Price v. Lakeview Loan Servicing, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GREGORY C. PRICE,

Plaintiff,

v. Case No: 2:19-cv-655-FtM-29MRM

LAKEVIEW LOAN SERVICING,

LLC,

Defendant.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion to Dismiss (Doc. #10) filed on September 13, 2019.

Plaintiff filed a Response in Opposition (Doc. #31) on October 17,

2019. For the reasons set forth below, the motion is granted.

I.

On July 19, 2019, pro se plaintiff Gregory C. Price

(Plaintiff) filed a Complaint1 against defendant Lakeview Loan

Servicing, LLC (Defendant) in the Circuit Court of the Twentieth

Judicial Circuit in and for Charlotte County, Florida. (Doc. #3.)

The Complaint asserts claims against Defendant for breach of

contract (Count I); fraud (Count II); violation of the Racketeer

1 Plaintiff’s pleading is titled as a “Court of Record Tort

Claim Petition and Request for a Hearing or Trial by Jury.” The

Court refers to this document as a “Complaint.”

Influenced and Corrupt Organization Act (Count III); “Lack of

Jurisdiction” (Count IV); and financial discrimination (Count V).

On September 6, 2019, Defendant removed the action to this Court

on the basis of federal question jurisdiction. (Doc. #1.)

Even liberally construing Plaintiff’s Complaint, the

underlying facts of this case are unclear to the Court. The

Complaint appears to allege that Defendant demanded payment from

Plaintiff on a debt Plaintiff does not owe Defendant. Defendant

now moves to dismiss the Complaint because (1) the Complaint is a

shotgun pleading; (2) Plaintiff failed to effect sufficient

service of process; and (3) Plaintiff failed to state a legally

sufficient cause of action.

II.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

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

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted). To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief

above the speculative level.” Id. at 555. See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citations omitted).

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

A pleading drafted by a party proceeding pro se, like the

Complaint in this case, is held to a less stringent standard than

one drafted by an attorney and is liberally construed. Jones v.

Fla. Parole Comm'n, 787 F.3d 1105, 1107 (11th Cir. 2015)(citation

omitted). Nonetheless, a pro se pleading “must suggest (even if

inartfully) that there is at least some factual support for a

claim; it is not enough just to invoke a legal theory devoid of

any factual basis.” Id.

Shotgun pleadings violate Rule 8 because they “fail to . . .

give the defendants adequate notice of the claims against them and

the grounds upon which each claim rests.” Weiland v. Palm Beach

Cty. Sheriff's Office, 792 F.3d 1313, 1323 (11th Cir. 2015).2 The

Eleventh Circuit has “condemned shotgun pleadings time and again,”

and encourages district courts to “strike the [pleading] and

instruct counsel to replead the case—if counsel could in good faith

make the representations required by Fed. R. Civ. P. 11(b).”

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357 (11th Cir.

2 In Weiland, the Eleventh Circuit identified “four rough

types or categories” of shotgun pleadings:

The most common type—by a long shot—is a complaint

containing 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.

The next most common type, at least as far as our

published opinions on the subject reflect, is a

complaint that does not commit the mortal sin of re-

alleging all preceding counts but is guilty of the venial

sin of being replete with conclusory, vague, and

immaterial facts not obviously connected to any

particular cause of action. The third type of shotgun

pleading is one that commits the sin of not separating

into a different count each cause of action or claim for

relief. Fourth, and finally, there is the relatively

rare sin of asserting 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.

Weiland, 792 F.3d at 1321-23.

2018)(citations and quotation omitted); see also Cramer v. Fla.,

117 F.3d 1258, 1263 (11th Cir. 1997)(“Shotgun pleadings . . . exact

an intolerable toll on the trial court's docket.”).

III.

A. Shotgun Pleading

The Court agrees with Defendant that Plaintiff’s Complaint is

a shotgun pleading. While the Complaint does separate each cause

of action, it contains no numbered paragraphs as required by Rule

10(b), it fails to identify which facts apply to a particular cause

of action, and it is comprised of incoherent commentary. Such a

pleading fails to give Defendant “adequate notice of the claims

against [it] and the grounds upon which each claim rests.”

Weiland, 792 F.3d at 1323. Plaintiff’s Complaint is thus dismissed

without prejudice. Jackson, 898 F.3d at 1357.3

The Court will grant Plaintiff an opportunity to remedy his

pleading deficiencies under the Federal Rules of Civil Procedure.

Should Plaintiff elect to file an Amended Complaint, the Court

encourages Plaintiff to consult the “Litigants without Lawyers”

section of the Middle District of Florida’s website:

https://www.flmd.uscourts.gov/litigants-without-lawyers. This

3 Because the Court dismisses Plaintiff’s Complaint as a

shotgun pleading, the Court need not reach the issue of whether

Plaintiff stated a legally sufficient cause of action.

webpage has tips, answers to frequently asked questions, and sample

forms which may help Plaintiff generate a clear Amended Complaint.

B. Service of Process

The Court also agrees with Defendant that Plaintiff failed to

effect sufficient service of process. A federal court considering

“the sufficiency of process after removal [] does so by looking to

the state law governing process.” Usatorres v. Marina Mercante

Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir.

1985)(citation omitted). Service of process on a limited liability

company such as Defendant is governed by Section 48.062 of the

Florida Statutes. In relevant part, Section 48.062 provides that:

(1) Process against a limited liability company,

domestic or foreign, may be served on the registered

agent designated by the limited liability company under

chapter 605. A person attempting to serve process

pursuant to this subsection may serve the process on any

employee of the registered agent during the first

attempt at service even if the registered agent is a

natural person and is temporarily absent from his or her

office.

(2) If service cannot be made on a registered agent of

the limited liability company because of failure to

comply with chapter 605 or because the limited liability

company does not have a registered agent, or if its

registered agent cannot with reasonable diligence be

served, process against the limited liability company,

domestic or foreign, may be served:

(a) On a member of a member-managed limited

liability company;

(b) On a manager of a manager-managed limited

liability company; or

(c) If a member or manager is not available during

regular business hours to accept service on behalf

of the limited liability company, he, she, or it

may designate an employee of the limited liability

company to accept such service. After one attempt

to serve a member, manager, or designated employee

has been made, process may be served on the person

in charge of the limited liability company during

regular business hours.

(3) If, after reasonable diligence, service of process

cannot be completed under subsection (1) or subsection

(2), service of process may be effected by service upon

the Secretary of State as agent of the limited liability

company as provided for in s. 48.181.

(4) If the address for the registered agent, member, or

manager is a residence, a private mailbox, a virtual

office, or an executive office or mini suite, service on

the domestic or foreign limited liability company may be

made by serving the registered agent, member, or manager

in accordance with s. 48.031.

A plaintiff must perfect service of process on a limited liability

corporation in accordance with Section 48.062 within 120 days after

filing his initial complaint. Fla. R. Civ. P. 1.070(j).

Florida law requires “[s]trict compliance with the statutes

governing service of process.” Schupak v. Sutton Hill Assocs.,

710 So. 2d 707, 708 (Fla. 4th DCA 1998)(citations omitted). When

a party “fails to strictly comply with these rules, service must

be quashed.” Brown v. U.S. Bank Nat. Ass'n, 117 So. 3d 823, 824

(Fla. 4th DCA 2013)(citations omitted). The plaintiff bears the

burden of establishing proper service when the sufficiency of

process is contested. Reeves v. Wilbanks, 542 F. App'x 742, 746

(11th Cir. 2013)(citing Aetna Business Credit, Inc. v. Universal

Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981)).

Here, the Return of Service provides that Plaintiff effected

service on Antonio Chimiente, Defendant’s Assistant General

Counsel, on August 19, 2019. (Doc. #1-4, p. 11.) As Plaintiff

appears to concede (Doc. #31, p. 9), Mr. Chimiente is not

Defendant’s registered agent; rather, Defendant’s registered agent

is Brian E. Bomstein.4 Aside from his conclusory assertion that

Plaintiff failed to locate and serve Defendant’s registered agent

despite using reasonable diligence, Plaintiff provides no

explanation for his failure to properly serve Defendant under Fla.

Stat. § 48.062 within 120 days of filing his Complaint. Thus, the

Court finds that Plaintiff has failed to carry his burden in

establishing proper service of process under Florida law.

Plaintiff’s service of process is therefore quashed. Brown, 117

So. 3d at 824.

Should Plaintiff elect to file an Amended Complaint, service

of process shall be governed by federal law. See 28 U.S.C. § 1448

(“In all cases removed from any State court . . . in which the

4 The Court takes judicial notice of the name of Defendant’s

registered agent, which is a public record and can be accessed at

sunbiz.org. See Horne v. Potter, 392 F. App'x 800, 802 (11th Cir.

2010)(“A district court may take judicial notice of [public

records] without converting a motion to dismiss into a motion for

summary judgment.” (citation omitted)).

service has not been perfected prior to removal, or in which

process served proves to be defective, such process or service may

be completed or new process issued in the same manner as in cases

originally filed in such district court.”). Thus, if Plaintiff

chooses to file an amended pleading, within sixty (60) days of

such filing he must serve process under Fed. R. Civ. P. 4(h) or

obtain a waiver under Fed. R. Civ. P. 4(d). See Fed. R. Civ. P.

4(m) (Where a plaintiff fails to timely effect service of process,

a court may “order that service be made within a specified time.”).

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss (Doc. #10) is GRANTED.

2. The Complaint is dismissed without prejudice.

3. Plaintiff’s service of process is QUASHED.

4. Plaintiff may file an Amended Complaint within FOURTEEN

(14) DAYS of the date of this Opinion and Order.

5. In the event Plaintiff elects to file an Amended

Complaint, Plaintiff must effect service of process in accordance

with the Federal Rules of Civil Procedure no later than SIXTY (60)

DAYS after the date he files the Amended Complaint.

DONE AND ORDERED at Fort Myers, Florida, this 24th day of

April, 2020.

Z tkicob

JQH E. STEELE

SHMIOR UNITED STATES DISTRICT JUDGE

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