Rivera v. Feld Entertainment, Inc.

Filing 22

ORDER: Defendant Feld Entertainment, Inc's Motion to Dismiss (Doc. # 5) is granted. The Complaint is dismissed as a shotgun complaint. Rivera may file an amended complaint that is not a shotgun complaint by September 24, 2020. Failure to file an amended complaint by that date will result in dismissal of this action without further notice. Signed by Judge Virginia M. Hernandez Covington on 9/10/2020. (AR) Modified on 9/10/2020 (AR).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JESUS YANEZ RIVERA,
Plaintiff,
v.

Case No. 8:20-cv-1526-T-33CPT

FELD ENTERTAINMENT, INC.,
Defendant.
____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant

Feld

Entertainment,

Inc’s

Motion

to

Dismiss

Complaint (Doc. # 5), filed on July 13, 2020. Plaintiff Jesus
Yanez Rivera responded on July 27, 2020. (Doc. # 16). For the
reasons set forth below, the Motion is granted.
I.

Background
Rivera is a Hispanic male who was born in Mexico and now

is a legal resident of the United States. (Doc. # 1-1 at ¶
9). From October 2015 to or around May 2019, Rivera was
employed

as

a

full-time

body

technician

for

Feld

Entertainment. (Id. at ¶¶ 8, 24). Throughout the course of
his

employment,

Rivera

alleges

that

he

was

subject

to

“negative treatment” and verbal and physical “harassment on
1

the

basis

of

his

national

origin,”

which

created

“an

intimidating, hostile, and offensive work environment.” (Id.
at ¶ 12-13).
Rivera further alleges that he brought this mistreatment
to the attention of his manager at FELD Entertainment and the
Human Resources Department, but “no corrective action was
taken.”

(Id.

at

constructively
Entertainment

¶

21-22).

discharged
in

Entertainment’s]

or

Rivera

from

around

failure

to

his
May

provide

claims

that

employment
2019
a

“due

workplace

he
at

to

was
FELD

[Feld

free

of

harassment based on national origin, and due to [its] failure
to put an end to the [aforementioned] harassment.” (Id. at ¶
24).
After exhausting his administrative remedies with the
Equal Employment Opportunity Commission (EEOC), Rivera filed
this action in state court on June 9, 2020. (Doc. # 1-1). The
Complaint includes claims against Feld Entertainment for
violations of the Florida Civil Rights Act (Count I) and Title
VII of the Civil Rights Act of 1964 (Count II). On July 6,
2020, Feld Entertainment removed the action to this Court on
the basis of federal-question jurisdiction. (Doc. # 1).
2

On July 13, 2020, Feld Entertainment moved to dismiss
the

Complaint

for

failure

to

state

a

claim

and

as

an

impermissible shotgun pleading, (Doc. # 5), and Rivera has
responded. (Doc. # 16). The Motion is now ripe for review.
II.

Legal Standard
On a motion to dismiss pursuant to Federal Rule of Civil

Procedure

12(b)(6),

this

Court

accepts

as

true

all

the

allegations in the complaint and construes them in the light
most

favorable

to

the

plaintiff.

Jackson

v.

Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
the Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint. Stephens v. Dep’t of
Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).
But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

555

(2007)

(quotations and citations omitted). Courts are not “bound to
3

accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The
Court must limit its consideration to “well-pleaded factual
allegations,

documents

central

to

or

referenced

in

the

complaint, and matters judicially noticed.” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
III. Discussion
Feld

Entertainment

first

argues

that

the

Complaint

“should be dismissed in its entirety because [it] is an
impermissible shotgun pleading.” (Doc. # 5 at 9). Because the
Court agrees the Complaint is a shotgun pleading, the Court
need only address this argument.
“A defendant served with a shotgun complaint should
move the district court to dismiss the complaint pursuant to
Rule 12(b)(6) or for a more definite statement pursuant to
Rule 12(e) on the ground that the complaint provides it with
insufficient notice to enable it to file an answer.” Paylor
v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126-27 (11th Cir.
2014) (footnotes omitted).
The Eleventh Circuit has “identified four rough types or
categories of shotgun pleadings”: (1) “a complaint containing
4

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

Cty.

Sheriff’s Office, 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 claim rests.” Id. at 1323.
Here, Feld Entertainment argues that the Complaint is a
shotgun pleading because it falls within the first category
identified in Weiland, as “Count II impermissibly ‘rolls’ all
preceding paragraphs — including the allegations of Count I
— into the allegations of Count II.” (Doc. # 5 at 10). Indeed,
Count II incorporates all preceding paragraphs. (Doc. # 1-1
5

at ¶ 30). 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 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-cv2665-T-33AEP, 2018 WL 6472337, at *3 (M.D. Fla. Dec. 10,
2018); see also Shaffer v. Bank of N.Y. Mellon & Shellpoint
LLC, No. 8:17-cv-565-T-33AAS, 2017 WL 1653789, at *1 (M.D.
Fla. May 2, 2017) (“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.”).
However, the Court notes Feld Entertainment’s concern
that the Complaint does not sufficiently clarify whether it
also contains a claim for hostile work environment, as well
as a claim for disparate treatment discrimination. (Doc. # 5
at 4). Therefore, for the sake of clarity, the Court suggests
that Rivera separate his disparate treatment discrimination
and hostile work environment claims into separate counts in
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his amended complaint.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Feld Entertainment, Inc.’s Motion to Dismiss
(Doc. # 5) is GRANTED.

(2)

The Complaint is DISMISSED as a shotgun complaint.

(3)

Rivera may file an amended complaint that is not a
shotgun complaint by September 24, 2020. Failure to file
an

amended

complaint

by

that

date

will

result

in

dismissal of this action without further notice.
DONE and ORDERED in Chambers, in Tampa, Florida, this
10th day of September, 2020.

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