Johnson v. The Preserves at Stonebriar Homeowners Association INC.

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

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

Before the Court is Defendant The Preserves at Stonebriar Homeowners

Association Inc.’s Renewed Motion to Dismiss Plaintiff’s Amended Complaint.

Doc. No. 47. Plaintiff opposes. Doc. No. 51. The matter has been referred to the

undersigned and is ripe for review. For the reasons discussed below, the

undersigned will respectfully recommend that the Court sua sponte dismiss the

amended complaint (Doc. No. 8) as a shotgun pleading and for failure to adequately

plead subject matter jurisdiction, and deny without prejudice The Preserves at

Stonebriar Homeowners Association Inc.’s Renewed Motion to Dismiss (Doc. No.

47).

I. BACKGROUND.

Plaintiff Sherma Johnson, appearing pro se, instituted this action against

Defendant The Preserves at Stonebriar Homeowners Association, Inc. (“the

Association”) and Defendants Does 1–10 by complaint filed on August 18, 2023.

Doc. No. 1. The allegations of the complaint stem from a foreclosure action filed

by the Association against Plaintiff in state court related to Plaintiff’s rental

property, which resulted in the foreclosure of the property due to unpaid

assessments. Id. Plaintiff alleged that the Court had federal question jurisdiction

and asserted claims for breach of an agreement (Count I); declaratory relief (Count

II); breach of good faith and fair dealing (Count III); estoppel/unclean hands (Count

IV); fraud (Count V); negligence (Count VI); slander of title (Count VII); and legal

fees and costs (Count VIII), and sought $1,000,000.00 in damages. Id.

With the initial complaint, Plaintiff filed a motion to proceed in forma pauperis.

Doc. No. 5. Upon referral, the undersigned issued a report recommending that the

motion be denied and the complaint be dismissed without prejudice for failure to

adequately plead subject matter jurisdiction, as although Plaintiff alleged federal

question jurisdiction, no federal question appeared on the face of the complaint, and

Plaintiff did not otherwise demonstrate diversity of citizenship between the parties.

Doc. No. 6. Plaintiff did not file any objections, and the Court adopted that report,

dismissed the complaint, and provided Plaintiff an opportunity to replead. Doc.

No. 7.

On November 13, 2023, Plaintiff filed an amended complaint, asserting the

same claims against the Association and Does 1–10. Doc. No. 8. Plaintiff also paid

the filing fee and abandoned her request to proceed in forma pauperis. Plaintiff

again seeks $1,000,000.00 in damages, but this time alleges that the Court has subject

matter jurisdiction based on diversity of citizenship. Id. at 1, 9.

On January 4, 2024, the Court dismissed the case for failure to prosecute, but

reopened the case on February 20, 2024 on Plaintiff’s motion. Doc. Nos. 10–12.

The Association thereafter appeared in the case. Doc. No. 15. On September 11,

2024, the Court dismissed the case again for failure to comply with Court Orders,

but ultimately reopened the case on September 25, 2024, after the parties filed a Case

Management Report. Doc. Nos. 32, 34–35.

After two procedurally deficient motions, the Association filed the motion to

dismiss that is the subject of this report. Doc. No. 47; see also Doc. Nos. 20, 44, 45–

46. Plaintiff responds in opposition. Doc. No. 51; see also Doc. Nos. 49–50.

II. LEGAL STANDARDS.

Under Rule 12(b)(6), “[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While this pleading standard “does

not require ‘detailed factual allegations,’ . . . it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S.

at 555). A pleading must contain “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550

U.S. at 555. For purposes of this analysis, exhibits attached to the complaint are

“part of the pleading for all purposes.” Fed. R. Civ. P. 10(c); see also Saunders v.

Duke, 766 F.3d 1262, 1270 (11th Cir. 2014) (“[D]ocuments attached to a complaint or

incorporated in the complaint by reference can generally be considered by a federal

court in ruling on a motion to dismiss under Rule 12(b)(6).”).

Additionally, under Federal Rule of Civil Procedure 12(h)(3), a district court

may at any time, upon motion or sua sponte, act to address the potential lack of

subject matter jurisdiction in a case. Herskowitz v. Reid, 187 F. App’x 911, 912–13

(11th Cir. 2006) (citing Howard v. Lemmons, 547 F.2d 290, 290 n.1 (5th Cir. 1977)).1

“[I]t is incumbent upon federal courts trial and appellate to constantly examine the

basis of jurisdiction, doing so on our own motion if necessary.” Save the Bay, Inc.

v. United States Army, 639 F.2d 1100, 1102 (5th Cir. 1981) (citations omitted).2

1 “Unpublished opinions are not controlling authority and are persuasive only

insofar as their legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340,

1345 n.7 (11th Cir. 2007).

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit

Courts give a “liberal construction” to pro se pleadings. Holsomback v. White,

133 F.3d 1382, 1386 (11th Cir. 1998). But this leeway is not limitless, as courts

cannot serve as “de facto counsel for a party, or . . . rewrite an otherwise deficient

pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165,

1168–69 (11th Cir. 2014) (citation omitted).

III. ANALYSIS.

The Association moves to dismiss the amended complaint on several bases,

including because Plaintiff lacks standing to raise many of the claims; Plaintiff’s

claims are barred by res judicata due to the state court foreclosure proceedings; and

Plaintiff fails to state any claim for relief. Doc. No. 47. However, on review, and

although not raised by the motion to dismiss, the amended complaint is a shotgun

pleading and also fails to adequately plead subject matter jurisdiction. See Doc.

No. 8. Accordingly, the undersigned will recommend that the Court sua sponte

dismiss the amended complaint on these bases, with one more opportunity to

replead. See Sundby v. Bekins A-1 Movers, Inc., No. 8:24-cv-2275-TPB-CPT, 2024 WL

4643495, at *2 (M.D. Fla. Oct. 31, 2024) (“A federal court has a duty to examine, even

sua sponte, its own jurisdiction over a case, notwithstanding the contentions of the

parties.” (citing Plains Com. Bank v. Long Fam. Land & Cattle Co., 554 U.S. 316, 324

handed down prior to the close of business on September 30, 1981.

(2008); DeRoy v. Carnival Corp., 963 F.3d 1302, 1311 (11th Cir. 2020))); Cousins v. Sch.

Bd. of Orange Cty., Fla., 636 F. Supp. 3d 1360, 1372 (M.D. Fla. 2022) (“[W]hen

presented with a shotgun complaint, the district court should order repleading sua

sponte.” (quoting Ferrell v. Durbin, 311 F. App’x 253, 259 n.8 (11th Cir. 2009))).

A. Shotgun Pleading.

“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often

disparagingly referred to as ‘shotgun pleadings.’” Weiland v. Palm Beach Cty.

Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015). “Shotgun pleadings come in a

variety of forms.” Brown v. Bank of Am. NA, No. 6:18-cv-436-Orl-37TBS, 2018 WL

2688776, at *1 (M.D. Fla. Mar. 22, 2018) (citing Weiland, 792 F.3d at 1321). But “[t]he

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.” Weiland, 792 F.3d at 1321. “Described as ‘altogether

unacceptable,’ by the U.S. Court of Appeals for the Eleventh Circuit, when a

shotgun pleading is filed in this Court, repleader is required.” Brown, 2018 WL

2688776, at *1 (citing Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)).

Here, Plaintiff’s amended complaint is “the most common type” of shotgun

pleading, as every Count of the amended complaint incorporates all allegations

preceding it. See Doc. No. 8 ¶¶ 18, 22, 26, 32, 36, 41, 47, 52. “This is

impermissible,” and the amended complaint “must be dismissed.” See Brown,

2018 WL 2688776, at *1 (dismissing shotgun complaint for same reason); see also, e.g.,

Abel v. Porsche Cars N. Am., Inc., No. 6:24-cv-593-PGB-DCI, 2024 WL 4793326, at *1

(M.D. Fla. Oct. 4, 2024) (sua sponte dismissing complaint as first “most common

type” of shotgun pleading); Byron v. Avant Healthcare Pros., LLC, No. 6:23-cv-1645-

WWB-LHP, 2023 WL 9196665, at *1 (M.D. Fla. Nov. 29, 2023) (sua sponte dismissing

complaint as “most common type” of shotgun pleading, noting: “This circumstance

makes it virtually impossible to discern which of the facts alleged supports each

claim and is sufficient grounds in itself upon which to order Plaintiffs to replead”);

Allstate Servicing, Inc. v. Knauf Gips KG, No. 5:21-cv-574-WWB-PRL, 2022 WL

17370304, at *1 (M.D. Fla. Feb. 17, 2022) (same); Uys v. Harris, No. 6:20-cv-1143-CEM-

EJK, 2021 WL 2458698, at *2 (M.D. Fla. May 11, 2021) (same).

B. Subject Matter Jurisdiction.

Plaintiff premises the Court’s subject matter jurisdiction on 28 U.S.C. § 1332,

based on the diversity of citizenship between the parties. Doc. No. 8 ¶¶ 1, 3–5.3

Under 28 U.S.C. § 1332, the Court has original jurisdiction over a civil action where

the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and

3 Plaintiff’s amended complaint does not allege a federal claim, and thus, the

undersigned addresses only the adequacy of the jurisdictional allegations based on the

diversity of citizenship between the parties. See Doc. No. 8.

the matter is between citizens of different states. 28 U.S.C. § 1332(a). For diversity

jurisdiction purposes, an individual is a citizen of the state in which he or she is

domiciled, which is the state where the individual maintains his or her “true, fixed,

and permanent home.” McCormick v. Aderholt, 293 F.3d 1254, 1257–58 (11th Cir.

2002). A corporation, on the other hand, is a citizen of the state in which it is

incorporated and the state in which the corporation’s principal place of business is

located. 28 U.S.C. § 1332(c)(1).

Plaintiff alleges that she is domiciled in Tennessee, which is sufficient to

establish her citizenship. Doc. No. 8 ¶ 4. And the Association’s citizenship is

adequately established on the record, as Plaintiff alleges that the Association’s

principal place of business is in Palm Bay, Florida, and the record otherwise reflects

that the Association is a Florida corporation. Id. ¶ 5; Doc. No. 25, at 2; see also

Travaglio v. Am. Express Co., 735 F.3d 1266, 1270 (11th Cir. 2011) (allowing defective

allegations regarding citizenship to be cured through record evidence).

That said, Plaintiff also brings this case against “Does 1–10,” but to date has

not identified said Defendants nor provided any information as to their citizenship.

Doc. No. 8.4 Thus, “the inclusion of ‘[Does 1–10]’ as Defendants prevents the Court

4 In the amended complaint, Plaintiff does not include any allegations against the

Doe Defendants directly, but instead, simply refers throughout the pleading to

“Defendant” or “Defendants,” which is also problematic. Doc. No. 8. See Weiland, 792

F.3d at 1323 (identifying another type of impermissible shotgun pleading as one “asserting

multiple claims against multiple defendants without specifying which of the defendants

from being able to determine whether complete diversity of citizenship exists.” See

Escamilla v. Blackwood, No. 6:17-cv-678-Orl-37TBS, 2017 WL 7311869, at *2 (M.D. Fla.

May 23, 2017), report and recommendation adopted, 2017 WL 7311848 (M.D. Fla. June

14, 2017); see also Brown v. Bank of Am. NA, No. 6:18-cv-436-Orl-37TBS, 2018 WL

2688776, at *1 (M.D. Fla. Mar. 22, 2018) (“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.”); Fifth Third Bank v. Fla. Caring Hands Corp., No. 3:14-cv-

212-J-39MCR, 2015 WL 12818836, at *3 (M.D. Fla. Apr. 17, 2015) (“[T]here are three

unnamed defendants who remain parties to this action. To date, the Complaint

has not been amended or supplemented to allege the citizenship of these

defendants, and their continued presence calls the Court’s jurisdiction into

question.”); PNC Bank, N.A. v. H.R. United, Inc., No. 6:13-cv-949-Orl-37GJK, 2013 WL

12166243, at *1 (M.D. Fla. June 20, 2013) (“For cases whose claims are brought solely

under the court’s diversity jurisdiction, the general rule is that the presence of

fictitious parties destroys diversity.”).

Upon review of the docket, Plaintiff has never filed proof of service as to these

Doe Defendants. So, on notice to Plaintiff, it may be that the Doe Defendants are

are responsible for which acts or omissions, or which of the defendants the claim is brought

against”).

properly dismissed. See Fed. R. Civ. P. 4(m). But even assuming they were

dismissed, however, the amount in controversy is also problematic.

Specifically, Plaintiff pleads in a conclusory fashion that “[t]he matter in

controversy exceeds” $75,000.00, and she also requests “actual damages in an

amount of $1,000,000.00 plus additional damages to be established at trial and/or

evidentiary hearings.” Doc. No. 8, at 1, 9. However, the amended complaint does

not otherwise elucidate the damages Plaintiff is claiming she actually suffered in

this case. Id.

To establish the amount in controversy, Plaintiff must allege “a sufficient sum

in good faith.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807

(11th Cir. 2003) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288

(1938)). “While courts afford some deference to a diversity plaintiff’s amount in

controversy allegations . . . [they] would be remiss in [their] obligations if [they]

accepted every claim of damages at face value’ regardless of the nature of the other

assertions in a plaintiff’s complaint.” Aufderhaar v. Warder, No. 8:21-cv-419-MSS-

CPT, 2021 WL 7448081, at *5 (M.D. Fla. Nov. 3, 2021), report and recommendation

adopted, 2021 WL 7448085 (M.D. Fla. Nov. 30, 2021) (alterations in original) (quoting

Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1272 (11th Cir. 2000)).

Again, Plaintiff makes only an unsubstantiated request for $1,000,000.00 in

damages. Doc. No. 8, at 9. Without more, Plaintiff has not satisfied the amount

in controversy requirement. See, e.g., Howarth v. Howarth, No. 8:20-cv-199-T-

36CPT, 2020 WL 735999, at *2 (M.D. Fla. Feb. 13, 2020) (“Plaintiff does not provide

sufficient allegations about the amount in controversy. Plaintiff seeks

$2,000,000.00 from Defendant, but does not provide a basis for this amount.”); Bush

v. Bank of Am., N.A., No. 6:18-cv-528-Orl-18GJK, 2018 WL 3635116, at *2 (M.D. Fla.

June 21, 2018), report and recommendation adopted, 2018 WL 3831343 (M.D. Fla. Aug.

13, 2018) (declining to find sufficient allegations of amount in controversy despite

the plaintiff’s claims for “80 million and 40 million in punitive money damage”);

Torres v. BBVA Compass Bancshares, Inc., No. 5:14-cv-502-Oc-30PRL, 2014 WL

5173057, at *3 (M.D. Fla. Oct. 14, 2014) (‘While Plaintiff demands $1 million in

damages, the Complaint includes no basis whatsoever to support that amount.”).

For these reasons, the undersigned will also recommend that the Court

dismiss the amended complaint without prejudice for failure to adequately plead

subject matter jurisdiction. See Brown, 2018 WL 2688776, at *1 (dismissing

complaint as both shotgun pleading and for failure to adequately plead diversity

jurisdiction where the pro se plaintiff included unidentified “John and Jane Doe”

defendants); see also Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d

1229, 1232 (11th Cir. 2008) (a dismissal for lack of subject matter jurisdiction is

“entered without prejudice”).

C. Leave to Amend.

As discussed above, Plaintiff has already been given an opportunity to file an

amended complaint. Doc. Nos. 6–8. See also Sifford v. Ford, 701 F. App’x 794, 796

(11th Cir. 2017) (“Generally, a district court must sua sponte provide a pro se plaintiff

at least one opportunity to amend his complaint, even where the plaintiff did not

request leave to amend.” (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991),

overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th

Cir. 2002))). However, given that the undersigned is sua sponte raising the issues

regarding shotgun pleadings and subject matter jurisdiction, neither of which are

addressed in the Association’s motion to dismiss, Doc. No. 47, and considering

Plaintiff’s pro se status and that it is at least possible that Plaintiff may rectify these

deficiencies by amendment, the undersigned will respectfully recommend that

Plaintiff be given one more opportunity to replead.5 Cf. Maultsby v. St. Petersburg

Coll., No. 8:10-cv-2288-T-30TGW, 2011 WL 940468, at *1 (M.D. Fla. Mar. 17, 2011)

(dismissing second amended complaint for pleading deficiencies, but permitting

pro se party “one more chance” to amend even though the court had previously

dismissed the initial complaint); New Jersey upon its 1776 Const. v. Fla., Charlotte Cty.

5 The undersigned further notes that in response to the motion to dismiss, Plaintiff

asks that “should the Court find any deficiencies, Plaintiff requests leave to amend the

Amended Complaint to address such issues.” Doc. No. 51, at 19–20.

Jail, No. 2:24-cv-257-SPC-KCD, 2024 WL 5055266, at *3 (M.D. Fla. Apr. 22, 2024)

(similar); see also Escamilla v. Blackwood, No. 6:17-cv-678-Orl-37TBS, 2017 WL

7311869, at *3 (M.D. Fla. May 23, 2017), report and recommendation adopted, 2017 WL

7311848 (M.D. Fla. June 14, 2017) (permitting pro se party leave to amend complaint

one final time after an amended complaint was dismissed upon review pursuant to

28 U.S.C. § 1915).

IV. RECOMMENDATION.

For the reasons discussed herein, it is respectfully RECOMMENDED that

the Court:

1. DISMISS without prejudice the amended complaint (Doc. No. 8), as

a shotgun pleading and for failure to adequately plead subject matter

jurisdiction.

2. DENY without prejudice Defendant The Preserves at Stonebriar

Homeowners Association Inc.’s Renewed Motion to Dismiss Plaintiff’s

Amended Complaint (Doc. No. 47).

3. PERMIT Plaintiff to file a second amended complaint, within a time

established by the Court, to rectify the deficiencies outlined herein.

NOTICE TO PARTIES

A party has fourteen days from the date the Report and Recommendation is

served to serve and file written objections to the Report and Recommendation’s

factual findings and legal conclusions. Failure to serve written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal

conclusion the district judge adopts from the Report and Recommendation. 11th

Cir. R. 3-1.

Recommended in Orlando, Florida on June 9, 2025.

| ayn

LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy