by
0 cases

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

GREGORY KELLY, )

)

Plaintiff, )

)

v. ) CASE NO. 2:24-cv-348-RAH-JTA

) (WO)

THE WATER WORKS AND )

SANITARY SEWER BOARD OF THE )

CITY OF MONTGOMERY, et al., )

)

Defendants. )

ORDER

Before the court is the document filed by pro se Plaintiff Gregory Kelly on August

30, 2024 entitled “Plaintiff’s Notice Regarding Order to Show Cause; or in the Alternative

a Summary Judgement Due to No Undisputed Genuine Facts in this Case” (Doc. No. 37

(sic).) The court CONSTRUES the document as containing Kelly’s response to

Defendants’ August 15, 2024 motion to dismiss,1 as containing a motion for summary

judgment, and as containing a motion for default judgment. Also before the court is Kelly’s

December 10, 2024 motion (Doc. No. 38) entitled “2nd Show Cause Motion Seeking

Default Judgment Against the Defendants for Failing to Answer a Complaint Within 14

Days or In the Alternative Motion for Summary Judgement Against the Defendants Due to

No Undisputed Genuine Facts in the Case” (Doc. No. 38), which the court CONSTRUES

1 Defendants’ August 15, 2024 motion to dismiss is Document Number 34 on the docket sheet.

as containing a motion for summary judgment and a motion for default judgment. On

today, the court entered an order striking the amended complaint (Doc. No. 21) as a shotgun

pleading and ordering Kelly to file an amended complaint. Therefore, the motions for

default judgment and motions for summary judgment are due to be denied as moot.

In the motions, Kelly argues that he is entitled to judgment as a matter of law

because, he contends, Defendants failed to timely answer or otherwise respond to his

amended complaint within the time allotted by Rule 15 of the Federal Rules of Civil

Procedure. However, Defendants timely filed their August 15, 2024 motion to dismiss by

the deadline set by the court. (See Docs. No. 23, 31 (orders extending time for the filing of

Defendants’ motion to dismiss).) Rule 15 permits such court action. See Fed. R. Civ. P.

15(a)(3) (“Unless the court orders otherwise, any required response to an amended

pleading must be made within the time remaining to respond to the original pleading or

within 14 days after service of the amended pleading, whichever is later.” (emphasis

added)).

Multiple times, the court has explained to Kelly that, under the circumstances, a

motion to dismiss is timely filed, and the court has warned him that continuing to file

“motions for summary judgment” on such grounds is frivolous and violates his obligations

under Rule 11 of the Federal Rules of Civil Procedure.2 The court has also previously

2 Kelly filed his first motion for default judgment and motion for summary judgment on August

30, 2024. (Doc. No. 37.) By then, he had been told at least twice that such arguments were

frivolous. See Kelly v. Montgomery Hous. Auth., No. 2:24-CV-166-MHT-JTA, 2024 WL 3240637

(M.D. Ala. June 28, 2024). Kelly filed his second motion for default judgment and motion for

summary judgment on December 10, 2024. (Doc. No. 38.) By then, he had been told at least three

“ADVISED [Kelly] that he will_be_ subject to sanctions if he continues to clutter the

dockets with motions and other filings containing repeat attempts at raising the same

frivolous arguments.” See Kelly v. Elite Roofing, LLC, No. 2:24-CV-388-MHT-JTA, 2024

WL 4994508, at *3 (M.D. Ala. Dec. 5, 2024) (emphasis in original). Because the motions

for default judgment and motions for summary judgment are moot in this instance, and to

conserve judicial resources, the court will not initiate the sanctions process against Kelly

at this time. However, Kelly is ADVISED that, if he again raises the same frivolous

arguments in support of any motion in this or any other action before the undersigned,

he will be subject to sanctions, which may include monetary sanctions and will include

a recommendation that this action be dismissed with prejudice.

Accordingly, it is ORDERED as follows:

1. Plaintiff's motions for default judgment (Docs. No. 37, 38) are DENIED as

moot.

2. Plaintiff's motions for summary judgment (Docs. No. 37, 38) are DENIED as

moot.

DONE this 2nd day of January, 2025.

ma T. ADAMS

UNIJ/PED STATES MAGISTRATE JUDGE

times that such arguments were frivolous. See Kelly v. Elite Roofing, LLC, No. 2:24-CV-388-

MHT-JTA, 2024 WL 4994508, at *3 (M.D. Ala. Dec. 5, 2024).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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