McGill et al v. Pinnacle Financial Corporation et al

Filing 23

ORDER striking 3 First Amended Complaint; denying as moot 13 Motion to Dismiss; and setting deadline of January 11, 2013, for the filing of a second amended complaint. Signed by Judge John Antoon II on 12/14/2012. (EK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
THOMAS C. MCGILL, VICKIE D.
MCGILL,
Plaintiffs,
-vs-

Case No. 6:12-cv-1142-Orl-28TBS

PINNACLE FINANCIAL CORPORATION,
IMPAC MORTGAGE HOLDINGS, INC.,
IMH ASSETS CORPORATION, IMPAC
CMB TRUST SERIES 2007-A,
CHRISTIANA BANK AND TRUST
COMPANY, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
("MERS"), IMPAC FUNDING
CORPORATION, ALL PERSONS
CLAIMING BY, THROUGH OR UNDER
SUCH PERSON, ALL PERSONS
UNKNOWN, CLAIMING ANY LEGAL OR
EQUITABLE TITLE, ESTATE, LIEN OR
INTEREST IN THE PROPERTY
DESCRIBED IN THE COMPLAINT
ADVERSE TO PLAINTIFFS TITLE
THERETO, DOES 1-20, INCLUSIVE,
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Defendants.
______________________________________

ORDER
This cause is before the Court on Defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint (Doc. 13) and the pro se Plaintiffs’ Opposition (Doc. 15) thereto. As set forth
below, the Amended Complaint will be stricken, but Plaintiffs will be afforded an opportunity
to replead their claims.
Generally, “[a] pleading that states a claim for relief 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).
“‘[D]etailed factual allegations’” are not required, but “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
Twombly, 550 U.S. at 570).
“[P]ro se pleadings are held to a less strict standard than pleadings filed by lawyers
and thus are construed liberally.” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
However, such pleadings “must still comply with procedural rules governing the proper form
of pleadings.” Hopkins v. St. Lucie Cnty. Sch. Bd., 399 F. App’x 563, 565 (11th Cir. 2010).
Plaintiffs’ 32-page First Amended Complaint contains six counts:

wrongful

foreclosure, fraud, quiet title, declaratory relief, violation of the Real Estate and Settlement
Procedures Act (“RESPA”), and violation of the Truth in Lending Act (“TILA”). The First
Amended Complaint is what is commonly referred to as a “shotgun pleading,” in which each
count incorporates by reference all of the previous allegations and fails to describe which
allegations are actually germane to the count. Such pleadings make it “virtually impossible
to know which allegations of fact are intended to support which claim(s) for relief.” Anderson
v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). The Eleventh
Circuit has described pleadings of this sort as “altogether unacceptable,” Cramer v. State of
Fla., 117 F.3d 1258, 1263 (11th Cir. 1997), and has stated that district courts faced with such
complaints should strike them and require repleading, id.
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Accordingly, the Court will strike Plaintiffs’ First Amended Complaint and allow
Plaintiffs to file a second amended complaint. The second amended complaint shall comply
with the requirements of the Federal Rules of Civil Procedure—particularly, Rules 8 and 9(b).
Plaintiffs shall use short, plain statements to support each claim they seek to bring, and they
shall not incorporate by reference each paragraph appearing before each claim.
Additionally, Plaintiffs shall include supporting facts sufficient to state facially plausible
claims, and Plaintiffs shall set forth the basis for this Court’s subject matter jurisdiction for
each claim.
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:
1. Plaintiffs’ First Amended Complaint (Doc. 3) is STRICKEN.
2. Defendants’ Motion to Dismiss (Doc. 13) is DENIED as moot.
3. Plaintiffs may file a second amended complaint if they are able to state one or
more viable causes of action with sufficient particularity. The deadline for such filing is
Friday, January 11, 2013.
DONE and ORDERED in Orlando, Florida this 14th day of December, 2012.

Copies furnished to:
Counsel of Record
Unrepresented Party

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