Bell v. Cross et al

Filing 80

ORDER granting in part 72 motion to dismiss; granting in part 73 motion to dismiss; granting in part 79 motion to amend/correct. The 20 First Amended Complaint is dismissed without prejudice on the grounds that it is a shotgun pleading. Plaintiff/Relator shall file a Second Amended Complaint within seven (7) days of this Order. Signed by Judge James D. Whittemore on 7/19/2019. (AKA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
and STATE OF FLORIDA ex rel. DELIA BELL,
Plaintiffs,
vs.

Case No. 8:16-cv-961-T-27AEP

KARL CROSS, et al.,

Defendants.
____________________________________/
ORDER
BEFORE THE COURT are Defendants Cross Gardens Care Center, LLC, Cross Pointe Care
Inc, LLC, Cross Senior Care Inc, LLC, and Senior Care 120, LLC’s Motion to Dismiss Relator Delia
Bell’s First Amended Complaint or, Alternatively, to Transfer Venue (Dkt. 72); Defendants Joyce
Plourde and 190 Golden LLC’s Motion to Dismiss the First Amended Complaint (Dkt. 73); and
Plaintiff Delia Bell’s Amended Motion for Leave to File Second Amended Complaint (Dkt. 79).
Upon consideration, the Defendants’ motions (Dkts. 72, 73) are GRANTED on the grounds that
Plaintiff’s First Amended Complaint is a shotgun complaint and will be dismissed.
A complaint should contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This Rule does not require detailed factual allegations,
but a plaintiff’s complaint must contain more than unadorned or conclusory accusations of harm.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must “plead all facts establishing an
entitlement to relief with more than ‘labels and conclusions’ or a ‘formulaic recitation of the elements
of a cause of action.’” Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th Cir. 2012) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “A claim has facial plausibility when the plaintiff

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pleaded factual content allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Plaintiff’s First Amended Complaint is a shotgun pleading that incorporates all of the
preceding paragraphs in each claim for relief, making it “‘virtually impossible to know which
allegations of fact are intended to support which claim(s) for relief.’” Paylor v. Hartford Fire Ins. Co.,
748 F.3d 1117, 1125-26 (11th Cir. 2014) (quoting Anderson v. District Bd. of Trs. of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996)). Moreover, the First Amended Complaint “assert[s] multiple
claims against multiple defendants without specifying which of the defendants are responsible for
which acts or omissions, or which of the defendants the claim is brought against.” Weiland v. Palm
Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015). The Eleventh Circuit has
recognized the impropriety of shotgun pleadings for years. See id.; Jackson v. Bank of America, N.A.,
898 F.3d 1248 (11th Cir. 2018).
Apparently anticipating that one or more of its claims do not include sufficient factual
allegations, Plaintiff requests leave to amend. See (Dkt. 79). In this Circuit, “a district court should
give a plaintiff an opportunity to amend his complaint rather than dismiss it when it appears that a
more carefully drafted complaint might state a claim upon which relief could be granted.” Friedlander
v. Nims, 755 F.2d 810, 813 (11th Cir. 1985).1 Notwithstanding, Plaintiff’s proposed Second Amended
Complaint contains the same hallmarks of a shotgun pleading found in the First Amended Complaint.
Plaintiff’s Amended Motion for Leave to File a Second Amended Complaint (Dkt. 79), therefore, is
GRANTED to the extent that Plaintiff may file a Second Amended Complaint that complies with
Rules 8(a), 9(b), and 11(b) of the Federal Rules of Civil Procedure.
Accordingly, the First Amended Complaint (Dkt. 20) is DISMISSED without prejudice.

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And the proper remedy for a shotgun complaint is to strike the complaint and order repleader. Weiland v. Palm
Beach Cnty. Sheriff’s Office, 792 F.3d 1313, 1321 n.10 (11th Cir. 2015) (citing Wagner v. First Horizon Pharm. Corp.,
464 F.3d 1273, 1280 (11th Cir. 2006)).

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Plaintiff/Relator shall file a Second Amended Complaint within seven (7) days of this Order. Failure
to do so will result in dismissal of this action without further notice.
DONE AND ORDERED this 19th day of July, 2019.

/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge
Copies to:
Counsel of Record; Counsel for the United States, the State of Florida, and Relators

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