Michel v. Security Alliance of Florida, LLC
ORDER granting 23 Motion to Dismiss. Signed by Judge Paul C. Huck on 9/2/2011. (kfn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-21127-CIV-HUCK/BANDSTRA
FRANCKLIN E. MICHEL,
SECURITY ALLIANCE OF FLORIDA, LLC,
a Florida corporation,
ORDER GRANTING MOTION TO DISMISS
This matter is before the Court on Defendant’s Motion to Dismiss Second Amended Complaint
(D.E. #23). Due to the pleading deficiencies discussed below, Plaintiff’s Second Amended Complaint
(D.E. #21) is dismissed without prejudice and with leave to amend. Because amendment is necessary,
the Court need not reach Defendant’s additional contentions that certain claims are time barred, that
42 U.S.C. § 1981 is inapplicable, and that Plaintiff waived his demand for a jury trial. The Court will
consider Defendant’s additional arguments after Plaintiff has filed a Third Amended
Complaint—presumably setting forth his claims for relief in a more organized, thorough, and
informative manner—and after Defendant has had an opportunity to file its subsequent Motion to
Dismiss, so long as such arguments are still relevant at that time.
Plaintiff Francklin E. Michel brings this action against his former employer, Security Alliance
of Florida, LLC (“Security Alliance”), suggesting several acts of unlawful discrimination, including
discrimination based on disability, race, national origin, religion, and retaliation. Plaintiff filed his
initial Complaint in state court on March 2, 2011, alleging one claim of retaliation under 42 U.S.C.
§ 1981. On March 14, 2011, Plaintiff filed his First Amended Complaint, also in state court, adding
a second claim of retaliation under § 1981. Security Alliance subsequently removed the case to this
Court and filed its Answer and Affirmative Defenses (D.E. #3).
Among its affirmative defenses, Security Alliance asserted that “Plaintiff’s First Amended
Complaint fails to state a claim upon which relief can be granted under 42 U.S.C. § 1981.” Def.’s
Answer and Affirmative Defenses (D.E. #3) at 3. The Court determined that it was in the interest of
justice to hear this defense early in the proceedings and sua sponte ordered Security Alliance to raise
this defense by motion. Accordingly, Security Alliance filed its Motion to Dismiss First Amended
Complaint (D.E. #10), arguing that Plaintiff’s First Amended Complaint failed to state a claim upon
which relief can be granted because the alleged retaliation was not based on protected activity taken in
response to racial discrimination, and therefore Plaintiff’s claims were not actionable under § 1981.
Instead of responding to Security Alliance’s Motion to Dismiss, Plaintiff filed a Motion for
Leave to Amend (D.E. #11) and attached a Proposed Second Amended Complaint that dropped all
§ 1981 claims and instead alleged three counts under the Florida Civil Rights Act (“FCRA”), FLA .
STAT . § 760.07. Security Alliance opposed Plaintiff’s request, arguing that Plaintiff’s proposed
amendment was a concession that his § 1981 claims were without merit, that Plaintiff’s amendment was
simply an effort to avoid an adverse ruling on the pending Motion to Dismiss, and that Plaintiff should
not be allowed to abandon his case and start anew. In response, Plaintiff filed an Amended Motion for
Leave to Amend (D.E. #13). The version of the Proposed Second Amended Complaint attached to
Plaintiff’s Amended Motion for Leave to Amend included the three claims brought pursuant to the
FCRA noted above and three additional claims under § 1981. Security Alliance again opposed the
On May 18, 2011, the Court granted Plaintiff’s Amended Motion for Leave to Amend and
denied Defendant’s Motion to Dismiss First Amended Complaint as moot. After Plaintiff filed his
Second Amended Complaint, Security Alliance filed the instant Motion to Dismiss. Security Alliance
now contends that the Second Amended Complaint is insufficient because it is a shotgun pleading and
contains only conclusory allegations of discrimination; that two of the three FCRA claims are time
barred; that the § 1981 claims are based upon alleged disability and religious discrimination and are
therefore not encompassed by § 1981; and that the Court should strike Plaintiff’s demand for a jury trial.
As discussed below, Security Alliance’s argument regarding the sufficiency of Plaintiff’s Second
Amended Complaint is meritorious. In its present state, Plaintiff’s Second Amended Complaint fails
to comply with the pleading standards of the Federal Rules of Civil Procedure, and therefore dismissal
As noted above, because the pleading deficiencies of the Second Amended Complaint
mandate dismissal, the Court need not reach Defendant’s other arguments at this time.
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a complaint
need not contain “detailed factual allegations” to survive a motion to dismiss, a complaint “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. Specifically, a complaint’s factual allegations “must be enough
to raise a right to relief above the speculative level.” Id. Furthermore, while a court must accept wellpleaded facts as true, it owes no such deference to a plaintiff’s legal conclusions. See Iqbal, 129 S. Ct.
at 1949 (quoting Twombly, 550 U.S. at 555).
In its instant Motion to Dismiss, Security Alliance argues that Plaintiff’s Second Amended
Complaint violates the prohibition against shotgun pleadings by improperly incorporating all of the
general allegations into each of the six subsequent claims. Accordingly, Security Alliance claims that
it is unclear what theory of liability or what type of discrimination Plaintiff is alleging in each claim.
Additionally, Security Alliance contends that each claim “fails to specify the elements of the claim or
identify the facts upon which they are based” and that the Second Amended Complaint contains only
conclusory allegations of discrimination, which are not entitled to a presumption of truth. Mot. to
Dismiss Second Am. Compl. (D.E. #23) at 3–4, 6. In response, Plaintiff states that each claim in the
Second Amended Complaint states a claim for relief that is “plausible on its face” and sets forth factual
allegations sufficient to “raise a right to relief above the speculative level.” Pl.’s Resp. in Opp’n (D.E.
#27) at 3–4.
While the Second Amended Complaint may not amount to the “quintessential” shotgun
pleading,2 it is sufficiently lacking in clarity, structure, and factual support so as to render dismissal
necessary and amendment appropriate. The major deficiency in Plaintiff’s Second Amended Complaint
“The typical shotgun complaint contains several counts, each one incorporating by
reference the allegations of its predecessors, leading to a situation where most of the counts (i.e.,
all but the first) contain irrelevant factual allegations and legal conclusions.” Strategic Income
Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). Plaintiff’s
Second Amended Complaint does not reincorporate each claim alleged into every subsequent
claim, as is common in some of the more egregious shotgun pleadings. Plaintiff does, however,
reallege all of his general allegations in each of his six claims. While this may not be
problematic in other cases, it becomes an issue where, as discussed in detail in the text, Plaintiff
makes no attempt to specify which of those allegations are relevant to the particular claim at
issue, provides no additional facts, and simply concludes that Plaintiff has suffered injury.
is that it fails to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. As the Eleventh
Circuit has stated:
These rules work together to 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 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) (quoting T.D.S. v. Shelby Mut. Ins. Co.,
760 F.2d 1520, 1543 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)); see also Davis v. Coca-Cola
Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008) (noting that the framers of the Rules “assumed
that complaints would be drafted as clearly and definitively as possible, so that the defendant could
understand the cause(s) of action the plaintiff was asserting and frame a responsive pleading, and the
district court, having a clear and definitive response before it, could recognize the parties’ claims and
defenses, identify the issues of fact to be litigated, and proceed to a just result”). Here, Plaintiff’s
incorporation of every general allegation into each count, coupled with his wholesale incorporation by
reference of several documents, without any discussion of the facts contained in those documents,
results in a pleading that is convoluted, confusing, and conclusory.
The Second Amended Complaint, which contains three claims alleging violations of the FCRA
and three claims alleging violations of § 1981, begins with a “Preliminary Statement” that sets forth
Plaintiff’s general allegations. In this Preliminary Statement, Plaintiff states that he filed two Equal
Employment Opportunity Commission (“EEOC”) charges against Security Alliance, one on May 4,
2007, alleging disability discrimination, and one on September 28, 2007, alleging retaliation. Plaintiff
then incorporates these two EEOC charges by reference into the Second Amended Complaint as
“Exhibit A” and “Exhibit B,” respectively.3 Plaintiff also alleges that on January 10, 2008, his attorney
faxed Defendant a letter referencing the EEOC charges and making a claim of religious discrimination.
This letter is incorporated by reference as “Exhibit C.” Plaintiff then claims that on or around January
28, 2008, a supervisor came to his post and told him to leave, effectively terminating his employment.
Plaintiff concludes the Preliminary Statement by alleging that Security Alliance “had an intent to
discriminate on the basis of race and was motivated by racial animus against Black persons and
These two EEOC charges were initially filed on the docket in conjunction with
Defendant’s Notice of Removal (D.E. #1).
[Defendant’s] animus was directed towards the kind of group that Congress intended to protect when
it passed 42 U.S.C. Section 1981.” Second Am. Compl. (D.E. #21) at 2.
Plaintiff then attempts to set forth his claims under the FCRA and § 1981. Claim 1, which is
styled as a discrimination claim under the FCRA, simply realleges the paragraphs of the Preliminary
Statement and declares that “[t]he charging document in Exhibit A shows that Defendant discriminated
against Plaintiff on or about May 3, 2007.” Second Am. Compl. (D.E. #21) at 2. Plaintiff does not
specify which, if any, of the allegations in the Preliminary Statement are relevant to this claim. Nor
does he identify or discuss any of the facts contained within the incorporated EEOC charge—which
presumably forms the factual basis for his claim of discrimination—anywhere within Claim 1 itself.
As noted above, he simply concludes that “Exhibit A shows that Defendant discriminated against
While the Court may look to documents attached to a complaint in determining whether that
complaint contains sufficient factual allegations, Exhibit A—the EEOC charge alleging disability
discrimination—does not lend support to the Second Amended Complaint, but rather serves as a
substitute for the factual allegations ordinarily found in the body of a complaint itself. Plaintiff does
not provide a short and plain statement “showing” that Plaintiff is entitled to relief, as is required by
Rule 8. Instead, Security Alliance and this Court must attempt to ascertain—from the Preliminary
Statement and Exhibit A—the elements of Plaintiff’s claim of discrimination, what facts are relevant
to that claim, and whether such facts are sufficient to state a cause of action. Furthermore, Claim 1 fails
to comply with Rule 10(b), which “requires the pleader to present the claims in a discrete and succinct
manner so that the opponent can discern what is being claimed and frame a responsive pleading.”
Cascella v. Canaveral Port Dist., No. 6:04CV1822ORL19DAB, 2005 WL 2105956, at *4 (M.D. Fla.
Aug. 31, 2005) (citing Fikes, 79 F.3d at 1082). It is simply impossible for Security Alliance to frame
a meaningful answer, and to admit or deny pertinent allegations, when none of the relevant factual
allegations are contained in the numbered paragraphs to which Security Alliance must respond. These
same problems plague Claim 2, which alleges retaliation under the FCRA based on Exhibit B, as well
as Claims 4 and 5, which differ from Claims 1 and 2 only in that they are brought pursuant to § 1981.
Claims 3 and 6 pose additional pleading issues. In Claim 3, which is entitled “Discrimination
Claim Under Florida Statutes 760.07 . . . Regarding Removal and/or Termination from Job Sometime
Between January 28, 2008 and March 2008,” Plaintiff realleges the paragraphs of the Preliminary
Statement and incorporates by reference a third EEOC charge as “Exhibit D.” Plaintiff then concludes
that Defendant’s discrimination caused him to suffer damages. Plaintiff does not address the contents
of Exhibit D—although review of the EEOC charge reveals that it alleges discrimination based on
national origin—or in any way connect Exhibit D to his subsequent conclusion that Security Alliance’s
discrimination caused him damages. It is therefore unclear whether the allegations in Exhibit D provide
the basis for the alleged discrimination regarding Plaintiff’s job removal or termination between January
28, 2008, and March 2008. It is just as likely that Claim 3 stems from events alleged in the Preliminary
Statement and incorporated into Claim 3. Specifically, Plaintiff alleges in his Preliminary Statement
that he filed two EEOC charges and that on January 10, 2008, his attorney faxed Security Alliance a
letter referencing those EEOC charges and alleging religious discrimination. Plaintiff then states that
on or about January 28, 2008, he was terminated. Accordingly, the discrimination alleged in Claim 3
may be based on the fact that Security Alliance removed Plaintiff from his job for making prior claims
of discrimination. Indeed, this was the basis for Plaintiff’s claim regarding his January 2008 job
removal or termination in his First Amended Complaint. See First Am. Compl. (D.E. # 1-4) at 3
(“Wherefore comes Plaintiff and sues Defendant for Retaliation . . . for the removal of Plaintiff from
his job on January 28, 2008 . . . .”). Without further clarification and additional factual detail, it is
impossible to accurately determine the basis for Plaintiff’s claim of job removal or termination alleged
in Claim 3.
Claim 6, which is entitled “Discrimination Claim Under 42 U.S.C. § 1981 . . . Regarding
Removal and/or Termination from Job Sometime Between January 28, 2008 and March 2008,” provides
even less detail. In Claim 6, Plaintiff merely realleges the paragraphs of the Preliminary Statement and,
without any further elaboration, states that Security Alliance’s discrimination caused Plaintiff to suffer
damages. It is therefore entirely unclear which allegedly discriminatory acts by Security Alliance form
the basis for this claim. As noted above, unless Plaintiff sets forth clear and definitive claims for relief,
Security Alliance cannot adequately form a responsive pleading, and in turn, it becomes increasingly
difficult for the Court to define the issues, manage discovery, and ultimately reach a just result. See
Davis, 516 F.3d at 979; see also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364,
367 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues are
not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants
suffer, and society loses confidence in the court’s ability to administer justice.”).
Finally, Plaintiff’s allegations of racial discrimination warrant additional attention. In its Motion
to Dismiss, Security Alliance claims that Plaintiff’s § 1981 claims are based on alleged disability and
religious discrimination, not race discrimination, and that such claims are therefore not actionable under
§ 1981. In response, Plaintiff argues that his § 1981 claims each incorporate Paragraphs 6 and 14 of
the Preliminary Statement, which in turn allege that “Plaintiff is Black” and that Security Alliance “had
an intent to discriminate on the basis of race and was motivated by racial animus against Black persons
and [Security Alliance’s] animus was directed towards the kind of group that Congress intended to
protect when it passed 42 U.S.C. § 1981.” Second Am. Compl. (D.E. #21) at 1, 2.
It is sufficient to say that Plaintiff, at this time, has not adequately set forth factual allegations
to support a claim that Security Alliance acted in a racially discriminatory manner—irrespective of
whether Plaintiff brings such claim under § 1981 or any other law. Plaintiff fails to plead facts that
establish the grounds upon which his claim of racial discrimination rests. He provides only a
conclusory allegation of wrongdoing, which is insufficient to satisfy the requisite “showing” of
entitlement to relief under Rule 8. See Paramo v. Imico Brickell, LLC, No. 08-20458-CIV-HUCK,
2008 WL 4360609, at *6 (S.D. Fla. Sept. 24, 2008) (citing Twombly, 550 U.S. at 555 n.3). Indeed,
Plaintiff’s allegation of racial animus amounts to no more than “an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 551 U.S. at 555.).
If Plaintiff asserts a claim of race discrimination in a future pleading, under § 1981 or otherwise, he
must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 551 U.S. at 570).
Whether Plaintiff can successfully assert one or more claims of discrimination against Security
Alliance remains to be seen. At this point however, Plaintiff’s Second Amended Complaint fails to
provide the clarity and factual support needed for the Court to accurately determine the validity of
Plaintiff’s claims. Accordingly, Security Alliance’s Motion to Dismiss is GRANTED, and the Second
Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff shall have one last opportunity
to provide a viable complaint. If Plaintiff intends to file a Third Amended Complaint, he shall do so
by Friday, September 16, 2011.
DONE and ORDERED in Chambers, Miami, Florida, September 2, 2011.
Paul C. Huck
United States District Judge
Copies furnished to:
All Counsel of Record
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