Winsey-Rudd v. Robertson, Anschutz & Schneid, P.L.
ORDER: Defendant Robertson, Anschutz & Schneid, P.L.'s Motion to Dismiss or for More Definite Statement (Doc. # 7 ) is granted to the extent provided. Pro se Plaintiff Christina A. Winsey-Rudd's Complaint (Doc. # 1 ) is dismissed, wit h leave to amend. Should Winsey-Rudd elect to file an amended complaint, she must do so by November 14, 2016. If an amended complaint is not filed by November 14, 2016, the Court will close this case. Signed by Judge Virginia M. Hernandez Covington on 10/12/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CHRISTINA A. WINSEY-RUDD,
Case No. 8:16-cv-2288-T-33TBM
ROBERTSON, ANSCHUTZ & SCHNEID,
This matter comes before the Court in consideration of
Defendant Robertson, Anschutz & Schneid, P.L.’s Motion to
Dismiss or for More Definite Statement (Doc. # 7), filed on
September 16, 2016. Pro se Plaintiff Christina A. Winsey-Rudd
filed a response in opposition on September 29, 2016. (Doc.
# 14). The Court grants the Motion to the extent set forth
Winsey-Rudd brought this action on August 10, 2016,
alleging Robertson, Anschutz & Schneid violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq. The
Complaint appears to allege Robertson, Anschutz & Schneid
violated §§ 1692c, 1692d, 1692e, 1692f, and 1692g. However,
as discussed more fully below, the Court finds the Complaint
to be deficient.
On a Rule 12(b)(6) motion to dismiss, this Court accepts
as true all the allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (stating “[o]n a motion to dismiss, the facts
therefrom are taken as true”). However:
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
Furthermore, “[a] party may move for a more definite
statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e).
The moving party “must point out the defects complained of
and the details desired.” Id. In determining whether to
Cooperativa de Seguros Multiples de Puerto, No. 8:12-cv-849T-33TGW, 2013 WL 4047013, at *2 (M.D. Fla. Aug. 9, 2013).
Rule 8 requires that a pleading contain “a short and plain
statement of the claim showing that the pleader is entitled
satisfies the notice requirement of Rule 8 is sufficient to
endure a Rule 12(e) motion . . . .” Morales, 2013 WL 4047013,
In an FDCPA action, “a Plaintiff must prove that: ‘(1)
the plaintiff has been the object of collection activity
arising from consumer debt, (2) the defendant is a debtor
collector as defined by the FDCPA, and (3) the defendant has
engaged in an act or omission prohibited by the FDCPA.’”
Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361,
1366 (M.D. Fla. 2002) (citations omitted).
The Court construes pro se pleadings liberally and holds
them to a less stringent standard than pleadings drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003) (quoting Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998)). This liberal construction “does not
give a court license to serve as de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to
sustain an action.” GJR Invs., Inc. v. Cty. of Escambia, 132
overruled in part on other grounds as recognized in Randall
v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Pro se litigants
must follow the procedural rules. Id.
A defendant should move a district court——and district
courts, notwithstanding a failure to so move, are under an
independent obligation to order a repleader——when faced with
a shotgun pleading. Barr v. One Touch Direct, LLC, No. 8:15cv-2391-T-33MAP, 2016 WL 1621696, at *5 (M.D. Fla. Apr. 22,
Schneid argues that all but possibly two allegations are
conclusory. Upon review, the Court agrees.
The Eleventh Circuit has “identified four rough types or
categories of shotgun pleadings,” which, most pertinent to
connected to any particular cause of action,” or that do “not
separate[e] into a different count each cause of action or
claim for relief.” Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1322-23 (11th Cir. 2015). WinseyRudd’s
ambiguous as to the facts supporting Winsey-Rudd’s claim;
indeed, the reader is left wondering whether the violation
rests on Robertson, Anschutz & Schneid’s sending of notices
bearing its letterhead or on Robertson, Anschutz & Schneid
filing of a foreclosure action, or both. The Complaint also
does not separate out each alleged violation of the FDCPA
that Winsey-Rudd may be attempting to assert.
Accordingly, the Court finds it appropriate to dismiss
the Complaint without prejudice, and to afford her leave to
file an amended complaint. In so doing, the Court notes that
the Federal Rules of Civil Procedure “work together ‘to
require the pleader to present [her] claims discretely and
succinctly . . . .’” Fikes v. City of Daphne, 79 F.3d 1079,
1082 (11th Cir. 1996) (citation omitted).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Robertson, Anschutz & Schneid, P.L.’s Motion
to Dismiss or for More Definite Statement (Doc. # 7) is
GRANTED to the extent provided above.
Pro se Plaintiff Christina A. Winsey-Rudd’s Complaint
(Doc. # 1) is DISMISSED, with leave to amend. Should
Winsey-Rudd elect to file an amended complaint, she must
do so by November 14, 2016.
If an amended complaint is not filed by November 14,
2016, the Court will close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this
12th day of October, 2016.
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