Prunty et al v Morgan & Morgan et al

Filing 33

ORDER denying 15 Morgan & Morgan Complex Litigation Group, LLC's Motion to Dismiss as Party Defendant. This law firm does not appear to be a named defendant in the Amended Complaint; therefore, dismissal is unnecessary. Defendants' M otion to Dismiss for Lack of Personal Jurisdiction (Doc. 18 ) is DENIED as moot. Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 8(a) (Doc. 19 ) is GRANTED. Plaintiff's Amended Complaint (Doc. 13 ) is dismissed without prejudi ce to refiling a Second Amended Complaint on or before December 20, 2017. Failure to file a Second Amended Complaint by this date will result in this matter being closed. Any arguments regarding failure to state a claim are not addressed at this ti me, pending the filing of a Second Amended Complaint. Plaintiff's Motion for Judgment on the Pleadings (Doc. 20 ) is DENIED as moot. Plaintiff's Motion for Summary Judgment (Doc. 26 ) is DENIED as moot. Signed by Judge Sheri Polster Chappell on 12/1/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT R. PRUNTY, and others
similarly situated,
Plaintiff,
v.

Case No: 2:17-cv-506-FtM-99CM

ARNOLD & ITKIN LLP, THE MEYER
BLAIR LAW FIRM LLP et al.,
MORGAN & MORGAN LLP,
SHELLER PC and KLINE &
SPECTER, P.C.,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendants’ Motion to Dismiss Pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 8(a) (Doc. 19) filed on November 7, 2017.
Plaintiff pro se Robert R. Prunty, filed a Response in Opposition (Doc. 21) on November
14, 2017. For the reasons set forth below, the Motion is granted.
BACKGROUND
Plaintiff, who is African-American, brings this case against eight attorneys
regarding their alleged mistreatment of his product liability claims against the
pharmaceutical manufacturer of Risperdal for personal injuries suffered by his minor son.

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some other site does not affect the opinion of the Court.

Prunty alleges that subject matter jurisdiction is based on diversity of citizenship and
federal question. The basis of his allegations are that Defendants conspired to deprive
him of his Constitutional rights to be free from involuntary servitude, the right to control
the upbringing of his children, and the right to be free from contract manipulation. (Doc.
13, ¶ 26). Plaintiff believes that because Defendants held his Risperdal claims in “legal
captivity” for three years, ultimately deciding not to file a lawsuit on his behalf, the statute
of limitations on his claims expired.2

Plaintiff alleges that Defendants willfully and

knowingly collected large numbers of Risperdal plaintiffs in order to destroy their legal
cases and deny them access to the courts, violating peonage statutes. (Id. at ¶¶ 36, 42,
51).
Plaintiff has amended his Complaint once as a matter of course, asserting nine
counts. (Doc. 13). Despite the labels applied in the Amended Complaint, the Court
construes Counts 1, 2, 3, 4, 5, and 9 as asserting claims pursuant to 42 U.S.C. § 1985(2)
and (3), as many of the claims are duplicative and essentially make the same allegations
throughout.

Counts 6, 7, and 8 are common law claims for intentional infliction of

emotional distress, constructive fraud, and breach of fiduciary duty.

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Plaintiff states:
Plaintiff claims damages against the above named defendants for their conspiracy
to violate the 13th Amendment by holding Plaintiff for a set amount of time, and
under the 40% debt merely so Plaintiff and others could serve their unlawful
objectives and purposes “involuntarily”, and such actions of defendants were
wholly intentional and meant to harm this Plaintiff and others.

(Doc. 13, ¶ 32).

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STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8, a plaintiff is required to provide a short
and plain statement of the claim showing entitlement to relief. Fed. R. Civ. P. 8(a)(2).
Although the complaint need not make detailed factual allegations, it must provide more
than labels, conclusions, and formulaic recitations of the elements of the cause of action.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). What is more, a plaintiff
alleging fraud, like here, must go one-step further and “state with particularity the
circumstances constitute fraud or mistake.” Fed. R. Civ. P. 9(b). A pleading thus satisfies
satisfy Rule 9(b) if it alleges
(1) precisely what statements were made in what documents
or oral representations or what omissions were made, and (2)
the time and place of each such statement and the person
responsible for making it (or, in the case of omission, not
making) same, and (3) the content of such statements and the
manner in which they misled the plaintiff, and (4) what the
defendants “obtained as consequence of the fraud.”
Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997)
(citations omitted).
At the pleading stage, Rules 8 and 9 are read in conjunction with Federal Rule of
Civil Procedure 12(b)(6). When considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), 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). But this preferential standard of review 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 Twombly, 550 U.S. at 570.

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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. 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)).
DISCUSSION
While the Court is mindful that pro se complaints are to be held to a less stringent
standard than those drafted by an attorney, Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986), the Court agrees with Defendants that Plaintiff’s Amended Complaint is a
shotgun complaint and must be dismissed. See Doc. 13, ¶¶ 33, 40, 55, 59, 66, 71, 78,
83. A shotgun complaint “contains several counts, each one incorporating by reference
the allegations of its predecessors, leading to a situation where most of the counts ...
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).
[I]f tolerated, [shotgun pleadings] harm the court by impeding
its ability to administer justice. The time a court spends
managing litigation framed by shotgun pleadings should be
devoted to other cases waiting to be heard. Wasting scarce
judicial and parajudicial resources impedes the due
administration of justice and, in a very real sense, amounts to
obstruction of justice.
Byrne v Nezhat, 261 F.3d 1075 (11th Cir. 2001) abrogated on other grounds by Bridge v.
Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (internal punctuation omitted).
Consequently, the Eleventh Circuit has “roundly, repeatedly, and consistently
condemn[ed]” them. Davis v. Coca—Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th
Cir. 2008). When faced with a shotgun complaint, the Eleventh Circuit encourages

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“courts to demand repleading.” Bailey v. Janssen Pharmaceutica, Inc., 288 F. App'x 597,
603 (11th Cir. 2008) (citations omitted).
Moreover, in a case with multiple defendants such as this, the complaint should
contain specific allegations with respect to each defendant; generalized allegations
“lumping” multiple defendants together are insufficient to permit the defendants, or the
court, to ascertain exactly what plaintiff is claiming. See West Coast Roofing and
Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (citing
Ambrosia Coal & Const. Co. v. Pages Morales, 482 F.3d 1309, 1317 (11th Cir. 2007) and
Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1381 (11th Cir. 1997)).
Therefore, the Amended Complaint will be dismissed on this basis and the Court
will allow Plaintiff one last opportunity to amend his complaint. Any amended complaint
should clearly set forth which Counts are brought against which Defendants, and not
incorporate all antecedent counts. Furthermore, the Court takes this opportunity to inform
Plaintiff that it maintains serious doubt as to the viability of Plaintiff’s conspiracy claims
under 42 U.S.C. § 1985. Section 1985 provides relief from three types of conspiracies:
(1) a conspiracy to prevent a person from holding public office or discharging the duties
of that office; (2) a conspiracy to intimidate or deter a party or witness in court; and (3) a
conspiracy to deprive a person of rights, privileges, and the equal protection of the laws.
42 U.S.C. § 1985(1)–(3). “In civil rights and conspiracy actions, conclusory, vague, and
general allegations of conspiracy may justify dismissal of a complaint.” Raske v. Dugger,
819 F. Supp. 1046, 1053 (M.D. Fla. 1993). Plaintiff must allege concrete facts from which
the Court can infer that an agreement existed among the Defendants to deprive Plaintiff

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of some protected right. Plaintiff cannot conclusively allege that Defendants engaged in
a conspiracy to deprive Plaintiff of his rights because of his race.
On a final note, the Court observes that the caption of Plaintiff’s Amended
Complaint names the law firms as Defendants (along with some of the attorneys), but in
the body of Plaintiff’s Amended Complaint names the individual attorneys by name as the
only Defendants under the heading “Parties.” Pursuant to Federal Rule of Civil Procedure
10(a), a case caption must name all of parties to a suit. If Plaintiff wishes to bring suit
against a defendant, he must list them in the caption and include a factual basis against
each which entitles him to relief.3
Accordingly, it is now
ORDERED:
(1)

Morgan & Morgan Complex Litigation Group, LLC’s Motion to Dismiss as

Party Defendant (Doc. 15) is DENIED. This law firm does not appear to be a named
defendant in the Amended Complaint; therefore, dismissal is unnecessary.
(2)

Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 18) is

DENIED as moot.
(3)

Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 8(a) (Doc. 19) is

GRANTED. Plaintiff’s Amended Complaint (Doc. 13) is dismissed without prejudice to
refiling a Second Amended Complaint on or before December 20, 2017. Failure to file a
Second Amended Complaint by this date will result in this matter being closed. Any

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If Plaintiff chooses to file a Second Amended Complaint and continues to name the same nonresident Defendants, Defendants may re-file their Motion to Dismiss for Lack of Personal
Jurisdiction. (Doc. 18).

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arguments regarding failure to state a claim are not addressed at this time, pending the
filing of a Second Amended Complaint.
(4)

Plaintiff’s Motion for Judgment on the Pleadings (Doc. 20) is DENIED as

(5)

Plaintiff’s Motion for Summary Judgment (Doc. 26) is DENIED as moot.

moot.

DONE and ORDERED in Fort Myers, Florida this 1st day of December, 2017.

Copies: All Parties of Record

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