Kobie v. Fifthian et al

Filing 51

OPINION AND ORDER granting 39 motion to dismiss. Plaintiff's Amended Complaint 37 is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to enter judgment accordingly, terminate all pending motions and deadlines, and close the file. Signed by Judge John E. Steele on 4/15/2013. (SVC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FRED HERMAN KOBIE, III,
Plaintiff,
vs.

Case No.

2:12-cv-98-FtM-29DNF

JASON FIFTHIAN, Detective of Lee
County, Sheriff Department, MIKE
SCOTT, Sheriff of Lee County Sheriff
Department,
Defendants.
______________________________________
OPINION AND ORDER
This matter comes before the Court on Defendants, Jason
Fifthian and Mike Scott’s Motion to Dismiss the Amended Complaint
(Doc. #39) filed on February 22, 2013.

Plaintiff did not file a

response in opposition and the time to do so has expired.

For the

reasons set forth below, the motion is granted and plaintiff’s
Amended Complaint (Doc. #37) is dismissed without prejudice.
Some procedural history is warranted.
original Complaint on February 27, 2012.

Plaintiff filed his

Upon review of the file,

the Court dismissed the Complaint without prejudice for failure to
comply with Fed. R. Civ. P. 8(a)(2).

(Doc. #34.)

The Court found

the Complaint was silent as to whether the defendants were sued in
their official capacities, individual capacities, or both, failed
to

make

clear

whether

it

asserted

United

States

or

Florida

constitutional violations, asserted different claims within the
same count, and was unclear as to whether the false imprisonment

claim was a federal claim, state claim, or both.

The Court

provided plaintiff with the opportunity to amend, and plaintiff did
so on February 8, 2013.

(Doc. #37.)

On February 28, 2013, plaintiff’s counsel filed a document he
entitled “Answer” (Doc. #42).

The document was an incomplete

filing which appeared to contain a portion of a motion.

On March

4, 2013, plaintiff’s counsel filed a Motion for Leave to File a
Second Amended Complaint (Doc. #43) as well as a Second Amended
Complaint. (Doc. #44.)

The same day, the Court issued an Order

striking the “Answer,” the Motion for Leave to File a Second
Amended Complaint, and the Second Amended Complaint because the
“Answer” and motion were incomplete documents and the Second
Amended Complaint was filed without leave of Court as required by
Fed. R. Civ. P. 15.

(Doc. #45.)

Plaintiff has not filed another

motion for leave to file a Second Amended Complaint.1

Therefore,

the operative pleading in this matter is the Amended Complaint
filed on February 8, 2013.

(Doc. #37.)

Defendants seek to dismiss the Amended Complaint because it
suffers from the same deficiencies as the original Complaint and
fails to properly put them on notice as to the claims asserted

1

However, plaintiff has filed an unrelated motion to compel
and deposition transcripts after the Court’s Order striking
plaintiff’s pleadings.
(See Docs. #47-50.)
Thus, it appears
plaintiff has abandoned his attempt to file a Second Amended
Complaint.
-2-

against them in contravention of Fed. R. Civ. P. 8(a)(2).

The

Court agrees.
Despite this Court’s prior Order, the Amended Complaint is
silent as to whether the claims against Jason Fifthian and Mike
Scott

are

asserted

capacities, or both.

in

their

official

capacities,

individual

In addition, Count I appears to assert a

claim for both false arrest and false imprisonment presumably in
violation

of 42

U.S.C.

§

1983

and

like

plaintiff’s

original

Complaint, seeks to assert more than one cause of action within the
same count despite the Court’s direction not to do so.

In Count

III, plaintiff asserts a claim for false imprisonment.

However,

despite this Court’s prior order, plaintiff fails to allege whether
the false imprisonment claim is brought pursuant to Federal Law,
State Law, or both.

Thus, plaintiff has failed to put defendants

on proper notice as to the claims asserted against them.

Because

plaintiff has failed to remedy the deficiencies previously outlined
by the Court, the Amended Complaint is dismissed without prejudice.
Accordingly, it is now
ORDERED:
1.

Defendants, Jason Fifthian and Mike Scott’s Motion to

Dismiss the Amended Complaint (Doc. #39) is GRANTED.
2.

Plaintiff’s Amended Complaint (Doc. #37) is DISMISSED

WITHOUT PREJUDICE.

-3-

3.

The Clerk is directed to enter judgment accordingly,

terminate all pending motions and deadlines, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
April, 2013.

Copies: Counsel of record

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15th

day of