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

Filing 61

OPINION AND ORDER granting in part 28 , 33 , 39 , 54 Defendants' Motions to Dismiss to the extent they seek dismissal of the Complaint as a shotgun pleading. The Motions are otherwise denied. The Complaint (Doc. #1) is dismissed without prejudice to filing an Amended Complaint within twenty-one (21) days of the date of this Opinion and Order. Signed by Judge John E. Steele on 8/29/2018. (BLW)

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

Case No:

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

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,
NAVIENT
SOLUTIONS, INC., EDUCATION
CREDIT
MANAGEMENT
CORPORATION, PIONEER CREDIT
RECOVERY,
INC.,
EQUIFAX
INC., EQUIFAX INFORMATION
SERVICES, LLC, and DOES 110,
Defendants.

OPINION AND ORDER
This matter comes before the Court on Motions to Dismiss filed
by defendants Navient Corporation and Navient Solutions, Inc.
(Doc. #28), Education Credit Management Corporation (Doc. #33),
Florida Department of Education (Doc. #39), and Pioneer Credit
Recovery, Inc. (hereinafter “defendants”) (Doc. #54).
filed Responses in Opposition (Docs. ##38, 40, 50, 59).

Plaintiff
For the

reasons set forth below, the Complaint (Doc. #1) is dismissed as
a shotgun pleading with leave to amend.

On May 4, 2018, plaintiff pro se 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.

Some defendants

move to dismiss, in part, because the Complaint is a shotgun
pleading.

(Docs. ##28, 39, 54.)

Defendants Equifax Inc. and

Equifax Information Services, LLC filed answers.
25.)

(Docs. ##22,

In Response, plaintiff opposes the Motions but also requests

leave to amend.

(Docs. #38, 40, 50, 59.)
I.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will
not do.”
(citation

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
omitted).

To

survive

dismissal,

the

factual

allegations must be “plausible” and “must be enough to raise a
right to relief above the speculative level.”

Id. at 555.

See

also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
This requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

Thus, the

Court engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.

A pleading drafted by a party proceeding unrepresented (pro
se) is held to a less stringent standard than one drafted by an
attorney, and the Court will construe the documents filed as a
complaint and amended complaint liberally.

Jones v. Fla. Parole

Comm’n, 787 F.3d 1105, 1107 (11th Cir. 2015).

Nevertheless, “a

pro se pleading must suggest (even if inartfully) that there is at

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least some factual support for a claim; it is not enough just to
invoke a legal theory devoid of any factual basis.”

Id.

II.
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). 1

Courts in

the Eleventh Circuit have little tolerance for shotgun pleadings.

1

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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See generally Jackson v. Bank of America, --- F.3d ---, 2018 WL
3673002, *5-6 (11th Cir. Aug. 3, 2018) (detailing the “unacceptable
consequences of shotgun pleading”).

A district court has the

“inherent 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)).
Plaintiff’s Complaint is a quintessential shotgun pleading
for two reasons.

First, each count adopts the allegations of all

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).
¶¶ 38, 47, 51, 53, 60, 64, 70, 74, 94, 97.

See Doc. #1,

By the end, ninety-

six paragraphs were incorporated into Count 10.

“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

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F.3d 1293, 1295 (11th Cir. 2002).

Doing so makes it nearly

impossible for defendants and the Court to determine which factual
allegations give rise to which claims for relief.
Second, each count fails to identify the specific facts and
the

particular

nature

allegedly committed.

of

the

violations

that

each

defendant

Although in the heading for Counts 1-8

plaintiff identifies which defendant each count pertains to, the
allegations that follow each heading generally lump the defendants
together (see, e.g., Doc. #1, ¶¶ 41, 42, 52, 56, 57, 66), which
fails to place each defendant on notice of what allegations give
rise to each cause of action.

This problem is also compounded by

the fact that plaintiff incorporates all preceding paragraphs into
each

count.

Furthermore,

Counts

9

(negligence)

and

10

(defamation) are directed at “all defendants” without regard to
how each defendant is specifically liable.
“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

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prompt

resolution

of

lawsuits,”

including,

under

proper

circumstances, “the power to dismiss a complaint for failure to
comply with Rule 8(a)(2)”).
The Court will therefore dismiss the Complaint with leave to
amend.

The Court will otherwise deny the Motions, with leave to

refile similar motions, if appropriate, after an Amended Complaint
is filed. 2
For additional resources and assistance, plaintiff may wish
to consult the “Proceeding Without a Lawyer” resources on filing
pro se complaint that are provided on the Court’s website, at
http://www.flmd.uscourts.gov/pro_se/default.htm.

The website has

tips, answers to frequently-asked questions, and sample forms.
There is also a link that, through a series of questions, may help
plaintiff generate the Amended Complaint.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Defendants’ Motions to Dismiss (Docs. ##28, 33, 39, 54)
are GRANTED IN PART to the extent they seek dismissal of the

2

Navient also moves to dismiss for improper service, alleging that
they were served via certified mail.
(Doc. #28.)
However, a
review of the Returns of Service for Navient Solutions, Inc. (Doc.
#41) and Navient Corporation (Doc. #47) reveals that an individual
was personally served with the Summons and Complaint. Although
the Court takes no position as to whether service on these
individuals was proper, it belies Navient’s contention that it was
only served via certified mail.

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Complaint

as

a

shotgun

pleading.

The

Motions

are

otherwise

DENIED.
2. The Complaint (Doc. #1) is dismissed without prejudice to
filing an Amended Complaint within twenty-one (21) days of the
date of this Opinion and Order.

The failure to file an Amended

Complaint will result in the closure of the case without further
notice.
DONE and ORDERED at Fort Myers, Florida, this __29th__ day of
August, 2018.

Copies:
Plaintiff
Counsel of Record

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