Lenz et al v. The Michaels Organization et al
ORDER: "Clark MacDill Design Build, LLC's Motion to Dismiss Corrected Amended Class Action Complaint" (Doc. 51) is denied. Clark is directed to file an answer on or before October 30, 2020. See Order for details. Signed by Judge Thomas P. Barber on 10/16/2020. (ANL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JOSHUA LENZ, et al.,
Case No. 8:19-cv-2950-T-60AEP
THE MICHAELS ORGANIZATION,
LLC, et al.,
ORDER DENYING “CLARK MACDILL DESIGN BUILD, LLC’S MOTION TO
DISMISS CORRECTED AMENDED CLASS ACTION COMPLAINT”
This matter is before the Court on “Clark MacDill Design Build, LLC’s
Motion to Dismiss Corrected Amended Class Action Complaint,” filed on July 2,
2020. (Doc. 51). On July 16, 2020, Plaintiffs filed a response in opposition. (Doc.
52). After reviewing the motion, response, court file, and the record, the Court finds
Plaintiffs are members of the United States Military and their spouses that
are currently or formerly housed at MacDill Air Force Base (“MacDill AFB”) in
Tampa, Florida. According to Plaintiffs, Defendant Clark MacDill Design Build
(“Clark”) failed to properly design and build their homes, and Defendants AMC East
Communities, LLC (“AMC”), The Michaels Organization, LLC (“Michaels”),
Michaels Management Services, Inc. (“MMS”), and Interstate Realty Management
Company (“Interstate”) failed to maintain and manage their housing, which has
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resulted in widespread and well-known problems with mold and led to serious
injuries and safety issues for Plaintiffs, prospective class members, and their
families. Plaintiffs allege numerous causes of action against Defendants, including:
breach of contract (Count I), breach of the implied warranty of habitability (Count
II), violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”)
(Count III), negligence (Count IV), gross negligence (Count V), and unjust
enrichment (Count VI).
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing the [plaintiff] is entitled to
relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual
allegations,” it does require “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual
allegations must be sufficient “to state a claim to relief that is plausible on its
face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a
court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the
[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the
complaint’s legal sufficiency, and is not a procedure for resolving factual questions
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or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic
Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9,
2009) (Lazzara, J.).
Clark moves to dismiss the complaint, arguing several grounds for relief,
including: Plaintiffs do not possess the requisite standing to pursue their claims;
Plaintiffs have failed to sufficiently state claims; the complaint constitutes a
shotgun pleading; and Plaintiffs have failed to sufficiently allege the requisite class
Standing and Factual Allegations Concerning Construction
Clark contends that under the facts of the complaint, Plaintiffs do not have
standing to bring suit. Specifically, Clark argues that there is no specific allegation
that the homes leased by Plaintiffs were actually designed and constructed by
Clark. Clark also argues that the failure to identify whether the units they lived in
were constructed by Clark, by the USAF, or by another party renders the complaint
Upon careful review of the complaint, the Court finds that the complaint
contains allegations that Clark built Plaintiffs’ homes. See (Doc. 41 at ¶¶ 3, 8, 35,
54-61, 335, 348). At this stage of the proceedings, based on the record before the
Court, it would be inappropriate to resolve the factual question as to whether Clark
actually constructed the homes or otherwise address the merits. The allegations of
the complaint are sufficient to confer standing and to state claims against Clark.
As such, the motion to dismiss is denied as to these grounds.
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Negligence and Gross Negligence
Clark argues that Plaintiffs have failed to sufficiently allege their negligence
and gross negligence claims against it, primarily because Plaintiffs have failed to
demonstrate that the homes were actually constructed by Clark. Clark also argues
that although Plaintiffs allege that the housing contained “hidden defects” that
resulted in moisture, they also claim that AMC East Communities (the owner) was
aware of the alleged hidden defects. If so, Clark argues that this allegation frees it
from any liability that would otherwise be imposed to third-party tenants resulting
from latent defects, citing to Slavin v. Kay, 108 So. 2d 462, 463 (Fla. 1959), and its
In this case, Plaintiffs have alleged numerous acts and omissions that could
support a finding of negligence and/or gross negligence – namely, that the homes
designed and constructed by Clark contained numerous hidden defects that
contributed to the moisture, mold, and dangerous conditions of the homes, and that
Clark should have known that the homes were not designed or constructed
properly. In addition, the Slavin doctrine does not preclude claims against Clark.
Plaintiffs clearly allege that the defects were latent. See Slavin, 108 So. 2d at 466
(holding that a plaintiff may pursue claims against a contractor based on latent
defects even after the work has been accepted by the owner); (Doc. 41 at ¶¶ 56, 335,
339, 348, 352). The motion to dismiss is denied as to these grounds.
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Comingling of Claims and Shotgun Pleading
A shotgun pleading is one where “it is virtually impossible to know which
allegations of fact are intended to support which claim(s) for relief” and the
defendant therefore cannot be “expected to frame a responsive pleading.” See
Anderson v. Dist. Bd. Of Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th
Cir. 1996). The Eleventh Circuit has identified four primary types of shotgun
Complaints containing multiple counts where each count adopts
the allegations of all preceding counts, causing each successive
count to carry all that came before and the last count to be a
combination of the entire complaint;
Complaints that do not commit the mortal sin of re-alleging all
preceding counts but are guilty of the venial sin of being replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action;
Complaints that commit the sin of not separating into a
different count each cause of action or claim for relief; and
Complaints that assert multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which actions 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). A district court must generally permit a plaintiff at least one opportunity to
amend a shotgun complaint’s deficiencies before dismissing the complaint with
prejudice. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018).
Upon review, the Court finds that the amended complaint does not constitute
a shotgun pleading. Although the complaint is unnecessarily lengthy, and
incorporates all prior factual allegations, the Court finds that the complaint is
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sufficient to give Defendants notice of the claims against them. Additionally, each
Plaintiff is not required to separately plead a distinct claim against each Defendant.
The motion to dismiss is denied as to this ground.
Class Action Allegations
Clark argues that Plaintiffs’ class action allegations are insufficient as a
matter of law. Plaintiffs assert that the class certification arguments are
premature. The Court agrees. Because the Court has granted an extension of time
for Plaintiffs to file a motion for class certification, and such motion has not been
filed at this time, the Court declines to address these class certification arguments
now. Clark is not precluded from raising these issues in its opposition to any class
certification motion that is eventually filed.
It is therefore ORDERED, ADJUDGED, and DECREED:
(1) “Clark MacDill Design Build, LLC’s Motion to Dismiss Corrected Amended
Class Action Complaint” (Doc. 51) is hereby DENIED.
(2) Defendant Clark MacDill Design Build, LLC is directed to file an answer on
or before October 30, 2020.
DONE and ORDERED in Chambers, in Tampa, Florida, this 16th day of
UNITED STATES DISTRICT JUDGE
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