Johnson v. Landsman et al

Filing 34

ORDER granting 16 Motion to Dismiss. See order for details. Signed by Judge John L. Badalamenti on 5/10/2022. (JHA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BRANDON L. JOHNSON,
Plaintiff,
v.

Case No: 8:21-cv-2704-JLB-TGW

DEAN J. LANDSMAN, et al.,
Defendants.

/
ORDER

Before the Court is Defendants’ Motion to Dismiss Plaintiff Brandon
Johnson’s amended complaint (Doc. 5) and compel arbitration of his claims. (Doc.
16.) Mr. Johnson, proceeding pro se, has responded in opposition. (Doc. 23.) Upon
careful review, Mr. Johnson’s amended complaint is due to be DISMISSED with
leave to amend, and the request to compel arbitration is DENIED without
prejudice.
BACKGROUND
Mr. Johnson filed this action against his prior employer, Edward D. Jones &
Co., L.P. (“Edward Jones”), and several “financial advisors,” alleging that Edward
Jones violated various securities regulations and statutes. (Doc. 1.) He then filed
an amended complaint and two purported emergency motions for a preliminary
injunction, which were denied. (Docs. 5, 6, 8, 13, 14.) In his amended complaint,
Mr. Johnson presents a three-page “Statement of Claim,” which does not include

numbered paragraphs, separate his various claims into different counts, or specify
which defendants the claims are raised against. (Doc. 5 at 8–10.)
Essentially, Mr. Johnson alleges that Edward Jones “failed to disclose
material facts about internal asset sales to new Edward Jones Financial Advisors
(FA) including [him].” (Id. at 8.) More specifically, Mr. Johnson alleges that
Edward Jones “used high pressure sales techniques . . . to sell [him] a $5,000,000
book of business,” which Edward Jones “knew was statistically likely to fail.” (Id.)
According to Mr. Johnson, “Edward Jones Corporate Office and Edward Jones
Management team analyzes these investments prior to sale, they willingly choose to
withhold critical facts in the process of material misrepresentation from the
purchaser ([Mr. Johnson]) of the quality of these assets,” and “this misconduct
allowed Edward Jones HQ, EJ leaders, and Edward Jones senior Financial Advisors
to profit off of withholding information at the time of sale.” (Id. at 8–9.) Mr.
Johnson further alleges that Edward Jones “has the complete ability to make or
break these investments, by withholding support, withholding staffing, and
withholding additional resources . . . as forms of punishment or retribution in
certain cases,” and that Edward Jones “has incentive for these investments to fail,
because when the investment fails, they terminate the new employee, and all assets
and books of business go back to Edward Jones.” (Id. at 9.)
Although the “Statement of Claim” does not specify the cause of action Mr.
Johnson seeks to bring, elsewhere in his amended complaint Mr. Johnson states
that “[t]hrough this misconduct, [Edward Jones] violates e.C.F.R. – Title 17 –

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Chapter 2, S.E.C. Part 240 – General Rules and Regulations, S.E.C. act of 1934,
240, 10-b-5 (a)(b)(c). Section 17(a) of the Securities Act – 15 U.S.C., 17q(a). 941. 18
U.S.C. 1343.” (Id. at 3.) Defendants have moved to dismiss the amended complaint
for several reasons, including that it fails to “articulate a coherent claim pursuant
to the requirements” of the Federal Rules of Civil Procedure. (Doc. 16 at 1.) They
also contend that Mr. Johnson’s claims are subject to arbitration. (Id. at 7–12.) Mr.
Johnson has responded in opposition. (Doc. 23.)
DISCUSSION
I.

The amended complaint is an impermissible shotgun pleading.
Upon review of Mr. Johnson’s amended complaint, the operative pleading

fails to notify Defendants of the claims against them or the grounds on which those
claims rest. Accordingly, the amended complaint is a shotgun pleading that is due
to be dismissed.
Federal Rules of Civil Procedure 8 and 10 establish the minimum pleading
requirements. Rule 8 requires a complaint to contain “a short and plain statement
of the claim showing that the pleader is entitled to relief” with allegations that are
“simple, concise, and direct.” Fed. R. Civ. P. 8(a), (d). And Rule 10 requires a party
to “state its claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). Taken together,
as explained by the Eleventh Circuit, Rules 8 and 10
require the pleader to present his claims discretely and
succinctly, so that his adversary can discern what he is
claiming and frame a responsive pleading, the court can
determine which facts support which claims and whether

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the plaintiff has stated any claims upon which relief can be
granted, and, at trial, the court can determine that
evidence which is relevant and that which is not.
Fikes v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996) (quotation omitted). 1
Shotgun pleadings violate the pleading rules by failing to “give the defendants
adequate notice of the claims against them and the grounds upon which each claim
rests.” Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323 (11th Cir.
2015). The Eleventh Circuit has identified four varieties of shotgun pleadings: (1) a
pleading in which multiple counts each adopt the allegations of all preceding counts;
(2) a pleading that uses conclusory, vague, and immaterial facts unconnected to a
particular cause of action; (3) a pleading that fails to separate each cause of action or
claim for relief into distinct counts; and (4) a pleading that combines multiple claims
against multiple defendants without specifying which defendant is responsible for
which act, or which defendant a claim is brought against. See id. at 1321–23.
Upon review, there are several deficiencies with the amended complaint, which
ultimately fails “to give the defendants adequate notice of the claims against them
and the grounds upon which each claim rests.” Id. at 1323. First, Mr. Johnson
presents all his claims in a three-page “Statement of Claim,” which includes factual
allegations and legal conclusions. (Doc. 5 at 8–10.) That statement does not “state
[Mr. Johnson’s] claims . . . in numbered paragraphs, each limited as far as practicable

Courts hold the pleadings of pro se litigants to a less stringent standard than
pleadings drafted by attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998) (per curiam). But courts do not have a duty to “rewrite” a pro se
litigant’s complaint to find a claim. See Washington v. Dep’t of Children & Families,
256 F. App’x 326, 327 (11th Cir. 2007) (per curiam).
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to a single set of circumstances.” Fed. R. Civ. P. 10(b). Nor does it identify any cause
of action, although elsewhere in his pleading Mr. Johnson alleges that Edward Jones
has violated “e.C.F.R. – Title 17 – Chapter 2, S.E.C. Part 240 – General Rules and
Regulations, S.E.C. act of 1934, 240, 10-b-5 (a)(b)(c). Section 17(a) of the Securities
Act – 15 U.S.C., 17q(a). 941. 18 U.S.C. 1343.” (Doc. 5 at 3.) Mr. Johnson has also
filed documents relating to a potential discrimination claim (Docs. 23-1, 24), and
alleges that “Edward Jones is also still in possession of over $100,000+ of personal
property they illegally stole from [him]” from a listed address (Doc. 5 at 4). Mr.
Johnson thus appears to bring several causes of action, yet he does not separate each
cause of action or claim for relief into distinct counts. See Weiland, 792 F.3d at 1323.
The pleading further combines multiple claims against multiple defendants
without specifying which defendant is responsible for which act. See id. Mr. Johnson
does not allege that any of the individual defendants violated the above regulations
and statutes, and no factual allegations as to a specific individual defendant are
included in his “Statement of Claim.” (Doc. 5 at 3, 8–10.) Notwithstanding, Mr.
Johnson alleges that “Edward Jones Corporate Office and Edward Jones
Management team analyzes . . . investments prior to sale, they willingly choose to
withhold critical facts in the process of material misrepresentation from the
purchaser ([Mr. Johnson]) of the quality of these assets,” and that “this misconduct
allowed Edward Jones HQ, EJ leaders, and Edward Jones senior Financial Advisors
to profit off of withholding information at the time of sale.” (Id. at 8–9.) Upon review,
however, it is unclear whether Mr. Johnson is alleging that each of the individual

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defendants analyzed the investments and made material misrepresentations to him
or others.

At bottom, it is unclear what conduct he is alleging the individual

defendants engaged in to support his claims against them.
Mr. Johnson appears to acknowledge this problem by alleging that “Edward
Jones keeps a very loose, opaque, and obscure management structure which makes
it impossible to determine which leaders are responsible for these malicious
behaviors.” (Id. at 10.) The Federal Rules of Civil Procedure nevertheless require
Mr. Johnson to submit a pleading that allows Defendants to “discern what he is
claiming and frame a responsive pleading,” and for this Court to “determine which
facts support which claims.” Fikes, 79 F.3d at 1082. The amended complaint does
neither, and Mr. Johnson will be permitted one final opportunity to amend his
pleading. See Arrington v. Green, 757 F. App’x 796, 797 (11th Cir. 2018). 2
II.

Defendants may raise the issue of arbitration if Mr. Johnson files a
second amended complaint.
Defendants next contend that Mr. Johnson’s claims are subject to arbitration

pursuant to an arbitration provision in his employment agreement. (Doc. 16 at 7–
12.) 3 Mr. Johnson does not expressly dispute the validity or enforceability of the

Because the complaint is due to be dismissed as a shotgun pleading, it is
unnecessary to address Defendants’ arguments for dismissal under Federal Rules of
Civil Procedure 9(b) and 12(b)(6). (Doc. 16 at 2–7.) Mr. Johnson should take these
arguments into account should he decide to file a second amended complaint.
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The arbitration provision in the employment agreement provides as follows:
You agree that any dispute, claim or controversy arising
under this Agreement or as a result of your employment
with Edward Jones between you and Edward Jones or any

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arbitration provision. (Doc. 23 at 1–2.) Instead, he contends that the alleged conduct
is “criminal” and therefore should not “be handled via arbitration.” (Id.)
Upon review of the parties’ arguments, the arbitration provision, and the
allegations in the amended complaint, the Court finds that the better course is to
permit Mr. Johnson to file an amended pleading consistent with this Order before
deciding whether, as Defendants suggest, the “Employment Agreement and the
nature of this dispute between Edward Jones and its employee trigger the provisions
of the [Federal Arbitration Act].” (Doc. 16 at 8.) Indeed, given the noted deficiencies
in Mr. Johnson’s amended complaint, clarification as to the nature of the claims is
required. 4

present or former employee, agent, officer, director,
affiliate, or partner of Edward Jones shall be resolved by
arbitration and without resort to litigation in court. Any
arbitration proceedings shall be conducted in accordance
with the FINRA rules then in effect. This agreement to
arbitrate disputes shall survive the termination of your
employment with Edward Jones. This provision shall in no
way affect or impair Edward Jones’ right under any other
provision of this Agreement to obtain equitable relief from
a court of competent jurisdiction, which relief may remain
in full force and effect pending the outcome of arbitration
proceedings.
(Doc. 16-1 at 5, ¶ 17.)
If Mr. Johnson decides to file a second amended complaint and opposes a
subsequent motion to compel arbitration, he is directed to respond to Defendants’
contention that “[t]he Employment Agreement executed by Plaintiff . . . delegated
threshold issues of arbitrability to the FINRA arbitrators.” (Doc. 16 at 10);
see Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 529 (2019).
The Court cautions Mr. Johnson that he may be liable to pay, among other things,
attorney’s fees and other associated costs in actions against any or all of the
defendants he names in this complaint or other litigation.
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CONCLUSION
For these reasons, it is ORDERED:
1. Defendants’ Motion to Dismiss (Doc. 16) is GRANTED to the extent that
Plaintiff’s Amended Complaint is DISMISSED without prejudice as an
impermissible shotgun pleading.
2. Plaintiff may file a second amended complaint consistent with this Order
on or before May 31, 2022. If he fails to timely file a second amended
complaint, the Court will dismiss this action without further notice.
3. Defendants’ request to compel arbitration is DENIED without
prejudice. Defendants may renew their request if Plaintiff files a second
amended complaint.
ORDERED in Tampa, Florida this 10th day of May, 2022.

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