McCall v. Bank of America, N.A. et al

Filing 31

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Plf's claims are DISMISSED without prejudice; 2) Pursuant to FRCP 15(a)(2), Plf is given leave to file a second amended complaint on or before 10/11/2016, as further set out in order; 3) Dfts' 23 & 24 motions to dismiss are DENIED without prejudice to reassert any arguments that may be relevant to the second amended complaint, as further set out in order. Signed by Chief Judge William Keith Watkins on 9/26/2016. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CATRINA MCCALL,
Plaintiff,
v.
BANK OF AMERICA, N.A., and
DITECH FINANCIAL, LLC
F/K/A/ GREEN TREES
SERVICING, LLC,
Defendants.

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CASE NO. 2:16-CV-184-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court are the motions to dismiss filed by Defendants Bank of
America, N.A. (“BOA”), and Ditech Financial, LLC f/k/a Green Trees Servicing,
LLC (“Ditech”). This case began in state court, where Plaintiff Catrina McCall
asserted several claims arising from a mortgage foreclosure. (Doc. # 1-1.)
Defendants removed the case to this court on the basis of diversity jurisdiction (Doc.
# 1), and filed motions to dismiss (Docs. # 7, 8). Ms. McCall then moved for, and
was granted, leave to file an amended complaint. (Docs. # 20, 21.)
Both Defendants have moved to dismiss Plaintiff’s amended complaint (Docs.
# 23, 24), and the parties have fully briefed the issues (Docs. # 23, 24, 28, 29, 30).
Upon consideration of the motions and the governing complaint, the court will deny

the motions and exercise its inherent power to dismiss Plaintiff’s shotgun complaint
with leave to file a second amended complaint.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is proper under 28 U.S.C. § 1332, and the parties
do not contest personal jurisdiction. Venue is proper under 28 U.S.C. § 1441(a).
II. STANDARD OF REVIEW
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and
construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc.,
693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “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)).

“[F]acial

plausibility” exists “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
III. DISCUSSION
The Federal Rules of Civil Procedure mandate that a complaint “must contain
. . . a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Although “[n]o technical form is required,” all
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“allegation[s]” made in the complaint “must be simple, concise, and direct.” Fed.
R. Civ. P. 8(d)(1). This rule plays a crucial role in the efficient administration of
justice: succinct, concise pleading allows the opposing party to “frame a responsive
pleading” and helps the court “determine which facts support which claims and
whether the plaintiff has stated any claims upon which relief can be granted.”
Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015)
(quoting T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1544 n.14 (11th Cir.
1985) (Tjoflat, J., dissenting)).
A complaint that runs afoul of Rule 8(a)(2)—or the related Rule 10(b)—is
“often disparagingly referred to as [a] ‘shotgun pleading[ ].’” Id. The Eleventh
Circuit has roundly condemned such shotgun pleadings, both for the confusion they
cause litigants and the havoc they wreak on the docket. See id. at 1320–23
(describing “a thirty-year salvo of criticism” with “no ceasefire in sight”). There are
four types of shotgun pleadings: (1) complaints “containing multiple counts where
each count adopts the allegations of all preceding counts,” (2) complaints that are
“replete with conclusory, vague, and immaterial facts not obviously connected to
any particular cause of action,” (3) complaints that fail to “separat[e] into a different
count each cause of action or claim for relief,” and (4) complaints that “assert[ ]
multiple claims against multiple defendants without specifying which of the

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defendants are responsible for which acts or omissions, or which of the defendants
the claim is brought against.” Id. at 1322–23.
The complaint suffers from three of the four shotgun-pleading sins. First, in
each of the five counts, the complaint incorporates all of the preceding material by
reference. (Doc. # 22, ¶¶ 29, 33, 38, 43, 47.) This will not do. Rote and repeated
incorporations by reference fill each count “with factual allegations that could not
possibly be material to that specific count,” flouting the Rule 10(b) requirement to
plead separate claims in separate counts. Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001). It is not enough to “clearly incorporate[ ] all ‘facts’ ple[aded] in
the [amended complaint]” (Doc. # 28), as Plaintiff has done; rather, the supporting
facts must be pleaded in the count asserting the cause of action. See Wagner v. First
Horizon Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir. 2006). A failure-to-state-aclaim analysis of the amended complaint would be a matter of guesswork rather than
a reasoned decision.
Second, the complaint’s allegations are conclusory and vague. Outside of
twenty-one paragraphs of factual assertions, the complaint does little more than
parrot legal standards. Take Count 1 as an example: Plaintiff simply recites that,
“[a]s stated herein, Defendants made material misrepresentations of amounts due to
Plaintiff.” (Doc. # 22 ¶ 30.) This falls well short of the pleading requirements
imposed by the Federal Rules. See Fed. R. Civ. P. 8(a); see also Weiland, 792 F.3d
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at 1322. What, exactly, were the material misrepresentations? Those alleged
misrepresentations should be enumerated so that the court and Defendants can
evaluate the complaint without having to guess at which facts support which claims.
Finally, despite asserting claims against both BOA and Ditech, Plaintiff’s
complaint fails to distinguish between each party’s conduct. This sort of collective
accusation does not necessarily make for a shotgun pleading. See Kyle K. v.
Chapman, 208 F.3d 940, 944 (11th Cir. 2000) (“The fact that defendants are accused
collectively does not render the complaint deficient.”).

But in light of the

complaint’s conclusory language and over-use of incorporations by reference, mere
reference to “Defendants” does not give fair notice to either opposing party. See
Twombly, 550 U.S. at 555 (holding that the purpose of Rule 8(a)(2) is to “give the
defendant fair notice of what the claim is and the grounds upon which it rests”)
(citation, quotation marks, and ellipsis omitted). In sum, the complaint bears the
marks of a shotgun pleading, and will be treated as such.
Defendants have undertaken significant effort to draft a motion to dismiss the
complaint and whatever claims might be alleged in it. However, it is “virtually
impossible to know” from Plaintiff’s shotgun complaint “which allegations of fact
are intended to support which claim(s) for relief” against which Defendants.
Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th
Cir. 1996) (describing “the perfect example of a shotgun complaint”). Thus, in
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considering the motion to dismiss, the court cannot “determine which facts support
which claims and whether the plaintiff has stated any claims upon which relief can
be granted.” Weiland, 792 F.3d at 1320.
“Shotgun pleadings impede the administration of the district courts’ civil
dockets in countless ways.” PVC Windoors, Inc. v. Babbitbay Beach Const., N.V.,
598 F.3d 802, 806 (11th Cir. 2010). “Experience teaches that, unless cases are pled
clearly and precisely, issues are not joined, discovery is not controlled, the trial
court’s docket becomes unmanageable, the litigants suffer, and society loses
confidence in the court’s ability to administer justice.” Anderson, 77 F.3d at 367.
Thus, “it is particularly important for district courts to undertake the difficult, but
essential, task of attempting to narrow and define the issues from the earliest stages
of the litigation. Absent such efforts, shotgun notice pleadings . . . would impede
the orderly, efficient, and economic disposition of disputes.” Ebrahimi v. City of
Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997). “If the trial judge does
not quickly demand repleader [of a shotgun complaint], all is lost—extended and
largely aimless discovery will commence, and the trial court will soon be drowned
in an uncharted sea of depositions, interrogatories, and affidavits.” Johnson Enters.
of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998). As a
case proceeds on a shotgun complaint, “[g]iven the massive record and loose
pleadings before it, the trial court, whose time is constrained by the press of other
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business, is unable to squeeze the case down to its essentials; the case therefore
proceeds to trial without proper delineation of issues.” Id. Thus, it is particularly
crucial for the court to ensure that justice is administered efficiently from the outset
of each case.
Therefore, in accordance with the court’s “power and duty to define the issues
at the earliest stages of litigation,” all of Plaintiff’s claims will be dismissed without
prejudice, with leave granted to Plaintiff to file a second amended complaint that
complies with the Federal Rules of Civil Procedure and this Order. Johnson Enters.,
162 F.3d at 1333; Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (“We
have held that district courts confronted by [shotgun] complaints have the inherent
authority to demand repleader sua sponte.”).
In drafting this amended complaint, Plaintiff should bear in mind that her
claims for fraud and fraudulent suppression must pass the higher bar of Federal Rule
of Civil Procedure 9(b). Where 9(b)’s “heightened pleading standards” apply, “the
pleading requirements do not extend merely to plausibility.” Miccosukee Tribe of
Indians of Fla. v. Cypress, 814 F.3d 1202, 1212 (11th Cir. 2015). Rather, “they
demand plausibility based upon Rule 9(b)’s heightened degree of specificity.” Id.
A complaint that fails to “distinguish among [the] defendants and specify their
respective role in the alleged fraud” will not meet this standard. McAllister Towing
& Transp. Co. v. Thorn’s Diesel Serv., Inc., 131 F. Supp. 2d 1296, 1301 (M.D. Ala.
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2001). Similarly, Rule 9(b) will not be satisfied if Plaintiff fails to plead specific
facts in the counts asserted in the complaint.1 See Wagner, 464 F.3d at 1279.
III. CONCLUSION
Accordingly, based on this court’s inherent power to manage its docket, it is
ORDERED as follows:
1.

Plaintiff’s claims are DISMISSED without prejudice.

2.

Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiff is given leave

to file a second amended complaint on or before October 11, 2016, that complies
with the Federal Rules of Civil Procedure and the following requirements of this
Order:
a.

The second amended complaint must set forth, with clarity, short and
plain statements showing Plaintiff is entitled to relief. The body of the
complaint shall contain (1) a short and plain statement of the grounds
for the court’s jurisdiction; (2) clear and concise allegations of fact
showing that Plaintiff is entitled to relief; (3) claims for relief set forth
in separate counts of the complaint; and (4) a demand for relief sought.
Fed. R. Civ. P. 8(a); Fed. R. Civ. P. 10(b). Allegations of fraud must
meet Rule 9(b)’s heightened pleading standards for specificity.

Plaintiff is also reminded that fictitious-party pleading generally is not allowed in federal court.
See New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1 (11th Cir. 1997).
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b.

The second amended complaint must set forth, in separately numbered
paragraphs, allegations of fact that are simple, concise, direct,
sufficiently detailed, and material to Plaintiff’s claims. Plaintiff must
allege facts that make clear the nature of each Defendant’s alleged
involvement in each claim and how each particular Defendant violated
Plaintiff’s rights.

c.

Plaintiff “must state [her] claims . . . in numbered paragraphs, each
limited as far as practicable to a single set of circumstances.” Fed. R.
Civ. P. 10(b). “If doing so would promote clarity, each claim . . .
founded on a separate transaction or occurrence must be stated in a
separate count.” Id.

d.

Plaintiff may not simply incorporate all factual allegations by reference
into every count; rather, Plaintiff must indicate with clarity which
specific factual allegations are material to each specific count.

e.

With respect to each count, the second amended complaint must clearly
and specifically identify each relevant Defendant’s alleged acts or
omissions in a manner sufficient for each Defendant to know how it is
alleged to be involved with the claim and the factual and legal grounds
upon which it is alleged to be liable to Plaintiff.

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3.

Defendants’ motions to dismiss (Docs. # 23, 24) are DENIED without

prejudice to reassert any arguments that may be relevant to the second amended
complaint.
Plaintiff is ADVISED that, if she does not file a second amended complaint
on or before October 11, 2016, this action will be dismissed without prejudice.
Claims and demands for relief that fail to comply with the Federal Rules of Civil
Procedure and the requirements of this Order may be subject to dismissal without
further opportunities for amendment.
DONE this 26th day of September, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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