Longhini v. Benzer International Kissimmee, LLC. et al

Filing 23

ORDER denying 20 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 10/18/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DOUGLAS LONGHINI,
Plaintiff,
v.

Case No. 6:17-cv-1444-Orl-37KRS

BENZER INTERNATIONAL
KISSIMMEE, LLC; GALA
ENTERPRISES OF CENTRAL
FLORIDA, INC.; and EAST COAST
WAFFLES, INC.,
Defendants.
_____________________________________
ORDER
Plaintiff initiated this action against Defendants alleging violations of the
American with Disabilities Act (“ADA”). (Doc. 1 (“Complaint”).) Defendant Benzer
International Kissimme, LLC (“Benzer”) then moved for dismissal of the claims asserted
against it under Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for a more
definite statement under Rule 12(e). (Doc. 11 (“First MTD”).) When Plaintiff failed to
respond to the First MTD, the Court granted it, dismissed the Complaint without
prejudice, and permitted Plaintiff leave to file an amended pleading. (Doc. 16.)
Plaintiff filed his Amended Complaint on September 27, 2017. (Doc. 19.) Three
days later, Benzer moved for dismissal or, alternatively, for a more definite statement.1

On October 11, 2017, Defendant East Coast Waffles, Inc. (“ECW”) filed a notice
of joinder in the Second MTD. (Doc. 22.)
1

-1-

(Doc. 20 (“Second MTD”).) Plaintiff again failed to respond. See Local Rule 3.01(b)
(requiring that a party opposing a motion file a response within fourteen days after
receiving service of the motion).
Although the Court prefers a response, the Second MTD is due to be denied as
meritless. 2 Benzer and ECW argue only that the Amended Complaint is a “single-count”
shotgun pleading, making it “impossible to discern whether Plaintiff is suing all, some,
or only one defendant.” (Doc. 20, pp. 2–3.) Even a cursory review of the Amended
Complaint dispels any concern that it is a shotgun pleading. (See Doc. 19.) In three
separate counts, Plaintiff sets forth his allegations against Benzer, Gala Enterprises of
Central Florida, Inc. (“Gala”), and ECW, respectively. (Id. ¶¶ 21–48.) Indeed, it is hard to
imagine a clearer delineation of whom Plaintiff is suing and why.
Equally baseless is the request for a more definite statement. (Doc. 20, p. 4.) Benzer
and ECW argue that Plaintiff’s prayer for relief makes “it is impossible to know” what
remedy Plaintiff is seeking against which Defendant. (Id.) Again, this impossibility
argument cannot stand against the Amended Complaint that clearly seeks injunctive
relief against Benzer, ECW, and Gala, who are allegedly jointly and severally liable for
the asserted ADA violations. (Doc. 19, ¶¶ 20, 62.)
Accordingly, it is ORDERED AND ADJUDGED that Defendant Benzer
International Kissimmee, LLC’s Motion to Dismiss Amended Complaint or, in the

2 Under

the circumstances, Plaintiff’s failure to respond does not adversely impact
his suit. But, where the disposition of a motion is unclear, the nonmoving party does itself
a disservice in failing to respond because the Court cannot act as a stand-in advocate.
Plaintiff’s counsel should heed this advice moving forward.
-2-

Alternative, Motion for More Definite Statement and Supporting Memorandum of Law
(Doc. 20) is DENIED. Defense counsel should note that the Court considered the
imposition of sanctions due to the frivolous nature of the filing. Hopefully, this warning
will suffice.
DONE AND ORDERED in Chambers in Orlando, Florida, on October 18, 2017.

Copies to:
Counsel of Record

-3-