Homaday v. Smith and Nephew, Inc. et al

Filing 22

ORDER dismissing 3 Amended Complaint without prejudice; denying as moot 4 Motion to dismiss for lack of jurisdiction; denying as moot 10 motion to dismiss or for more definite statement; denying as moot 17 motion to stay. Signed by Judge James D. Whittemore on 5/30/2013. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RUTH MARSAR, individually, and
as Personal Representative of the
Estate of Joseph Richard Marsar, Jr.,
Plaintiff,

v.

CASE NO: 8:13-cv-01244-T-27TGW

SMITH AND NEPHEW, INC.,
a Tennessee corporation, et al.,
Defendants.
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ORDER
TIDS CAUSE is before the Court sua sponte. Plaintiffs Amended Complaint (Dkt. 3), filed
against eight corporate and individual defendants, is 57 pages long, includes six claims against one
or more of the Defendants, more than three pages of "Summary," and 193 separate allegations
(exclusive of sub-parts). Moreover, each count of the Amended Complaint purports to incorporate
all prior allegations irrespective of their relevance to a particular count.
Rule 8(a)(2), Federal Rules of Civil Procedure, authorizes "a short and plain statement of the
claims showing that the pleader is entitled to relief." The Amended Complaint contravenes Rule 8's
requirement by containing numerous repetitive and unnecessary factual allegations and legal
conclusions, including detailed citations to the Code of Federal Regulations and quotations from
various reports and other documents purportedly attached as exhibits to the Amended Complaint. 1
In addition, by incorporating all preceding paragraphs of each preceding count, the Amended

While certain exhibits appear to have been attached to the original complaint, there are no exhibits attached
to the Amended Complaint.
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Complaint violates Rule 10 and is accurately described as "a quintessential example of what we and
other courts have characterized as 'shotgun pleading.'" See BMC Industries, Inc. v. Barth Industries,

Inc., 160 F.3d 1322, 1327, n. 6 (11th Cir. 1998) (citing Cramer v. Florida, 117 F.3d 1258, 1263
(11th Cir.1997); Mason v. Allen (In re Allen),150 B.R. 21, 22 (Bankr. E.D. Va.1993)).
The Amended Complaint also contains other pleading and substantive deficiencies. For
example, while the Amended Complaint purports to be brought under the Florida Drug & Cosmetic
Act, it asserts common law claims for negligence, strict liability, and breach of implied warranty.
In addition, the Amended Complaint purports to lump various defendants together without providing
factual allegations establishing the purported misconduct of each separate Defendant. See, e.g.,

Lane v. Capital Acquisitions & Mgmt. Co., 04-60602 CIV, 2006 WL 4590705, at *5 (S.D. Fla.
2006).
The Amended Complaint has already resulted in various motions to dismiss and will likely
result in prolonged litigation focusing on the sufficiency of the pleadings, rather than on the merits
of the dispute from which the allegations arise. It effectively sets the stage "for the immense and
unnecessary expenditure of resources" which has been repeatedly criticized in this Circuit. See

Byrne v. Nezhat, 261 F .3d 1075, 1129- 31 (11th Cir. 2001 )("Shotgun pleadings, if tolerated, harm
the court by impeding its ability to administer justice. The time a court spends managing litigation
framed by shotgun pleadings should be devoted to other cases waiting to be heard."); see also

Wagner v. First Horizon Pharmaceutical Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) ("Such
pleadings divert already stretched judicial resources into disputes that are not structurally prepared
to use those resources efficiently.").
Litigation of this nature places an undue burden on the Court's docket. See Byrne, 261 F.3d
at 1130 ("[S]hotgun pleadings wreak havoc on the judicial system."). It is likely to drive up the cost
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of this litigation, broaden discovery unnecessarily, cause avoidable discovery disputes, and impede
the Court's ability to resolve the dispute efficiently. See Davis v. Coca-Cola Bottling Co. Canso/.,
516 F.3d 955, 981-83 (11th Cir. 2008) ("[T]he mischief shotgun pleadings causes undermines the
public's respect for the courts-the ability of the courts to process efficiently, economically, and fairly
the business placed before them."). The need for judicial intervention is therefore apparent, even
at this early stage of the litigation.
Accordingly, it is ORDERED AND ADJUDGED:
(1)

The Amended Complaint (Dkt. 3) is DISMISSED without prejudice. Plaintiff is

granted leave to file a second amended complaint within twenty (20) days. Failure to timely file
a second amended complaint will result in dismissal of Plaintiffs claims with prejudice.
(2)

Sterling's Motion to Dismiss Amended Complaint or, Alternatively, for a More

Definite Statement (Dkt. 10) is DENIED as moot.
(3)

Defendants, Donna Petroff and Eric Haertle' s Motion to Dismiss for Lack ofPersonal

Jurisdiction (Dkt. 4) is DENIED as moot.
(4)

Defendants, Eric Haertle and Donna Petroffs Motion to Stay Discovery Pending

Disposition of their Motion to Dismiss and the Disposition of a Motion Filed in the Triad
Bankruptcy (Dkt. 17) is DENIED without prejudice. See Fed. R. Civ. P. 26(d)(l).
DONE AND ORDERED this

1'J..

30 -day of May, 2013.

Copies to:
Counsel of Record

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