Harbor Gates Capital, LLC v. Apotheca Biosciences, Inc. et al

Filing 62

ORDER: Defendant Talari's Motion to Dismiss (Doc. # 56) is DENIED as moot. The second amended complaint (Doc. # 28) is sua sponte DISMISSED as a shotgun pleading. Plaintiff Harbor Gates may file a third amended complaint that is not a shotgun pleading by February 24, 2021. Signed by Judge Virginia M. Hernandez Covington on 2/18/2021. (LEA)

Case 8:20-cv-00887-VMC-JSS Document 62 Filed 02/18/21 Page 1 of 5 PageID 691

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HARBOR GATES CAPITAL, LLC
Plaintiff,
v.

Case No. 8:20-cv-887-VMC-JSS

APOTHECA BIOSCIENCES, INC.,
and SAEED TALARI,
Defendants.
____________________________/
ORDER
This matter comes before the Court upon the filing of
Defendant Saeed Talari’s Motion to Dismiss Complaint. (Doc.
# 56). Upon review, the Court finds that it cannot rule on
the Motion because the second amended complaint (Doc. # 28)
is a shotgun pleading. Therefore, for the reasons set forth
below, the Court denies Talari’s Motion to Dismiss (Doc. #
56) as moot, dismisses the second amended complaint (Doc. #
28) as a shotgun pleading, and grants Plaintiff Harbor Gates
Capital, LLC, until February 24, 2021, to file a third amended
complaint that is not a shotgun pleading.
I.

Background
Harbor Gates initiated this action on April 17, 2020,

alleging three counts: (1) breach of contract, (2) unjust
enrichment, and (3) fraudulent inducement. (Doc. # 1). On

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August 19, 2020, Harbor Gates filed a second amended complaint
containing the same three counts, but adding the allegation
that Talari was intentionally concealing his whereabouts and
evading service. (Doc. # 28 at 2-3).
When neither defendant made an appearance, Harbor Gates
moved for Clerk’s default. (Doc. ## 38, 40). The Clerk entered
default against Apotheca Biosciences, Inc. on October 1, 2020
(Doc. # 39), and Talari on October 8, 2020. (Doc. # 42).
Harbor Gates subsequently moved for default judgement
against both Defendants. (Doc. # 44). Prior to the Court
ruling on the matter, Harbor Gates and Talari filed a joint
motion to set aside the Clerk’s default as to Talari. (Doc.
# 47). The Court granted the motion and set aside the Clerk’s
default as to Talari. (Doc. # 48). The Clerk’s entry of
default remains in place against Apotheca. (Doc. # 39).
On January 12, 2021, Talari moved to dismiss the second
amended complaint. (Doc. # 56). Harbor Gates responded on
January 26, 2021. (Doc. # 59). The Motion is ripe for review.
II.

Discussion
While reviewing Talari’s Motion to Dismiss (Doc. # 56),

the Court came to the conclusion that it could not resolve
the Motion because the second amended complaint (Doc. # 28)
is a shotgun pleading. The Court has an independent obligation
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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. 6:08-cv-1978-GAP-KRS, 2009 WL 92846, at *2 (M.D.
Fla. Jan. 14, 2009) (emphasis omitted).
The Eleventh Circuit has “identified four rough types or
categories of shotgun pleadings”: (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

Cnty.

Sheriff’s Off., 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
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claim rests.” Id. at 1323.
Here, the second amended complaint is a shotgun pleading
because it falls within the first category identified in
Weiland. Counts II and III roll all preceding allegations
into every count. (Doc. # 73 at ¶¶ 36, 40). In Count II,
“Harbor

Gates

repeats

and

re-alleges

the

allegations

contained in paragraphs 1-34 as if fully set forth in this
Count.” (Id. at ¶ 36). But paragraphs 31 through 34 comprise
Count I. Count III likewise states: “Harbor Gates repeats and
re-alleges the allegations contained in paragraphs 1-38 as if
fully set forth in this Count.” (Id. at ¶ 36). Thus, Count
III incorporates the paragraphs comprising both Count I and
Count II.
This is impermissible. See Weiland, 792 F.3d at 1322
(identifying “a complaint containing multiple counts where
each count adopts the allegations of all preceding counts” as
a shotgun complaint). “Because the [second amended complaint]
is a shotgun complaint, repleader is necessary and the Court
need

not

delve

into

the

merits

of

the

claims

at

this

juncture.” Madak v. Nocco, No. 8:18-cv-2665-VMC-AEP, 2018 WL
6472337, at *3 (M.D. Fla. Dec. 10, 2018).
Therefore, Talari’s Motion to Dismiss is denied as moot,
and

the

Court

sua

sponte

dismisses
4

the

second

amended

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complaint as a shotgun pleading.
Additionally, the Court notes Talari’s concern that the
counts in the second amended complaint do not sufficiently
differentiate between Talari and Apotheca. (Doc. # 56 at 1,
7-9). Harbor Gates argues that it only alleges Count III
(fraudulent inducement) against Talari, and that the counts
clearly

distinguish

between

Defendants.

(Doc.

#

59).

Nonetheless, for the sake of clarity, the Court suggests that
Harbor Gates clearly denote which defendant each count is
brought against in its third amended complaint.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Talari’s Motion to Dismiss (Doc. # 56) is DENIED as moot.

(2)

The second amended complaint (Doc. # 28) is sua sponte
DISMISSED as a shotgun pleading.

(3)

Harbor Gates may file a third amended complaint that is
not a shotgun pleading by February 24, 2021.
DONE and ORDERED in Chambers, in Tampa, Florida, this

18th day of February, 2021.

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