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