The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CARLYNE DESIR,
Plaintiff,
v. Case No: 8:22-cv-1300-CEH-JSS
LVNV FUNDING, LLC,
RESURGENT CAPITAL SERVICES,
L.P., UNITED COLLECTION
BUREAU, INC., BRYAN FALIERO
and SANJU SHARMA,
Defendants.
ORDER
This matter comes before the Court upon Defendants’ Motion to Dismiss or, In
the Alternative, Motion to Strike Amended Complaint as a Shotgun Pleading (Doc.
27) and Plaintiff’s Response in Opposition (Doc. 28). Upon review and consideration,
the Court will grant the Motion in part and dismiss the Amended Complaint as a
shotgun pleading. Plaintiff will be allowed one final opportunity to amend her
complaint.
DISCUSSION
Plaintiff, proceeding pro se,1 filed this suit alleging numerous causes of actions,
including violations of 15 U.S.C. § 1692 et seq., the Fair Debt Collection Practices Act,
1 Pro se parties should review the Federal Rules of Civil Procedure and the Local Rules for the
Middle District of Florida, which can be viewed on the Court’s website at
https://www.flmd.uscourts.gov/local-rules. A pro se party should also consult the “Litigants
and 15 U.S.C. § 1681 et seq., the Fair Credit Reporting Act. Doc. 1-1. Defendants
timely removed this matter and filed a motion to dismiss. Doc. 8. The Court dismissed
Plaintiff’s Complaint on the grounds that it was a shotgun pleading and granted
Plaintiff leave to file an amended complaint that corrected the deficiencies. See Doc.
20. The Court explained in detail the manner in which Plaintiff’s Complaint was
improperly pleaded and directed her toward resources available for pro se litigants. Id.
at 1, 3–4.
Plaintiff then filed an Amended Complaint. Doc. 21. Defendants argue that it
remains an impermissible shotgun pleading and should be stricken. Doc. 27 at 9–11.
In addition, Defendants move for dismissal of the action on the grounds that Plaintiff
improperly seeks summary judgment in the Amended Complaint, in violation of the
Court’s prior Orders and the Middle District of Florida Local Rules. Id. at 6–9.
Plaintiff responds in opposition. Doc. 28. However, she does not address the
arguments regarding the shotgun pleading issues or the request for summary judgment.
Instead, Plaintiff claims that all documents filed by defense counsel in this case are
“inadmissible,” that unspecified prior orders in this case are null and void, and states
that she “would like to know is [Defendants’ counsel] insane and need [sic] to be
committed or evaluated?” Doc. 28 at 1–2.
Without Lawyers” guide on the Court’s website, located at
http://www.flmd.uscourts.gov/litigants-without-lawyers. Additionally, a pro se litigant
handbook prepared by the Federal Bar Association is available to download at the following
hyperlink: www.fedbar.org/prosehandbook. A pro se party may seek assistance from the
Federal Bar Association by completing a request form at http://federalbartampa.org/pro-
bono.
A. Improper Request for Summary Judgment
An action may be dismissed sua sponte under Rule 41(b) for failure to prosecute
or failure to obey a court order. Fed. R. Civ. P. 41(b); Brown v. Tallahassee Police Dep't,
205 F. App'x 802 (11th Cir. 2006). While such a dismissal is an extraordinary remedy,
a district court generally has the discretion to do so “upon disregard of an order,
especially where the litigant has been forewarned.” Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989).
Here, Defendants correctly point out that the Amended Complaint includes an
improper request for summary judgment. On its’ first page, Plaintiff states that she
respectfully moves for summary judgment “pursuant to Rule 56 Federal Rule of Civil
Procedure and Fla. R. Civ. P. 1.510.” Doc. 21 at 1. She includes this language even
though the Court has already noted that Plaintiff must present a request for Court
relief, such as summary judgment, in a motion. Doc. 17. Moreover, the Court has
directed Plaintiff to the Local Rules of this district and resources for pro se litigants on
multiple occasions. Docs. 17, 18, 20. At this juncture, the Court will not dismiss the
case based on Plaintiff’s non-compliance. However, Plaintiff is warned that she may
be subject to sanctions, including dismissal of her case, if she continues to disregard
the Court’s Orders.
B. Shotgun Pleading
“A complaint that fails to articulate claims with sufficient clarity to allow the
defendant to frame a responsive pleading constitutes a ‘shotgun pleading.’” Lampkin-
Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008) (citation
omitted). The Eleventh Circuit has identified four general types of shotgun pleadings.
Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321–23 (11th Cir. 2015).
The first 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 of shotgun pleading 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 type is one that fails to separate into
a different count each cause of action or claim for relief. Id. at 1322–23. Finally, the
fourth type of shotgun pleading is one that asserts multiple claims against multiple
defendants without specifying which defendant is responsible for which act or
omission. Id. at 1323.
“The 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.
When faced with a shotgun pleading, a court should strike the complaint and instruct
the plaintiff to file a more definite statement. See Davis v. Coca-Cola Bottling Co. Consol.,
516 F.3d 955, 984 (11th Cir. 2008) (collecting cases), abrogated on other grounds by Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The Eleventh Circuit has repeatedly
condemned the use of shotgun pleadings for “imped[ing] the administration of the
district courts’ civil dockets.” PVC Windows, Inc. v. Babbitbay Beach Constr., N.V., 598
F.3d 802, 806 n.4 (11th Cir. 2010). Shotgun pleadings require the district court to sift
through allegations in an attempt to separate the meritorious claims from the
unmeritorious, resulting in a “massive waste of judicial and private resources.” Id.
(citation omitted). Thus, the Eleventh Circuit has established that a shotgun pleading
is an unacceptable form of establishing a claim for relief.
And although pleadings from pro se litigants are held to a less stringent standard
than pleadings drafted by attorneys, they must still meet minimal pleading standards.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998); Pugh v. Farmers
Home Admin., 846 F. Supp. 60, 61 (M.D. Fla. 1994).
The Amended Complaint falls into the second and third categories of shotgun
pleadings. With regard to the second type of shotgun pleading, Plaintiff makes vague
and immaterial references to the legal standard for Equal Employment Opportunity
Commission hearings (Doc. 21 at 2), includes excerpts of various cases (some from
courts outside the United States, including the West African Court of Appeal and
Courts in the United Kingdom) without explanation, and cites to the Uniform
Commercial Code seemingly at random (Doc. 21 at 10–11). Furthermore, Plaintiff
includes several pages of vague and immaterial allegations in a section titled “Affidavit
of Truth, Bank Fraud, Scam!” including that: “The banking system of the New Deal
is fraudulent by nature and cannot be made legitimate by a false affidavit,” “The
evidence of this quid pro quo equal exchange is in the bookkeeping entries according
to Generally Accepted Accounting Principles (GAAP) violation and fraud,” “No body
has any obligation to pay in Federal Reserve promissory notes,” and that “No
‘exchange of valuable consideration’ (substance) has occurred in commerce since
1933.” Id. at 14–15. The Court cites only a few of Plaintiff’s conclusory, vague, and
immaterial allegations here.
As to the third category of shotgun pleadings, Counts One, Four, Seven, and
Eight fail to separate into a different count each cause of action or claim for relief. For
example, Count Seven includes claims under two distinct Acts: The Privacy Act, and
the Gramm Leach Bliley Act. Doc. 21 at 8.
The Eleventh Circuit recently reiterated that dismissal with prejudice on
shotgun pleading grounds is proper if a plaintiff files an amended complaint afflicted
with the same defects. Halstead v. Espinoza, No. 21-13356, 2023 WL 2399288 (11th Cir.
March 8, 2023) (unpublished), citing Jackson v. Bank of America, N.A., 898 F.3d 1348,
1358-59 (11th Cir. 2018) (“Here, after being put on notice…of the specific defects in
their complaint, the Jacksons filed an amended complaint afflicted with the same
defects, attempting halfheartedly to cure only one of the pleading’s many ailments . . .
The District Court should have dismissed the amended complaint with prejudice
because, as we have concluded, the amended complaint was incomprehensible”; also
noting dismissal would have been warranted under Rule 41(b) for failure to obey a
court order).
The Amended Complaint is due to be dismissed as a shotgun pleading for the
reasons discussed supra. In light of Plaintiff’s pro se status, the Court will dismiss the
Amended Complaint without prejudice and provide Plaintiff a final opportunity to
cure the defects identified above. If Plaintiff wishes to pursue her claims, she must file
a Second Amended Complaint within 21 days that cures the defects identified in this
Order. In filing an amended complaint, Plaintiff shall ensure that she avoids shotgun
pleading pitfalls and complies with applicable pleading requirements, including
Federal Rules of Civil Procedure 8 and 10. As discussed above, the action may be
dismissed with prejudice2 should Plaintiff fail to cure these defects.
Accordingly, it is hereby ORDERED:
1. Defendants’ Motion to Dismiss or, In The Alternative, Motion to Strike
Shotgun Pleading is GRANTED-IN-PART (Doc. 27).
2. The Complaint (Doc. 21) is DISMISSED, without prejudice, as a
shotgun pleading.
3. Defendants’ Motion is in all other respects DENIED.
4. Plaintiff shall file an amended complaint on or before SEPTEMBER 28,
2023, which cures the deficiencies discussed herein. Failure to file a
Second Amended Complaint that corrects the deficiencies referenced in
this Order, within the time provided, may result in dismissal of this action
without prejudice and without further notice.
2 A dismissal “with prejudice” means that the action is permanently dismissed and the claims
cannot be re-filed.
DONE and ORDERED in Tampa, Florida on September 7, 2023.
At Rbsgeo: AiJtarnda No Ts pl el
Charlene Edwards Honeywell
United States District Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties