Kendall v. Boston Scientific Corporation
ORDER granting 4 motion to dismiss. On or before December 18, 2017, Plaintiff may file an Amended Complaint. Signed by Judge Roy B. Dalton, Jr. on 12/6/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 6:17-cv-1888-Orl-37GJK
In the instant action, Defendant moves to dismiss Plaintiff’s Complaint. (Doc. 4
(“Motion”).) Defendant asserts that the Complaint: (1) is an impermissible shotgun
pleading; (2) fails to allege a plausible claim for relief; and (3) does not satisfy the
heightened pleading standards of Federal Rule of Civil Procedure 9(b) as applicable (Id.
at 2), and Plaintiff opposed (Doc. 13). As explained below, the Court finds that the
Complaint is due to dismissed as a shotgun pleading.
Rules 8 and 10 of the Federal Rules of Civil Procedure set forth minimum
requirements for complaints filed in this Court. At a minimum, such filings must:
(1) include “short and plain” statements of the pleader’s claims set forth in “numbered
paragraphs each limited as far as practicable to a single set of circumstances;” and
(2) provide more than mere labels, legal conclusions, or formulaic recitation of the
elements of a claim. See Fed. R. Civ. P. 8(a), 8(d), 10(b); see also Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); Local Rules 1.05, 1.06. When a plaintiff fails to follow Rules 8 and
10, the result is an impermissible shotgun pleading. See Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1320 (11th Cir. 2015); Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001).
The “most common type” of shotgun pleading “is a complaint containing multiple
counts where each count adopts the allegation of all preceding counts.” Weiland,
792 F.3d at 1321. Shotgun pleadings also may “begin with a long list of general
allegations” that are “incorporated by reference into each count of the complaint.” See
Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1333 (11th Cir. 1998);
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359 n.9 (11th Cir. 1997) (noting the “alltoo-typical shotgun pleading” where the first paragraph of each count “incorporates by
reference” all of the factual allegations).
The U.S. Court of Appeals for the Eleventh Circuit warns that actions founded on
shotgun pleadings should not be permitted because “issues are not joined, discovery is
not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and
society loses confidence in the court’s ability to administer justice.” See Anderson v. Dist.
Bd. of Trs. of Cent. Fla. Cmty. College, 77 F.3d 364, 367 (11th Cir. 1996); see also Chapman AI
Trans., 229 F.3d 1012, 1027 (11th Cir. 2000) (“We have frequently railed about the evils of
shotgun pleadings and urged district courts to take a firm hand . . . .”). Heeding this
warning, when confronted with a shotgun complaint, district courts must require the
party to replead. See Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127–28 (11th Cir. 2014)
(criticizing district court for failing to police shotgun pleadings); Starship Enters. of Atlanta,
Inc. v. Coweta Cty. Ga., 708 F.3d 1243, 1250 n.7 (11th Cir. 2013) (explaining that shotgun
pleadings may constitute “an abusive tactic” of litigation).
The 43-page Complaint includes 222 numbered paragraphs. (Doc. 2.) Paragraphs
19 through 40 set out general factual allegations, while paragraphs 41 through 57 are
“Plaintiff Specific Factual Allegations.” (Id. ¶¶ 19–57.) Paragraphs 70 through 222 are
divided into twelve counts, eleven of which Plaintiff “repeats, reiterates, and re-alleges
each and every allegation contained” in the Complaint. (Id. ¶¶ 70, 81, 96, 102, 129, 146,
157, 165, 183, 203, 219.) This is impermissible. So the Court finds that Defendant has
justifiably complained about having to respond to Plaintiff’s shotgun allegations. (Doc.
4.) Thus, Plaintiff must replead.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
Defendant Boston Scientific’s Motion to Dismiss Memorandum of Law in
Support (Doc. 4) is GRANTED.
The Complaint (Doc. 2) is DISMISSED WITHOUT PREJUDICE as a
On or before December 18, 2017, Plaintiff may file an Amended Complaint
that remedies the deficiency identified in this Order.
Failure to file a timely amended pleading will result in closing of this action
without further notice.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 6th 2017.
Counsel of Record
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