TruthInAdvertisingEnforcers.com v. Dish Network, L.L.C. et al

Filing 53

ORDER: Plaintiff's Second Amended Complaint is stricken. Plaintiff is directed to file a Third Amended Complaint on or before September 12, 2016, failing which, this case will be dismissed. Signed by Judge Virginia M. Hernandez Covington on 8/31/2016. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRUTHINADVERTISINGENFORCERS.COM,
aka Gerald Collette,
Plaintiff,

v.

Case No. 8:16-cv-2366-T-33JSS

DISH NETWORK, LLC, GODISH.COM,
LLC, INFINITYE SALES GROUP, LLC,
FRONTIER COMMUNICATIONS, INC.,
HUGHES NETWORK SYSTEMS, LLC,
and EARTHLINK, LLC,
Defendants.
________________________________/
ORDER
Before

the

Court

is

pro

se

Plaintiff

TruthInAdvertisingEnforcers.com’s Second Amended Complaint.
(Doc. # 48).
directs

The Court sua sponte strikes the complaint and

Plaintiff

to

file

a

Third

Amended

Complaint

as

discussed below.
Discussion
On

June

26,

2016,

TruthInAdvertisingEnforcers.com,

through its sole proprietor Gerald Collette, filed an action
against Dish Network, L.L.C., GoDish.com, LLC, Infinity Sales
Group,

LLC,

Frontier

Communications,

Inc.,

Communication
Hughes
1

Network

Corporation,
Systems,

Charter

LLC,

and

Earthlink,
including

LLC,
the

alleging
federal

violations

Racketeer

of

various

Influenced

statutes,

and

Corrupt

Organizations (RICO) Act and the Florida RICO Act. (Doc. #
2). Defendant Infinity Sales Group timely removed the action
to federal court. (Doc. # 1). Plaintiff filed its First
Amended as a matter of course on August 25, 2016. (Doc. #
18).
On

August

31,

2016,

Plaintiff,

whom

the

Court

has

preliminarily found may proceed pro se, filed a 50-page, 292
paragraph Second Amended Complaint against the Defendants.
(Doc. # 48). The Second Amended Complaint contains a total of
128 causes of action, comprising 24 counts against the two
‘Agency

Defendants,’GoDish.com,

LLC,

and

Infinity

Sales

Group, LLC, and 104 counts against the remaining ‘Respondeat
Superior

Defendants.’(Id.)

Under

each

count

heading,

Plaintiff “restates all the foregoing allegations,” for a
total of 35 incorporations of prior allegations by reference.
(Id. at ¶¶ 55, 63, 70, 75, 80, 87, 92, 101, 106, 114, 119,
127, 132, 140, 148, 153, 161, 166, 171, 178, 183, 192, 197,
200, 205, 208, 211, 225, 233, 238, 246, 250, 258, 266, 274).
The numerous counts and incorporations by reference of all
the foregoing allegations make it difficult for defendants to

2

sift through irrelevant allegations to determine the nature
of the claims against them.
Therefore, Plaintiff’s Second Amended Complaint is a
shotgun pleading of the type condemned on numerous occasions
by the Eleventh Circuit. See Davis v. Coca-Cola Co., 516 F.3d
955, 979 n.54 (11th Cir. 2008)(collecting cases). The failure
to identify claims with sufficient clarity constitutes a
“shotgun pleading.” Byrne v. Nezhat, 261 F.3d 1075, 1129-30
(11th

Cir.2001).

several

counts,

“The
each

typical
one

shotgun

complaint

incorporating

by

contains

reference

the

allegations of its predecessors, leading to a situation where
most

of

the

irrelevant

counts

factual

(i.e.,

all

allegations

but
and

the
legal

first)

contain

conclusions.”

Strategic Income Fund v. Spear, Leeds & Kellogg, 305 F.3d
1293, 1295 at n.9 (11th Cir. 2002); Wagner v. First Horizon
Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) (“Shotgun
pleadings

are

allegation

by

those

that

reference

incorporate

into

each

every

subsequent

antecedent
claim

for

relief.”). In such cases, it is “virtually impossible to know
which allegations of fact are intended to support which
claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent.
Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). A

3

defendant faced with such a complaint is not expected to frame
a responsive pleading. Id.
“The

Federal

Rules

of

Civil

Procedure,

pertinent

precedent, sound principles of litigation management, and
fairness

to

the

opposing

party

almost

uniformly

commend

requiring a litigant to submit a complaint that is not a
‘shotgun

pleading’

and

that

otherwise

complies

with

the

salutary rules of pleading.” Stevens v. Barringer, No. 2:11cv-697, 2013 U.S. Dist. LEXIS 251, at *4 (M.D. Fla. Jan. 2,
2013).
“The Court possesses the inherent authority, even if not
requested by the opposing party, to demand a repleader sua
sponte.” Tomilson v. Wilkinson, No. 8:10-cv-854, 2010 U.S.
Dist. LEXIS 141414, at *2 (M.D. Fla. Apr. 15, 2010).

The

Eleventh Circuit has recommended that, when faced with a
shotgun

pleading,

a

district

court,

acting

on

its

own

initiative, should require repleader. See, e.g., Lumley v.
City of Dade City, 327 F.3d 1186, 1192 n.13 (11th Cir.
2003)(“Each count incorporates by reference the allegations
of the preceding counts and thus includes allegations that
are irrelevant to the cause(s) of action the count ostensibly
states. . . . [We] suggest that, when faced with such a
pleading, the district court, acting on its own initiative,
4

require a repleader.”); Magluta v. Samples, 256 F.3d 1282,
1284 n.3 (11th Cir. 2001)(“district courts confronted by
[shotgun] complaints have the inherent authority to demand
repleader sua sponte.”).
Although pro se, Plaintiff still must meet some minimal
pleading requirements. Jackson v. Bellsouth Telecomm., 372
F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted).
Indeed,

while

“[s]pecific

facts

are

not

necessary,”

the

complaint should “‘give the defendant fair notice of what the
... claim is and the grounds upon which it rests.’” Erikson
v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v.
Twombly, 127 S.Ct. 1955, 1974 (2007)).
The Court concludes that the Second Amended Complaint
must

be

dismissed

as

a

shotgun

complaint.

Plaintiff

is

directed to file a Third Amended Complaint that is not a
shotgun pleading on or before September 12, 2016, failing
which, this case will be dismissed.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
(1)

Plaintiff’s Second Amended Complaint is stricken.

(2)

Plaintiff is directed to file a Third Amended Complaint
on or before September 12, 2016, failing which, this
case will be dismissed.
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DONE and ORDERED in Chambers in Tampa, Florida, this
31st day of August, 2016.

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