Zuanich et al v. Hankook Tire Mfg. Co., Ltd. Daejeon Plant et al
MEMORANDUM OPINION AND ORDER: it is ORDERED: 1) Plfs' 27 first amended complaint is DISMISSED without prejudice; 2) Pursuant to FRCP 15(a)(2), Plfs are given leave to file a second amended complaint on or before 1/14/2019, that complies wit h the FRCP and the following requirements of this Order, as further set out in order; 3) Dft Enterprise Leasing Co.'s 35 motion to dismiss Plfs' first amended complaint is GRANTED to the extent that Plfs must replead their claims and DENI ED as moot as to the remainder of the arguments therein with leave to reassert, if necessary, those or any other arguments relevant to the second amended complaint; 4) Dft Enterprise Leasing Co.'s 35 motion for more definite statement is GRANT ED to the extent that Plfs must replead their claims in compliance with the FRCP and the requirements of this Order; 5) Dft Hankook Tire America Corp. is ORDERED to answer the second amended complaint no later than 14 days after it is filed; 6) Dft E nterprise Leasing Co. is ORDERED to respond to the second amended complaint no later than 14 days after it is filed; 7) Plfs are ORDERED to provide a status report regarding service on Hankook Tire Co., Ltd. on or before 1/14/2019, and once every 60 days thereafter. Signed by Chief Judge William Keith Watkins on 12/20/2018. (alm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
KAREN ELIZABETH ZUANICH,
AUGUST A. ZUANICH,
HANKOOK TIRE AMERICA
HANKOOK TIRE CO., LTD., AND
) CASE NO. 3:18-CV-159-WKW
MEMORANDUM OPINION AND ORDER
This is a products liability action arising under Alabama law. Plaintiff
Karen Elizabeth Zuanich suffered injuries in a single-car accident when a tire blew
on the leased vehicle she was driving. Zuanich and her husband, August A.
Zuanich, brought claims of negligence, wantonness, Alabama Extended
Manufacturer’s Liability Doctrine (AEMLD), breach of express and implied
warranty, fraud, loss of consortium, and others, against Hankook Tire America
Corp., Hankook Tire Co. (collectively, “Hankook”),1 and Enterprise Leasing Co.
(“Enterprise”). The first amended complaint does not specifically allege which
The record is unclear as to the relationship between these two entities.
defendant(s) played which role, merely stating that the tire “was manufactured and
distributed by Hankook and/or Enterprise.” (Doc. # 27, at 8.)
Hankook Tire America filed an answer to the original complaint, (Doc. #
12), and Enterprise filed a motion to dismiss, (Doc. # 13). Plaintiffs then filed a
first amended complaint that dropped a nonexistent party from the case. (Doc. #
27.) The court accordingly denied Enterprise’s first motion to dismiss as moot and
ordered Enterprise to respond to the first amended complaint, (Doc. # 34.), which it
did by filing the motion to dismiss currently under submission, (Doc. # 35).
Hankook Tire Company, a Korean business, has not yet been served, (Doc. # 30.),
and has thus not filed anything in the case. Hankook Tire America answered the
original complaint but has not responded to the first amended complaint.
Before the court is Defendant Enterprise’s motion to dismiss itself from
Plaintiffs’ first amended complaint. (Doc. # 35.) Enterprise seeks dismissal of the
claims against it because, it argues, according to the “innocent seller” law,
Enterprise was “merely a conduit” of the allegedly defective tire and thus “not
subject to Alabama’s products liability statute.” Ala. Code § 6-5-521. Enterprise
further appears to argue that, since “all [c]ounts asserted against Enterprise arise
out of, and relate to, an alleged[ly] defective Hankook tire,” all the claims against it
fail as a matter of law because of its innocent-seller defense. (Doc. # 35, at 3.)
Alternatively, Enterprise seeks a more definite statement under Rule 12(e) for “any
claims purportedly based upon some legal theory other than products liability.”
(Doc. # 35, at 5.) The court will save Enterprise’s innocent-seller argument for
another day, however, because the first amended complaint is due to be dismissed
as noncompliant with the Federal Rules of Civil Procedure.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the sufficiency of the complaint against Federal Rule of Civil
Procedure 8. Rule 8 provides that the complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). When evaluating a motion to dismiss under Rule 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). However, the court need not accept mere legal conclusions as
true. Id. at 1325.
To survive a 12(b)(6) motion, the 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)). “A claim has facial plausibility 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. Dismissal under Rule
12(b)(6) is also permitted “when on the basis of a dispositive issue of law, no
construction of the factual allegations will support the cause of action.” Marshall
Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993);
see also Neitzke v. Williams, 490 U.S. 319, 326–27 (1989) (explaining that the rule
allows a court “to dismiss a claim on the basis of a dispositive issue of law”).
A. Plaintiffs’ complaint, which contains elements of a shotgun pleading, must
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). Each
allegation in the complaint “must be simple, concise, and direct.” Fed. R. Civ. P.
8(d)(1). The complaint must also “state [the plaintiff’s] claims . . . in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.”
Fed. R. Civ. P. 10(b).
The purpose of [Rule 8(a)(2) and Rule 10(b)] is self-evident, to
require the pleader to present his claims discretely and succinctly, so
that [ ] his adversary can discern what he is claiming and frame a
responsive pleading, the court can determine which facts support
which claims and whether the plaintiff has stated any claims upon
which relief can be granted, and, at trial, the court can determine that
evidence which is relevant and that which is not.
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)); see also 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” (cleaned up)).
“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often
disparagingly referred to as ‘shotgun pleadings,’” and have been uniformly
rejected by the Eleventh Circuit. Weiland, 792 F.3d at 1320. There are four types
of shotgun pleadings: (1) pleadings that “contain[ ] 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”; (2) pleadings that are “guilty of the venial sin of being replete with
conclusory, vague, and immaterial facts not obviously connected to any particular
cause of action”; (3) pleadings that “commit[ ] the sin of not separating into a
different count each cause of action or claim for relief”; and (4) pleadings that
commit “the relatively rare sin of asserting multiple claims against multiple
defendants without specifying which of the defendants are responsible for which
acts or omissions, or which of the defendants the claim is brought against.” Id. at
Plaintiffs’ first amended complaint contains elements of a type-one and a
type-four shotgun complaint. The first amended complaint falls into the first
category because each of the twenty counts adopts and re-alleges every preceding
allegation, filling each count with allegations that are not relevant to that particular
count. This court has warned against such a practice:
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]” . . . 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).
McCall v. Bank of Am., N.A., No. 2:16-CV-184-WKW, 2016 WL 5402748, at *2
(M.D. Ala. Sep. 26, 2016). Plaintiffs recite the elements of each claim only to
re-allege those elements by reference in successive, unrelated counts. Some of the
counts are brought against both Enterprise and Hankook, while others are brought
against only Hankook; yet, the incorporation-by-reference paragraphs fill counts
asserted against only one defendant with allegations relevant to counts against both
defendants and vice-versa.2
To see why this is a problem, consider Counts III–IX — counts dealing
directly with the defectiveness of the tire — which are asserted against only
Hankook. Next, consider Counts XI–XIV and XVI–XX — a collection of claims
To make matters worse, the first amended complaint goes back and forth between
counts against both Hankook and Enterprise and counts against Hankook only. Counts I–II are
against both; Counts III–X are against Hankook only; Counts XI–XIV are against both; Count
XV is against Hankook only; and Counts XVI–XX are against both. Yet, each count
incorporates by reference all previous counts, regardless of whether it was a count against both
Hankook and Enterprise or Hankook only.
including fraud, breach of contract, and negligence — which are asserted against
innocent-seller defense to those counts “relating to an alleged[ly] defective
product.” (Doc. # 35, at 4.) But there is no way of knowing which of the claims
against Enterprise, if any, “relat[e] to an alleged defective product” and which
claims, if any, are distinct. The incorporation-by-reference paragraphs ensure that
all claims are blended together and their constituent ingredients inseparable. That
recipe may work for a holiday pound cake, but is ill-suited for a judicial complaint.
The court is unable to discern whether Plaintiffs have stated a claim against
Enterprise under Alabama products liability law. Plaintiffs must therefore replead
their complaint, clearly stating which allegations support which claims, rather than
incorporating all previous factual material into each count.3
Plaintiffs’ first amended complaint also falls into the fourth category of
shotgun complaints because it fails to identify which acts were committed by
which defendants — Hankook, Enterprise, or both. Instead, it relies largely on
As a preliminary matter, Enterprise’s apparent interpretation of Alabama’s products
liability statute is incorrect. Enterprise suggests that it must be an “original seller” of the
allegedly defective product “to be legally liable under Alabama’s products liability laws.” (Doc.
# 35, at 2.) Not so. The term “original seller” is defined in Alabama Code § 6-5-501(1) for the
purpose of setting the limitations period for bringing an action against the original seller in
Alabama Code § 6-5-502. The statute does not limit liability to those who are original sellers. In
fact, it contemplates liability against “any distributor, wholesaler, dealer, retailer, or seller of a
product” when that person or entity “is also the manufacturer or assembler of the final product,”
“exercised substantial control over the design, testing, manufacture, packaging, or labeling of the
product,” or “altered or modified the product.” Ala. Code § 6-5-521.
cookie-cutter descriptions of legal elements to assert claims against both
Defendants, using recurring “and/ors” to connect Defendants to the various
allegations of wrongdoing.
A complaint must “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).
The first amended complaint in this case does not give Defendants fair notice,
because it does not say who did what and when. Below are two examples:
• Count I (negligence and wantonness) is asserted against both Hankook and
Enterprise but does not specify which acts by which defendant(s) were
negligent. Count I merely alleges that the vehicle was equipped with a
Hankook tire that “was manufactured and distributed by Hankook and/or
Enterprise,” and as the “proximate consequence of the combining and
concurring negligence or wantonness of Defendants Hankook and
Enterprise,” Plaintiffs were injured. (Doc. # 27, at 3.) But Rule 8 “requires
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. “While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Iqbal, 556 U.S. at 679. This count must
• Count II (negligence and wantonness per se) is not much better. It asserts
that “Hankook and/or Enterprise were negligent, careless, reckless, grossly
negligent and wanton, and breached its duties in the manufacture,
distribution, sale, installation and maintenance of the Hankook tire” and lists
a series of generic acts of wrongdoing (such as failing to properly inspect the
tire, failing to employ corrective mechanisms, and failing to keep abreast of
government and industry studies) — not specific to any defendant —
purporting to establish how Defendants were negligent and wanton. Count
II goes on to allege that “Hankook and/or Enterprise” violated Alabama
Code § 7-2-315 — a statute dealing with implied warranties — but does not
say which one(s) violated the statute, or how it/they violated the statute.
Without enough factual allegations “to raise a right to relief above the
speculative level,” see Twombly, 550 U.S. at 555, Count II does not survive
Rule 12(b)(6) scrutiny.
This is by no means an exhaustive list of the deficiencies in the first amended
When Plaintiffs replead, they should take care to identify which
specific acts by which specific actors give rise to which claims, excising threadbare
“When a litigant files a shotgun pleading, is represented by counsel, and
fails to request leave to amend, a district court must sua sponte give him one
chance to replead before dismissing his case with prejudice on non-merits shotgun
pleading grounds.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir.
2018). “In the repleading order, the district court should explain how the offending
pleading violates the shotgun pleading rule so that the party may properly avoid
future shotgun pleadings.” Id. Therefore, the first amended complaint will be
dismissed without prejudice to give Plaintiffs an opportunity to refile according to
the Federal Rules of Civil Procedure and the instructions in this Order.
B. Count XI does not plead fraud with the particularity required by Federal
Rule of Civil Procedure 9(b).
The foregoing grounds alone warrant dismissal of the first amended
complaint. But the court’s review of the first amended complaint revealed another
problem with Count XI: it does not plead fraud with the requisite specificity. “In
alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “The plaintiff’s complaint
must allege the details of the defendants’ allegedly fraudulent acts, when they
occurred, and who engaged in them.” Cooper v. Blue Cross & Blue Shield of Fla.,
Inc., 19 F.3d 562, 568 (11th Cir. 1994). More specifically, the complaint must set
(1) precisely what statements were made in what documents or oral
representations or what omissions were made, and (2) the time and place of
each such statement and the person responsible for making (or, in the case of
omissions, not making) same, and (3) the content of such statements and the
manner in which they misled the plaintiff, and (4) what the defendants
obtained as a consequence of the fraud.
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quoting
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir.
1997)). The district court may sua sponte raise this issue. See Am. United Life Ins.
Co. v. Martinez, 480 F.3d 1043, 1071–72 (11th Cir. 2007) (affirming district
court’s sua sponte dismissal of fraud claims under Rule 9(b) because it granted
leave to amend).
Count XI (fraudulent concealment against both defendants) falls short of the
heightened standard for pleading fraud under Federal Rule of Procedure 9.
Plaintiffs’ first amended complaint does not: (1) name any persons responsible for
making fraudulent omissions; (2) state in what context these misrepresentations
occurred (e.g., orally, in an advertisement, or in another document); or (3) identify
any specific time and place where the omissions were made. The first amended
complaint merely states that Hankook and Enterprise misrepresented the safety of
the Hankook tire “at all times during the course of dealings” between the parties.
(Doc. # 27, at 17.) Attempting to skate Rule 9(b) by simply alleging that the
misrepresentations occurred at all relevant times does not give Defendants fair
notice of the claim against them. See Heller v. Carnival Corp., 191 F. Supp. 3d
1352, 1360 (S.D. Fla. 2016); Great West Life Assurance Co. v. Levithan, 834 F.
Supp. 858, 863 (E.D. Pa. 1993); Halperin v. FDIC, No. 5:13-CV-1042-RP, 2016
WL 5718021, at *5 (W.D. Tex. Sep. 30, 2016).
True enough, the previous count (Count X for fraudulent misrepresentation
against Hankook), alleges a bit more (albeit generic) detail, stating that Hankook
made misrepresentations regarding the tire’s safety “through [its] literature,
advertisements, promotions . . . and sales agents.” (Doc. # 27, at 15.) Count X is
incorporated by reference into Count XI. Without passing judgment on whether
Count X complies with Rule 9(b) as is, the court notes that Count X’s allegations
only apply to Hankook, not to Enterprise.4 Thus, adding in those allegations does
not save Count XI. In their second amended complaint, Plaintiffs should take care
to plead their fraud claims with the requisite particularity under Rule 9.
C. Because Plaintiffs’ first amended complaint is due to be dismissed as
noncompliant with the Federal Rules of Civil Procedure, Enterprise’s
innocent-seller argument is moot at this time.
The deficiencies explained above render any failure-to-state-a-claim analysis
of the first amended complaint “a matter of guesswork rather than a reasoned
decision.” McCall, 2016 WL 5402748, at *2. The argument that Alabama’s
innocent seller law provides a defense to all claims is therefore mooted by this
This is another demonstration of why rote and repeated incorporations by reference do
nothing but add confusion to a complaint.
Order, but Enterprise is free to reassert, if necessary, this or any other argument
relevant to the second amended complaint in a subsequent motion to dismiss.5
For the foregoing reasons, Plaintiffs’ first amended complaint is dismissed.
Plaintiffs must replead their claims in compliance with the Federal Rules of Civil
Procedure and the requirements of this Order. Enterprise has leave to reassert, if
necessary, any arguments that may be relevant to the second amended complaint.
Finally, the court notes that Hankook Tire America Corp. has not answered
since the complaint was amended and finds it appropriate for it to do so in the next
round of pleadings.
See Fed. R. Civ. P. 15(a)(3) (“Unless the court orders
otherwise, any required response to an amended pleading must be made within the
time remaining to respond to the original pleading or within 14 days after service
Caution is warranted before the court considers another motion to dismiss on this
ground. Enterprise argues that “the only connection between Enterprise and the subject tire is
the fact it is a component on a vehicle owned by Enterprise” and leased by Zuanich. (Doc. # 35,
at 4.) But this is a Rule 12(b)(6) motion to dismiss, and Enterprise presents what appears to be a
factual issue. Should Plaintiffs’ second amended complaint “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570), the court may not dismiss simply because the claims are
improbable, see id. Enterprise is free, of course, to test the truth of the facts at the summaryjudgment stage. See, e.g., McCustian v. LG Elecs. U.S.A., Inc., No. 1:15-CV-279-JA-GMB,
2016 WL 8729835, at *3 (M.D. Ala. Dec. 2, 2016) (granting summary judgment because record
did not provide sufficient evidence that one of the statutory exceptions for holding a distributor
liable in a products liability action applied); Gardner v. Aloha Ins. Servs., No. 2:11-CV-3450RDP, 2013 WL 839884, at *8 (N.D. Ala. Mar. 4, 2013) (same). Plaintiffs, in their response to
Enterprise’s motion to dismiss, interpret the motion as one asserting that the claims against
Enterprise are subsumed into the AEMLD claim. That argument has not been fully briefed and
thus will not be decided at this time. However, an argument that certain claims fail as a matter of
law because they are merged into another claim would be an appropriate subject for a motion to
of the amended pleading, whichever is later.”). Two other considerations support
this finding. First, for the sake of maintaining a clean record, Hankook America
should file an answer directed to what will be Plaintiffs’ operative pleading in the
case (i.e., the second amended complaint) rather than relying on its previously filed
answer — an answer that will be two rounds of complaints stale by the time the
second amended complaint is filed. Second, the fact that the other Hankook
defendant — Hankook Tire Co., Ltd. — has not been served does not alter the
obligation of Hankook America — who has been served — to file an answer to the
second amended complaint. Hankook America must therefore file an answer no
later than 14 days following the filing of the second amended complaint.
Accordingly, it is ORDERED:
Plaintiffs’ first amended complaint (Doc. # 27) is DISMISSED
Pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs are
given leave to file a second amended complaint on or before January 14, 2019,
that complies with the Federal Rules of Civil Procedure and the following
requirements of this Order:
Plaintiffs may not simply incorporate all factual allegations by
reference into every count; rather, Plaintiffs must indicate with clarity which
specific factual allegations are material to each specific count, and which
actors are responsible for each specific act that is material to Plaintiffs’
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 directly involved with the claim and the factual and legal
grounds upon which it is alleged to be liable to Plaintiffs.
Plaintiffs must plead any fraud claims with the requisite
specificity, including: (1) precisely what statements were made in what
context or what omissions were made; (2) the time and place of each such
statement and the person responsible for making (or, in the case of
omissions, not making) same; and (3) the content of such statements and the
manner in which they misled Plaintiffs, and (4) what Defendants obtained as
a consequence of the fraud.
Plaintiffs are ADVISED that 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.
Defendant Enterprise Leasing Co.’s motion to dismiss Plaintiffs’ first
amended complaint (Doc. # 35) is GRANTED to the extent that Plaintiffs must
replead their claims and DENIED as moot as to the remainder of the arguments
therein with leave to reassert, if necessary, those or any other arguments relevant to
the second amended complaint.
Defendant Enterprise Leasing Co.’s motion for more definite
statement is GRANTED to the extent that Plaintiffs must replead their claims in
compliance with the Federal Rules of Civil Procedure and the requirements of this
Defendant Hankook Tire America Corp. is ORDERED to answer the
second amended complaint no later than 14 days after it is filed.
Defendant Enterprise Leasing Co. is ORDERED to respond to the
second amended complaint no later than 14 days after it is filed.
Plaintiffs are ORDERED to provide a status report regarding service
on Hankook Tire Co., Ltd. on or before January 14, 2019, and once every 60
DONE this 20th day of December, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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