Wyttenbach v. State of Florida et al

Filing 37

OPINION AND ORDER denying as moot 33 Motion to Dismiss; denying as moot 34 Motion to Dismiss; denying as moot 35 Motion to Dismiss. Plaintiff's Second Amended Complaint is dismissed without prejudice. Plaintiff shall file a Third Amended Complaint within fourteen days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 6/2/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM H. WYTTENBACH,
Plaintiff,
v.

Case No: 2:15-cv-318-FtM-29MRM

STATE OF FLORIDA, FLORIDA
DEPARTMENT OF HEALTH, STATE
OF
TENNESSEE,
TENNESSEE
DEPARTMENT OF HEALTH, MOLLY
GASS,
ESQ.,
STATE
OF
COLORADO,
COLORADO
DEPARTMENT OF HEALTH, DRUG
ENFORCEMENT ADMINISTRATION,
UNKNOWN DEA AGENT, STATE OF
WASHINGTON,
WASHINGTON
DEPARTMENT
OF
HEALTH,
KENTUCKY MEDICAL BOARD, and
KY AGO OFFICE,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendants
State of Colorado and the Colorado Department of Health’s Motion
to Dismiss (Doc. #33) filed on January 25, 2016, defendants State
of Washington and the Washington Department of Health’s Motion to
Dismiss (Doc. #34) filed on February 1, 2016, and defendant Florida
Department of Health’s Motion to Dismiss (Doc. #35) filed on
February 1, 2016.

Plaintiff filed a Response to the Motions to

Dismiss (Doc. #36) on March 3, 2016.

Upon review of plaintiff’s Second Amended Complaint, the
Court

finds

that

plaintiff

has

failed

to

cure

the

pleading

deficiencies that existed in plaintiff’s Amended Complaint (Doc.
#8) and identified in the Court’s November 4, 2015 Order (Doc.
#29).

While plaintiff lists a number of causes of action that he

is attempting to assert (Doc. #32, p. 1), plaintiff does not
separate each cause of action into separate counts nor does he
indicate which cause of action is being asserted against which
defendant(s) – both of which are in violation of the Eleventh
Circuit’s firm stance against shotgun pleadings. See Weiland v.
Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 (11th Cir.
2015).
The Court will allow plaintiff another opportunity to cure
the pleading deficiencies present in the Second Amended Complaint.
If plaintiff avails itself of the opportunity to file a Third
Amended Complaint, pursuant to Federal Rule of Civil Procedure 10,
the

allegations

should

be

set

forth

in

separate

numbered

paragraphs, “each limited as far as practicable to a single set of
circumstances.”

Fed. R. Civ. P. 10(b).

Each claim “founded on a

separate transaction or occurrence” – i.e., cause of action – must
be stated in a separate “Count.” Id. Plaintiff is further directed
to clearly indicate which Count is being asserted against which
defendant(s).
Accordingly, it is now

2

ORDERED:
1. Plaintiff’s

Second

Amended

dismissed without prejudice.

Complaint

(Doc.

#32)

is

Plaintiff shall file a Third

Amended Complaint within FOURTEEN (14) DAYS of this Opinion
and Order.
2. Defendants State of Colorado and the Colorado Department
of Health’s Motion to Dismiss (Doc. #33) is denied as moot;
3. Defendants

State

of

Washington

and

the

Washington

Department of Health’s Motion to Dismiss (Doc. #34)
denied as moot;

is

and

4. Defendant Florida Department of Health’s Motion to Dismiss
(Doc. #35) is denied as moot.
DONE AND ORDERED at Fort Myers, Florida, this __2nd__ day of
June, 2016.

Copies: Parties of record

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