MENDIETA v. HOLIDAY CVS, LLC

United States District Court

for the

Southern District of Florida

Juan Francisco Mendieta, Plaintiff, )

)

v. ) Civil Action No. 23-23439-Civ-Scola

)

Holiday CVS, LLC, Defendant. )

Order Striking State Court Complaint

This matter is before the Court on an independent review of the record.

This negligence action arises from injuries allegedly sustained by Plaintiff Juan

Francisco Mendieta when he slipped and fell in a CVS store owned by the

Defendant. (State Ct. Compl., ECF No. 1-2.) The Plaintiff initially filed this

action in Florida state court, and the Defendant removed the case. (Not. of

Removal, ECF No. 1.)

As a preliminary matter, the Court is satisfied that the Defendant has

met its burden of proving by a preponderance of the evidence that the case

meets the requirements for federal subject matter jurisdiction. See 28 U.S.C. §§

1332, 1446(c); Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061-1062 (11th

Cir. 2010). With respect to diversity of citizenship, the Defendant has provided

evidence that the sole member of Holiday CVS, LLC is CVS Pharmacy, Inc., a

Rhode Island Corporation (Def. Annual Report, ECF No. 1-4.), and the Plaintiff

stated in the state court complaint that he is a Florida citizen. (ECF No. 1-2 ¶

2.) With respect to the amount in controversy, the state court complaint seeks

only damages in excess of $50,000, but also alleges “bodily injury resulting in

pain and suffering, disability, disfigurement, permanent and significant

scarring, mental anguish, loss of the capacity for the enjoyment of life, expense

of hospitalization, medical and nursing care and treatment, loss of earning,

loss of the ability to earn money, activation of a latent condition and/or

aggravation of [sic] previously existing condition.” (Id. ¶¶ 11, 17.) “Eleventh

Circuit precedent permits district courts to make ‘reasonable deductions,

reasonable inferences, or other reasonable extrapolations’ from the pleadings to

determine whether it is facially apparent that a case is removable. Roe, 613

F.3d at 1061-62 (citation omitted). Given the minimum amount pleaded by the

Plaintiff and the nature of the injuries alleged in the complaint, the Court finds

that the amount in controversy more than likely exceeds the jurisdictional

threshold. See Dart Cherokee Basin Operating Co., 574 U.S. 81, 88 (2014). The

Court therefore has subject matter jurisdiction and the Defendant has properly

removed the case to federal court.

Moving to complaint itself, the Plaintiff asserts two counts of negligence

against the Defendant. (State Ct. Compl., ECF No. 1-2 ¶¶ 7-17.) Within each

count of negligence—“premises liability” and “negligence under the non-

delegable duty doctrine”—Mendieta alleges sixteen ways in which the

Defendant breached its duties to “maintain the premises in a reasonably safe

condition, and to warn Plaintiff of [sic] dangerous condition on their premises.”

(Id. ¶¶ 8-16.) Many of these “breaches” raise distinct theories of liability, some

of which do not appear to be based on duties that are even alleged or

cognizable. (E.g., Compl. at ¶ 9.g. (“Negligently failing to train and/or

inadequately training its employees . . . .”)) Others are redundant. (Compare,

e.g., id. at ¶ 9.c. (“Negligently failing to inspect or adequately inspect the aisle .

. . .”) with id. at ¶ 9.d. (“Negligently failing to inspect . . . the dangers in the

aisle . . . .”))

“Courts in the Eleventh Circuit have little tolerance for shotgun

pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294-95 (11th Cir.

2018). They violate Federal Rules of Civil Procedure 8(a)(2) and 10(b), “waste

scarce judicial resources, inexorably broaden the scope of discovery, wreak

havoc on appellate court dockets, and undermine the public’s respect for the

courts.” Id. (quotations and alterations omitted). When presented with a

shotgun pleading, a district court “should 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, 1357-58 (11th Cir. 2018) (“This is so even when the other party

does not move to strike the pleading”). One type of shotgun pleading is where a

complaint fails to “separate[] into a different count each cause of action or

claim for relief.” Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313,

1322-23, n.13 (11th Cir. 2015). The complaint here is this type of shotgun

pleading.

Mendieta attempts to fit multiple distinct theories of liability into both

counts. (Compl. at ¶¶ 8-16.) Each distinct theory, however, is a separate cause

of action that must be asserted independently and with corresponding

supporting factual allegations. See Garcia v. Carnival Corp., 838 F. Supp. 2d

1334, 1337, n.2 (S.D. Fla. 2012) (Moore, J.) (dismissing maritime negligence

claim that “epitomizes a form of ‘shotgun’ pleading,” where the plaintiff alleged

that the defendant owed a duty of “reasonable care under the circumstances,”

and then “proceed[ed] to allege at least twenty-one ways in which [the

d]efendant breached this duty”); Brown v. Carnival Corp., 202 F. Supp. 3d

1332, 1338 (S.D. Fla. 2016) (Ungaro, J.) (“Simply alleging that Carnival owed

Plaintiff a duty of ‘reasonable care’ in a conclusory fashion, while also pleading

[“forty-one”] alleged breaches that purport to impose a heightened duty upon

Carnival, is not sufficient to state a valid negligence claim under maritime law,”

and holding that “the burden will remain on Plaintiff to review her Complaint

and ensure that each factual allegation is supported by law and plausible facts,

and is alleged in good faith.”); Gayou v. Celebrity Cruises, Inc., No. 11-23359-

Civ, 2012 WL 2049431, at *5-*6, n.2 (S.D. Fla. June 5, 2012) (Scola, J.)

(ordering plaintiff to amend complaint to “separately allege an independent

count” for various theories of liability that were lumped into a single negligence

claim); Flaherty v. Royal Caribbean Cruises, Ltd., No. 15-22295, 2015 WL

8227674, *3n.3 (S.D. Fla. Dec. 7, 2015) (Lenard, J.) (same); Doe v. NCL

(Bahamas) Ltd., 2016 WL 6330587, at *3 (S.D. Fla. Oct. 27, 2016) (Ungaro, J.)

(holding that Plaintiffs “boilerplate allegations” of breach of duty failed to state

a claim for negligent hiring and retention, training and supervision, and

ordering Plaintiff to “allege each of these three claims in separate Counts” in

an amended complaint (emphasis in original)).

Accordingly, the Court strikes the complaint, (ECF No. 1-2), asa

shotgun pleading. Mendieta may file an amended complaint by October 13,

2023, provided it complies with this order, Federal Rules of Civil Procedure 8(a)

and 10(b), and the Iqgbal/ Twombly standard. Furthermore, Mendieta is

admonished not to include redundant claims or counts in his amended

pleading.

Mendieta is forewarned that failure to comply with this order may result

in the dismissal of this case with prejudice or other appropriate sanctions. See

Jackson, 898 F.3d at 1358-59 (instructing that “if the plaintiff fails to comply

with the court’s order—by filing a repleader with the same deficiency—the

court should strike his pleading or, depending on the circumstances, dismiss

his case and consider the imposition of monetary sanctions.” (quotations

omitted)).

In light of the above, the Defendant’s motion to dismiss the Plaintiffs

complaint is denied without prejudice (ECF No. 5).

Done and ordered in Miami, Florida on October 4, 2023.

fon N. Scola, Jr.

United States District Judge