Opinion

Posada

Court
District Court, M.D. Florida
Filed
Jan 8, 2026
Cited by
0 cases
Authority
More cited than 38.1%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JAVIER POSADA,

Plaintiff,

v. Case No.: 2:25-cv-487-SPC-NPM

FEDERAL EXPRESS

CORPORATION,

Defendant.

OPINION AND ORDER

Before the Court are Defendant Federal Express Corporation’s Motion to

Dismiss or for a More Definite Statement (Doc. 33) and pro se Plaintiff Javier

Posada’s response (Doc. 37). For the reasons below, the Court grants the

motion.

This is an employment discrimination case. Plaintiff, who is deaf, brings

discrimination, retaliation, and hostile work environment claims under the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 et seq.

(Doc. 28). Plaintiff does not allege any facts in his second amended complaint.

Rather, he incorporates into the complaint the facts included in his October

2025 EEOC charge of discrimination. (Id.). Defendant moves to dismiss the

second amended complaint, arguing Plaintiff fails to state a claim. (Doc. 33).

To survive a Federal Rule of Civil Procedure 12(b)(6) motion, 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).

Bare “labels and conclusions, and a formulaic recitation of the elements of a

cause of action,” do not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). A district court should dismiss a claim when a party does not plead

facts that make the claim facially plausible. See id. at 570. A claim is facially

plausible when a court can draw a reasonable inference, based on the facts

pled, that the opposing party is liable for the alleged misconduct. See Iqbal,

556 U.S. at 678. This plausibility standard requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550

U.S. at 557 (internal quotation marks omitted)).

Plaintiff cannot simply incorporate his EEOC charge into his complaint.

See Chandler v. Volunteers of Am., Se., Inc., No. CV-12-S-3701-NW, 2013 WL

4058078, at *5 (N.D. Ala. Aug. 12, 2013) (“More importantly, plaintiff’s

indiscriminate, wholesale incorporation of the facts in her EEOC Charge,

combined with her failure to organize her claims into separate counts as

required by Rule 10(b), creates a textbook example of a ‘shotgun pleading.’”).

By doing so, he fails to provide “a short and plain statement of the claim,” and

to state his claims in numbered paragraphs. See Fed. R. Civ. P. 8(a), 10(b); see

also Skye Energy Ventures LLC v. Hollander, No. 2:25-CV-274-SPC-KCD, 2025

WL 1795964, at *4 (M.D. Fla. June 30, 2025) (explaining attachments to the

complaint cannot save pleading deficiencies because “Plaintiff must allege the

requisite facts in the complaint”); Carter v. Brown Mackie Coll. Miami & Educ.

Mgmt. Corp., No. 15-61887-CIV, 2016 WL 6496632, at *1 (S.D. Fla. Feb. 4,

2016) (“Plaintiff’s Complaint does include several attachments that shed

additional light on her claims. But these attachments cannot substitute for

compliance with Rule 8.”). In other words, Plaintiff fails to comply with the

federal pleading standards.1 Therefore, Plaintiff’s second amended complaint

is dismissed, but the Court will allow him one final chance to sufficiently plead

his case.

Additionally, Defendant’s motion outlines several deficiencies with

Plaintiff’s EEOC charge. (Doc. 33 at 7–8). These points are well taken, and

Plaintiff should consider them when drafting his third amended complaint.

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss (Doc. 33) is GRANTED.

1 Defendant raises an issue with Plaintiff’s October 2025 EEOC charge. It notes that it

appears to be an amended version of his April 2025 charge, which he attached to the original

complaint. (Doc. 33 at 2 n.1). This is concerning because Plaintiff provides no notice of right

to sue for the October charge. But the Court disregards this issue for now because Defendant

does not develop it, and the amended charge does not appear to substantially alter the

original charge.

2. Plaintiff's second amended complaint is DISMISSED without

prejudice.

3. On or before January 22, 2026, Plaintiff may file a third amended

complaint. Failure to do so will cause the Court to dismiss this

case without further notice.

DONE and ORDERED in Fort Myers, Florida on January 8, 2026.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.