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

Filing 84

OPINION AND ORDER granting in part and denying in part 77 , 78 , 79 Motions to Dismiss. The Motions are granted in part to the extent they seek dismissal of the Second Amended Complaint as a shotgun pleading. The Motions are otherwise denied. The Second Amended Complaint is dismissed without prejudice to filing a Third Amended Complaint within twenty-one (21) days of the date of this Opinion and Order. Signed by Judge John E. Steele on 1/8/2019. (BLW)

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

Case No:

2:18-cv-311-FtM-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,
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 Navient Corporation, Navient Solutions, and Pioneer Credit
Recovery (Doc. #77), Education Management Corporation (Doc. #78),
and

Florida

Department

of

Education

(Doc.

#79)

(hereinafter

“defendants”).

Plaintiff filed Responses in Opposition (Docs.

##80, 81, 82).

For the reasons set forth below, the Second Amended

Complaint (Doc. #75) is dismissed as a shotgun pleading with a
final opportunity to amend.

I.

Background

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.

The Court

dismissed the Complaint as a shotgun pleading with leave to amend.
(Doc. #61.)

In its Order, the Court noted 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).

(Id., p. 5.)

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

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district court retains ‘inherent authority to control
its docket and ensure the prompt resolution of
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 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.

Defendants move to dismiss, in part, because the

Second Amended Complaint remains a shotgun pleading that plaintiff
has failed to correct despite opportunities to do so.

Count 10

was brought against Equifax for breach of contract-negligence.
Equifax did not to file a motion to dismiss or answer, but the
Court noted in its last dismissal order (Doc. #73, p. 4) that any
claims asserted in the Second Amended Complaint against Equifax
would be stayed in favor of proceeding in the MDL case.
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

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

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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

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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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, plaintiff’s Second Amended Complaint remains a shotgun
pleading.

Each count continues to adopt the allegations of all

preceding paragraphs.
60, 63, 67.)

(Doc. #75, ¶¶ 32, 41, 46, 48, 50, 53, 55,

“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).

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 headings for each count

plaintiff identifies which defendant each count pertains to, the
allegations that follow each heading generally lump the defendants

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together, which fails to place each defendant on notice of what
allegations specifically against them give rise to each cause of
action.
Therefore, the Court dismisses the Second Amended Complaint
without prejudice on shotgun pleading grounds with leave to amend.
If the Third Amended Complaint is a shotgun pleading it will be
dismissed with prejudice without further notice and without leave
to amend.

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.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendants’ Motions to Dismiss (Docs. ##77, 78, 79) are

GRANTED IN PART to the extent that they seek dismissal of the
Second Amended Complaint as a shotgun pleading.

The Motions are

otherwise DENIED.
2.

The Second Amended Complaint (Doc. #75) is dismissed

without prejudice to filing a Third Amended Complaint within
twenty-one (21) days of the date of this Opinion and Order.

The

failure to file a Third Amended Complaint will result in the
closure of this case without further notice.

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DONE and ORDERED at Fort Myers, Florida, this __8th__ day of
January, 2019.

Copies:
Plaintiff
Counsel of Record

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