Rediger v. Wilcox
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 4/28/2021. (NPC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 8:19-cv-2972-KKM-CPT
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 responded arguing that his action was not barred by the statute of
limitations and should not be dismissed before summary judgment.1 (Doc. 18). 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
Plaintiff’s response was docketed shortly after the Court’s initial Order dismissing the case, (Doc.
17), but was in fact timely.
summary judgment that resulted in a judgment being entered against the Plaintiff.2
(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.” 3 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
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
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).
“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).
and must be dismissed with prejudice.4 Plaintiff argues that it was only within the last
two years that his claims were discovered and urges that statute of limitations issues are
better resolved at the summary judgment stage. (Doc. 18). But the Court is limited to
the factual allegations in the amended complaint and not assertions made in responses.
See La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). Further, “it is
proper to grant a Rule 12(b)(6) motion if noncompliance with the statute of limitations
is apparent on the face of the complaint.” Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246,
1252 (11th Cir. 2003). Accordingly, Defendant’s Motion to Dismiss, (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
ORDERED in Tampa, Florida, on April 28, 2021.
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).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?