McCaskill v. 13th Judicial Circuit Court of Alabama

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TEKEELA A. McCASKILL, 	)
Plaintiff, 	)
)
v. 	)CIVIL ACTION NO. 1:22-00250-CG-N
)
13TH JUDICIAL CIRCUIT COURT 	)
OF ALABAMA, et al., 	)
Defendants. 	)
REPORT AND RECOMMENDATION
The Plaintiff, TEKEELA A. McCASKILL, initiated this civil action on
June 27, 2022, by filing with the Court a complaint alleging claims of employment
discrimination against Defendant the “13th Judicial Circuit Court of Alabama,
Civil Division.”1 See (Doc. 1); Fed. R. Civ. P. 3. On January 31, 2023, McCaskill
filed her first amended complaint (Doc. 24) as a matter of course, see Fed. R. Civ.
P. 15(a)(1)(B); (Doc. 22), which renamed the original defendant as simply the “13th
Judicial Circuit Court of Alabama” (hereinafter, “the 13th Circuit”) and added
JoJo Schwarzauer, Chuck Lewis, and Tachonda Smith as party defendants. All
1 This is the same entity McCaskill named as her employer on her underlying
Charge of Discrimination submitted to the Equal Employment Opportunity
Commission. (See Doc. 24, PageID.88)
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Defendants, except for Schwarzauer,2 filed motions to dismiss the first amended
complaint under Federal Rule of Civil Procedure 12(b)(6) (Docs. 27, 29).3
In 	accordance 	with 	the 	Court’s 	briefing 	schedules 	(see 	Docs. 	28, 	30),
McCaskill filed a consolidated response to both motions (Doc. 34), and the
Defendants filed a joint reply (Doc. 35) to the response. The motions to dismiss
are now under submission.
I. 	Analysis
a. 	The First Amended Complaint
As alleged in McCaskill’s first amended complaint and attached exhibits
(Doc. 24),4 McCaskill was hired by the Clerk’s Office for the 13th Circuit in 2016,
2 To 	date, 	Schwarzauer 	has 	not 	answered 	the 	first 	amended 	complaint 	or
otherwise appeared. Lewis and Smith’s motion to dismiss asserts that, at the time
of its filing, Schwarzauer had not yet been served with process. (See Doc. 29 n.1,
PageID.108). 	However, 	because 	McCaskill 	has 	voluntarily 	dismissed
Schwarzauer, see infra, that issue is moot.
3 The assigned District Judge has referred said motions to the undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal
Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b);
(2/13/2023 & 2/22/2023 electronic reference notations).
4 	In deciding a Rule 12(b)(6) motion of whether a complaint fails to state a
claim upon which relief can be granted, in general “[t]he scope of the review must
be limited to the four corners of the complaint.” St. George v. Pinellas Cty., 285
F.3d 1334, 1337 (11th Cir. 2002). “A copy of a written instrument that is an exhibit
to a pleading is a part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). The
court must “accept the allegations in the complaint as true and construe them in
the light most favorable to the plaintiff.” Duty Free Ams., Inc. v. Estee Lauder
Companies, Inc., 797 F.3d 1248, 1262 (11th Cir. 2015).
Courts “hold the allegations of a pro se complaint to less stringent standards
than formal pleadings drafted by lawyers[,]” and “[a]ccordingly … construe [pro
se] pleadings liberally. Yet even in the case of pro se litigants this leniency does
not give a court license to serve as de facto counsel for a party, or to rewrite an
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and was promoted to the position of Court Specialist II in 2018. Her employment
was terminated in 2022. At all relevant times, Schwarzauer was the Clerk of the
13th Circuit. McCaskill claims that during her employment she was subject to
unlawful racial discrimination, harassment, and retaliation by her supervisors,
including Lewis, head of the Civil Division, and Smith, head of the Domestic
Relations Division. These discriminatory and retaliatory acts included failure to
promote McCaskill, reassigning her to a different division of the clerk’s office,
micromanaging, and negative performance reviews. McCaskill reported some of
these acts to the Equal Employment Opportunity Commission in a Charge of
Discrimination dated March 16, 2022 (Doc. 24, PageID.88).
b. 	The 13th Circuit
Construing 	the 	first 	amended 	complaint 	as 	asserting 	only 	claims 	of
workplace racial discrimination and retaliation under Title VII of the Civil Rights
Act of 1964, 5 the 13th Circuit’s present motion argues a single ground for
dismissal: that the Mobile County Clerk’s Office, rather than the 13th Circuit, was
McCaskill’s “employer” at all relevant times, and thus, the 13th Circuit cannot be
liable to her under Title VII. See, e.g., Peppers v. Cobb Cnty., Ga., 835 F.3d 1289,
otherwise deficient pleading in order to sustain an action.” Campbell v. Air
Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (citations and quotation
omitted).
5 McCaskill does not dispute that she is asserting claims under Title VII, and the
fact that she attached an EEOC Charge of Discrimination claiming violations of
Title VII to her complaint further supports this.
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1297 (11th Cir. 2016) (“A Title VII workplace discrimination claim can only be
brought by an employee against his employer.”).6
Consistent with the remedial purposes of Title VII, the federal courts
have interpreted the term “employer” liberally. Thus, in order to
decide whether an entity is a qualified employer, we have asked this
basic question: “who (or which entity) is in control of the fundamental
aspects of the employment relationship that gave rise to the claim.”
Lyes v. City of Riviera Beach, 166 F.3d 1332, 1345 (11th Cir. 1999)
(en banc). An examination of this question requires consideration of
the totality of the employment relationship. Among the basic factors
we consider are these: (1) how much control the alleged employer
exerted on the employee, and (2) whether the alleged employer had
the power to hire, fire, or modify the terms and conditions of the
employee's employment.
Id. (some citations omitted).
In arguing that it was not McCaskill’s employer, the 13th Circuit relies
primarily on Ala. Code § 12-17-24,7 which states, in full: “The presiding circuit
6 “Under Title VII, an ‘employer’ is defined as ‘a person engaged in an industry
affecting commerce who has fifteen or more employees ... and any agent of such a
person.’ 42 U.S.C. § 2000e(b). A ‘person’ includes ‘individuals, governments,
governmental agencies, [and] political subdivisions....’ 42 U.S.C. § 2000e(a). Title
VII defines an ‘employee’ as ‘an individual employed by an employer[.]’ 42 U.S.C.
§ 20003(f).” Peppers, 835 F.3d at 1295.
7 The 13th Circuit also cites information from its own website and that of the
Alabama Administrative Office of Courts as evidence showing that McCaskill was
employed by the Mobile County Clerk’s Office. “A court is generally limited to
reviewing what is within the four corners of the complaint on a motion to dismiss.”
Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006). Subject to
certain exceptions, see, e.g., Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005),
“[i]f, on a motion under Rule 12(b)(6)…, matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56[, and a]ll parties must be given a reasonable
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judge shall exercise a general supervision of the judges, clerks, registers, court
reporters, bailiffs, sheriffs and other court employees of the circuit and district
courts within the circuit, except employees of the clerk, and see that they attend
strictly to the prompt, diligent discharge of their duties.” The 13th Circuit argues:
“While this statue plainly provides that ‘employees of the clerk’ are contemplated
as 	a 	subset 	of 	“court 	employees,’ 	it 	specifies 	that 	they 	are 	not 	under 	the
supervision of the presiding circuit judge. Because ‘employees of the clerk’ are not
under 	the 	supervision 	of 	the 	presiding 	circuit 	judge, 	they 	are 	subject 	to
supervision by the clerk, via the Clerk’s Office.” (Doc. 27, PageID.101).
Under Alabama law, “[t]here is provided in every county in the state a
circuit court with all the jurisdiction and powers that are conferred on the circuit
court by the Constitution and laws of this state.” Ala. Code § 12-11-1(a). See also
Ala. Const. Art. VI (a/k/a “Ala. Const. Amend. No. 328”), § 142(a)-(b) (“The state
shall be divided into judicial circuits. For each circuit, there shall be one circuit
court having such divisions and consisting of such number of judges as shall be
provided by law…The circuit court shall exercise general jurisdiction in all cases
except as may otherwise be provided by law.”). The State of Alabama is currently
divided into 41 “judicial circuits for the circuit courts,” with each judicial circuit
opportunity to present all the material that is pertinent to the motion.” Fed. R.
Civ. P. 12(d). However, in light of the conclusions reached herein based solely on
the pleadings and the law, the undersigned finds it unnecessary to consider the
website evidence.
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composed of at least one Alabama county. See Ala. Code § 12-11-2. The 13th
Circuit is composed solely of Mobile County. See id. § 12-11-2(13).
Circuit court judges are “elected by vote of the electors within the territorial
jurisdiction of their respective courts.” Ala. Const. Art. VI, § 152. “Clerks of the
circuit courts” are also “elected by the qualified electors in each county[,]” though
“[v]acancies in the office of clerk of the circuit court shall be filled by the judge or
judges of the circuit court who have jurisdiction over the county in which the office
of clerk of the circuit court is located.” Id. § 160. See also Ala. Code § 12-17-90
(“Vacancies in [the] office[s of the circuit clerks] shall be filled in accordance with
Constitutional 	Amendment 	No. 	328.”). 	“Clerks 	of 	the 	circuit 	court 	have
authority[,]” among other things, “[t]o appoint deputies, with full power to
transact all business of such clerks, such deputies first taking an oath to support
the Constitution and laws of this state and faithfully to discharge the duties of
deputy clerks of the court for which they act.” Ala. Code § 12-17-93(2).
The “presiding judge of a circuit” is “elected by a majority vote of circuit
judges in the circuit[,]” or, “[i]n the event of the failure of any judge to receive a
majority vote,” determined “by rule for selection of the presiding judge” set by the
Alabama Supreme Court. Ala. Code § 12-17-23. As noted previously, the presiding
circuit judge “exercise[s] a general supervision of the judges, clerks, registers,
court reporters, bailiffs, sheriffs and other court employees of the circuit and
district courts within the circuit, except employees of the clerk, and see[s] that
they attend strictly to the prompt, diligent discharge of their duties.” Id. § 12-17-
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24. That “general supervision,” however, not as expansive as the bare text of the
statute might indicate—the Alabama Supreme Court has held that § 12-17-24 “is
not to be construed to mean that a presiding judge can direct and usurp the
functions and duties of the named officials. His supervision is limited by the
statute to see only that such officials promptly and diligently discharge their
duties.” Resolute Ins. Co. v. Ervin, 285 Ala. 575, 579 (1970). See also In re Ingram,
356 So. 2d 618, 621 (Ala. 1978) (Ala. Code § 12-17-24 “does not…authorize the
presiding judge to exercise the duties placed by law upon the clerk. Yet the
presiding judge has the duty and responsibility to see that the circuit court
functions properly. If a clerk fails to perform his or her duties placed upon him or
her by law, mandamus or other proper remedy will lie to compel his action.”).
The 	allegations 	in 	McCaskill’s 	first 	amended 	complaint, 	and 	in 	her
underlying EEOC Charge of Discrimination (see Doc. 24, PageID.88), make clear
that, at all relevant times, she worked in the Mobile County Circuit Clerk’s office
and answered to the supervisors there. Nothing alleged in the first amended
complaint indicates that the presiding judge, or any judge, of the 13th Circuit
exerted 	any 	control 	over 	McCaskill 	or 	the 	terms 	and 	conditions 	of 	her
employment. As the above-discussed Alabama law shows, circuit clerks are
granted the authority to hire the employees working under them. Presiding circuit
judges, who can fairly be considered the general supervisory officials of their
respective circuit courts, possess only limited authority over circuit clerks—“to see
only that such officials promptly and diligently discharge their duties”—and none
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over 	the 	“employees 	of 	the 	clerk.” 	Neither 	Alabama 	law 	nor 	McCaskill’s
allegations suggest the 13th Circuit should be considered McCaskill’s employer
under Title VII, as opposed to the Mobile County Circuit Clerk.
Sometimes two or more separate entities can be treated as a “single
employer” for purposes of Title VII. See Peppers, 835 F.3d at 1298 (citing Lyes v.
City of Riviera Beach, 166 F.3d 1332, 1341 (11th Cir. 1999) (en banc)). However,
the standard for aggregating governmental subdivisions into a “single employer”
is “an exacting one…” Id. (citing Lyes, 166 F.3d at 1345). “[W]here a state
legislative body creates a public entity and declares it to be separate and distinct,
that declaration should be entitled to a significant degree of deference, amounting
to a presumption that the public entity is indeed separate and distinct for
purposes of Title VII.” Lyes, 166 F.3d at 1344. That “presumption is only overcome
with strong evidence.” Peppers, 835 F.3d at 1298 (citing Lyes, 166 F.3d at 1345).
Lyes offered two ways to rebut the presumption against aggregating
separate government entities. [166 F.3d at 1345]. In the first place, a
plaintiff may rebut it by presenting evidence that a governmental
entity was created or maintained for the purpose of evading the
federal employment discrimination laws. Id. at 1344. Second, absent
an 	evasive 	purpose, 	a 	plaintiff 	can 	offer 	evidence 	allowing 	a
reasonable fact finder to conclude that the presumption is clearly
outweighed by “factors manifestly indicating that the public entities
are so closely interrelated with respect to control of the fundamental
aspects of the employment relationship that they should be counted
together under Title VII.” Id. at 1345 (emphasis added). Relevant
factors in this calculus include: centralized control of operations;
authority 	to 	hire, 	transfer, 	promote, 	discipline, 	or 	discharge;
authority to establish work schedules or direct assignments; and the
obligation to pay the plaintiff. Id.
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Id.
The Alabama laws discussed above clearly establish a presumption that
circuit courts and circuit clerks’ offices are separate and distinct entities, and
McCaskill has offered no argument suggesting a plausible possibility of rebutting
that presumption. Nothing suggests that Alabama’s circuit courts or circuit clerks
were created for the purposes of evading federal employment discrimination laws,
nor does McCaskill show that factors manifestly indicate that the public entities
are so closely interrelated with respect to control of the fundamental aspects of
the employment relationship that they should be counted together under Title
VII. At most, McCaskill cites her own subjective belief “that the judges and the
clerk of the courts were all under the same umbrella or on the same branch[,]”
and that she “was employed by the State of Alabama not the County.” (Doc. 34,
PageID.131). However, McCaskill’s subjective beliefs are not relevant to the
determination, and circuit clerks themselves are compensated by the state, not
the counties in which they serve. See Ala. Code § 12-17-92. Regardless, “ ‘the
source of a governmental entity’s funding is a poor indication of whether it should
be aggregated with another.’ ” Peppers, 835 F.3d at 1298 (quoting Lyes, 166 F.3d
at 1346 n.10).8
8 In addition to the “single employer” test, two entities can be treated as “joint
employers” for purposes of Title VII. “The test for determining whether two
entities acted as joint employers is relatively straightforward: ‘The basis of the
finding is simply that one employer while contracting in good faith with an
otherwise independent company, has retained for itself sufficient control of the
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Because McCaskill has failed to establish that the 13th Circuit was her
employer at the time of the underlying actions, it cannot be held liable to her
under Title VII. Accordingly, the 13th Circuit’s Rule 12(b)(6) motion to dismiss
the Title VII claims against it in the first amended complaint (Doc. 27) is due to
be GRANTED.
c. 	The Natural Person Defendants
In her response brief, McCaskill “ask[s] the Court to please dismiss without
prejudice JoJo Schwarzauer, Chuck Lewis, Tachonda Smith from this cases [sic].”
(Doc. 34, PageID.129). Because that request was filed before any defendant served
an 	answer 	or 	motion 	for 	summary 	judgment, 9 	the 	undersigned 	will
RECOMMEND 	that 	the 	Court 	construe 	McCaskill’s 	request 	to 	dismiss
Schwarzauer, Lewis, and Smith embedded in her response brief as a self-effecting
notice of voluntary dismissal of those defendants under Federal Rule of Civil
Procedure 41(a)(1)(A)(i). See Matthews v. Gaither, 902 F.2d 877, 880 (11th Cir.
1990) (per curiam) (“It is well established that Rule 41(a)(1)[] grants a plaintiff an
terms and conditions of employment of the employees who are employed by the
other employer. Thus the joint employer concept recognizes that the business
entities involved are in fact separate but that they share or co-determine those
matters governing the essential terms and conditions of employment.’ ” Peppers,
835 F.3d at 1300 (quoting Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1358
(11th Cir. 1994) (emphasis added)). Nothing in the current record suggests that
the 13th Circuit should be treated as a “joint employer” with the Mobile County
Circuit Clerk.
9 An answer (Doc. 36) was filed after the request to dismiss was filed. None of the
motions to dismiss filed in this action have requested summary judgment in the
alternative.
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unconditional right to dismiss his complaint by notice and without an order of the
court at any time prior to the defendant’s service of an answer or a motion for
summary judgment. The dismissal is effective immediately upon the filing of a
written notice of dismissal, and no subsequent court order is required. The fact
that a notice of dismissal is styled ‘motion to dismiss’ rather than ‘notice of
dismissal’ is without consequence.” (internal citations omitted)); Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004) (while Rule 41 “does not
permit plaintiffs to pick and choose, dismissing only particular claims within an
action[,]” it does “allow a plaintiff to dismiss all of his claims against a particular
defendant”); In re Esteva, 60 F.4th 664, 677 (11th Cir. 2023) (noting that Klay and
other cases interpret Rule 41 as “allowing plaintiffs to voluntarily dismiss less
than the entire action so long as they dismiss a defendant in its entirety (i.e., they
dismiss all of the claims brought against that defendant)”). Should the Court
adopt that recommendation, Lewis and Smith’s motion to dismiss (Doc. 29) should
accordingly be found MOOT.
d. 	Office of the Circuit Clerk for the 13th Judicial Circuit
On March 20, 2023, the Office of the Circuit Clerk for the 13th Judicial
Circuit (hereinafter, “the Circuit Clerk’s Office”) filed an answer (Doc. 36) to the
first amended complaint. While the Circuit Clerk’s Office was not named as a
defendant in the style of the first amended complaint, see (Doc. 24, PageID.80);
Fed. R. Civ. P. 10(a), nor was a summons issued for that particular entity (see
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Docs. 15, 26), both the answer, and Lewis and Smith’s motion to dismiss, appear
to assume that the Circuit Clerk’s Office is a defendant to this action.
“On motion or on its own, the court may at any time, on just terms, add or
drop a party.” Fed. R. Civ. P. 21. The weight of authority discussed above suggests
that the Circuit Clerk’s Office is properly considered McCaskill’s “employer” for
purposes of her Title VII claims. Moreover, the Circuit Clerk’s Office appears to
have 	waived 	service 	of 	process 	by 	filing 	its 	answer. 10 	Accordingly, 	the
undersigned RECOMMENDS, to the extent it was not already a defendant to
this action, that the Court add the Circuit Clerk’s Office as a defendant in this
action under Rule 21.11
10 For her part, McCaskill has indicated in her response to the motions to dismiss
that she desires the chance to amend her complaint to add the Circuit Clerk for
the 13th Circuit in the event the 13th Circuit is determined not to be her employer.
(See Doc. 34, PageID.131 (“I can add Circuit Civil Clerk to 13th Judicial Circuit
Court. I thought that the Judges and the Clerk of the courts were all under the
same umbrella or on the same branch. I apologize for that error and I will correct
it if I need to.”)).
11 McCaskill follows her request to dismiss Schwarzauer, Lewis, and Smith by
stating: “If the court agrees with me and finds that JoJo, Mr. Lewis + Tachonda
Smith did disqualify themselves from qualified immunity I will add them at a
later date.” (Doc. 34, PageID.129). The Eleventh Circuit has held that “no
qualified immunity exists for individuals sued under Title VII[,] because such
claims must be made against [the employer’s] officer in his official capacity, not in
his individual capacity.” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.
1991) (per curiam). Nevertheless, in light of the fact that the Circuit Clerk’s Office
is to be added as a defendant, it would be unnecessary to rejoin Schwarzauer,
Lewis, and Smith as defendants to McCaskill’s Title VII claims. “Individual
capacity suits under Title VII are…inappropriate[, since t]he relief granted under
Title VII is against the employer, not individual employees whose actions would
constitute a violation of the Act.” Id. As such, the Eleventh Circuit has determined
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e. 	Shotgun Pleading
As noted previously, the 13th Circuit’s motion to dismiss construed the first
amended complaint as asserting only Title VII claims, and McCaskill has not
disputed that construction of her pleading. However, it is difficult to tell exactly
what Title VII claims McCaskill is asserting, and whether she is also asserting
other kinds of claims or causes of action, because her first amended complaint is
an 	impermissible 	“shotgun 	pleading.” 	“Complaints 	that 	violate 	either 	Rule
8(a)(2)[12] or Rule 10(b),[13] or both, are often disparagingly referred to as ‘shotgun
pleadings.’ ” Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1320 (11th
Cir. 2015). While “shotgun pleadings” come in various forms, “[t]he unifying
characteristic of all types of shotgun pleadings is that they fail to one degree or
another, and in one way or another, to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.” Id.
that “the proper method for a plaintiff to recover under Title VII is by suing the
employer, either by naming the supervisory employees as agents of the employer
or by naming the employer directly.” Id. (emphasis added). As such, Schwarzauer,
Lewis, and Smith cannot be held individually liable for McCaskill’s Title VII
claims, and rejoining them as “agents of the employer” would be redundant since
the “employer,” the Circuit Clerk’s Office, will be sued “directly” under Title VII.
12 Federal Rule of Civil Procedure 8(a) states that a complaint must contain,
among other things, “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
13 “A party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances…If doing so would
promote clarity, each claim founded on a separate transaction or occurrence—and
each defense other than a denial—must be stated in a separate count or defense.”
Fed. R. Civ. P. 10(b).
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A complaint can rightly be classified as a shotgun pleading when it (1) is
“replete with conclusory, vague, and immaterial facts not obviously connected to
any particular cause of action[;] (2) does “not separate[e] into a different count
each cause of action or claim for relief[;]” and (3) “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.” Id. at 1322–23. McCaskill’s first amended complaint is guilty of all three
deficiencies.
“[A] defendant faced with a shotgun pleading should move the court,
pursuant to [Federal] Rule[ of Civil Procedure] 12(e), to require the plaintiff to file
a more definite statement. But…when[,]” as here, “a defendant fails to do so, the
district court ought to take the initiative to dismiss or strike the shotgun pleading
and give the plaintiff an opportunity to replead. Where a plaintiff fails to make
meaningful modifications to her complaint, a district court may dismiss the case
under the authority of either Rule 41(b) or the court’s inherent power to manage
its docket.” Id. at 1321 n.10 (citations and quotation omitted). Accordingly, the
undersigned RECOMMENDS that the Court order McCaskill to file a second
amended complaint that corrects the “shotgun” nature of her first amended
complaint by (1) stating “each claim founded 	on a separate transaction or
occurrence…in a separate count[,]” Fed. R. Civ. P. 10(b); (2) eliminating “vague,
conclusory, and immaterial” factual allegations, and making clear what factual
allegations support each claim or cause of action; and (3) in the event McCaskill’s
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second amended complaint asserts claims against multiple defendants, specifying
which defendants are responsible for each alleged act or omissions, and specifying
which of the defendants each claim is brought against. As noted above, failure to
comply with these directives could result in dismissal of the second amended
complaint.
McCaskill’s second amended complaint, if filed, must reproduce her entire
pleading as amended, without incorporating prior complaints by reference, see
S.D. Ala. CivLR 15(a), and will become the operative complaint in this action. See
Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per
curiam) (“As a general matter, ‘[a]n amended pleading supersedes the former
pleading; the original pleading is abandoned by the amendment, and is no longer
a part of the pleader's averments against his adversary.’ ” (quoting Dresdner Bank
AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006) (citation and quotation omitted)).14
14 McCaskill appears to have attempted to add allegations to her first amended
complaint through several filings submitted since briefing on the present motions
closed. (See Docs. 37, 38, 39). McCaskill, however, cannot amend her complaint in
such piecemeal fashion, nor could she further amend her first amended complaint
at will. The Court’s local rules require that “[a]ny amendment to a pleading,
whether filed as a matter of course or upon a motion to amend, must reproduce
the entire pleading as amended and may not incorporate any prior pleading by
reference.” S.D. Ala. CivLR 15(a). Additionally, as McCaskill already amended her
complaint once as a matter of course under Federal Rule of Civil Procedure
15(a)(1), she can further amend her complaint “only with the opposing party's
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). A party cannot
amend a pleading through briefing on a motion to dismiss or through “notices”
filed with the court. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315
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f. 	Leave to Amend as to the 13th Circuit
The general rule in this circuit for pro se plaintiffs is that, “[w]here 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.” Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam),
overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542
& n.1 (11th Cir. 2002) (en banc) (overruling Bank’s one-chance-to-amend rule as
to counseled parties)). However, “where the plaintiff has indicated that he does
not wish to amend his complaint,” or “if a more carefully drafted complaint could
not state a claim[,]” then “the district court need not dismiss with leave to
amend[,]” and “dismissal with prejudice is proper.” Id.
McCaskill is already being ordered to file a second amended complaint to
correct the “shotgun” nature of her first amended complaint, see supra, and it is
not beyond the realm of possibility that McCaskill might be able to amend her
complaint to allege facts plausibly indicating that the 13th Circuit and the Circuit
Clerk’s Office could be considered a “single employer” or “joint employers” for
purposes of Title VII. Accordingly, the undersigned will further RECOMMEND
that the granting of the 13th Circuit’s Rule 12(b)(6) motion to dismiss be without
(11th Cir. 2004) (per curiam) (“[T]he proper procedure for plaintiffs to assert a
new claim is to amend the complaint in accordance with Fed. R. Civ. P. 15(a). A
plaintiff may not amend her complaint through argument in a brief opposing
summary judgment.”); Jallali v. Nova Se. Univ., Inc., 486 F. App'x 765, 767 (11th
Cir. 2012) (per curiam) (unpublished) (“[A] party cannot amend a complaint by
attaching documents to a response to a motion to dismiss.”).
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prejudice to her ability to allege in the second amended complaint sufficient facts
showing why the 13th Circuit should be considered a “single employer” or “joint
employer” with the Circuit Clerk’s Office for purposes of Title VII.15
II. 	Conclusion & Recommendations
In 	accordance 	with 	the 	foregoing 	analysis, 	the 	undersigned
RECOMMENDS as follows:
1. that the Court construe McCaskill’s request to dismiss Schwarzauer, Lewis,
and Smith embedded in her response brief (Doc. 34, PageID.129) as a self-
effecting notice of voluntary dismissal of those defendants without prejudice
under Federal Rule of Civil Procedure 41(a)(1)(A)(i), and that Lewis and
Smith’s motion to dismiss (Doc. 29) accordingly be found MOOT;
2. that the Office of the Circuit Clerk for the 13th Judicial Circuit be added as
a defendant to this action under Fed. R. Civ. P. 21;
3. that the Court order McCaskill to file, by a reasonable deadline, a second
amended complaint that corrects the “shotgun pleading” deficiencies and
15
“To survive a motion to dismiss [for failure to state a claim], a
complaint must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). In other words, the complaint must contain
“factual 	content 	that 	allows 	the 	court 	to 	draw 	the 	reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
Hi-Tech Pharm., Inc. v. HBS Int'l Corp., 910 F.3d 1186, 1196 (11th Cir. 2018).
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otherwise complies with the directives set out in Subsection I(e) above; and
4. that the 13th Circuit’s Rule 12(b)(6) motion to dismiss McCaskill’s first
amended complaint (Doc. 27) be GRANTED, without prejudice to her
ability to allege in the second amended complaint sufficient facts showing
why the 13th Circuit should be considered a “single employer” or “joint
employer” with the Circuit Clerk’s Office for purposes of Title VII;
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to this recommendation or
anything in it must, within 14 days of the date of service of this document, file
specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under
Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's
findings or recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to
challenge on appeal the district court's order based on unobjected-to factual and
legal conclusions if the party was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the
interests of justice.” 	11th Cir. R. 3-1. 	In order to be specific, an objection must
identify the specific finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the Magistrate Judge’s report
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and recommendation where the disputed determination is found. An objection
that 	merely 	incorporates 	by 	reference 	or 	refers 	to 	the 	briefing 	before 	the
Magistrate Judge is not specific.
DONE this the 22nd day of June 2023.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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