Sanchez v. ERMC of America, LLC et al

Filing 55

OPINION AND ORDER granting 49 motion to dismiss; granting 50 motion to dismiss; dismissing 47 Third Amended Complaint as a shotgun pleading without prejudice to filing a Fourth Amended Complaint within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 8/7/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROSA SANCHEZ,
Plaintiff,
v.

Case No:

2:16-cv-851-FtM-99CM

COASTLAND CENTER, LLC and
ERMC
PROPERTY
MANAGEMENT
COMPANY OF ILLINOIS, LLC,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants’ Motions to
Dismiss (Docs. ##49, 50) filed on May 24, 2017, and plaintiff’s
Response in Opposition (Doc. #51) filed on June 7, 2017.

For the

reasons set forth below, the motions are granted with leave to
amend.
Plaintiff Rosa Sanchez (plaintiff or Sanchez) has brought
this premises liability action against the owner and operator of
Coastland Center Mall for negligence arising out of a slip and
fall incident that occurred on or about May 7, 2015 near the
entrance to the Old Navy store.

(Doc. #47, ¶ 5.)

Plaintiff

alleges that she slipped and fell on a “slippery substance,”
sustaining serious injury.

(Id. at ¶¶ 6-7.)

The case was removed based upon diversity jurisdiction, and
is currently proceeding on a two-count Third Amended Complaint

against defendants Coastland Center, LLC and ERMC of America, LLC
(collectively, “defendants”), alleging negligence.

(Doc. #47.)1

Defendants move to dismiss the Third Amended Complaint as an
impermissible shotgun pleading because Count II re-alleges all
preceding paragraphs, including those paragraphs alleged under
Count I.

(Id. at 3.)

In response, plaintiff asserts that the

Third Amended Complaint is concise enough to allow defendants to
frame a response, but alternatively has no objection to amending
the sentence that re-alleges all preceding paragraphs under Count
II.
“The typical shotgun complaint contains several counts, each
one

incorporating

by

reference

the

allegations

of

its

predecessors, leading to a situation where most of the counts
(i.e., all but the first) contain irrelevant factual allegations
and legal conclusions.”

Strategic Income Fund, L.L.C. v. Spear,

Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).

The

Eleventh Circuit has consistently frowned upon shotgun pleadings
such as the one presented herein, and shotgun pleadings “exact an
intolerable toll on the trial court’s docket.”

Cramer v. Florida,

117 F.3d 1258, 1263 (11th Cir. 1997). See also Davis v. Coca–Cola
Bottling Co. Consol., 516 F.3d 955, 979 n. 54 (11th Cir. 2008)

1

The Court previously directed defendants to show cause or
supplement the Notice of Removal to address the Court’s subjectmatter jurisdiction. (Doc. #27.) The Court is satisfied as to
its subject-matter jurisdiction. (Doc. #29.)

- 2 -

(collecting

cases).

Accordingly,

the

Eleventh

Circuit

has

established that when faced with a shotgun pleading, a district
court should require the parties to file an amended pleading rather
than allow such a case to proceed to trial.

Byrne v. Nezhat, 261

F.3d 1075, 1130 (11th Cir. 2001).
Plaintiff will be required to address this deficiency in
amending the pleading.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Defendant Coastland Center, LLC’s Motion to Dismiss (Doc.
#49) is GRANTED.
2. Defendant ERMC Property Management Company of Illinois,
LLC’s Motion to Dismiss (Doc. #50) is GRANTED.
3.

Plaintiff’s

Third

Amended

Complaint

(Doc.

#47)

is

dismissed as a shotgun pleading without prejudice to filing a
Fourth Amended Complaint within FOURTEEN (14) days of this Opinion
and Order.
DONE and ORDERED at Fort Myers, Florida, this
August, 2017.

Copies:
Counsel of Record

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7th

day of