Shaffer v. Bank of New York Mellon et al

Filing 21

ORDER: Plaintiff Linda Shaffer's Complaint (Doc. # 1 ) is dismissed as a shotgun complaint. Shaffer may file an amended complaint by May 16, 2017, failing which, the case will be dismissed without further notice. Defendants' Motion to Dismiss (Doc. # 20 ) is denied without prejudice. Defendants may reassert their arguments, if needed, when they respond to the amended complaint. Signed by Judge Virginia M. Hernandez Covington on 5/2/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINDA L. SHAFFER,
Plaintiff,
v.

Case No. 8:17-cv-565-T-33AAS

BANK OF NEW YORK MELLON
and SHELLPOINT LLC,
Defendants.
______________________________/
ORDER
This matter comes before the Court sua sponte. The Court
dismisses the Complaint (Doc. # 1) as a shotgun complaint and
grants leave to amend by May 16, 2017. Additionally, in light
of

the

Complaint’s

dismissal

as

a

shotgun

complaint,

Defendants’ Motion to Dismiss (Doc. # 20) is denied without
prejudice.
I.

Discussion
On March 8, 2017, Plaintiff Linda Shaffer initiated this

action, alleging a violation of Regulation X, 12 C.F.R. §
1024.41(g),

which

implements

the

provisions

of

the

Real

Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601,
et seq., by Defendant Shellpoint LLC (Count I), as well as
claims for breach of contract (Count II) and breach of implied
1

covenant of good faith and fair dealing (Count III) against
Shellpoint and Defendant Bank of New York Mellon. (Doc. # 1).
Defendants filed their Motion to Dismiss on April 27, 2017.
(Doc. # 20).
Although Defendants have not raised this argument, the
Court has an independent obligation to dismiss a shotgun
pleading. “If, in the face of a

shotgun complaint, the

defendant does not move the district court to require a more
definite statement, the court, in the exercise of its inherent
power, must intervene sua sponte and order a repleader.”
McWhorter v. Miller, Einhouse, Rymer & Boyd, Inc., No. 6:08cv-1978-Orl-31KRS, 2009 WL 92846, at *2 (M.D. Fla. Jan. 14,
2009).
At

the

beginning

of

each

count,

the

Complaint

“references and incorporates” all the preceding paragraphs.
(Doc. # 1 at 3-5). Thus, the allegations about Shellpoint’s
purported Regulation X violation are incorporated into the
breach of contract and breach of implied covenant of good
faith and fair dealing counts against both Shellpoint and
Bank of New York Mellon. This is impermissible. See Weiland
v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322-23
(11th Cir. 2015)(stating “a complaint containing multiple
counts

where

each

count

adopts
2

the

allegations

of

all

preceding counts” is an impermissible shotgun complaint).
Therefore, the Complaint is dismissed. Shaffer may file an
amended complaint that is not a shotgun pleading by May 16,
2017, failing which, the case will be dismissed without
further notice.
As the Court has determined that repleader is necessary,
the Court declines to address Defendants’ argument that all
counts fail to state claims upon which relief can be granted.
Cf. Bennett v. Nationstar Mortg., LLC, No. CV 15-00165-KD-C,
2015 WL 5294321, at *13 n.15 (S.D. Ala. Sept. 8, 2015)(“The
Defendants advance several arguments to dismiss the breach of
contract and FDCPA claims, but the undersigned declines to
address those arguments until these claims are repleaded.”).
The

Motion

to

Dismiss

is

denied

without

prejudice

and

Defendants may reassert their arguments in their response to
the amended complaint.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

Linda

Shaffer’s

Complaint

(Doc.

#

1)

is

DISMISSED as a shotgun complaint.
(2)

Shaffer may file an amended complaint by May 16, 2017,
failing

which,

the

case

further notice.
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will

be

dismissed

without

(3)

Defendants’ Motion to Dismiss (Doc. # 20) is DENIED
WITHOUT

PREJUDICE.

Defendants

may

reassert

their

arguments, if needed, when they respond to the amended
complaint.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of May, 2017.

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