Dressler v. U.S. Department of Education et al

Filing 108

OPINION AND ORDER granting in part and denying in part 101 , 102 Motions to Dismiss to the extent that they seek dismissal of the Second Amended Complaint as a shotgun pleading and counts II-IV, VII-IX are dismissed with prejudice; granting in part and denying in part 105 Defendant Pioneer Credit Recovery's Motion to Dismiss to the extent it seeks dismissal of Counts V and VI for failure to state a claim and counts V and VII are dismissed with prejudice. Finding no just cause for delay, the Clerk shall enter judgment accordingly. Thereafter the Clerk is directed to close the file pending remand from the Multidistrict Litigation Panel as to Counts I and X of the Third Amended Complaint. See Opinion for further details. Signed by Judge John E. Steele on 4/1/2019. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SANDRA K. DRESSLER,
Plaintiff,
v.

Case No:

2:18-cv-311-FtM-99UAM

U.S.
DEPARTMENT
OF
EDUCATION, BETSY DEVOS, in
her official capacity as
Secretary
of
the
U.S.
Department
of
Education,
FLORIDA
DEPARTMENT
OF
EDUCATION,
NAVIENT
CORPORATION,
EDUCATION
CREDIT
MANAGEMENT
CORPORATION, PIONEER CREDIT
RECOVERY,
INC.,
EQUIFAX
INC., EQUIFAX INFORMATION
SERVICES, LLC, DOES 1-10,
and NAVIENT SOLUTIONS, LLC,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Motions to Dismiss filed
by the Florida Department of Education (Doc. #101), Education
Management Corporation (Doc. #102), Navient Corporation, Navient
Solutions,
(hereinafter

and

Pioneer

Credit

“defendants”).

Recovery,
Plaintiff

Opposition (Docs. ##103, 104, 107).

Inc.
filed

(Doc.

#105),

Responses

in

For the reasons set forth

below, the motions are granted in part and denied in part.

I.

Background

On May 4, 2018, pro se plaintiff Sandra K. Dressler filed a
ten-count Complaint (Doc. #1) against defendants for violations of
the Fair Credit Reporting Act, Fair Debt Collection Practice Act,
Telephone Consumer Protection Act, and for breach of contract
stemming from the servicing of her student loans and a tax debt.
The Court dismissed the Complaint as a shotgun pleading with leave
to amend.

(Doc. #61.)

In its Order, the Court explained that the

Complaint was a shotgun pleading in two respects.

First, it

adopted all the preceding paragraphs causing each successive count
to carry all that came before and the last count to be a combination
of the entire Complaint in violation of Federal Rule 8(a).
p. 5.)

(Id.,

Second, each count failed to identify the specific facts

and the particular nature of the violations that each defendant
allegedly committed, generally lumping defendants together under
each count.

(Id., p. 6.)

In compliance with Eleventh Circuit

case law, the Court gave plaintiff the opportunity to remedy such
deficiencies, stating:
‘In dismissing a shotgun complaint for noncompliance
with Rule 8(a), a district court must give the plaintiff
‘one chance to remedy such deficiencies.’ Jackson, 2018
WL 3673002, *6 (quoting Vibe Micro, Inc. v. Shabanets,
878 F.3d 1291, 1295 (11th Cir. 2018)).
Accordingly,
plaintiff will be provided an opportunity to amend, but
if the Amended Complaint is a shotgun pleading, the Court
has authority to dismiss it on that basis alone. See,
e.g., Weiland, 792 F.3d at 1320 (explaining that the
district court retains ‘inherent authority to control
its docket and ensure the prompt resolution of

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lawsuits,’ including, under proper circumstances, ‘the
power to dismiss a complaint for failure to comply with
Rule 8(a)(2)’).
(Id., pp. 6-7) (emphasis in original).

In doing so, the Court

encouraged plaintiff to consult the “Proceeding Without a Lawyer”
resources on filing pro se complaints provided on the Court’s
website.

(Id., p. 7.)

Plaintiff filed an Amended Complaint (Doc. #65) on September
5, 2018 on the Court’s form titled “Complaint for a Civil Case.”
(Doc. #65).

Plaintiff also filed a “Request for Court to Take

Judicial Notice of the Facts” in which plaintiff expressed concern
that the Court’s form complaint did not provide for individual
counts which might cause her to improperly plead her claims.
#66.)

(Doc.

If the Court agreed, plaintiff requested leave to amend.

At this point, defendants had begun to file motions to dismiss the
Amended

Complaint

against

Equifax

and
for

shortly
data

thereafter,

breach

Multidistrict Litigation (MDL) Panel.

was

plaintiff’s

transferred

to

claim
the

(Doc. #68.)

On September 21, 2018, the Court granted plaintiff leave to
file a Second Amended Complaint.

(Doc. #73.)

In that Order, the

Court informed plaintiff that she “should address the shotgun
pleading issues previously identified by the Court, but also
include facts indicating what caused her to initiate the disputes.”
(Id., p. 4.)

The Court also stated that the any claims asserted

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against Equifax in the Second Amended Complaint would be stayed in
favor of proceeding in the MDL case.

(Id.)

Plaintiff filed a Second Amended Complaint (Doc. #75) on
October 4, 2018.
Second

Defendants move to dismiss, in part, because the

Amended

Complaint

remained

a

shotgun

pleading

that

plaintiff has failed to correct despite opportunities to do so.
The Court again dismissed the Second Amended Complaint as a shotgun
pleading

because

each

count

adopted

the

allegations

of

all

preceding paragraphs and each count failed to identify the specific
facts

and

defendant
together

the

particular

allegedly
under

each

nature

committed,
count.

of

the

violations

generally

(Doc.

lumping

#84.)

The

that

each

defendants

Court

allowed

plaintiff one final opportunity to amend, and noted that any claims
asserted

in

the

Third

Amended

Complaint

against

defendants

Equifax, Inc. and Equifax Information Services LLC will be stayed
in favor of proceeding in the MDL.

The Court informed plaintiff

(in bold type) that if the Third Amended Complaint remained a
shotgun pleading it would be dismissed with prejudice without
further notice and without leave to amend.

(Id., p. 7.)

Plaintiff filed a ten-count Third Amended Complaint (Doc.
#88) on January 16, 2019. 1

Defendants again move to dismiss, in

part, because the Third Amended Complaint is a shotgun pleading

1

Plaintiff filed the exhibits to the Third Amended Complaint
on January 29, 2019. (Doc. #92.)

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and otherwise does not comply with the pleading standard of Rule
8.
II.
As the Court has stated in two prior Opinions (Docs. ##61,
84), shotgun pleadings violate Rule 8, which requires “a short and
plain statement of the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), by “fail[ing] to one degree
or another ... to give the defendants adequate notice of the claims
against them and the grounds upon which each claim rests.”

Weiland

v. Palm Beach Cnty. Sheriff’s Ofc., 792 F.3d 1313, 1323 (11th Cir.
2015) (defining the four types of shotgun pleadings). 2

Courts in

2

The four “rough” types or categories of shotgun pleadings
identified by the Eleventh Circuit in Weiland are:
The most common type — by a long shot — 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 and the
last count to be a combination of the entire complaint.
The next most common type, at least as far as our
published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of realleging all preceding counts but is guilty of the venial
sin of being replete with conclusory, vague, and
immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun
pleading is one that commits the sin of not separating
into a different count each cause of action or claim for
relief.
Fourth, and finally, there is the relatively
rare sin of asserting multiple claims against multiple
defendants without specifying which of the defendants
are responsible for which acts or omissions, or which of
the defendants the claim is brought against.
Weiland, 792 F.3d at 1322-23.

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the Eleventh Circuit have little tolerance for shotgun pleadings.
See generally Jackson v. Bank of America, 898 F.3d 1348 (11th Cir.
2018)

(detailing

pleading).

A

the

district

unacceptable
court

has

consequences
the

“inherent

of

shotgun

authority

to

control its docket and ensure the prompt resolution of lawsuits,”
which includes the ability to dismiss a complaint on shotgun
pleading grounds.

Weiland, 792 F.3d at 1320.

In a case where a

defendant files a shotgun pleading, a court “should strike the
[pleading] and instruct counsel to replead the case – if counsel
could in good faith make the representations required by Fed. R.
Civ. P. 11(b).”

Byrne v. Nezhat, 261 F.3d 1075, 1133 n.113

(quoting Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)).
The Court liberally construes pro se pleadings.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).

Boxer X v.

“However, the

leniency afforded pro se litigants does not give the courts license
to serve as de facto counsel or permit them to rewrite an otherwise
deficient pleading in order to sustain an action.”

Alhallaq v.

Radha Soami Trading, LLC, 484 F. App’x 293, 296 n.1 (11th Cir.
2012) (citing GJR Inv., Inc. v. Cnty. of Escambia, Fla., 132 F.3d
1359,

1369

(11th

Cir.

1998),

overruled

on

other

grounds

as

recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir.
2010)).
Here, although plaintiff’s Third Amended Complaint no longer
adopts the allegations of all preceding paragraphs in each count,

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she continues to generally lump the defendants together under
Counts II-IV, VII-IX and provide generic and general factual
allegations as if they apply to all defendants.

This fails to

place each defendant on notice of what allegations specifically
against them give rise to each cause of action.

Plaintiff was put

on notice that such claims would be dismissed with prejudice.
Therefore, Counts II-IV, VII-IX are dismissed with prejudice.
Counts V and VI do not suffer from the same defect as they
allege

Fair

Debt

Collection

Practices

Act

(FDCPA)

violations

against defendant Pioneer Credit Recovery, Inc. (Pioneer) only.
However, the only allegations against Pioneer fail to state a claim
under the FDCPA.

In this regard, plaintiff alleges that Pioneer

is a debt collection agency under contract with the Internal
Revenue Service (IRS) and that Pioneer sent plaintiff a “tax
delinquent notice” stating that plaintiff owed a debt to the IRS.
(Doc. #88, ¶¶ 8, 15; Doc. #92-4.)
with Pioneer.

Plaintiff disputed the tax debt

(Id., ¶ 16; Doc. #92-5.)

A tax obligation is not a debt as that term is defined under
the FDCPA.

The FDCPA’s definitional section, 15 U.S.C. § 1692a,

defines a “debt” as:
any obligation or alleged obligation of
pay money arising out of a transaction
money, property, insurance, or services
subject of the transaction are primarily
family, or household purposes, whether
obligation has been reduced to judgment.

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a consumer to
in which the
which are the
for personal,
or not such

15 U.S.C. § 1692a(5).

Accordingly, the FDCPA and FCCPA apply only

to payment obligations of a (1) consumer arising out of a (2)
transaction in which the money, property, insurance, or services
at issue are (3) primarily for personal, family, or household
purposes.

The statute thus makes clear that the mere obligation

to pay does not constitute a “debt” under the FDCPA.

Oppenheim

v. I.C. System, Inc., 627 F.3d 833, 836 (11th Cir. 2010)
Here, the tax obligation was not a consumer transaction, nor
were the funds used primarily for personal, family, or household
purposes.

Id. (citing Beggs v. Rossi, 145 F.3d 511, 512 (2d Cir.

1998) (holding that personal property taxes were not “debt” because
they did not arise from a transaction)).

Therefore, Counts V and

VI against Pioneer are dismissed with prejudice.
As the Court previously noted, the claims asserted in the
Third Amended Complaint against the Equifax defendants (Counts I,
X) are stayed in favor of the MDL proceedings and those claims
have

already

been

transferred

the

MDL

panel

(Doc.

#68).

Therefore, the Court will order that the case be closed pending
remand from the panel.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant

Florida

Department

of

Education

and

Educational Credit Management’s Motions to Dismiss (Docs. ##101,
102) are GRANTED IN PART to the extent that they seek dismissal of

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the Second Amended Complaint as a shotgun pleading and Counts IIIV,

VII-IX

are

dismissed

with

prejudice.

The

Motions

are

otherwise DENIED.
2.

Defendant

Pioneer

Credit

Recovery,

Inc.’s

Motion

to

Dismiss (Doc. #105) is GRANTED IN PART to the extent it seeks
dismissal of Counts V and VI for failure to state a claim.
Motion is otherwise DENIED.

The

Counts V and VII are dismissed with

prejudice.
3.

Finding no just cause for delay, the Clerk shall enter

judgment accordingly in favor of defendants Florida Department of
Education, Education Management Corporation, Navient Solutions
LLC,

Navient

Corporation,

Navient

Solutions,

Pioneer

Credit

Recovery, Does 1-10, U.S. Department of Education, and Betsy Devos.
4.

Thereafter the Clerk is directed to close the file

pending remand from the Multidistrict Litigation Panel as to Counts
I and X of the Third Amended Complaint.
DONE and ORDERED at Fort Myers, Florida, this __1st__ day of
April, 2019.

Copies:
Plaintiff
Counsel of Record

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