Jean v. LP Port Charlotte, LLC

Filing 36

ORDER granting 33 Defendant LP Port Charlotte, LLC's Motion to Dismiss. The Amended Complaint is dismissed without prejudice in its entirety. Plaintiff Marie Gerda Jean may file a second amended complaint on or before March 6, 2017. Failure to do so will result in this case being dismissed with prejudice. Signed by Judge Sheri Polster Chappell on 2/14/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARIE GERDA JEAN,
Plaintiff,
v.

Case No: 2:16-cv-674-FtM-38CM

LP PORT CHARLOTTE, LLC,
Defendant.
___________________________________/
OPINION AND ORDER1
This matter comes before the Court on Defendant LP Port Charlotte, LLC’s Motion
to Dismiss (Doc. 33, Doc. 34) dated January 10, 2017.2 Plaintiff Marie Gerda Jean filed
a Response in Opposition (Doc. 35) on January 24, 2017. As set forth below, the Court
grants Defendant’s motion.
BACKGROUND
This action stems from an underlying workplace discrimination claim that the
parties previously arbitrated. (Doc. 29 at 1; Doc. 29-1). Pursuant to the arbitration
agreement dated October 3, 2015, Defendant agreed to rehire Plaintiff without retaliation.
(Doc. 29-1).
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Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
The Court’s Local Rules require a moving party to file – in a single document – “a concise statement of
the precise relief requested, a statement of the basis for the request, and a memorandum of legal authority
in support of the request.” M.D. Fla. R. 3.01(a). In the interest of a just and speedy resolution of Defendant’s
motion to dismiss, the Court will not strike Defendant’s filing as non-compliant with the Local Rules.
Defendant, however, should not expect such leniency in the future and must comply with the Local Rules.
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As best the Court can discern, Plaintiff’s work environment did not improve after
her reinstatement. And, approximately eight months later, she sued Defendant in Florida
state court for breach of contract, employment discrimination, and retaliation. (Doc. 2).
Defendant thereafter removed the case to this Court. (Doc. 1). Since then, Plaintiff filed
an Amended Complaint, alleging the following claims:


Count I – Breach of Contract – Enforcement of the Arbitration Award;



Count II – Action under the Federal Arbitration Act;



Count III – Employment Discrimination under the Florida Civil Rights Act;



Count IV – Retaliation under the Florida Civil Rights Act;



Count V – Employment Discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e; and



Count VI – Retaliation under Title VII.

Defendant now moves to dismiss the Amended Complaint for failure to state a claim; or
alternatively, it moves for a more definitive statement. (Doc. 33 at 1-2; Doc. 34 at 2-8).
Plaintiff responds that she has sufficiently pleaded facts to survive a motion to dismiss.
(Doc. 35 at 2-3).
LEGAL STANDARD
When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the reviewing court must accept all factual allegations in the complaint
as true and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). This preferential standard of review, however, does not permit all
pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court
has been clear on this point – a district court should dismiss a claim where a party fails to
plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a reasonable
inference, based on the facts pled, that the opposing party is liable for the alleged
misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard requires “more than a
sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at
557 (internal quotation marks omitted)).
The Eleventh Circuit has “roundly, repeatedly, and consistently condemn[ed]”
shotgun pleadings. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th
Cir. 2008); see also Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001) (stating,
“shotgun pleadings wreak havoc on the judicial system”). “Shotgun pleadings are those
that incorporate every antecedent allegation by reference into each subsequent claim for
relief or affirmative defense.” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279
(11th Cir. 2006) (citation omitted). A pleading drafted in this manner “is in no sense the
‘short and plain statement of the claim’ “that Rule 8 requires[.]” Magluta v. Samples, 256
F.3d 1282, 1284 (11th Cir. 2001). When faced with a shotgun complaint, the Eleventh
Circuit encourages courts to sua sponte demand repleading instead of “dismissing a
complaint with prejudice.” Bailey v. Janssen Pharmaceutica, Inc., 288 F. App’x 597, 603
(11th Cir. 2008) (citations omitted).
DISCUSSION
The Amended Complaint “is the proverbial shotgun pleading.” Wagner, 464 F.3d
at 1279. (Doc. 29). Plaintiff incorporates and restates the preceding paragraphs for each
subsequent count against Defendant. In addition, Plaintiff has not pled any facts to make
her claims plausible. See Twombly, 550 U.S. at 570. The “Statement of Facts” section
in the Amended Complaint is devoid of any factual allegations to show “more than a sheer

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possibility that [D]efendant has acted unlawfully.” (Doc. 29 at ¶¶ 1-3). At best, Plaintiff
restates the outcome of the arbitration agreement and declares victory. Because the
Amended Complaint lacks factual allegations, it is unclear whether these claims stem
from the previous arbitration or arise from conduct after the arbitration agreement.
Because Plaintiff has failed to state a claim for relief, the Court grants Defendant’s
Motion to Dismiss and dismisses the Amended Complaint without prejudice.
Accordingly, it is now
ORDERED:
1. Defendant LP Port Charlotte, LLC’s Motion to Dismiss (Doc. 33) is
GRANTED. The Amended Complaint is dismissed without prejudice in
its entirety.
2. Plaintiff Marie Gerda Jean may file a second amended complaint on or
before March 6, 2017. Failure to do so will result in this case being
dismissed with prejudice.
DONE and ORDERED in Fort Myers, Florida this 13th day of February, 2017.

Copies: All Parties of Record

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