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

Filing 17

ORDER: Plaintiffs' Amended Complaint (Doc. # 13 ) is dismissed. The Mesas may file a second amended complaint by May 3, 2017. Failure to do so will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 4/3/2017. (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 Amended
Complaint, filed on March 30, 2017. (Doc. # 13). For the
reasons

that

follow,

the

Court

dismisses

the

Amended

Complaint and grants the Mesas leave to file a second amended
complaint by May 3, 2017.
I.

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

(Doc. # 1). The Court sua sponte dismissed the Complaint as
a shotgun complaint on February 28, 2017. (Doc. # 12). The
Mesas then filed their Amended Complaint on March 30, 2017.
(Doc. # 13).

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In the Amended 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 U.S.C. §§
1601 et seq.; the Real Estate Settlement Procedures Act
(RESPA), 12 U.S.C. §§ 2601 et seq.; the Home Ownership and
Equity Protection Act (HOEPA), 15 U.S.C. §§ 1639 et seq.; and
the Dodd-Frank Wall Street Reform and Consumer Protection
Act. The Mesas also bring claims under the Florida Consumer
Collection Practices Act and the Florida Fair Lending Act, as
well as a common law claim for negligent misrepresentation.
Many of the claims are brought “in 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

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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

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

shotgun

complaints.

3

The

Eleventh

Circuit

has

described

four

varieties

of

shotgun

complaints:

(1)

“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
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

Id.

“The

precedent,

Federal

Rules

sound

4

of

principles

Civil
of

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

Amended

Complaint

is

an

improvement

upon

the

Complaint but it is also a shotgun pleading. While shorter
than

the

117

page

Complaint,

the

Amended

Complaint’s

allegations are still long and rambling, spanning 82 pages
and 367 paragraphs. (Doc. # 13). There are 213 paragraphs in
the factual allegations, making it difficult to determine
what facts are truly necessary to support the Mesas’ claims.
Many of the allegations in the Amended Complaint still
appear irrelevant to the claims. For example, the Amended
Complaint

contains

a

section

in

the

factual

allegations

titled “The Federal Bureau of Investigation (FBI) Defines
Mortgage Fraud,” in which the Mesas “allege that [they] are
victims of more than one of the above schemes laid out by the
FBI as a scam for mortgage fraud, proving for a criminal
damage under TILA, RESPA, HOEPA and FLA.” (Doc. # 13 at ¶
143). But, this is a civil case — not a criminal action. See

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Fisher v. Conseco Fin. Co., No. 3:07CV266/RV/MD, 2007 WL
3012881, at *3 (N.D. Fla. Oct. 12, 2007)(“Rarely is there a
private right of action under a criminal statute.” (citing
Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979)). As the
Amended

Complaint

does

not

assert

a

claim

for

criminal

mortgage fraud, allegations that Defendants victimized the
Mesas

by

violating

criminal

mortgage

fraud

statutes

are

unnecessary.
The Amended Complaint also contains numerous allegations
about the conduct of Joe Bola Owanikin in both the factual
allegations and various counts. For example, Count 9 states:
“As a direct and proximate result of John Doe Appraiser, Joe
Bola Owanikin of Unique Action Mortgage, Inc., and Senderra
Funding LLC[‘s] concealment of the appraisal and material
misrepresentations, Plaintiffs have suffered damages . . .”
(Doc. # 13 at ¶ 334). But, the Amended Complaint still does
not list Owanikin as a defendant. As the Court explained in
its previous Order, the Mesas should refrain from including
allegations unnecessary to state their claims. Alternatively,
if the Mesas wish to bring claims against Owanikin, they
should identify him as a defendant in their second amended
complaint.

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Furthermore, although they bring Count 2 under HOEPA,
the Court notes that the Mesas do not list HOEPA as a basis
for their claims at the beginning of the Amended Complaint.
(Doc. # 13 at 1). Conversely, the Mesas list the Dodd-Frank
Act as a basis for their claims at the beginning of the
Amended Complaint, but do not bring any counts under that
Act. (Id.). In the second amended complaint, the Mesas should
clarify the basis for their claims, and avoid extraneous
references to laws under which they do not bring claims.
Finally,

although

the

Court

previously

directed

the

Mesas to “include a separate count for each claim against
each

Defendant,”

the

Amended

Complaint

lumps

numerous

Defendants together in some counts. (Doc. # 12 at 6). For
example, in Count 11, the Mesas allege “Defendants Kajaine
Fund III, LLC, Anand Patel, FCI Lender Services, Inc., Paul
Krasker P.A., and James J. Doherty, Esq. violated the FDCPA
. . .” (Doc. # 13 at ¶ 345). The same five Defendants are
also named together in Counts 10, 12, and 13. (Id. at 73-82).
When

drafting

should

their

separate

each

second
claim

amended
against

complaint,
each

the

Defendant

Mesas
into

different counts.
The Amended Complaint is dismissed with leave to amend
so that the Mesas may correct the problems discussed in this

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Order. The Mesas may file a second amended complaint by May
3, 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]. Additionally, the Middle District of Florida
maintains a “Proceeding without a Lawyer” page on its website,
which is a valuable resource regarding the litigation process
to which the Mesas may refer, but on which they should not
exclusively rely.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Plaintiffs’ Amended Complaint (Doc. # 13) is DISMISSED.
The Mesas may file a second amended complaint by May 3, 2017.
Failure to do so will result in dismissal of this action
without further notice.
DONE and ORDERED in Chambers in Tampa, Florida, this
3rd day of April, 2017.

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