Tajalli v. Wal-Mart Stores, Inc.

Filing 11

ORDER granting 6 Motion to Dismiss; granting 6 Motion for More Definite Statement. Plaintiff shall file an amended complaint on or before December 3, 2013. See Order for details. Signed by Judge Robin S. Rosenbaum on 11/19/2013. (jsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62241-CIV-ROSENBAUM
BIZHAN TAJALLI,
Plaintiff,
vs.
WAL-MART STORES, INC.,
Defendant.
____________________________/
ORDER GRANTING MOTION TO DISMISS
This cause is before the Court upon the Defendant Wal-Mart Stores, Inc.’s Motion to
Dismiss, or in the Alternative, Motion for a More Definitive Statement [D.E. 6]. For the reasons set
forth below, the Court dismisses Plaintiff’s Complaint without prejudice and orders Plaintiff to file
an amended complaint.
On July 25, 2013, Plaintiff Bizhan Tajalli filed a Complaint in the Circuit Court of the 17th
Judicial Circuit in and for Broward County, Florida. D.E. 1-3 at 6-8. The Complaint alleges that
Plaintiff was discriminated against by his employer, Defendant Wal-Mart Stores, Inc.,1 because of
his age and a handicap caused by his intestinal surgery. Id. ¶¶ 13, 17, 20. Defendant removed the
matter to this Court and filed its Motion to Dismiss, describing the Complaint as a “shotgun
pleading” that does not frame its claims with sufficient clarity for Defendant to be able to properly
respond. D.E. 6.
Plaintiff did not respond to the Motion to Dismiss by the required deadline, see S.D. Fla. L.R.
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Defendant’s Motion to Dismiss asserts that Plaintiff improperly identified Wal-Mart
Stores, Inc., as the defendant in this matter. D.E. 6 at 1 n.1. Defendant claims that the appropriate
defendant is Wal-Mart Stores East, L.P., the entity that operates the store that employed Plaintiff.
Id.

7.1(c), and the Court issued an Order requiring Plaintiff to show cause by November 18, 2013, why
the Court should not grant the Motion to Dismiss. D.E. 9. The Court noted that a failure to timely
respond may result in the granting of the Motion. Id.
Plaintiff responded to the Order to Show Cause on November 18, 2013, asserting that
because Defendant never conferred with Plaintiff prior to the filing of its Motion to Dismiss, Plaintiff
was not required to respond to the Motion. D.E. 10. Plaintiff requested that Defendant’s Motion be
stricken or amended prior to Plaintiff’s requirement to respond. Id.
Plaintiff’s assertions are meritless. Plaintiff contends that Local Rule 7.1(a)(3) required
Defendant’s counsel to confer with Plaintiff’s counsel prior to the filing of the Motion to Dismiss.
D.E. 10. But that Rule states,
Prior to filing any motion in a civil case, except a motion . . . to
dismiss for failure to state a claim upon which relief may be granted
. . . counsel for the movant shall confer (orally or in writing), or make
reasonable efforts to confer (orally or in writing), with all parties or
non-parties who may be affected by the relief sought in the motion in
a good faith effort to resolve by agreement the issues to be raised in
the motion.
S.D. Fla L.R. 7.1(a)(3) (emphasis added). The clear language of the Rule exempts motions to dismiss
from the pre-filing conference requirement. Defendant was not required to confer with Plaintiff about
the issues raised in the Motion to Dismiss prior to filing the Motion.
Moreover, even assuming Plaintiff did have a valid claim that Defendant’s filing failed to
satisfy a procedural rule, such a claim does not absolve Plaintiff of the requirement to respond to the
Motion. The proper course of action would have been for Plaintiff to file a response that raised his
objections to the Motion, rather than remain quiet and assume that the Court would somehow divine
his unvoiced objections.
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Turning to the merits of Defendant’s Motion to Dismiss itself, the Court agrees that
Plaintiff’s Complaint is a shotgun pleading that fails to identify Plaintiff’s claims with sufficient
clarity. “Shotgun” pleadings have been “roundly, repeatedly, and consistently condemn[ed]” by the
Eleventh Circuit. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008); see
Thompson v. RelationServe Media, Inc., 610 F.3d 628, 650 n.22 (11th Cir. 2010) (Tjoflat, J.,
concurring in part and dissenting in part). The Eleventh Circuit labels a complaint as a shotgun
pleading when it is “virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief.” Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364,
366 (11th Cir. 1996). A pleading drafted in this manner “is in no sense the ‘short and plain statement
of the claim’ required by Rule 8[(a)(2), Fed. R. Civ. P.],” and “completely disregards Rule 10(b)’s
requirement that discrete claims should be plead in separate counts.” Magluta v. Samples, 256 F.3d
1282, 1284 (11th Cir. 2001) (per curiam).
Plaintiff’s Complaint fails to plead discrete claims in separate counts. The Complaint notes
that the action is “filed under the Florida Civil Rights Act,” Fla Stat. §§ 760.01-11, but also
references the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165, and Florida’s
Whistleblower Act, Fla Stat. § 448.101-105. D.E. 1-3 at 6-7, ¶¶ 2, 8, 15. Plaintiff also seemingly
asserts various legal theories in the Complaint, such as hostile work environment, harassment,
discrimination, and disparate treatment. Id. ¶¶ 10, 13, 14, 20. But Plaintiff does not organize these
allegations into separate counts that provide notice to Defendant of which statutory provisions
Plaintiff alleges that Defendant violated, and under which legal theories these violations occurred.
Defendant cannot reasonably respond to Plaintiff’s Complaint when the Complaint does not clearly
organize its claims.
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When faced with a shotgun complaint, the Eleventh Circuit encourages defendants to first
make motions for more definite statements or, failing that, the district court should sua sponte
demand repleader. Bailey v. Janssen Pharmaceutica, Inc., 288 F. App’x 597, 603 (11th Cir. 2008)
(citing Anderson, 77 F.3d at 367 & n.5; and Davis, 516 F.3d at 983-984). Dismissal, and possibly
sanctions, are warranted under certain circumstances only if the party then fails to revise the shotgun
complaint. Bailey, 288 F. App’x at 603 (citing Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir.
2001)). Defendant’s Motion appropriately moves in the alternative for a more definitive statement
under Rule 12(e), Fed. R. Civ. P. See D.E. 6 at 1.
Accordingly, it is ORDERED and ADJUDGED that Defendant’s Motion to Dismiss, or in
the Alternative, Motion for a More Definitive Statement [D.E. 6] is GRANTED. Plaintiff’s
Complaint [D.E. 1-3 at 6-8] is dismissed without prejudice. Plaintiff shall file an amended complaint
on or before December 3, 2013. Failure to timely file the amended complaint may result in the
dismissal of this action with prejudice and the imposition of sanctions.
DONE and ORDERED in Fort Lauderdale, Florida, this 19th day of November 2013.

ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE
Copies furnished to:
The Honorable Patrick M. Hunt
Counsel of record

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