IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY JOHNSON and )

PATRICIA MALONE, )

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO 05-0380-P-L

)

GUSTAV WEEKE MASCHINENBAU )

GmbH; GLEASON REEL )

CORPORATION; REXEL ELECTRICAL )

SUPPLY COMPANY, INC., )

)

Defendants )

REPORT AND RECOMMENDATION

This matter is before the court on the motion to dismiss filed by defendant Southern Electric

Supply Company, Inc., d/b/a Rexel Wholesale, (incorrectly identified in the complaint as Rexel

Electrical Supply Company, Inc.) (hereinafter Rexel) (Doc. 4) which has been referred to the

undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2 for the Southern District of

Alabama, for a report and recommendation. Upon consideration, the undersigned recommends that

defendant’s motion to dismiss be DENIED.

Defendant Rexel moves this court to dismiss the case as to plaintiff Patricia Malone because she

failed to sign the complaint as required by Rule 11 of the Alabama Rules of Civil Procedure and Rule

11(a) of the Federal Rules of Civil Procedure. Rexel argues that Gregory Johnson signed the complaint

but he is not an attorney and can not sign in a representative capacity for Malone. Therefore, the

complaint as to Malone was unsigned. 

Pursuant to Fed. R. Civ. P. Rule 11, “[e]very pleading, written motion, and other paper shall be

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1

 The undersigned acknowledges that Rule 11 also requires that “[e]ach paper shall state the

signer's address and telephone number, if any” and that the signed complaint does not contain the

address and telephone number of Johnson and Malone. However, the record indicates that Johnson

and Malone provided their address in their initial complaint. 

signed by at least one attorney of record in the attorney's individual name, or, if the party is not

represented by an attorney, shall be signed by the party.” Id. The Rule further provides that “[a]n

unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called

to the attention of the attorney or party.” Id. This court entered an order on June 30, 2005 wherein

plaintiff Malone was ordered to file a signed complaint on or before July 20, 2005, if she wanted to

proceed with litigation against the defendant. (Doc. 8). On July 18, 2005, plaintiff Malone filed a

complaint which contains her signature. (Doc. 11). The omission was called to the attention of Malone

who promptly corrected the absence of her signature on the initial complaint by filing a signed complaint

as ordered by this court.1

Accordingly, the undersigned recommends that the motion to dismiss (Doc. 4) filed by

defendant Rexel be DENIED. 

The attached sheet contains important information regarding objections to the report and

recommendation of the Magistrate Judge.

DONE this the 21st day of July, 2005. 

/s / Kristi D. Lee 

KRISTI D. LEE

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten days

of the date of service of this document, file specific written objections with the clerk of court. Failure to

do so will bar a de novo determinationbythe district judge of anything inthe recommendationand willbar

anattack, on appeal, of the factualfindings ofthe magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis

v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997),

which provides, in part, that:

A party may object to a recommendation entered by a magistrate judge in a dispositive

matter, that is, a matter excepted by28 U.S.C. § 636(b)(1)(A), by filing a “Statement of

Objectionto Magistrate Judge’sRecommendation” within tendays afterbeingservedwith

a copy of the recommendation, unless a different time is established by order. The

statement of objection shall specify those portions of the recommendation to which

objection is made and the basis forthe objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the original brief submitted to

the magistrate judge, although a copyofthe original brief may be submitted or referred to

and incorporated into the brief in support of the objection. Failure to submit a brief in

support of the objection may be deemed an abandonment of the objection.

Amagistrate judge’srecommendation cannot be appealed to aCourt ofAppeals; only the district

judge’s order or judgment can be appealed.

2. Opposing party’s response to the objection. Any opposing party may submit a brief opposing

the objection within ten (10) days of being served witha copyofthe statement ofobjection. FED. R. CIV.

P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedingstape recorded). Pursuant to 28 U.S.C. § 1915 and

Fed.R.Civ.P. 72(b), the magistrate judge findsthatthe tapes and originalrecordsinthis actionare adequate

for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee

for a transcript, is advised that a judicial determination that transcription is necessaryisrequired before the

United States will pay the cost of the transcript.

S / KRISTI D. LEE 

UNITED STATES MAGISTRATE JUDGE

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