The opinion
United States District Court
for the
Southern District of Florida
Mark A. Person, Plaintiff, )
)
v. ) Civil Action No. 21-20162-Civ-Scola
)
Florida Department of Financial )
Services, and others, Defendants. )
Order Granting in Part and Denying in Part Motion to Dismiss
Pro se Plaintiff Mark A. Person brings this action against Defendants
Florida Department of Financial Services, Jeremy Lewand, and Amelia Spears
for violations of the Fourteenth Amendment of the United States Constitution.
(ECF No. 1.) The Defendants have moved to dismiss this action as a shotgun
pleading and for failure to state a claim. (ECF No. 12.) The Plaintiff opposes the
relief (ECF No. 13) and the Defendants timely replied. (ECF No. 14.) The
Plaintiff filed an unauthorized sur-reply. (ECF No. 18.) After careful
consideration, the Court grants in part and denies in part the Defendants’
motion to dismiss (ECF No. 12) and affords the Plaintiff leave to amend his
complaint.
1. Background
The Plaintiff filed the complaint on January 14, 2021 using the civil
complaint form available on the Court’s website. (ECF No. 1.) The complaint
alleges that the Court has federal question jurisdiction because the Plaintiff’s
claim involves violations of the Fourteenth Amendment. (ECF No. 1 at 3.) The
Plaintiff alleges “The Defendants engaged in discriminatory practices when I
applied for licensure with the department. Upon complaining, the defendant
retaliated against me breaching federal laws sanctioned by the [Equal
Employment Opportunity Commission] (“EEOC”) and Equal Employment
Opportunity Act.” (Id.) Under the section titled “Statement of Claim,” the
Plaintiff alleges that due to the Defendants’ negligence he has suffered financial
damages, including losses of over $30,000 and becoming homeless, and mental
anguish. (Id. at 4.) The Plaintiff seeks $1,000,000 in damages and payment of a
$1,500 fee the Defendants sought before issuing a license. (Id.)
The Defendants move to dismiss the complaint arguing that the Plaintiff
has failed to establish federal question jurisdiction and has violated Rules 8
and 12 of the Rules of Civil Procedure. (ECF No. 12.) The Plaintiff opposes the
motion, chiefly arguing that he has obtained a right to sue letter from the
EEOC and attaches 30 pages of documents related to an EEOC charge. (ECF
Nos. 13, 13-1.) The Plaintiff also filed a sur-reply, without leave from court,
setting forth additional facts: That the Plaintiff applied for an insurance broker
license, that his application was denied on several occasions due to deficiencies
in the application(s), prior criminal history, and failure to pay a fee. (ECF No.
18 at 1.) The Plaintiff also references a request to cure his application and
indicates that he provided all the necessary information.
2. Legal Standard
A court has the discretion to dismiss a complaint for failure to comply
with the pleading rules. Heard v. Nix, 170 F. App’x 618, 619-20 (11th Cir.
2006). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint
to include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” A typical shotgun pleading contains several counts, each one
incorporating by reference the allegations of its predecessor or does not
separate each cause of action or claim for relief into separate counts. Weiland
v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321 (11th Cir. 2015). “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. at 1323 (footnotes omitted). Such a complaint creates a situation
where most of the counts contain irrelevant factual allegations and legal
conclusions, leaving the court to sift through irrelevancies to determine the
sufficiency of a claim. Strategic Income Fund, LLC v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).
“A pro se litigant’s pleadings must be construed more liberally than those
pleadings drafted by attorneys.” Jarzynka v. St. Thomas Univ. of Law, 310
F.Supp.2d 1256, 1264 (S.D. Fla. 2004) (Lenard, J.); see also Powell v. Lennon,
914 F.2d 1459, 1463 (11th Cir.1990) (“In the case of a pro se action ... the
court should construe the complaint more liberally than it would formal
pleadings drafted by lawyers”). Even so, “this leniency does not give a court
license to serve as de facto counsel for a party ... or to rewrite an otherwise
deficient pleading in order to sustain an action.” GJR Investments, Inc. v.
County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998) (citations
omitted). “The Court cannot be forced to speculate on what someone is
complaining about.” Shillingford v. Rolly Marine Serv., Inc., No. 14-CIV-61936,
2014 WL 6682477, at *2 (S.D. Fla. Nov. 25, 2014) (Bloom, J.) (internal
quotations omitted).
3. Analysis
The complaint is undoubtedly a shotgun pleading as it is lacking any
facts to put the Defendants on notice of the claims against them or provide the
Court with sufficient facts to decide the case on its merits. Critically, the
complaint is silent as to what actions by each Defendant give rise to his claims
and does not explain what conduct he alleges is discriminatory. The complaint
also lacks facts regarding what type of license he applied for, the date he
applied and was rejected, the alleged basis for rejection, or the findings of the
EEOC (if any). The Plaintiff’s sur-reply provides additional facts regarding his
application and denial of same, which likewise fail to state a claim. For
example, the Plaintiff indicates that he was asked to cure deficiencies in his
application and that he did so, but does not explain what the deficiencies were,
who identified them, and how he cured the defects. Additionally, the Plaintiff
was asked to pay a fee, which he claims was extortion because he was qualified
for the license. However, the Plaintiff has not explained the qualifications for
that license, how he meets those qualifications, and why he was asked to pay a
fee. Lastly the sur-reply also fails to set forth what actions by each Defendant
the Plaintiff claims were discriminatory and on what basis. In sum, none of the
Plaintiff’s filings put the Defendants on notice of the facts that make up the
claims against them. Accordingly, the complaint must be dismissed.
The Defendants request that the Court dismiss the complaint with
prejudice because any amendment would be futile because the Defendants are
shielded by Eleventh Amendment immunity and qualified immunity. However,
because the operative complaint has not set forth facts regarding the
Defendants’ purported misconduct, the Court is unable to determine at this
time whether they were acting in their official capacities and even if they were,
whether they are immune from the Plaintiff’s claims or whether their alleged
conduct falls within a limited exception to both types of immunity. Accordingly,
the Plaintiff will be afforded leave to amend his complaint.
4. Conclusion
For these reasons, the Defendants’ motion to dismiss is granted in part
and denied in part. (ECF No. 12.) The Plaintiff is afforded leave to amend the
complaint to cure the deficiencies identified in this Court’s order and
consistent with the Civil Rules of Procedure. The amended complaint is due by
no later than July 16, 2021. The Plaintiff is cautioned that a failure to file the
amended complaint by this date or to address the issues identified in this order
may result in dismissal with prejudice of this action.
Done and ordered in Miami, Florida, on June 16, 2021.
fonen N. Scola, Jr.
United States District Judge
Copies furnished to:
Counsel of record
Pro se Plaintiff Mark A. Persons
9825 NE 2nd Avenue
Suite 531276
Miami, FL 33153