Wyttenbach v. State of Florida et al

Filing 45

OPINION AND ORDER dismissing without prejudice 38 plaintiff's Third Amended Complaint; denying as moot 39 Florida Department of Health's Motion to Dismiss; denying as moot 40 Colorado Defendants' Motion to Dismiss; denying as moot 41 Washington Defendants' Motion to Dismiss. Plaintiff shall file a Fourth Amended Complaint within fourteen days of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 12/21/2016. (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, KY
AGO OFFICE, and TN MED.
BOARD,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Florida Department of Health’s Motion to Dismiss Third Amended
Complaint with Prejudice (Doc. #39) filed on July 5, 2016, Colorado
Defendants’ Motion to Dismiss Third Amended Complaint (Doc. #40)
filed July 8, 2016, and Washington Defendants’ Motion to Dismiss
Plaintiff’s Third Amended Complaint with Prejudice (Doc. #41)
filed on July 8, 2016.

Plaintiff filed a Response to all three

motions (Doc. #43) on November 9, 2016 and Colorado Defendants
filed a Reply (Doc. #44) on November 16, 2016.
I.
On May 26, 2015, plaintiff brought this action.

(Doc. #1.)

Plaintiff’s Third Amended Complaint, the operative pleading before
the

Court,

defendants:

appears

to

assert

claims

against

the

following

DEA Drug Enforcement Agency; Unknown DEA Agent; State

of Florida; Florida Department of Health; State of Tennessee;
Tennessee

Department

of

Health;

Molly

Gass,

Esq.;

Tennessee

Medical Board; State of Colorado; Colorado Department of Health;
State of Washington; Washington Department of Health; Kentucky
Medical Board; & Kentucky Attorney General Office. 1
1.)

(Doc. #38, p.

The crux of plaintiff’s Third Amended Complaint is that he is

a medical doctor whose license was improperly revoked or suspended
by various states and their agencies. (See Doc. #38.) Plaintiff’s
Third

Amended

paragraph

in

Complaint
length

and

contains
each

eighteen
brought

“defendants” or multiple defendants.

1

counts,

against

each

one

either

all

(Id. ¶¶ 40-57.)

Each of

Only the Florida Department of Health, the Colorado
Defendants, and the Washington Defendants have filed motions to
dismiss in this case. (Docs. ##39-41.) While the other defendants
have not responded to plaintiff’s Third Amended Complaint, or
otherwise appeared in this case, the Court is unable to determine
whether they were served in this matter. The docket only indicates
that three summonses were issued – for the State of Colorado, State
of Florida, and State of Tennessee (Doc. #3), and no returns of
service have been filed.

2

plaintiff’s previously filed complaints were dismissed for failure
to state a claim or as a “shotgun” pleading (Docs. ## 5, 29, 37),
and despite the Court’s guidance in re-pleading, plaintiff’s Third
Amended Complaint suffers from the same deficiencies.
Upon review, it is clear that plaintiff’s Third Amended
Complaint is a shotgun pleading often condemned by the Eleventh
Circuit.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d

1313, 1321 (11th Cir. 2015). The Eleventh Circuit Court of Appeals
has delineated the “four rough types or categories of shotgun
pleadings” that have been filed since 1985:
The most common type — by a long shot — is a
complaint containing 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. The next most common type, at least as far
as our published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of realleging all preceding counts but is guilty of the venial
sin of being replete with conclusory, vague, and
immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun
pleading is one that commits the sin of not separating
into a different count each cause of action or claim for
relief. Fourth, and finally, there is 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 1321-23.
The Eleventh Circuit has also noted that, “[w]hile plaintiffs
have

the

responsibility

of

drafting

complaints

[that

do

not

constitute shotgun pleadings], defendants are not without a duty

3

of their own in this area. . . . [A] defendant faced with a shotgun
pleading should move the court, pursuant to Rule 12(e), to require
the plaintiff to file a more definite statement.”
n.10.

Id. at 1321

Where the parties fail to so comply, the Court has a sua

sponte obligation to identify and dismiss a shotgun pleading.

Id.

See also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,
979 n.54 (11th Cir. 2008) (collecting cases); Byrne v. Nezhat, 261
F.3d 1075, 1130 (11th Cir. 2001).
Here, plaintiff’s Third Amended Complaint contains eighteen,
one-paragraph counts, each brought against either all “defendants”
or multiple defendants.

(Doc. #38, ¶¶ 40-57.)

This makes it

nearly impossible for each of the defendants to frame a responsive
pleading.

Further, plaintiff’s Third Amended Complaint is replete

with vague, conclusory allegations.

(See id. ¶ 43 (“Defendants .

. . committed tort assault against plaintiff . . . .”); id. ¶ 44
(“Defendants . . . committed libel assaults against Plaintiff by
public written false revocation and suspension . . . .”); id. ¶ 48
(“Defendants states of TN, KY, CO, WA, FL committed federal RICO
law violations . . . .”); id. ¶ 50 (“Defendants, in conspiracy and
for the extortion of fines, violated plaintiff causing wrongful
harm.”)).
Therefore, plaintiff’s Third Amended Complaint is once again
due to be dismissed.
Amended

Complaint

The Court will dismiss plaintiff’s Third

without

prejudice.

4

The

Court

will

allow

plaintiff one final opportunity to cure the pleading deficiencies
present in the Third Amended Complaint.

If plaintiff avails

himself of the opportunity to file a Fourth Amended Complaint,
plaintiff should take care to plead the elements of each cause of
action and succinctly articulate the facts as they relate to each
defendant and each cause of action.

Plaintiff should attempt to

organize his allegations in a coherent, comprehensible manner that
provides the factual basis for each cause of action and allows
defendants to file a responsive pleading.

As previously advised

(see Doc. #29), the Court reminds plaintiff to review both the
Local Rules and the Federal Rules of Civil Procedure, particularly
Rules 8 and 10 of the Federal Rules of Civil Procedure, and the
resources

available

on

this

Court’s

website

at

www.flmd.uscourts.gov.
The Court has provided plaintiff ample opportunity to replead in conformity with the rules, and the repeated dismissal of
plaintiff’s pleadings without reaching the merits wastes both the
parties and the Court’s resources.

This will be the last chance

provided

Court

to

plaintiff

before

the

claims with prejudice.
Accordingly, it is now
ORDERED:

5

dismisses

plaintiff’s

1.

Plaintiff’s Third Amended Complaint is dismissed without

prejudice.

Plaintiff shall file a Fourth Amended Complaint within

FOURTEEN (14) DAYS of this Opinion and Order.
2.

Defendants’ Motions to Dismiss (Docs. ##39, 40, 41) are

denied as moot.
DONE AND ORDERED at Fort Myers, Florida, this __21st___ day
of December, 2016.

Copies: Parties of record

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