PETRANO et al v. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY et al
Filing
74
ORDER: 1. Plaintiffs Complaint is due to be DISMISSED without prejudice. Plaintiffs are given leave to file an amended complaint. 2. Defendants Motions to Dismiss (Docs. 6 , 8 , 9 , 11 , 15 , 17 , 19 , 32 and 44 )are DENI ED without prejudice. 3. Plaintiffs Motion to Strike (Doc. 22 ) is DENIED as moot. 4. Defendants Motions to Strike (Docs. 31 , 48 , 54 and 55 ) are GRANTED. Plaintiffs Counter-Motions For Summary Judgment (Docs. 13 and 21 ) are STRICKEN. 5. Plaintiffs Motions Requesting Leave to File Excess Pages (Docs. 12 , 33 , 35 , 42 and 46 ) are DENIED. 6. Plaintiffs Motions Requesting the Court to Take Judicial Notice (Docs. 24 , 25 , 27 , 28 , 30 and 39 ) are DENIED. 7. Plaintiffs Mo tion to Consolidate (Doc. 49 ) is DENIED. 8. Plaintiffs Motion For Entry of Order Authorizing Use of CM/ECF and For Other Relief (Doc. 40 ) is GRANTED in part and DENIED in part. 9. Plaintiffs Motion for relief in Doc. 41 is DENIED without prejudice. (Amended Pleadings due by 7/13/2012.). Signed by MAGISTRATE JUDGE GARY R JONES on 6/13/2012. (jws)
Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DAVID F. PETRANO and
MARY KATHERINE DAY-PETRANO
husband and wife,
Plaintiffs,
v.
CASE NO. 1:12-cv-86-SPM-GRJ
OLD REPUBLIC NATIONAL TITLE
INSURANCE COMPANY, et al.,
Defendants.
_____________________________/
O R D E R AND REPORT AND RECOMMENDATION
This matter is before the Court to address no less than thirty motions, the parties
have filed in the five weeks since this case was removed to federal court from the
Circuit Court for the Eighth Judicial Circuit in and for Alachua County, Florida. This
omnibus order addresses all of the motions. Those motions which are not dispositive
are resolved in this order. Those motions which are dispositive are resolved in this
report and recommendation.
I. BACKGROUND
On January 24, 2012 Plaintiff, proceeding pro se,1 filed a 139 page complaint in
the Circuit Court for the Eighth Judicial Circuit in and for Alachua County, Florida.
Plaintiffs purport to allege claims in this case against thirteen (13) defendants, relating
1
David Petrano has been a m em ber of the Florida Bar in good standing since February 2003.
Although Mr. Petrano is not currently a m em ber of the Bar of the Northern District of Florida, Mr. Petrano
is representing him self in this case. Mary Katherine Day-Petrano is a m em ber of the Bar of the State of
California but has not requested perm ission to appear in this case pro hac vice and instead is
representing herself. Thus, while both Plaintiffs are attorneys they are deem ed to be proceeding pro se.
Page 2 of 21
to a number of unconnected and distinct events including an automobile accident, the
Plaintiffs’ purchase of a horse farm, a real property dispute with CSX railroad and
others over an easement and two claims for smoke damage submitted to their
homeowner’s insurance company. There is also an unrelated claim against the Florida
Bar contending that the Bar “allows, encourages, and facilitates its members to violate
the ADA.” As an example of the complete disconnect between the multiple claims in
this case, Count one of the complaint contains a claim against Plaintiffs automobile
insurer and the lawyers who represented the insurer regarding a claim for
uninsured/underinsured motorist coverage for an automobile accident that occurred in
January 2008. In contrast, in count six of the complaint Plaintiffs have sued their title
insurance company for an alleged defect in title because an easement was not
obtained providing the Plaintiffs access to a horse farm the Plaintiffs had purchased.
Lastly, in Count twelve of the complaint Plaintiffs have sued their property insurance
carrier relating to a claims for smoke damage that occurred to their property as a result
of a wildfire. Simply put, the claims brought by Plaintiffs do not appear to have any
common nucleus of operative facts and relate to completely unconnected events and
occurrences.
The Plaintiffs have attempted to join these disparate and unconnected claims in
the same case because the Plaintiffs allege they were the victims of discrimination
because of their disability. Mary Day-Petrano alleges that she has an autism spectrum
disability and that in some way each of the named defendants discriminated against her
or retaliated against her because of her disability. David Petrano also alleges he is
disabled and was a victim of discrimination. The claim that the Plaintiffs are disabled
Case No: 1:12-cv-86-SPM -GRJ
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and were allegedly the victims of discrimination appears to be the only reason all of
these unrelated claims were brought in the same lawsuit.
The case ended up in federal court when one of the defendants, Old Republic
National Title Insurance Company removed the case to federal court pursuant to 28
U.S.C. 1441(c).2 Section 1441(c)(1)(B) authorizes the removal to federal court of an
entire civil action in which federal claims are joined with state law claims. Old Republic
removed the case on the basis that the Plaintiffs have brought a claim against them for
violation of federal law, presumably under Title II of the ADA.
The thirteen named Defendants and a brief description of their alleged
involvement in this case are as follows: (1) Nationwide Mutual Fire Insurance Company
(“Nationwide”). Nationwide issued a Florida automobile policy to Plaintiffs, which
covered Plaintiff for accidents involving underinsured/uninsured motorists. Plaintiffs
allege that Nationwide refused to pay the Plaintiffs under the policy for an accident, and
during the claims handling and legal process, discriminated and retaliated against the
Plaintiffs by virtue of their disability. (2) Earl Charles Law (“Law”) is the claims
representative who handled the claim on behalf of Nationwide. Plaintiffs allege that Law
discriminated against them in adjusting their claim because of their disability. (3) Carl
Schwait is a Florida licensed attorney, who apparently represented Nationwide in its
coverage litigation with the Plaintiffs. Plaintiffs allege that Mr. Schwait discriminated
against them during the course of the litigation by “badgering and bullying” the
2
Old Republic’s Notice of Rem oval is entitled “Notice of Rem oval of Action Under 28 USC §
1441.” However in the body of the Notice of Rem oval Old Republic references “28 U.S.C. 1414(c).” The
Court assum es this is a typographical error.
Case No: 1:12-cv-86-SPM -GRJ
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Plaintiffs.3 (4) Old Republic National Title Insurance Company (“Old Republic”.) Old
Republic allegedly delayed or failed to pay Plaintiffs under a title insurance policy
relating to the Alachua County horse farm the Plaintiffs purchased. Although it is far
from clear Plaintiffs allege that Old Republic violated Title II of the ADA because the
policy and other legal documents did not comply with certain alternative formats,
minimum fonts and did not contain short simple sentences for sight and cognitive
disabilities. (5) Attorney’s Title Fund Services, LLC (“Attorneys Title Fund”). Attorney
Title Fund is the entity that issued the title policy on the Plaintiffs’ real property and is
sued for essentially the same claims as Old Republic. (6) Darlene Baylor. (“Baylor”).
Ms. Baylor is the seller of the Alachua County real property, who Plaintiffs allege failed
to record an easement for access to the property as promised. Plaintiff has sued Ms.
Baylor for breach of warranty, fraud in the inducement and for violation of a Florida
statute relating to abuse of disabled adults. (7) Michael Chiumento (“Chiumento”). Mr.
Chiemento, an attorney, represented Ms. Baylor in the sale of the real property to the
Plaintiffs and also served as the closing agent for Attorney’s Title Fund. Mr. Chiumento
is sued for fraud in the inducement, for deceit and for violation of Florida law relating to
abuse of disabled adults. (8) CSX Transportation, Inc. (“CSX”). CSX is a company
operating a railroad and is named as a defendant in a claim for declaratory relief
because the easement Plaintiffs contend should have been recorded when they
purchased their property involves land over a CSX railroad crossing. (9) Alachua
3
Further, without any factual basis Plaintiffs also suggest that Mr. Schwait, as a m em ber of the
Florida Bar Board of Governors and as a m em ber of the Eighth Judicial Circuit Nom inating Com m ission
m anipulated the selection of judges to ensure that applicants with disabilities were screened out to insure
that his client Nationwide would receive favorable treatm ent. The Court m entions this allegation to
underscore the frivolous nature of m any of the allegations included in the Com plaint.
Case No: 1:12-cv-86-SPM -GRJ
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County. Alachua County is joined as a party in Plaintiffs’ claim for an injunction
preventing Alachua County from interfering with the easement Plaintiffs contend that
are entitled. (10) John Fernando (“Fernando”). Although it is difficult to discern the role
of Fernando, he appears to be an adjoining property owner who requested the Plaintiffs
pay a fee for the right to use an easement to access Plaintiffs’ property. (11) Citizen’s
Property Insurance Corporation (“Citizens”). Citizens is a state of Florida governmental
insurance company which provides residential and commercial insurance for property
owners who are unable to procure insurance through private insurance markets.
Plaintiffs have sued Citizens for a violation of Title II of the ADA as a result of Citizens’
alleged failure to pay Plaintiffs for two smoke damage claims to their residence,
negligence in handling the claims and for violation of Florida law relating to abuse or
exploitation of disabled adults. (12) Florida Department of Financial Services (“FDFS”).
FDFS is sued for violation of Title II of the ADA. (13) The Florida Bar (“Fla. Bar”). The
Fla. Bar is sued for violating Title II of the ADA because it “allows, encourages, and
facilitates its members to violate the ADA.”
A review of the length (139 page complaint) and breath of Plaintiffs’ claims
demonstrates that there is very little that ties these claims together other than Plaintiffs’
confusing and rambling allegations that the named Defendants violated the ADA and/or
committed unrelated wrongs that allegedly caused the Plaintiffs a variety of damages.
In essence the Plaintiffs have utilized this lawsuit to collect together in one place at
least four separate, unrelated lawsuits, all under the guise of the ADA. These separate
events and occurrences consist of: (1) Plaintiffs’ claims for damages and injunctive
relief relating to the handling of their claim for coverage and payment under their
Case No: 1:12-cv-86-SPM -GRJ
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automobile policy; (2) Plaintiffs’ claims relating to the purchase of their horse farm and
the alleged failure to obtain an easement on the property; (3) Plaintiffs’ claims for
damages and injunctive relief under their property insurance policy for smoke damage
to their property; and (4) Plaintiff’s ADA claims against the Florida Bar. As discussed
below – at a minimum - Plaintiffs cannot be permitted to proceed in one lawsuit with
these disparate and unrelated claims joined in one case. Permitting the Plaintiff to
proceed in this fashion would be inimical to the just, speedy and inexpensive
determination of every action and proceeding, as required by Rule 1 of the Federal
Rules of Civil Procedure and would constitute misjoinder of parties pursuant to Rule 21
of the Federal Rules of Civil Procedure.
Pending Motions
There is no better evidence that the complaint improperly combines unrelated
claims in one lawsuit and improperly attempts to conflate multiple claims within the
same count of the Complaint, than the rash of motions filed in this case in the short
time the case has been pending here since removal. The following motions have been
filed and are fully briefed or are in such a posture that the motion is ripe for review:
1.
Defendant Old Republic National Title Insurance Company’s Amended
Motion to Dismiss With Incorporated Memorandum of Law. (Doc. 6.)
2.
Defendant Citizens’ Amended Motion To Dismiss Plaintiffs’ Complaint, As
To Citizens, For Improper Venue, And Incorporated Memorandum of Law
In Support Thereof. (Doc. 8.)
3.
Defendant Citizens Property Insurance Corporation’s Motion To Dismiss
And Incorporated Memorandum of Law. (Doc. 9.)
4.
Motion To Dismiss Count Eighteen of the Complaint For Failure to State a
Claim Upon Which Relief May Be Granted. (Doc. 11.)
Case No: 1:12-cv-86-SPM -GRJ
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5.
Plaintiffs Motion To Exceed 25 Page Limit Response To Defendant Old
Republic’s Motion To Dismiss, And Counter-Motion For Summary
Judgment. (Doc. 12.)
6.
Plaintiffs Response to Defendant Old Republic’s Motion To Dismiss, And
Counter-Motion For Summary Judgment On The Issue of Liability of the
Title Insurer. (Doc. 13.)
7.
Defendant Carl Schwait’s Motion to Dismiss Counts 1, 3 and 4 With
Incorporated Memorandum of Law. (Doc. 15.)
8.
Defendant Nationwide Mutual Fire Insurance Company’s Motion to
Dismiss With Incorporated Memorandum of Law. (Doc. 17.)
9.
Plaintiffs’ Response to Defendant Citizen’s Property Insurance
Corporation’s Motion To Dismiss and Counter-Motion For Partial
Summary Judgment on the Issue of Liability. (Doc. 21.)
10.
Defendant Earl Charles Law’s Motion to Dismiss With Incorporated
Memorandum of Law. (Doc. 19.)
11.
Plaintiffs Motion to Strike And/Or Response to “Defendant Nationwide
Mutual Fire Insurance Company’s Motion to Dismiss Or, In The
Alternative, For More Definite Statement” Filed In The State Court After
Removal of This Action With Counter-Motion For Partial Summary
Judgment on the Issue of Liability. (Doc. 22.)
12.
Plaintiffs Motion Requesting This Court Take Judicial Notice of Defendant
Nationwide Mutual Fire Insurance Company’s Motion To Dismiss Filed In
the State Court After Removal of this Action. (Doc. 24.)
13.
Plaintiffs Motion Requesting This Court Take Judicial Notice of Plaintiff
Day-Petrano’s Prior “Final” Res Judicata Titles II, III Americans With
Disabilities Act, Sec. 504, and Federal Court Disability Accommodations
Determinations. (Doc. 25.)
14.
Plaintiffs Motion Requesting This Court Take Judicial Notice of Return of
Summons on Defendant CSX Transportation, Inc. In This Action. (Doc.
27.)
15.
Plaintiffs Motion Requesting This Court Take Judicial Notice of Summons
on Defendant Alachua County In This Action. (Doc. 28.)
Case No: 1:12-cv-86-SPM -GRJ
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16.
Plaintiffs Motion Requesting This Court Take Judicial Notice of the Official
Meaning of “Olmstead” Community-Based Living, and Research Studies
Pertaining to Plaintiff’s Autism and Co-Existing Disabilities Respecting All
Pleadings Filed In This Case. (Doc. 30.)
17.
Defendant Old Republic National Title Insurance Company’s Motion To
Strike Or In The Alternative, Response In Opposition To Plaintiff’s
Counter-Motion For Summary Judgment. (Doc. 31.)
18.
Defendant CSX Transportation, Inc.’s Motion To Dismiss Complaint And
Incorporated Memorandum of Law. (Doc. 32.)
19.
Plaintiffs’ Motion To Exceed Page Limit To 36 Pages In Total To File
Plaintiffs’ Response To Defendant Carl Schwait’s Motion To Dismiss
Counts 1, 3 and 4 Et Al, And Counter-Motion For Partial Summary
Judgment On The Issue of Liability Against Defendant Carl Schwait. (Doc.
33.)
20.
Plaintiff’s Motion To Exceed Page Limit To File Plaintiffs Response to
Motion To Dismiss And Counter-Motion For Partial Summary Judgment
On The Issue of Liability. (Doc. 35.)
21.
Citizens’ Motion To Remand And Incorporated Memorandum of Law.
(Doc. 37.)
22.
Plaintiffs Motion Requesting This Court Take Judicial Notice of Plaintiffs’
Signature Supplied for Plaintiffs’ Motion Requesting this Court Take
Judicial Notice of Plaintiff Day-Petrano’s Prior “Final” Res Judicata Titles
II, III Americans With Disabilities Act, Sec. 504, and Federal Court
Disability Accommodations Determinations. (Doc. 39.)
23.
Plaintiffs Motion For Entry of Order Authorizing Plaintiffs to File Pleadings
Via CM/ECF and Directing PACER Center to Re-Open Her Account
Without Surcharge, Authorizing Plaintiff Mary Katherine Day-Petrano To
Bring Her Autism Computer Into Federal Courthouse For Any Hearings In
This Action So She Can Communicate, And For Extension of 120 Day
Time Period To Serve All Remaining Defendants With Publication Service
On Darlene Baylor and John Fernando. (Doc. 40.)
24.
Plaintiffs Motion For Entry of Order For United States Administrative
Office of the Courts, Or Otherwise, Timely Provide a Specific Autism
Functional Blind Vision Impairment Deafness Language
Interpreter/Transcriber. (Doc. 41.)
Case No: 1:12-cv-86-SPM -GRJ
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25.
Plaintiffs’ Motion To Exceed Page Limit To File 33 Page Response to
Defendant Nationwide Mutual Fire Insurance Company’s Motion To
Dismiss And Counter-Motion For Partial Summary Judgment On The
Issue of Liability Against Defendant Nationwide. (Doc. 42.)
26.
Defendant Alachua County Board of County Commissioners’ Motion For A
More Definite Statement Or In The Alternative To Dismiss the Complaint.
(Doc. 44.)4
27.
Plaintiff’s Motion To Exceed Page Limit. (Doc. 46.)
28.
Defendant Citizens’ Property Insurance Corporation’s Motion To Strike, Or
In The Alternative, Response in Opposition to Plaintiffs’ Counter-Motion
For Summary Judgment. (Doc. 48.)
29.
Motion To Consolidate Related Cases Funding Plaintiffs’ Autism
Olmstead Community-Based Living Rights To Avoid Irreparable Prejudice
of Inconsistent Determinations. (Doc. 49.)
30.
Nationwide Mutual Fire Insurance Company’s Amended Motion To Strike.
(Doc. 54.)
31.
Carl Schwait’s Motion To Strike Or, In The Alternative, Response In
Opposition to Plaintiffs’ Counter-Motion For Summary Judgment. (Doc.
55.)
DISCUSSION
A.
Plaintiffs’ Complaint Is Not A Short and Plain Statement And Is Due To Be
Dismissed With Leave to Amend
The Complaint in this case includes seventeen counts,5 pled in 413 numbered
paragraphs, spanning more than 139 pages, excluding attachments. The Complaint
4
Defendant, Alachua County Board of County Com m issioners have also filed an am ended
m em orandum of law supporting its m otion for m ore definite statem ent or in the alternative to dism iss.
(Doc. 63.)
5
The Com plaint incorrectly includes a count eighteen even though there are only seventeen
counts.
Case No: 1:12-cv-86-SPM -GRJ
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names thirteen separate defendants and while each count of the complaint purports to
identify the nature of the claim, the allegations contained within each count are rambling
and in many counts have little to do with the nature of the claim identified in the heading
of the particular count. Most notably, however, is the fact that this lawsuit attempts to
include in one complaint at least four or five separate claims, each having nothing to do
with the other. The only connection between the claims in the lawsuit is that the
Plaintiffs allege they were victims of discrimination. It is wholly improper to include in the
same lawsuit claims against multiple defendants which do not have any connection with
each other.
While the Court could attempt to dissect the arguments in each motion to
dismiss, it is not necessary to do so because the bottom line is that the Complaint
constitutes a classic example of a shotgun pleading, which the Eleventh Circuit has
“condemned repeatedly.” Muglata v Samples, 256 F.3d 1284 (11th Cir. 2001). The
complaint is replete with irrelevant and unsupported factual allegations and legal
conclusions, and is plagued by incomprehensible and truly puzzling statements. As a
result the Court is forced to sift through various irrelevancies and myriad word puzzles
to distill what it is exactly that Plaintiffs intend to place before the Court for resolution –
an onerous task which the Court is unable and unwilling to perform in this instance or
any other instance. Where, as here, the Court is confronted with a shotgun pleading the
Court has an obligation and duty to insure that the Complaint which goes forward
properly frames the issues. Unless the Court requires on its own that a party replead a
shotgun pleading it will lead to a shotgun answer (or as in this case shotgun motions to
Case No: 1:12-cv-86-SPM -GRJ
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dismiss). Such disjointed pleadings also will make it difficult or impossible to set the
boundaries for discovery. Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir.
2001)(“Shotgun pleadings ... impede[...] the due administration of justice and, in very
real sense, amount [...] to obstruction of justice.”)(internal citations omitted). These
aggregate negative effects of shotgun pleadings on trial courts have been noted with
great concern by the Eleventh Circuit. See, e.g. Byrne, 261 F.3d at 1131 (“Shotgun
pleadings, if tolerated, harm the court by impeding its ability to administer justice. The
time a court spends managing litigation framed by shotgun pleadings should be
devoted to other cases waiting to be heard.”); Cramer v Florida, 117 F.3d 1258, 1263
(11th Cir. 1997)(noting that “[s]hotgun pleadings ... exact an intolerable toll on the trial
court’s docket.”); Ebrahimi v. City of Huntsville Bd. Of Educ., 114 F.3d 162, 165 (11th
Cir. 1997)(per curiam)(“[S]hotgun pleadings ... impede the orderly, efficient and
economic disposition of disputes.”); Anderson v Dist. Bd. Of Trustees of Cen. Fl.
Comm. College, 77 F.3d 364, 367 (11th Cir. 1996)(noting the “cumbersome task of
sifting through myriad claims, many of which may be foreclosed by various defenses”
that judges face in connection with shotgun pleading.).
While there are numerous fundamental problems with each count of the
Complaint, which the Court will briefly discuss below, at a minimum before a
determination is made on the merits of whether any particular claim states a viable
cause of action, Plaintiffs will be required to file an amended complaint in compliance
with Rule 8 of the Federal Rules of Civil Procedure and limited to one – and only one –
occurrence, which raises a federal claim. Throughout Plaintiffs’ complaint, Plaintiffs
Case No: 1:12-cv-86-SPM -GRJ
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mention various violations of the ADA but improperly include the claims within a count
alleging conduct that amounts to nothing more than a state law claim. For example,
Plaintiffs sue Nationwide because Nationwide has allegedly failed to pay Plaintiff since
January 2009 on her claim for underinsured motorist coverage. Plaintiffs further allege
they have served a bad faith notice to the insurance company. The claim therefore is
really a claim for breach of contract, bad faith or declaratory relief, claims that do not
involve any federal question. Plaintiffs, however, attempt to include allegations against
Nationwide for violation of the ADA, without alleging a factual or legal basis for the ADA
claim. The Court is left to guess as to the nature of the claim. Not surprisingly the
disjointed and rambling nature of the complaint triggered a series of motions to dismiss
by the Defendants. The common theme of the motions to dismiss is the inability of the
defendants to sort out and make sense of the allegations.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint
contain a short and plain statement of the claim showing that Plaintiffs are entitled to
relief. The purpose of the short and plain statement requirement is to “give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell
Atlantic Corp. V Twombly, 550 U.S. 544, 570 (2007). That is not possible for any
defendant in this case to do based upon this Complaint.
In addition to the requirement that the complaint include a short and plain
statement of the claim, this action is pending in federal court upon removal from state
court. Pursuant to 28 U.S.C. § 1441(c)(2) - which was revised effective December 2011
-- a defendant in a state court action may remove an entire case to federal court where,
Case No: 1:12-cv-86-SPM -GRJ
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as here, a civil action includes a claim based on federal law and a claim (or claims) not
within the original jurisdiction of the court are included in the complaint. That is what Old
Republic did in this case. Old Republic removed the claim against it – which vaguely
asserted a claim under the ADA – even though there are numerous other claims in this
case which involve state law claims against non-diverse parties. The revised statute
now provides that upon removal of such an action “[t]he district court shall sever from
the action all claims [which were not removable by themselves] and shall remand the
severed claims to State court from which the action was removed.” 28 U.S.C. §
1441(c)(2). The Court would have done just that if it was possible to make sense of the
claims so that they could be separated by party or count as to which claims should be
severed and remanded. However, because Plaintiffs improperly intermingled the
allegations of multiple defendants in many of the counts and conflated state law claims
with unrelated allegations of ADA violations it is impossible to determine which counts
should be severed and remanded. To the extent that Plaintiffs attempt to include state
law claims in an amended complaint these claims will be severed and remanded to
state court.
In amending the Complaint to the extent that Plaintiffs seek to bring a claim for
violation of the ADA, Plaintiffs should distinguish between claims brought under Title II
– which proscribes discrimination against the disabled regarding access to public
services, 42 U.S.C. § 12132 (“No qualified individual with a disability shall ... be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.”) – and
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Title III, which proscribes discrimination against the disabled in public accommodations.
42 U.S.C. § 12182(a)(“No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person
who owns ... or operates a place of public accommodation.”). Plaintiffs should limit the
allegations in a count to the facts Plaintiffs contend support a claim for violation of the
ADA. The inclusion of unnecessary allegations concerning the basis of their state law
claims is wholly unnecessary and improper.
In addition to the requirement that the Complaint include only a short and plain
statement of the claim Plaintiff should insure that the party named as a defendant is
subject to liability under the particular provision of the ADA. For example, with regard to
any party that is a state created governmental entity Plaintiff should keep in mind that
Eleventh Amendment immunity may protect such an entity from a claim for damages
under the ADA. Further, to the extent that Plaintiff names an individual defendant in the
amended complaint for a violation of the ADA Plaintiffs should make sure that the
particular title of the ADA relied upon by Plaintiff authorizes claims against individuals.6
While this list is not exhaustive, Plaintiffs are encouraged to give appropriate thought
6
For exam ple, under the general anti-discrim ination provision of Title II of the ADA disabled
individuals m ay seek redress for discrim ination by a public entity, but not against individuals. See, Schotz
v. City of Plantation, 344 F.3d 1161, 1172 n. 17 (11th Cir. 2003). Under Title III of the ADA an individual
m ay only be liable if he or she “owns, operates, or leases the public accom m odation.” Coddington v.
Adelphi Univ., 45 F.Supp. 2d 211, 215 (E.D. N.Y. 1999). An individual, however, m ay be held liable under
the anti-retaliation provision of the ADA. 42. U.S.C. § 1203(a). See, Schotz at 1180. The anti-retaliation
provision of the ADA prohibits retaliation and not discrim ination based upon a disability. To the extent the
Plaintiffs attem pt to allege a claim for retaliation Plaintiffs m ust be able to allege facts dem onstrating a
retaliatory anim us which is the result of Plaintiffs’ com plaint of discrim ination based upon disability.
Case No: 1:12-cv-86-SPM -GRJ
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and are required to conduct the necessary legal research before bringing a claim.
Although the Plaintiffs are currently proceeding pro se the Plaintiffs are attorneys and
therefore are expected to adhere to the ethical standards applicable to attorneys. Any
attempt to bring a claim that is unsupported by a viable legal theory or any attempt to
bring a claim against a party, who cannot be held liable under the ADA, could be
subject to a motion for sanctions under 28 U.S.C. § 1927.7
In addition to the problems with the complaint discussed above, which require
dismissal of the complaint with leave to amend, the following specific problems are
evident in the complaint:
!
To the extent Plaintiffs are attempting to bring a claim against Old
Republic, Attorney’s Title Fund Services, LLC or Nationwide under Title II,
Plaintiffs have failed to allege that Old Republic or Nationwide constitute
a “public entity” for purposes of Title II.
!
To the extent that Plaintiffs are attempting to bring a claim against any
defendants for violation of Fla. Stat. § 415.1111, alleging that they qualify
as “vulnerable adults,” Plaintiffs have failed to allege any facts meeting the
definition of “abused, neglected, or exploited” and fail to allege any facts
suggesting that any of the Defendants fall within the category of
individuals who may be subject to suit i.e a relative, caregiver, or
7
2 8 U.S.C. § 1 9 2 7 prov ides, in pert inent part , t hat , any at t orney or ot her person adm it t ed
t o conduc t cases in any c ourt of t he Unit ed St at es w ho “ m ult iplies t he proceedings in any case
unreasonably and v ex at iously m ay be required by t he court t o sat isf y personally t he ex cess cost s ,
ex penses, and at t orney ’ s f ees reasonably incurred because of such conduct .”
Case No: 1:12-cv-86-SPM -GRJ
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household member” or an alleged “perpetrator.”
!
To the extent that Plaintiffs have named Alachua County as a defendant
there are simply no allegations that the County Commission had anything
to do with the easement. To the extent that the Plaintiffs are attempting to
sue the Sheriff regarding some action taken with regard to the easement,
the Sheriff in her official capacity would be the appropriate party to name.
Consequently, for the reasons discussed above the Court concludes that the
Plaintiffs’ complaint is due to be dismissed without prejudice because it is a classic
example of a shotgun pleading. Further, because the Plaintiffs are proceeding pro se –
and recognizing that the Plaintiffs may suffer from a disability – the Plaintiffs shall have
the right to file an amended complaint to properly frame the claims in this case and to
narrow their claims to one and only one nucleus of operative facts.
Accordingly, because the Complaint is due to dismissed and Plaintiffs have been
granted leave to file an amended complaint, the various motions to dismiss filed by the
Defendants (Docs. 6, 8, 9, 11, 15, 17, 19, 32 and 44), attacking the sufficiency of the
complaint, are due to be denied without prejudice.8 To the extent necessary Defendants
may raise any arguments previously raised in responding to the amended complaint.
B. The Various Motions to Strike
Because the Court is dismissing the complaint with leave to amend, the motion
8
The Court will defer ruling on Defendant Citizens’ Motion To Rem and (Doc. 37) pending the filing
of an am ended com plaint to determ ine whether Plaintiffs proceed against Citizens in their am ended
com plaint. To the extent that Plaintiffs include Citizens in the am ended com plaint the Court will then
address citizens’ m otion to rem and.
Case No: 1:12-cv-86-SPM -GRJ
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to strike filed by Plaintiffs requesting that the Court strike Defendant Nationwide’s
Motion to Dismiss, is moot and, accordingly, Plaintiffs’ Motion to Strike (Docs. 22) is due
to be denied as moot.
Defendants have filed a series of motions to strike (Docs. 31, 48, 54, and 55)
requesting that the Court strike the counter-motions for summary judgment, Plaintiffs
filed as a response to the motions to dismiss. Because the Court has dismissed the
complaint subject to the right of Plaintiffs to file an amended complaint, the motions to
strike are due to be granted. Accordingly, Plaintiffs’ Responses to the Motions to
Dismiss, which improperly included a counter-motion for summary judgment (Docs. 13,
21), are due to stricken.
C. Miscellaneous Motions
Plaintiffs have filed a series of motions requesting leave to file excess pages in
their responses to the various motions to dismiss. (Docs. 12, 33, 35, 42, and 46.)
Because Plaintiffs’ complaint is dismissed with leave to amend there is no need to file
responses let alone responses that exceed the 25 page limit. Accordingly, Plaintiffs’
motions for leave to file excess pages (Docs. 12, 33, 35, 42 and 46) are due to be
denied.
In addition Plaintiffs have filed a series of motions requesting that the Court take
judicial notice of various events and other facts. For the most part these motions were
wholly unnecessary. However, because the Complaint is due to be dismissed these
motions (Docs. 24, 25, 27, 28, 30 and 39) are also due to be denied.
Plaintiff, Day-Petrano also has filed a Motion to Consolidate (Doc. 49) this case
Case No: 1:12-cv-86-SPM -GRJ
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with another case filed in this district in which Plaintiff is seeking review of a decision of
the Social Security Administration. (See, Day-Petrano v. Astrue, case no. 1:12cv97MP/CAS). In that case Judge Stampelos entered an order directing Plaintiff to amend
her complaint to limit it to one type of case. Plaintiff has challenged the order and has
not yet filed an amended complaint. Accordingly, there is nothing to consolidate at this
point. Neither case has an operative complaint and thus there is no reason at this
juncture to consolidate the two cases. Accordingly, Plaintiff’s motion to consolidate is
due to be denied.
Plaintiffs have filed a motion entitled “Motion For Entry of Order Authorizing
Plaintiffs to File Pleadings Via CM/ECF And Directing Pacer Center To Re-Open Her
Account Without Surcharge, Authorizing Plaintiff Mary Katherine Day-Petrano To Bring
Her Autism Computer Into The Federal Courthouse For Any Hearings In This Action So
She Can Communicate, And For Extension of 120 Day Time Period To Serve All
Remaining Defendants With Publication Service On Darlene Baylor and John
Fernando.” (Doc. 40.) Plaintiffs request three distinct types of relief. First, Plaintiffs’
request permission to utilize CM/ECF. Secondly, Plaintiffs request permission to bring
an autism computer into the courthouse for any hearings. Lastly, Plaintiffs request an
extension of the 120 time period to serve any unserved defendants and request
permission to serve two individual defendants by publication.
First, with regard to the request to utilize CM/ECF, N.D. Fla. Loc. R. 5.1(A)(1)
provides in pertinent part that “[a]ll documents in civil and criminal cases shall be filed
by electronic means, except that documents in cases filed pro se (prisoner and nonCase No: 1:12-cv-86-SPM -GRJ
Page 19 of 21
prisoner) . . . shall continue to be filed in paper form” and that “[a] judicial officer may
grant other exceptions for good cause.” In this case, it appears Plaintiff David Petrano
is a member of the Florida Bar and a licensed attorney in Florida. To the extent Mr.
Petrano would like to use CM/ECF to file documents in this case electronically, he may
complete the process for admission to the bar of this district specified in N.D. Fla. Loc.
R. 11.1(A) and (B). Accordingly, good cause has not been demonstrated to grant
Plaintiffs an exception to N.D. Fla. Loc. R. 5.1(A)(1)’s requirement that pro se parties
file documents in paper form.
With regard to Plaintiffs’ request to bring into the courthouse for any hearings her
autism computer, although no hearings are currently set, the request is due to be
granted. Plaintiff Mary Katherine Day-Petrano shall be authorized to bring into the
United States Courthouse in Gainesville, Florida her autism computer in the event the
Court schedules any hearings in this case.
With regard to Plaintiffs’ request for extension of the 120 day time limit the
request is due be granted for a period of sixty days to the extent that there are any
unserved defendants who are named in the amended complaint. To the extent that
Plaintiffs are requesting that the Court authorize service by publication on Darlene
Baylor and John Fernando the request is due to be denied. Until the amended
complaint is filed it is uncertain whether Plaintiffs will be able to proceed in federal court
with claims against these individuals. Additionally, there has been no showing of a
factual or legal basis authorizing service by publication.
Accordingly, Plaintiffs’ Motion (Doc. 40) is due to be granted in part and denied in
Case No: 1:12-cv-86-SPM -GRJ
Page 20 of 21
part.
Lastly, Plaintiffs have filed a Motion For Entry of Order For United States
Administrative Office of the Courts, Or Otherwise, Timely Provide A Specific Autism
Functional Blind Vision Impairment Deafness Language Interpreter/Transcriber. (Doc.
41.) This motion requests that the Administrative Office of the United States Courts
provide Plaintiffs with some type of interpreter for court proceedings. This motion is due
to be denied as premature for two reasons. The request properly should be addressed
to the Administrative Office of the United States Courts. Secondly, there are no
hearings scheduled in this case and unless and until a hearing is scheduled there is not
need for an interpreter. The motion is, therefore, due to be denied without prejudice.
Conclusion
Accordingly, for the reasons explained above, it is ORDERED:
1.
Plaintiffs’ Complaint is due to be DISMISSED without prejudice.
Plaintiffs are given leave to file an amended complaint. The amended
complaint should be prepared consistent with the directives in this order
and must be filed by July 13, 2012, failing which the complaint will be
dismissed with prejudice without further notice.
2.
Defendants’ Motions to Dismiss (Docs. 6, 8, 9, 11, 15, 17, 19, 32 and 44)
are DENIED without prejudice.
3.
Plaintiffs’ Motion to Strike (Doc. 22) is DENIED as moot.
4.
Defendants’ Motions to Strike (Docs. 31, 48, 54 and 55) are GRANTED.
Plaintiffs’ Counter-Motions For Summary Judgment (Docs. 13 and 21) are
STRICKEN.
5.
Plaintiffs’ Motions Requesting Leave to File Excess Pages (Docs. 12, 33,
35, 42 and 46) are DENIED.
6.
Plaintiffs’ Motions Requesting the Court to Take Judicial Notice (Docs. 24,
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Page 21 of 21
25, 27, 28, 30 and 39) are DENIED.
7.
Plaintiffs’ Motion to Consolidate (Doc. 49) is DENIED.
8.
Plaintiffs’ Motion For Entry of Order Authorizing Use of CM/ECF and For
Other Relief (Doc. 40) is GRANTED in part and DENIED in part.
9.
Plaintiffs’ Motion for relief in Doc. 41 is DENIED without prejudice.
DONE AND ORDERED this 13th day of June, 2012.
s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge
Case No: 1:12-cv-86-SPM -GRJ
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