Wright et al v. H Lee W Trade Group Inc. et al

Filing 53

ORDER granting 39 Motion to Dismiss 37 Amended Complaint for Failure to State a Claim ( Second Amended Complaint due by 3/20/2018.) Signed by Judge Robert N. Scola, Jr. on 3/5/2018. (ls)

United States District Court
for the
Southern District of Florida
David H. Wright and Theiline P.
Scheumann, Plaintiffs,
v.
H Lee W Trade Group, Inc., and
others, Defendants.

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) Civil Action No. 17-22296-Civ-Scola
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Order Granting Motion to Dismiss
This matter is before the Court upon the Defendants H Lee W Trade Group
(“H Lee”) and Hillary Williams’s (“Williams”) motion to dismiss (ECF No. 39). The
Court has considered the motion, all opposing and supporting materials, the
record in this case and the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Court grants the motion to dismiss (ECF No. 39).
1. Background
This case arises as a result of an alleged scheme that resulted in a loss of
$1.4 million to the Plaintiff Theiline P. Scheumann.1 The Plaintiff filed her
complaint (ECF No. 1) on June 6, 2017, which H Lee and Williams sought to
dismiss (Mot., ECF No. 29). On November 3, 2017, the Plaintiff filed an Amended
Complaint (ECF No. 37), and the Court denied the pending motion to dismiss as
moot (ECF No. 38.) In the Amended Complaint, the Plaintiff alleges that she
maintains a membership interest in a limited liability investment company, and
that the Defendants engaged in an elaborate scheme involving email hacking to
generate fake communications designed to look like capital calls from the
company, in order to obtain money from the Plaintiff. As a result of the alleged
scheme and resulting losses, the Plaintiff asserts claims against the Defendants
for unjust enrichment (Count 1), constructive trust (Count 2), civil theft (Count
3), fraud (Count 4), conversion (Count 5), injunctive relief (Count 6), civil
conspiracy (Count 7), and money had and received (Count 8). H Lee and Williams
filed the instant motion to dismiss for failure to state a claim, to strike, or in the
alternative for a more definite statement.2

The claims are asserted by David H. Wright, as attorney-in-fact for Scheumann. (See
Am. Compl., ECF No. 37.)
2 The Defendant Jonathan Alonso Munez (or Munoz), is proceeding pro se and filed an
answer (ECF No. 47) on January 4, 2018.
1

2. Legal Standard
When considering a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the
complaint’s allegations as true, construing them in the light most favorable to the
plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading
need only contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8
announces does not require detailed factual allegations, but it demands more
than an unadorned, the-defendant-has-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must
articulate “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Thus, a pleading that offers mere “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” will not survive dismissal. See
Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 679.
3. Analysis
In addition to their principal arguments for dismissal, H Lee and Williams
make numerous arguments in the alternative, only one of which merits
discussion—they argue that the Amended Complaint is an impermissible shotgun
pleading requiring a more definite statement.3 The Plaintiff contends that because
her claims all arise from the same alleged fraudulent transactions, the Amended
Complaint is not a shotgun pleading.
A court has the discretion to dismiss a complaint for failure to comply with
the pleading rules. Heard v. Nix, 170 F. App’x 618, 619-20 (11th Cir. 2006). Rule
To the extent that H Lee and Williams argue that the Court should vacate its prior order
denying the first motion to dismiss as moot upon the filing of the Amended Complaint,
the Court notes that if they believed the order to have been in error, they should have
promptly requested reconsideration. See Williams v. Cruise Ships Catering & Serv. Int’l,
N.V., 320 F. Supp. 2d 1347, 1357-58 (S.D. Fla. 2004) (“[T]he courts have delineated three
major grounds justifying reconsideration: (1) an intervening change in controlling law; (2)
the availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice.”) (internal citation omitted).
3

8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Here, the Amended Complaint fails to comply with Rule 8(a)(2) because it
constitutes a classic shotgun pleading. A typical shotgun pleading contains
several counts, each one incorporating by reference the allegations of its
predecessor. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1321
(11th Cir. 2015) (“The most common type [of shotgun pleading]—by a long shot—
is a complaint containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count to carry all that
came before and the last count to be a combination of the entire complaint.”).
“The unifying characteristic of all types of shotgun pleadings is that they fail to
one degree or another, and in one way or another, to give the defendants
adequate notice of the claims against them and the grounds upon which each
claim rests.” Id. at 1323 (footnotes omitted). Such a complaint creates a situation
where most of the counts contain irrelevant factual allegations and legal
conclusions, leaving the court to sift through irrelevancies to determine the
sufficiency of a claim. Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1295 (11th Cir. 2002). Indeed, although the claims arise from the
three alleged fraudulent transactions, H Lee and Williams point out several
inconsistencies created by the incorporation in each count of every preceding
count. Accordingly, the Court grants the motion to dismiss on this basis.
The Court further notes that where a cause of action sounds in fraud,
Federal Rule of Civil Procedure 9(b) must be satisfied in addition to the more
relaxed standard of Rule 8. Under Rule 9(b), “a party must state with particularity
the circumstances constituting fraud or mistake.” The Rule’s “particularity”
requirement is not satisfied by “conclusory allegations that certain statements
were fraudulent; it requires that a complaint plead facts giving rise to an
inference of fraud.” W. Coast Roofing & Waterproofing v. Johns Manville, Inc., 287
F. App’x 81, 86 (11th Cir. 2008) (citations omitted). To meet this standard, the
complaint needs to identify the precise statements, documents, or
misrepresentations made; the time and place of, and the persons responsible for,
the alleged statements; the content and manner in which the statements misled
the plaintiff; and what the defendant gained through the alleged fraud. Id. Thus,
the Plaintiff should remain mindful of applicable pleading standards.
4. Conclusion
For the reasons set forth, H Lee and Williams’s motion to dismiss (ECF No.
39) is granted. The Plaintiff shall file a second amended complaint on or before
March 20, 2018.

Done and ordered at Miami, Florida, on March 5, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge