The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHERMA JOHNSON,
Plaintiff,
v. Case No. 6:23-cv-1585-CEM-LHP
THE PRESERVES AT
STONEBRIAR
HOMEOWNERS ASSOCIATION
INC. and DOES 1-10,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendant The Preserves at Stonebriar
Homeowners Association Inc.’s Renewed Motion to Dismiss (“Defendant’s
Motion,” Doc. 47), to which Plaintiff filed a Response (Doc. 51). This cause is also
before the Court on Plaintiff’s Emergency Motion for Temporary Restraining Order
and Preliminary Injunction to Stay State Court Foreclosure (“Plaintiff’s Motion,”
Doc. 55).
The United States Magistrate Judge issued a Report and Recommendation
(“R&R,” Doc. 54) on Defendant’s Motion, recommending that the Court sua sponte
dismiss the Amended Complaint (Doc. 8) as a shotgun pleading and for failure to
adequately plead subject matter jurisdiction and, therefore, that the Motion be denied
without prejudice. Plaintiff filed Objections (Doc. 56), which will be accepted as
timely.
First, Plaintiff objects to the Magistrate Judge’s recommendation of sua
sponte dismissal of the Amended Complaint as a shotgun pleading, arguing that her
incorporation of prior paragraphs does not constitute a shotgun pleading. “The most
common type [of shotgun pleading]—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.” Weiland v. Palm Beach Cnty. Sheriff’s Off.,
792 F.3d 1313, 1321 (11th Cir. 2015). This is precisely what every count of the
Amended Complaint does. (See Doc. 8 at 4–9). Plaintiff then states her allegations
are sufficiently clear. Yet this is merely disagreement with the Magistrate Judge’s
reasoning not argument. Because Plaintiff will be permitted to amend, the Court
need not address her arguments that she be given such leave.
Second, Plaintiff argues that she has adequately pleaded diversity of
citizenship. Relying on Walker v. CSX Transportation, Inc., she argues that the Doe
Defendants do not destroy diversity of citizenship. 650 F.3d 1392, 1396 n.11 (11th
Cir. 2011). There, that was true but only in the context of removal. See 28 U.S.C.
§ 1441(a) (“In determining whether a civil action is removable on the basis of the
jurisdiction under section 1332(a) of this title, the citizenship of defendants sued
under fictitious names shall be disregarded.”).
Furthermore, the Magistrate Judge addressed this argument in the R&R. (See
Doc. 54 at 9). “Courts . . . have found that diversity jurisdiction cannot exist in an
action against a ‘Doe’ party where, as here, it is filed directly in federal court.”
Brown v. Bank of Am. NA, No. 6:18-cv-436-Orl-37TBS, 2018 WL 2688776, at *1
(M.D. Fla. Mar. 22, 2018). Walker is distinguishable because that action was
originally filed in and removed from state court. 650 F.3d at 1396 n.11. Plaintiff’s
argument that none of the Does are citizens of Tennessee upon information and
belief is not enough. See Diamond Resorts U.S. Collection Dev., LLC v. Sumday
Vacations, LLC, No. 6:19-cv-982-ORL-37DCI, 2019 WL 10375473, at *1 (M.D.
Fla. May 29, 2019) (“[A]lleging citizenship on ‘information and belief’ is
insufficient.”).
Plaintiff also objects to the finding that her request for $1,000,000 in damages
was unsubstantiated. Coming forward now with other numbers, Plaintiff argues that
her property was sold for $18,500 at auction but the fair market value exceeded
$350,000. But these numbers appear nowhere in the Amended Complaint. The
Magistrate Judge did not err in finding Plaintiff failed to satisfy the amount in
controversy requirement. Therefore, Plaintiff’s Objections will be overruled.
As for Plaintiff’s Motion, first, the standards for obtaining a temporary
restraining order (“TRO”) and preliminary injunction are identical. See Windsor v.
United States, 379 F. App’x 912, 916–17 (11th Cir. 2010). “The primary difference
between a preliminary injunction and a TRO is that a TRO may be entered before
the defendant has an adequate opportunity to respond.” Fla. Immigrant Coal. v.
Uthmeier, No. 25-21524-CV-WILLIAMS, 2025 U.S. Dist. LEXIS 69183, at *4
(S.D. Fla. Apr. 4, 2025) (internal quotation marks omitted). So, while Plaintiff refers
to both, the Court will use the preliminary injunction standard.
“The grant or denial of a preliminary injunction is a decision within the sound
discretion of the district court.” United States v. Lambert, 695 F.2d 536, 539 (11th
Cir. 1983). To obtain a preliminary injunction, the movant must sufficiently establish
that (1) “it has a substantial likelihood of success on the merits;” (2) “irreparable
injury will be suffered unless the injunction issues;” (3) “the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the
opposing party;” and (4) “the injunction would not be adverse to the public interest.”
Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011)
(quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc)). “A
preliminary injunction, moreover, ‘is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the burden of persuasion as to the four
requisites.’” Llovera v. Fla., 576 F. App’x 894, 896 (11th Cir. 2014) (per curiam)
(quoting Forsyth Cnty., 633 F.3d at 1039). “To carry its burden, a plaintiff seeking
a preliminary injunction must offer proof beyond unverified allegations in the
pleadings. Moreover, vague or conclusory affidavits are insufficient to satisfy the
plaintiff’s burden.” Palmer v. Braun, 155 F. Supp. 2d 1327, 1331 (M.D. Fla. 2001),
aff’d, 287 F.3d 1325, 1327 (11th Cir. 2002).
Failure to satisfy even one element for a preliminary injunction is fatal to
issuance of the injunction. Llovera, 576 F. App’x at 896. If the Court finds that
Plaintiff has failed to carry her burden as to a single element, the Court need not
consider the remaining elements. Henry v. Nat’l Hous. P’ship, No. 1:06-cv-008-
SPM, 2006 WL 8443138, at *1 (N.D. Fla. Sept. 19, 2006) (“Where a plaintiff has
not carried his burden as to any one of the elements required for a preliminary
injunction, it is unnecessary to address the remaining elements.” (citing Jefferson
Cnty., 720 F.2d at 1519)). Because the Amended Complaint will be dismissed a
shotgun pleading and for failure to adequately plead subject matter jurisdiction, it is
apparent Plaintiff has not met her burden as to the first factor of the test. Therefore,
Plaintiff has not established a substantial likelihood of success on the merits of the
claims, and Plaintiff’s Motion will be denied.
Accordingly, it is ORDERED and ADJUDGED as follows:
1. Plaintiff’s Motion to Accept Late-Filed Objection (Doc. 57) is
GRANTED.
a. Plaintiff’s Objections (Doc. 56) are accepted as timely.
2. Plaintiff’s Objections (Doc. 56) are OVERRULED.
3. The Report and Recommendation (Doc. 54) is ADOPTED and made
a part of this Order.
4. Plaintiff’s Amended Complaint (Doc. 8) is DISMISSED without
prejudice.
5. Defendant The Preserves at Stonebriar Homeowners Association
Inc.’s Renewed Motion to Dismiss (Doc. 47) is DENIED without
prejudice.
6. Plaintiff's Emergency Motion for Temporary Restraining Order and
Preliminary Injunction to Stay State Court Foreclosure (Doc. 55) is
DENIED.
7. On or before July 22, 2025, Plaintiff may file a Second Amended
Complaint that corrects the deficiencies set forth in the Report and
Recommendation. Failure to do so will result in the closure of this case
without further notice.
DONE and ORDERED in Orlando, Florida on July 8, 2025.
4 CARLOS E. MENDOZA |
UNITED STATES DISTRICT JUD@E
Copies furnished to:
Counsel of Record
Unrepresented Party