McDonough et al v. City of Homestead et al
OMNIBUS ORDER ON MOTIONS TO DISMISS granting 27 Motion to Dismiss for Failure to State a Claim; granting 33 Motion to Dismiss; granting 50 Motion to Dismiss; granting 58 Motion to Dismiss for Failure to State a Claim; granting 60 Motio n to Dismiss for Failure to State a Claim; granting 73 Motion to Dismiss for Failure to State a Claim. The Court dismisses this case with prejudice. The Clerk of Court is directed to close this case. Signed by Judge Robert N. Scola, Jr on 6/4/2018. (mc) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
United States District Court
Southern District of Florida
James Eric McDonough and
Vanessa McDonough, Plaintiffs,
City of Homestead, and others,
) Civil Action No. 17-23227-Civ-Scola
Omnibus Order on Motions to Dismiss
The Plaintiffs have filed a complaint asserting claims against thirty-three
(33) defendants based upon a plethora of alleged constitutional violations. (See
ECF No. 1.) The Defendants have filed motions to dismiss (ECF Nos. 27, 33, 50,
58, 60, 73) for a host of reasons. After reviewing the complaint, the motions, the
record in this case and the applicable law, and for the reasons set forth below, the
Court grants the motions (ECF Nos. 27, 33, 50, 58, 60, 73.)
At the outset, the Court notes that this case is related and substantially
indistinguishable to a case previously filed by the Plaintiff James Eric
McDonough (“McDonough”) before Judge Williams. See McDonough v. City of
Homestead, No. 1:16-cv-24524-KMW. Indeed, the Plaintiffs attach Judge
Williams’s dismissal order to their complaint in this case.1 (See ECF No. 1-1.)
Much like the complaint before Judge Williams, the Plaintiffs’ instant complaint is
a tangled mess comprising 94 pages of incoherent and largely irrelevant
conclusory allegations. Understandably, the Defendants have filed motions to
dismiss in which they identify countless procedural and substantive
improprieties, not the least of which is the fact that the complaint is virtually
incomprehensible because it is 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
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.” A typical shotgun pleading contains several counts, each one incorporating
by reference the allegations of its predecessor or does not separate each cause of
action or claim for relief into separate counts. Weiland v. Palm Beach Cty. Sheriff’s
Office, 792 F.3d 1313, 1321 (11th Cir. 2015). “The unifying characteristic of all
In the case before Judge Williams, McDonough amended his complaint once as of right,
and despite being granted leave to amend his complaint a second time, McDonough
failed to do so, which resulted in dismissal.
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).
Here, notwithstanding the Plaintiffs’ belief to the contrary, the complaint
constitutes a particularly egregious example of shotgun pleading. Not only do the
Plaintiffs reincorporate several counts into subsequent counts, each count in the
complaint comprises multiple claims against multiple Defendants. The complaint
is all the more unacceptable because the Plaintiffs are represented by counsel.
Therefore, it is incumbent upon the Plaintiffs’ counsel to devote the necessary
time to drafting a coherent and competent statement of his clients’ claims and the
facts supporting those claims. It certainly is not the Court’s responsibility to
attempt to discern potential causes of action from a hodgepodge of allegations
haphazardly strewn together. Accordingly, the Court grants the motions to
dismiss on this basis. See Strategic Income Fund, LLC v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 n.10 (11th Cir. 2002) (noting several cases expressing
concerns regarding the aggregate negative effects of shotgun pleadings).
Moreover, in addition to numerous apparent substantive deficiencies, the
majority of the Plaintiffs’ claims appear to be premised upon events occurring
beyond the applicable four-year statute of limitations. Fla. Stat. § 95.11(3)(p); see
also Sneed v. Pan Am. Hosp., 370 F. App’x 47, 49 (11th Cir. 2010) (“All
constitutional claims brought under § 1983 are tort actions, subject to the statute
of limitations governing personal injury actions in the state where the § 1983
action has been brought.”) (internal quotations omitted). Therefore, such claims
would be barred.
The Court further notes that despite the filing of six motions to dismiss, all
of which were filed prior to the expiration of the deadline set by the Court for
amendment of the pleadings (see ECF No. 71), the Plaintiffs never attempted to
amend their complaint as a matter of right, nor did they properly request leave to
amend, pursuant to Rule 15 of the Federal Rules of Civil Procedure. Indeed, the
Plaintiffs only requested they be permitted to amend the complaint in response to
some of the motions to dismiss. (See, e.g. ECF Nos. 49, 76.) However, such a
request is improper and ineffective. See Cita Tr. Co. AG v. Fifth Third Bank, 879
F.3d 1151, 1157 (11th Cir. 2018) (noting that where the only request to amend
appears in an opposition to a motion to dismiss, the issue is not properly raised)
(quoting Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009)). Indeed, the rule
in the Eleventh Circuit is that “[a] district court is not required to grant a plaintiff
leave to amend his complaint sua sponte when the plaintiff, who is represented
by counsel, never filed a motion to amend nor requested leave to amend before
the district court.” Wagner v. Daewoo Indus. Am. Corp., 314 F.3d 541, 542 (11th
Cir. 2002). Here, the Plaintiffs are represented by counsel and have not properly
requested leave to amend.
Therefore, the Court dismisses this case with prejudice. The Clerk of
Court is directed to close this case.
Done and ordered at Miami, Florida, on June 4, 2018.
Robert N. Scola, Jr.
United States District Judge
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