PK Studios, Inc. v. R.L.R. Investments, LLC et al

Filing 89

OPINION AND ORDER granting 84 Plaintiff's Motion to Dismiss 79 Second Amended Counterclaim Complaint. The counterclaims are dismissed without prejudice to replead. See Opinion and Order for details. Signed by Judge John E. Steele on 11/23/2016. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PK STUDIOS, INC.,
Plaintiff,
v.

Case No: 2:15-cv-389-FtM-99CM

R.L.R.
INVESTMENTS,
LLC,
EAGLES LANDING VILLAS AT
GOLDEN OCALA, LLC, GOLDEN
OCALA GOLF & EQUESTRIAN CLUB
MANAGMENT,
LLC,
STOCK
DEVELOPMENT, LLC, and BRIAN
STOCK,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s October 6,
2016 Motion to Dismiss Defendants’ Second Amended Counterclaim
Complaint (Doc. #84).

Defendants filed a Response in Opposition

(Doc. #87) on October 31, 2016.

For the reasons set forth below,

Plaintiff’s Motion is granted.
Plaintiff PK Studios, Inc. (Plaintiff) filed suit on June 29,
2015 against R.L.R. Investments, LLC, Eagles Landing Villas at
Golden

Ocala,

LLC,

and

Golden

Ocala

Golf

&

Equestrian

Club

Management, LLC (collectively, the Golden Ocala Defendants or
Defendants), and against Stock Development, LLC and Brian Stock
(the Stock Defendants).
asserts

a

claim

of

The three-count Complaint (Doc. #1)

copyright

infringement

against

all

five

defendants and claims of breach of contract and declaratory relief
against the Stock Defendants.

On February 5, 2016, the Golden

Ocala Defendants filed an Answer (Doc. #54) to the Complaint, which
also

asserted

judgment

thirty

counterclaims

crossclaims.

affirmative
(the

defenses,

Counterclaim

seven

declaratory-

Complaint),

and

four

Plaintiff moved to dismiss all seven counterclaims

(Doc. #55) and twenty-three of the affirmative defenses (Doc. #57).
On August 30 2016, the Court issued an Order (Doc. #74)
striking twenty of the affirmative defenses – eleven of which the
Golden Ocala Defendants were permitted to replead – and dismissing
the Counterclaim Complaint as an impermissible shotgun pleading,
since each of the seven counts indiscriminately incorporated all
ten

preceding

factual

allegations,

five

of

which

themselves

“contain[ed] assertions either unsupported by facts or dependent
upon the allegations in Plaintiff’s complaint as a whole.” 1

(Id.

p. 24 (citing Weiland v. Palm Beach Cty. Sheriff's Office, 792
F.3d 1313, 1321 (11th Cir. 2015).)

The Court granted leave to

amend as to counterclaim Counts I-V but dismissed with prejudice
Count VI, which sought a declaration that Plaintiff’s copyright
registration “should be canceled by the U.S. Copyright Office,”
and Count VII, which requested a declaration that Defendants were

1

The other five paragraphs alleged facts regarding the Golden
Ocala Defendants’ business success and reputation, which had
“seemingly nothing to do with the Counterclaims.” (Doc. #74, pp.
23-34.)

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entitled to an award of attorneys’ fees and costs.

(Id. pp. 24-

27.)
On September 21, 2016, the Golden Ocala Defendants filed the
Second Amended Answer, Affirmative Defenses, Counterclaims, and
Crossclaims (Doc. #79) that is the subject of the instant Motion
to Dismiss. 2

The five counterclaims asserted in the Second Amended

Counterclaim Complaint are nearly identical to counterclaim Counts
I-V previously dismissed.

The two changes to the Second Amended

Counterclaim Complaint are i) the deletion of the first five
paragraphs (which the Court had deemed immaterial) from the “Common
Facts” section, and ii) replacing the language “repeat, reallege
and reaver all factual allegations set forth in Paragraphs 1-10
above, as if fully set forth herein” found in the first paragraph
of each counterclaim with “repeat, reallege, and reaver all factual
background, statement and allegations set forth herein above.”
Plaintiff moves to dismiss the Second Amended Counterclaim
Complaint on the ground that the Golden Ocala Defendants have not
cured their shotgun-pleading problem.

Defendants acknowledge that

the Second Amended Counterclaim Complaint does not contain new
factual

allegations

but

contend

2

that

the

necessary

factual

The Golden Ocala Defendants filed an Amended Answer, Affirmative
Defenses, Counterclaims, and Crossclaims (Doc. #78) on September
20, 2016. It is not clear what motivated the filing of a second
amended pleading one day later, but Plaintiff has not objected
thereto.

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predicate for the counterclaims is found in the amended affirmative
defenses.

Because, in turn, these defenses are incorporated into

each counterclaim, Defendants argue that those counterclaims are
adequately pled.
This argument entirely ignores the rationale pursuant to
which Defendants’ Counterclaim Complaint was dismissed.

While it

is fine for a defendant to use allegations contained in its
affirmative defenses as factual support for its counterclaims, the
defendant must specify – in the counterclaim complaint, not in a
response opposing dismissal - which factual allegations support
each counterclaim.

“It is not the Court's job to search the

[pleadings] for facts that might support a particular claim for
relief.
in

‘Judges are not like pigs, hunting for truffles buried

[pleadings].’

Nor,

for

that

matter,

is

opposing

counsel

expected to sift through factual allegations like a prospector
panning for gold.”

In re Auto Body Shop Antitrust Litig., No.

6:14-CV-6006-ORL-31, 2015 WL 4887882, at *31 (M.D. Fla. June 3,
2015) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991)).
Rather than specify the relevant prior allegations of fact
that

apply

Defendants

to

each

amended

indiscriminately

counterclaim
“repeat,

count,

reallege,

Golden

and

Ocala

reaver

all

factual background, statement and allegations set forth” in the
Second Amended pleading.

As such, the Court finds that the Second

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Amended Counterclaim Complaint is, like its predecessor, a shotgun
pleading that must be dismissed.

See Whitney Info. Network, Inc.

v. Gagnon, 353 F. Supp. 2d 1208, 1211 (M.D. Fla. 2005) (dismissing
shotgun

counterclaims

that

“incorporate[d]

not

only

all

the

previous counts, but all paragraphs in the answer and affirmative
defenses”).

The counterclaims are dismissed without prejudice to

replead, however, this is the final opportunity the Court will
afford the Golden Ocala Defendants – who are represented by able
legal counsel - to fix their shotgun pleading problem. 3
Accordingly, it is hereby
ORDERED:
Plaintiff's Motion to Dismiss (Doc. #84) the Golden Ocala
Defendants’

Second

Amended

Counterclaim

Complaint

is

GRANTED

without prejudice to replead.
DONE and ORDERED at Fort Myers, Florida, this 23rd day of
November, 2016.

Copies:
Counsel of Record

3

Should Defendants choose to replead, the amended pleading should
also set forth Defendants’ answers, affirmative defenses, and
crossclaims in their entirety, rather than refer back to the
original pleading filed at Docket No. 54.

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