Levitt v. Iovine et al

Filing 39

ORDER denying as moot 37 Defendants' Motion to Dismiss Second Amended Complaint. Plaintiff's Second Amended Complaint (Doc. 34 ) is dismissed without prejudice. Plaintiff may file a Third Amended Complaint on or before November 21, 2018. Failure to do so will result in this case being dismissed with prejudice. Signed by Judge Sheri Polster Chappell on 11/7/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
OLIVER E LEVITT, an individual,
Plaintiff,
v.

Case No: 2:18-cv-36-FtM-99MRM

MARTI IOVINE, ANGELA J PRUITT,
GREGORY K. ADKINS and THE
SCHOOL DISTRICT OF LEE
COUNTY,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants’ Motion to Dismiss Second
Amended Complaint (Doc. 37) filed on October 1, 2018. Plaintiff filed a Response in
Opposition on October 15, 2018. (Doc. 38). The Court notes that the Second Amended
Complaint is a shotgun pleading and will allow Plaintiff to amend before ruling on the
merits of the dispute.
This is a 42 U.S.C. § 1983 action coupled with two state law claims for breach of
contract and defamation. (Doc. 34). Plaintiff, a former employee of Defendants, alleges
that he was retaliated against by Defendants because he spoke out for union interests,

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including safety, at Success Academy, which is operated by the School District of Lee
County. (Id.) When examining the Second Amended Complaint, the Court observed that
it incorporates each preceding paragraph into each count instead of limiting the scope of
incorporation to that of the alleged facts. In so doing, Plaintiff has lodged what is known
as a shotgun pleading.2 Wagner v First Horizon Pharmaceutical Corp., 464 F.3d 1273,
1279 (11th Cir. 2006).
In general, shotgun pleadings “are those that incorporate every antecedent
allegation by reference into each subsequent claim for relief or affirmative defense.” Id.
The result is that the last count eventually constitutes a combination of the entire pleading.
See Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015)
(noting that a court, acting on its own initiative may sua sponte review a complaint and
strike shotgun pleadings to replead).
[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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The Court notes that neither of the prior iterations of the Complaint (Doc. 1; Doc. 23) incorporated
each preceding paragraph into each count.

2

“courts to demand repleading.” Bailey v. Janssen Pharmaceutica, Inc., 288 F. App'x 597,
603 (11th Cir. 2008) (citations omitted).
The Court will not break step with the Eleventh Circuit. Because Plaintiff has failed
to identify the facts relevant to each claim, the Second Amended Complaint is deficient.
Thus, it must be dismissed.
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Second Amended Complaint (Doc. 34) is dismissed without

prejudice.
2.

Defendants’ Motion to Dismiss Second Amended Complaint (Doc. 37) is

denied as moot.
3.

Plaintiff may file a Third Amended Complaint on or before November 21,

2018. Failure to do so will result in this case being dismissed with prejudice.
DONE and ORDERED in Fort Myers, Florida this 6th day of November, 2018.

Copies: All Parties of Record

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