Rediger v. Wilcox

Filing 17

ORDER granting 15 Motion to Dismiss. Plaintiff's 7 Amended Complaint is dismissed with prejudice. The Clerk is directed to terminate all pending motions and close the case. Signed by Judge Kathryn Kimball Mizelle on 4/27/2021. (NPC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID REDIGER,
Plaintiff,
v.

Case No: 8:19-cv-2972-KKM-CPT

JOHN WILCOX,
Defendant.
_______________________________
ORDER
Defendant John Wilcox moves to dismiss with prejudice Plaintiff’s Amended
Complaint, (Doc. 7), because it is time-barred, is an impermissible shotgun pleading,
and does not put forth adequate facts to support punitive damages or attorneys’ fees.
(Doc. 15). Plaintiff failed to file a response within the time limit prescribed by the Local
Rules. Because the action is clearly barred by the applicable statute of limitations, the
Court grants Defendant’s motion and dismisses the complaint with prejudice.
This action apparently arises from a dispute regarding contested wills in which
Defendant—Plaintiff’s then-attorney—allegedly failed to respond to a motion for
summary judgment that resulted in a judgment being entered against the Plaintiff.1

The facts are derived from the allegations within the amended complaint, (Doc. 7), which the
Court must accept as true in ruling on the instant motions to dismiss. See Linder v. Portocarrero, 963
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(Doc. 7 at 2–3). Importantly, these alleged events happened in 2012 and 2013. Id.
Specifically, the email Plaintiff attaches as the major source of factual support for his
claim is dated May 17, 2013, and records that the Defendant had informed the Plaintiff
of the error. Id. Plaintiff now brings an action in this Court claiming a breach of fiduciary
duty, breach of contract, and negligent provision of legal services. Id. at 3–4.
Under section 95.11(4), Florida Statutes, “[a]n action for professional
malpractice, other than medical malpractice, whether founded on contract or tort” must
be commenced with two years of “the time the cause of action is discovered or should
have been discovered with the exercise of due diligence.” 2 This statute of limitations
applies to Plaintiff’s claims, which, though styled as contract or tort claims, are claims
of legal malpractice. See Tambourine Comercio Internacional SA v. Solowsky, 312 F. App’x
263, 281 (11th Cir. 2009) (holding that a district court correctly applied section 95.11(4)
to a claim for breach of fiduciary duty involving an attorney-client relationship). From
the face of the amended complaint, it appears Plaintiff was informed of the underlying
facts by May 17, 2013, making the two-year statute of limitations run well before
December 4, 2019, when he filed this action. Plaintiff’s claims are therefore time-barred
and must be dismissed with prejudice. 3 Accordingly, Defendant’s Motion to Dismiss,
F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp.
S.A., 711 F.2d 989, 994 (11th Cir. 1983).
2
“A federal court sitting in diversity jurisdiction must apply the substantive law of the state in which
it sits.” Garcia v. Diaz, 752 F. App’x 927, 930 (11th Cir. 2018).
3
Plaintiff’s action is due to be dismissed with prejudice because any amendment would be futile. See
Bruce v. U.S. Bank Nat’l Ass’n, 770 F. App’x 960, 966–67 (11th Cir. 2019) (affirming dismissal with
prejudice where claims were time barred).

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(Doc. 15), is GRANTED. Plaintiff’s Amended Complaint, (Doc. 7), is DISMISSED
WITH PREJUDICE. The Clerk is directed to terminate all pending motions and close
the case.
ORDERED in Tampa, Florida, on April 27, 2021.

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