Entry Point Communications, LLC v. Bi-Lo Holding, LLC et al

Filing 37

ORDERED: Plaintiff's Complaint 1 is STRICKEN. Plaintiffs shall file an amended complaint consistent with the directives of this Order on or before DECEMBER 4, 2015. Failure to do so may result in a dismissal of this action. Defendant shall respond to the amended complaint in accordance with the requirements of Rule 15, Federal Rules of Civil Procedure. See Order for details. Signed by Judge Marcia Morales Howard on 11/19/2015. (APH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ENTRY POINT COMMUNICATIONS, LLC,
Plaintiff,
Case No. 3:15-cv-1372-J-34PDB
vs.
BI-LO HOLDING, LLC, a/k/a BI-LO
HOLDINGS, LLC; BI-LO, LLC; WINN-DIXIE
STORES, INC.; and J.H. HARVEY CO., LLC,
Defendants.
/
ORDER
THIS CAUSE is before the Court sua sponte. Plaintiff initiated the instant action on
March 11, 2015, by filing a five-count Complaint (Doc. 1; Complaint) in the United States
District Court for the District of New Jersey.

On November 16, 2015, pursuant to

Defendant’s motion, the New Jersey court transferred the case to the Middle District of
Florida. See Order (Doc. 33). Upon review, the Court finds that the Complaint may
constitute an impermissible “shotgun pleading.” 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). Consequently, in ruling on the sufficiency of a claim, the Court
is faced with the onerous task of sifting out irrelevancies in order to decide for itself which
facts are relevant to a particular cause of action asserted. See id. Here, each subsequent
count of the five counts in the Complaint incorporates by reference all allegations of Count

I, a breach of contract action against Defendant Winn-Dixie Stores, Inc. (Winn Dixie).
Complaint ¶¶ 103, 115, 124, 130. The Court is unable to determine why the remaining
counts need to incorporate Count I.

Count II is a breach of contract claim against

Defendants Bi-Lo Holding, LLC a/k/a Bi-Lo Holdings, LLC, Bi-LO LLC, and J.H. Harvey
Co., LLC. Id. at 17. Count III alleges an alternative specific performance claim against all
Defendants, although it is unclear whether this specific performance claim relates to the
breach of contract alleged in Count I, the breach of contract alleged in Count II, both, or
neither. Id. at 18. Count IV alleges an alternative promissory estoppel claim against all
Defendants. Id. at 19. Finally, Count V alleges an alternative unjust enrichment claim
against all Defendants. Id. at 20.
In the Eleventh Circuit, shotgun pleadings are “altogether unacceptable.” Cramer v.
State of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997); see also Cook v. Randolph Cnty., 573
F.3d 1143, 1151 (11th Cir. 2009) (“We have had much to say about shotgun pleadings,
none of which is favorable.”) (collecting cases). As the Court in Cramer recognized,
“[s]hotgun pleadings, whether filed by plaintiff or defendant, exact an intolerable toll on the
trial court’s docket, lead to unnecessary and unchanneled discovery, and impose
unwarranted expense on the litigants, the court and the court’s parajudicial personnel and
resources.” 117 F.3d at 1263. When faced with the burden of deciphering a shotgun
pleading, it is the trial court’s obligation to strike the pleading on its own initiative, and force
the plaintiff to replead to the extent possible under Rule 11, Federal Rules of Civil
Procedure. See id. (admonishing district court for not striking shotgun complaint on its own
initiative); see also United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th
Cir. 2006) (“When faced with a shotgun pleading, the trial court, whether or not requested

to do so by a party’s adversary, ought to require the party to file a repleader.”) (citing Byrne
v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001), abrogated on other grounds as
recognized by Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1151 (11th Cir. 2011)).
Accordingly, it is ORDERED:
1.

Plaintiff’s Complaint (Doc. 1) is STRICKEN.

2.

Plaintiffs shall file an amended complaint consistent with the directives of this

Order on or before DECEMBER 4, 2015. Failure to do so may result in a dismissal of this
action.
3.

Defendant shall respond to the amended complaint in accordance with the

requirements of Rule 15 of the Federal Rules of Civil Procedure.
DONE AND ORDERED at Jacksonville, Florida this 19th day of November, 2015.

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Counsel of Record