Jean v. LP Port Charlotte, LLC

Filing 42

ORDER granting 40 Defendant LP Port Charlotte, LLC's Motion to Dismiss. Plaintiff Marie Gerda Jean's Second Amended Complaint 37 is DISMISSED without prejudice in its entirety. Plaintiff Marie Gerda Jean may file a third amended complaint on or before September 8, 2017. Failure to do so will result in this case being dismissed with prejudice. Signed by Judge Sheri Polster Chappell on 8/30/2017. (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 filed on April 4, 2017. (Doc. 40). Plaintiff Marie Gerda Jean filed a Response
in Opposition on April 18, 2017. (Doc. 41). This matter is ripe for review.
Background
This action stems from both an arbitration award and allegations of discrimination
and retaliation. (Docs. 37 at 1; 37-1). Jean sued LP Port Charlotte in Florida state court
for breach of contract, discrimination, and retaliation. (Doc. 2). Thereafter, LP Port
Charlotte removed the case. (Doc. 1). Jean then filed an amended complaint (Doc. 29)
followed by LP Port Charlotte’s first motion to dismiss. (Doc. 33). The Court granted LP
Port Charlotte’s motion to dismiss and dismissed the amended complaint without

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prejudice. (Doc. 36). Jean then filed a Second Amended Complaint (Doc. 37) pursuing
these claims:


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



Count II – Action per 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.

LP Port Charlotte now moves to dismiss the Second Amended Complaint for failure to
state a claim. (Doc. 40 at 1). Jean argues her pleading is sufficient to survive a motion
to dismiss. (Doc 41 at 2). The Court disagrees. For the reasons stated below, the
Second Amended Complaint is dismissed in its entirety.
Standard of Review
A Rule 12(b)(6) motion tests the sufficiency of a complaint under the federal
pleading rules. A claim fails this inspection if it asserts a legal theory that is not cognizable
as a matter of law, or because its factual account is implausible. See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 & 570 (2007). When deciding a Rule 12(b)(6) motion, the
court presumes all well-pled factual allegations to be true, resolves all reasonable doubts
and inferences in the plaintiff’s favor, and views the complaint in the light most favorable
to the non-moving party. See id. at 555. A plaintiff must do more than offer labels,
conclusions, and “a formulaic recitation of the elements of a cause of action.” Iqbal, 556
U.S. at 678. The court will not accept as true bald assertions, conclusions, or legal

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conclusions “couched” as facts. Id. at 678-79; Twombly, 550 U.S. at 555. For claims to
survive a Rule 12(b)(6) motion, therefore, the plaintiff’s allegations “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A claim is facially plausible
where the facts alleged permit the court to reasonably infer that defendant’s alleged
misconduct was unlawful. Id.
Besides the standard established under Iqbal-Twombly, plaintiffs must avoid
shotgun pleadings. Since its inception, the Eleventh Circuit has waged an unceasing fight
against shotgun pleadings. See Weiland v. Palm Beach County Sheriff's Off., 792 F.3d
1313, 1320 (11th Cir. 2015).

The most common shotgun pleading 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 it and the last count
to be a combination of the entire complaint.” Id. When faced with a shotgun pleading,
the Eleventh Circuit has encouraged district courts to demand repleader.

Bailey v.

Janssen Pharmaceutica, Inc., 288 Fed. Appx. 597, 603 (11th Cir. 2008).
Discussion
Here—for the second time—Jean incorporates and restates each preceding
allegation and count into each subsequent count. (Doc. 37 at ¶ 24, 33, 39, 44, 47).
Because this is the quintessential shotgun pleading, the Second Amended Complaint is
dismissed in its entirety.
The Court has several other concerns regarding Jean’s claims. Regarding Jean’s
breach of contract and Federal Arbitration Act (“FAA”) claims, it is unclear whether Jean
is seeking to confirm or enforce the arbitration award under the FAA or through an

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alternative method. See 9 U.S.C. § 9; see also Hall St. Associates, L.L.C. v. Mattel, Inc.,
552 U.S. 576, 578 (2008) (explaining that the Federal Arbitration Act provides for
expedited judicial review to confirm an arbitration award). Further, whether these claims
are subject to mandatory arbitration under the parties’ arbitration agreement remains.
The Court need not reach these issues because Jean’s Second Amended Complaint is
a shotgun pleading and must be dismissed in its entirety.
Accordingly, it is now
ORDERED:
1. Defendant LP Port Charlotte, LLC’s Motion to Dismiss (Doc. 40) is GRANTED.
Plaintiff Marie Gerda Jean’s Second Amended Complaint (Doc. 37) is
DISMISSED without prejudice in its entirety.
2. Plaintiff Marie Gerda Jean may file a third amended complaint on or before
September 8, 2017.

Failure to do so will result in this case being

dismissed with prejudice.
DONE and ORDERED in Fort Myers, Florida this 30th day of August, 2017.

Copies: All Parties of Record

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