Crespo v. Cook Incorporated et al

Filing 8

OPINION AND ORDER dismissing 1 Complaint for lack of subject-matter jurisdiction without prejudice to filing an Amended Complaint within 7 days of this Order. Signed by Judge John E. Steele on 1/12/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NOEL CRESPO,
Plaintiff,
v.

Case No: 2:17-cv-11-FtM-99CM

COOK
INCORPORATED,
COOK
MEDICAL, LLC, and WILLIAM
COOK EUROPE, APS,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of the Complaint
(Doc. #1) filed on January 9, 2017.

Plaintiff’s “Statement of

Venue and Jurisdiction” provides that venue is proper and that
personal

jurisdiction

exists

over

defendants

who

“regularly

conduct business in this District”, however no basis for subjectmatter jurisdiction is articulated as required by Fed. R. Civ. P.
8(a)(1) (a pleading must contain “a short and plain statement of
the grounds for the court's jurisdiction”).
If the Court determines “at any time” that it lacks subjectmatter jurisdiction, the Court must dismiss the case.
Civ. P. 12(h)(3).

Fed. R.

See also Univ. of S. Alabama v. Am. Tobacco

Co., 168 F.3d 405, 410 (11th Cir. 1999) (“a federal court is
obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.”).

Therefore, the Court will consider

the possible bases for subject-matter jurisdiction.

See Ashcroft

v. Iqbal, 556 U.S. 662, 671 (2009) (“Subject-matter jurisdiction
cannot be forfeited or waived and should be considered when fairly
in doubt.”)(citations omitted).
strict

liability,

misrepresentation. 1

breach

Plaintiff alleges negligence,
of

warranty,

and

negligent

None of these claims are premised on a federal

statute or the United States Constitution.

Therefore, the Court

finds

for

no

federal

jurisdiction

under

question
28

U.S.C.

presented
§

1331.

subject-matter

Plaintiff

sets

forth

allegations that may support diversity as a basis for subjectmatter

jurisdiction.

This

requires

complete

diversity

of

citizenship, and that the matter in controversy exceed the sum or
value of $75,000, exclusive of interest and costs.

28 U.S.C.

§ 1332(a); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261
(11th Cir. 2000).
Plaintiff states that he is a citizen of Florida, and resides
in Lehigh Acres, Florida.

(Doc. #1, ¶ 2.)

Plaintiff does not

state whether Florida is where he is domiciled, but he does state
he is a citizen of Florida.

For purposes of review, the Court

will accept that plaintiff is a citizen of Florida.
alleges

that

defendant

Cook

Incorporated

1

is

Plaintiff

incorporated

in

Count Four asserts punitive damages for “oppression, fraud,
and/or malice, express or implied”, however the basis for the
damages and the cause of action is unclear.

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Indiana, and that it has its principal place of business in
Indiana.

(Id., ¶ 3.)

citizen of Indiana.

Therefore, defendant Cook Inc. is deemed a
Plaintiff alleges that Cook Medical, LLC is

also an Indiana corporation with its principal place of business
in that State, id., ¶ 4, however plaintiff does not identify the
citizenship

of

individual

members

of

the

limited

liability

company, and a limited liability company is a citizen of any state
of which a member is a citizen.

Rolling Greens MHP, L.P. v.

Comcast SCH Holdings L.L.C., 374 F.3d 1020 (11th Cir. 2004).
Therefore, the Court cannot determine the citizenship of this
defendant, or that diversity of jurisdiction is present.
The third defendant, William Cook Europe ApS is alleged to be
based

in

Bjaeverskov,

Denmark,

business in the State of Indiana.

and

that

it

conducts

(Doc. #1, ¶ 5.)

regular

The citizenship

of this defendant is not clearly articulated as to its place of
incorporation and principal place of business, and therefore the
Court cannot determine if diversity of citizenship exists.

See 28

U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 81 (2010)
(principal place of business is determined by the “nerve center”
test).
Plaintiff does not allege that the amount in controversy
exceeds $75,000.

Based on the allegations that plaintiff is at

risk for future fractures, migrations, perforations and tilting of
a Cook Gunther Tulip Filter that was implanted and likely cannot

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now be removed, and anticipated on-going medical monitoring for
the rest of his life, plaintiff may be able to allege the requisite
amount in controversy.
provided

an

(Doc. #1, ¶ 27.)

opportunity

to

state

the

Plaintiff will be

presence

of

federal

jurisdiction pursuant to 28 U.S.C. § 1653.
The Court notes that the Complaint improperly incorporates
all allegations from the Count I into the subsequent counts, Counts
II and III.

“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)
(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.
F.3d 1075, 1130 (11th Cir. 2001).

Byrne v. Nezhat, 261

In amending the Complaint,

plaintiffs should take the opportunity to correct this deficiency.

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Accordingly, it is now
ORDERED:
The Complaint (Doc. #1) is dismissed for lack of subjectmatter

jurisdiction

without

prejudice

to

filing

an

Amended

12th

day of

Complaint within SEVEN (7) DAYS of this Order.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2017.

Copies:
Counsel of record

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