Strode et al v. Zimmer Biomet Holdings, Inc. et al

Filing 3

ORDER striking 1 Complaint. Plaintiffs shall file an amended complaint which complies with this Order on or before July 16, 2018. See Order for details. Signed by Judge Marcia Morales Howard on 7/2/2018. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SHERYL STRODE and
JAMES STRODE,
Plaintiffs,
Case No. 3:18-cv-807-J-34JRK
vs.
ZIMMER BIOMET HOLDINGS, INC.,
ZIMMER PRODUCTION, INC., and
ZIMMER US, INC.,
Defendants.
/
ORDER
THIS CAUSE is before the Court sua sponte. Federal courts are courts of limited
jurisdiction and therefore have an obligation to inquire into their subject matter jurisdiction.
See Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). This
obligation exists regardless of whether the parties have challenged the existence of subject
matter jurisdiction. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking”). “In a given case, a federal district
court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction
under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. §
1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading,
Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
On June 25, 2018, Plaintiffs initiated this action by filing a seven-count complaint
against Defendants (Doc. 1; Complaint). In the Complaint, Plaintiffs assert that the Court

has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332 because “this lawsuit
is between citizens of different states and the amount in controversy exceeds $75,000.00,
exclusive of costs and interest.” See Complaint ¶ 8. Specifically, Plaintiffs allege that they
are “Florida residents,” and that Defendants are all Indiana corporations with their principal
places of business in Indiana. Id. ¶¶ 3-6, 8. These allegations are insufficient to establish
the citizenship of Plaintiffs. As such, the Court is unable to determine whether it has
diversity jurisdiction over this action.
For a court to have diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “all
plaintiffs must be diverse from all defendants.” Univ. of S. Ala., 168 F.3d at 412. To
establish diversity over a natural person, a complaint must include allegations of the
person’s citizenship, not where he or she resides. See Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994). A natural person’s citizenship is determined by his or her “domicile,”
or “the place of his true, fixed, and permanent home and principal establishment . . . to
which he has the intention of returning whenever he is absent therefrom.” McCormick v.
Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (quotation and citation omitted). Here,
the Complaint discloses Plaintiffs’ residence, but does not identify their domicile or state of
citizenship. “Citizenship, not residence, is the key fact that must be alleged in the complaint
to establish diversity for a natural person.” Taylor, 30 F.3d at 1367 (emphasis supplied);
see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (“‘Domicile’ is
not necessarily synonymous with ‘residence’”). Accordingly, the Court finds that Plaintiffs
have not alleged the facts necessary to establish the Court’s diversity jurisdiction over this
case.

In addition, the Court finds that the Complaint constitutes an impermissible “shotgun
pleading.” A shotgun complaint contains “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.” See Weiland v.
Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 & n.11 (11th Cir. 2015) (collecting
cases). As a result, “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 seven counts in the Complaint incorporates by reference all of the allegations
of the preceding counts. See generally Complaint.
In the Eleventh Circuit, shotgun pleadings of this sort are “altogether unacceptable.”
Cramer v. State of Fla., 117 F.3d 1258, 1263 (11th Cir. 1997); see also Cook v. Randolph
County, 573 F.3d 1143, 1151 (11th Cir. 2009) (“We have had much to say about shotgun
pleadings, none of which is favorable.”) (collecting cases). Indeed, the Eleventh Circuit
has engaged in a “thirty-year salvo of criticism aimed at shotgun pleadings, and there is no
ceasefire in sight.” See Weiland, 792 F.3d at 1321 & n.9 (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.” Cramer, 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 Weiland, 792 F.3d at 1321 n.10
(“[W]e have also advised that when a defendant fails to [move for a more definite
statement], the district court ought to take the initiative to dismiss or strike the shotgun
pleading and give the plaintiff an opportunity to replead.”).
In light of the foregoing, the Court will give Plaintiffs an opportunity to file an
amended complaint which properly establishes diversity of citizenship between the parties
such that this Court has jurisdiction over this action,1 and corrects the shotgun nature of
the Complaint.
ORDERED:
1.

Plaintiffs’ Complaint (Doc. 1) is STRICKEN.

2.

Plaintiffs shall file an amended complaint which complies with this Order on
or before July 16, 2018. Failure to do so may result in a dismissal of this
action.

1

Indeed, carefully ascertaining the citizenship of the parties and whether the Court has subject matter
jurisdiction over this action is more than just an academic exercise, as is evident from two recent Eleventh
Circuit cases. See Thermoset Corp. v. Bldg. Materials Corp of Am., 849 F.3d 1313, 1315-16 (11th Cir. 2017)
(vacating summary judgment order after three years of litigation where court determined on appeal that the
pleadings below had not sufficiently alleged the citizenship of a defendant limited liability company, and upon
further inquiry, found that the defendant limited liability company had a non-diverse member); see also
Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, at 1222, 1228 (11th Cir. 2017) (discussing
whether sanctions were warranted in a case where summary judgment was reversed on appeal after the
appellate court discovered that the pleadings did not sufficiently allege the citizenship of the plaintiff LLC,
leading to the realization that there was no diversity jurisdiction) (“While the requirements of diversity
jurisdiction in this scenario are complicated, they are the law. No party in this case acted with bad intentions,
but the result was a colossal waste of time and effort. We trust that the damage done to the parties' credibility,
finances, and time is enough of a sanction to curb their conduct and to serve as a warning to future diversity
jurisdiction litigants. In the end, when the parties do not do their part, the burden falls on the courts to make
sure parties satisfy the requirements of diversity jurisdiction. We must be vigilant in forcing parties to meet
the unfortunate demands of diversity jurisdiction in the 21st century.”).

3.

Defendants 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 on July 2, 2018.

lc11
Copies to:
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