Mesa et al v. Kajaine Fund III, LLC et al

Filing 12

ORDER: Plaintiffs' Complaint (Doc. # 1 ) is dismissed. The Mesas may file an amended complaint by March 30, 2017. Failure to do so will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 2/28/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LILIA MESA and DAMIAN MESA,
Plaintiffs,
v.

Case No. 8:17-cv-450-T-33JSS

KAJAINE FUND III, LLC,
AVELO MORTGAGE, LLC,
SENDERRA FUNDING, LLC,
et al.,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon sua sponte review
of pro se Plaintiffs Lilia Mesa and Damian Mesa’s Complaint,
filed on February 23, 2017. (Doc. # 1). For the reasons that
follow, the Court dismisses the Complaint and grants the Mesas
leave to file an amended complaint by March 30, 2017.
I.

Background
The Mesas initiated this action on February 23, 2017.

(Doc. # 1). In their 117 page Complaint, the Mesas allege
that the nine Defendants violated numerous federal statutes
including: the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. § 1692 et seq., the Fair Credit Reporting Act (FCRA),
15 U.S.C. § 1681 et seq., the Truth in Lending Act (TILA), 15
1

U.S.C.

§

1601

et

seq.,

and

the

Real

Estate

Settlement

Procedures Act (RESPA), 12 U.S.C. § 2601 et seq. The Mesas
also

bring

claims

under

the

Florida

Consumer

Collection

Practices Act, the Florida Lending Act, and the Florida Truth
in Lending Act, as well as common law claims for negligence,
negligent supervision and hiring, and recoupment.
Essentially,

the

Mesas

allege

that

Defendants

—

including various loan servicers and mortgage holders, a law
firm, an attorney from that firm, and an unknown appraiser —
refused

to

answer

their

requests

for

information

while

servicing their mortgage, failed to report their debt as
disputed,

and

used

unfair

debt

collection

methods

while

initiating foreclosure proceedings.
II.

Legal Standard
The Court construes pro se pleadings liberally and holds

them to a less stringent standard than those drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). But, “a pro se litigant is still required to conform
to procedural rules, and a district judge is not required to
rewrite a deficient pleading.” McFarlin v. Douglas Cty., 587
F. App’x 593, 595 (11th Cir. 2014). A district judge may sua
sponte dismiss a complaint for failure to comply with the
federal rules.

Id. (citations omitted). Likewise, “[t]he
2

district judge also has the inherent authority sua sponte to
require the plaintiff to file a more definite statement.” Id.
(citing Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th
Cir. 1996)).
Pursuant to Rule 8(a), Fed. R. Civ. P., a pleading that
states a claim must contain, among other things, “a short
plain statement of the claim showing that the pleader is
entitled to relief.”

Additionally, Rule 10(b) provides that

“[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed. R. Civ. P. 10(b). Taken together,
these

rules

“require

the

pleader

to

present

his

claims

discretely and succinctly.” Fikes, 79 F.3d at 1082 (citation
omitted).
Complaints that fail to plead discretely and succinctly
are

often

described

shotgun
four

complaints.

varieties

of

The

Eleventh

shotgun

Circuit

complaints:

(1)

has
“a

complaint containing multiple counts where each count adopts
the allegations of all preceding counts”; (2) a complaint
that is “replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of action”;
(3) a complaint that does “not separat[e] into a different
count each cause of action or claim for relief”; and (4) a
3

complaint that “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 Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23 (11th
Cir. 2015). “The unifying characteristic of all types of
shotgun pleadings is that they fail to . . . give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at 1323.
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 defendant faced
with such a complaint is not expected to frame a responsive
pleading.
pertinent
management,

Id.

“The

precedent,
and

Federal

Rules

sound

fairness

to

of

Civil

principles
the

opposing

of

Procedure,
litigation

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. 2:11-cv-697-UA-SPC, 2013 WL 24272, at *2 (M.D. Fla. Jan.
2, 2013).

4

III. Analysis
Even construing the Complaint liberally, the Mesas’
Complaint

is

contravenes

an

the

impermissible
Federal

Rules

shotgun
of

Civil

pleading
Procedure.

that
The

Complaint’s allegations are long and rambling, spanning 117
pages and 525 paragraphs. (Doc. # 1).
Although

the

Complaint

lists

seventeen

counts,

the

Complaint includes additional allegations of mortgage fraud,
appraisal

fraud,

and

predatory

lending

against

the

nine

Defendants in the 345 paragraphs of factual allegations.
Thus, it appears that the Mesas are attempting to bring
additional

claims

besides

those

listed

in

the

seventeen

counts. Also, it is unclear whether the Mesas are attempting
to bring multiple claims in a single count. In Count 7, which
is labelled as a RESPA claim, the Mesas allege that Defendant
Ocwen Loan Servicing “failed to acknowledge [a qualified
written request] within 5 days in violation of RESPA and [the
Dodd-Frank Wall Street Reform and Consumer Protection Act].”
(Id. at ¶ 448).
Such failure to identify claims with sufficient clarity
constitutes a “shotgun pleading.” Byrne v. Nezhat, 261 F.3d
1075, 1129-30 (11th Cir.2001). In their amended complaint,
the Mesas should disaggregate each claim into a separate
5

numbered count so that Defendants can ascertain what claims
are being brought against them.
For

the

same

reason,

allegations

regarding

alleged

misconduct by multiple defendants should not be included in
the same count. See Weiland, 792 F.3d at 1322-23 (stating
that one type of shotgun 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”).

For

example, in Count 14, five Defendants are included in one
count:

“Kajaine

Fund

III,

LLC,

Anand

Patel,

FCI

Lender

Services, Inc., Paul Krasker P.A., and James J. Doherty, Esq.
violated the FDCPA, 15 U.S.C. § 1692e(2), by misrepresenting
the character, amount and legal status of the Plaintiffs’
debt.”

(Doc.

different

#

1

at

Defendants

¶

504).

The

in

the

same

inclusion
count

of

numerous

obscures

what

allegations are relevant to each Defendant. In their amended
complaint, the Mesas should include a separate count for each
claim against each Defendant.
The Complaint also incorporates the first 345 paragraphs
into each count. But, all 345 paragraphs are not relevant to
establishing each of the seventeen counts. Thus, Defendants
would

have

to

sort

through

numerous
6

irrelevant

factual

allegations in order to determine the factual basis for the
claims against them. See Gregory v. City of Tarpon Springs,
No. 8:16-cv-237-T-33AEP, 2016 WL 5816026, at *4 (M.D. Fla.
Oct. 5, 2016)(noting that a complaint’s failure to explicitly
incorporate factual allegations forces defendants “to sift
through

the

factual

allegations

to

determine

which

are

relevant to those claims against them”). In their amended
complaint, the Mesas should incorporate only specific factual
allegations that are relevant to each count.
Similarly,

the

Mesas

should

refrain

from

including

factual allegations unnecessary to state their claims. For
example,

the

fraudulent

Mesas

actions

describe
of

their

at

length

mortgage

the

broker,

allegedly
Joe

Bola

Owanikin, yet the Mesas have not included him as a defendant.
(Doc. # 1 at ¶¶ 69-86). While the Court appreciates that the
Mesas

have

provided

a

thorough

background

regarding

the

acquisition and servicing of their mortgage, the over 300
paragraphs

of

factual

allegations

make

it

difficult

to

determine what facts are essential to their claims.
Although pro se, the Mesas still must meet some minimal
pleading requirements. Jackson v. Bellsouth Telecomm., 372
F.3d 1250, 1262-63 (11th Cir. 2004)(citations omitted). The
Complaint is dismissed as a shotgun pleading. But, the Mesas
7

may

file

an

amended

complaint

that

meets

the

pleading

requirements by March 30, 2017, failing which, this case will
be dismissed.
If

the

Mesas

have

questions

regarding

the

issues

discussed in this Order and the procedural rules of federal
courts, they may consult with a lawyer for free on a limited
basis at the Legal Information Program operated by the Tampa
Chapter of the Federal Bar Association on Tuesdays from 11:00
AM to 12:30 PM in the Sam M. Gibbons United States Courthouse,
801 North Florida Avenue, Tampa, Florida 33602. Appointments,
which are recommended but not required, can be made by calling
[phone].
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Plaintiffs’ Complaint (Doc. # 1) is DISMISSED. The Mesas
may file an amended complaint by March 30, 2017. Failure to
do so will result in dismissal of this action without further
notice.
DONE and ORDERED in Chambers in Tampa, Florida, this
28th day of February, 2017.

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