Caffey et al v. Ocwen Federal Bank et al
MEMORANDUM OPINION AND ORDER re 8 MOTION to Dismiss Plaintiffs' Complaint filed by Ocwen Federal Bank, and 9 MOTION to Dismiss Plaintiffs' Complaint filed by Jason Tingle, Juregui & Lindsey. Ocwen's Motion and Tingl e's Motion are GRANTED IN PART and otherwise are DENIED. Plaintiffs are HEREBY ORDERED to replead their complaint in a manner that fully complies with the contents of this Order on or before October 6, 2014, or their claims against each and every defendant will be dismissed without prejudice. Signed by Judge Virginia Emerson Hopkins on 9/9/2014. (JLC)
2014 Sep-09 AM 09:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SHERRYL & BRETT CAFFEY,
OCWEN FEDERAL BANK, et al.,
) Case No.: 5:14-CV-1686-VEH
MEMORANDUM OPINION AND ORDER
Plaintiffs, who are representing themselves, initiated this case in the Circuit
Court of Madison County on July 29, 2014, and named a mixture of fifteen
individuals and entities as defendants. (Doc. 1-1 at 1).1 Defendant Ocwen Federal
Bank (“Ocwen”) removed Plaintiffs’ lawsuit to this court on August 29, 2014, on the
basis of federal question jurisdiction. (Doc. 1 at 2 ¶ 4).
Pending before the court are Ocwen’s Motion To Dismiss Plaintiffs’ Complaint
(Doc. 8) (“Ocwen’s Motion”), and Defendants Jason Tingle and Jauregui & Lindsey,
LLC’s Motion To Dismiss Plaintiffs’ Complaint (Doc. 9) (“Tingle’s Motion”), both
All page references to Doc. 1-1 correspond with the court’s CM/ECF numbering sytem.
of which were filed on September 4, 2014. As explained below, the Motions are
GRANTED in that this court will require Plaintiffs to replead their claims in a
concise, plausible, and non-shotgun manner. Otherwise, the Motions are DENIED
Pro Se Pleading Standard
As an initial matter, “[p]ro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (citing
Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991)). Accordingly,
Plaintiffs’ allegations asserted against Defendants are not appropriately subject to
dismissal simply because they lack procedural precision or completeness in the
context of Rule 8 of the Federal Rules of Civil Procedure.
Rule 8 Pleading Standard
Rule 8 sets for several general rules regarding pleadings and provides in
(a) Claim for Relief. A pleading that states a claim for relief must
(1) a short and plain statement of the grounds for the
court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief. . . .
(d) Pleading to Be Concise and Direct; Alternative Statements;
(1) In General. Each allegation must be simple, concise,
and direct. No technical form is required.
Fed. R. Civ. P. 8(a), 8(d)(1).
Rule 12(b)(6) Dismissal Standard
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
Rule 12(e) More Definite Statement Standard
Rule 12(e) permits a party:
[To] move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that
the party cannot reasonably prepare a response.
Fed. R. Civ. P. 12(e). As the former Fifth Circuit has explained the balance to strike
between Rule 12(b)(6) and Rule 12(e):
Under 12(e) the Court must determine whether the complaint is such
that a party cannot reasonably be required to frame a responsive
pleading. But the fact that a careful Judge, in the exercise of that wise
discretion controlled by the prescribed principles of that rule, might so
conclude does not permit him to dismiss the complaint for failure to
state a claim. It may well be that petitioner’s complaint as now drawn is
too vague, but that is no ground for dismissing his action.
Mitchell v. E–Z Way Towers, Inc., 269 F.2d 126, 130 (5th Cir. 1959) (emphasis
added);2 see also Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127 n.4 (11th Cir.
2014) (quoting Mitchell).
Both Ocwen’s Motion and Tingle’s Motion point out the rambling and
otherwise procedurally unacceptable nature of Plaintiffs’ complaint and maintain that
such procedural non-compliance warrants a dismissal of their case. (See, e.g. Doc. 8
at 3 (“Based on these allegations, Plaintiffs list fifteen (15) federal causes of action
and eleven (11) state law claims in the Complaint. . . . asserted in a generic list against
all defendants as a whole.”)). The court agrees that Plaintiffs’ complaint, even when
measured under the less stringent pro se pleading lens, is woefully inadequate.
In particular, the shotgun format of their pleading makes it impossible for any
defendant to respond in a meaningful manner to Plaintiffs’ lumpily pled allegations
and laundry list of purported cognizable claims. See, e.g., Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008) (“The complaint is
a model ‘shotgun’ pleading of the sort this court has been roundly, repeatedly, and
consistently condemning for years, long before this lawsuit was filed.”).3
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 handed down
prior to October 1, 1981.
Davis footnote 54 gives numerous examples of Eleventh Circuit anti-shotgun references
and states in full:
However, despite the numerous and substantial deficiencies with Plaintiffs’
complaint, the court concludes that requiring Plaintiffs to replead, rather than
dismissing their case outright, is the appropriate action for it to take, especially given
Plaintiffs’ pro se status. In repleading, Plaintiffs must study the Davis decision and
the numerous cases cited therein and draft a much more definite and comprehendible
More particularly, the claims of each plaintiff against each defendant must be
set forth in separately numbered counts. Further, Plaintiffs’ new pleading must
include only plausibly stated claims and avoid lumping causes of action together.
Plaintiffs also must attach and appropriately label copies of all exhibits that are
See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6
(11th Cir. 2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n.1 (11th
Cir. 2006); Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n.22
(11th Cir. 2004); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1296 nn.9-10 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075,
1128–34 (11th Cir. 2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001);
BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n.6 (11th Cir. 1998);
GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998);
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997); Ibrahimi v. City of
Huntsville Bd. of Educ., 114 F.3d 162 passim (11th Cir. 1997); Anderson v. Dist. Bd.
of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir. 1996); Beckwith
v. City of Daytona Beach Shores, 58 F.3d 1554, 1567 (11th Cir. 1995); Cesnik v.
Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996); Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1483-84 (11th Cir. 1992); Pelletier v. Zweifel, 921 F.2d
1465, 1518 (11th Cir. 1991); T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520,
1543-44 n.14 (11th Cir. 1986) (Tjoflat, J., dissenting). This list is just a teaser—since
1985 we have explicitly condemned shotgun pleadings upward of fifty times.
Davis, 516 F.3d at 979 n.54.
referenced within their restated complaint at the time it is filed. Additionally,
Plaintiffs should endeavor to streamline all their claims and allegations and reduce
unnecessary duplication of their contentions.
The failure on the part of Plaintiffs to replead as the court has required in
this order will result in a dismissal of their case against ALL defendants without
prejudice. Finally, the deadline for Plaintiffs to file their amended complaint is no
later than October 6, 2014.
Therefore, Ocwen’s Motion and Tingle’s Motion are GRANTED IN PART
and otherwise are DENIED. Plaintiffs are HEREBY ORDERED to replead their
complaint in a manner that fully complies with the contents of this order on or before
October 6, 2014, or their claims against each and every defendant will be dismissed
DONE and ORDERED this the 9th day of September, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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