Smiley v. Nationstar Mortgage LLC

Filing 18

ORDER ATTACHED denying as moot 17 Motion to Dismiss. Plaintiff shall file an amended complaint within fifteen (15) days, and Defendant shall file its response within fifteen (15) days of service. Signed by Judge Richard A. Lazzara on 7/1/2016. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NATHANIEL SMILEY,
Plaintiff,
v.

CASE NO: 8:16-cv-1065-T-26AEP

NATIONSTAR MORTGAGE LLC,
d/b/a Champion Mortgage Company, and
VERTICAL LEND, INC.,
Defendants.
/

ORDER
Defendant Nationstar Mortgage, LLC, has filed a motion to dismiss Plaintiff’s
amended complaint, thereby prompting this Court to examine its allegations. In the
Court’s view, the Plaintiff’s amended complaint, as was his initial complaint, is the
quintessential shotgun pleading that has been condemned on numerous occasions by the
Eleventh Circuit Court of Appeals. See Davis v. Coca-Cola Bottling Co. Consolidated,
516 F.3d 955, 979 n.54 (11th Cir. 2008) (collecting cases).1 As in Strategic Income Fund,

1

The Davis Court, speaking through Judge Tjoflat, also engaged in a thorough
and extensive discussion of the havoc that such pleadings wreak on the judicial system,
litigants, and the public at large. 516 F.3d at 979-84; see also Weiland v. Palm Bch. Cnty.
Sheriff's Office, 792 F.3d 1313, 1321-22 (11th Cir. 2015) (recounting the Eleventh
Circuit's history dealing with shotgun pleadings on appeal and grouping such pleadings
into four categories).

L.L.C. v. Spear, Leeds & Kellogg Corporation, 305 F.3d 1293, 1295 (11th Cir. 2002), the
complaint “contains several counts, each one incorporating by reference the allegations of
its predecessors, leading to a situation where most of the counts (i.e., all but the first)
contain irrelevant factual allegations and legal conclusions.” Under these circumstances,
the Court has the inherent authority, even if not requested by opposing counsel, to
demand a repleader sua sponte. See Lumley v. City of Dade City, Fla., 327 F.3d 1186,
1192 n.13 (11th Cir. 2003) (suggesting that when faced with a shotgun pleading a district
court, acting on its own initiative, should require a repleader); Magluta v. Samples, 256
F.3d 1282, 1284 n.3 (11th Cir. 2001) (noting that district courts confronted by shotgun
complaints have the inherent authority to demand repleader sua sponte).
Although the Plaintiff has had one opportunity to file an amended complaint, the
Court, out of an abundance of caution, will allow him one more opportunity to file a
complaint which conforms to the pleading requirements of Federal Rules of Civil
Procedure 8(a) and 9(b).2
ACCORDINGLY, it is ORDERED AND ADJUDGED as follows:
1)

Plaintiff shall replead the complaint within fifteen (15) days of this order.

2)

Defendant shall file its responses within fifteen (15) days of service.

3)

The Motion to Dismiss Amended Complaint (Dkt. 17) is denied as moot.

2

The Court agrees with the Defendant’s contention that Plaintiff has wholly
failed to plead fraud against it with the particularity required by Rule 9(b).
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DONE AND ORDERED at Tampa, Florida, on July 1, 2016.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:

Counsel of Record

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