Owners Insurance Company v. Jones et al

Filing 38

ORDER denying 26 Motion to Dismiss or strike Futch's counterclaim. Futch is ordered to file a more definite statement of her claims, in accordance with this order, within twenty days of the date of this Order. Signed by Judge Lisa G. Wood on 02/07/2024. (jlh)

In the United States District Court
for the Southern District of Georgia
Waycross Division
OWNERS INSURANCE COMPANY,
Plaintiff,
v.

CV 5:23-092

MESHAWN RASHOD JONES and NANCY
FUTCH, as Executrix of the
Estate of Lace Futch,
Defendants.
NANCY FUTCH, as Executrix of
the Estate of Lace Futch,
Counter Claimant,
v.
OWNERS INSURANCE COMPANY,
Counter Defendant.
ORDER
Before

the

Court

is

Plaintiff-Counter

Defendant

Owners

Insurance Company’s motion to dismiss or strike counterclaim. Dkt.
No. 26.

The motion has been fully briefed, dkt. nos. 31, 33, 35,

and is ripe for review.
BACKGROUND
On December 20, 2022, Meshawn Jones filed a negligence lawsuit
against “Lace Futch [doing business as] No Name Bar” in the

Superior Court of Atkinson County, Georgia.

Dkt. No. 1-1.

Jones

alleged that on January 24, 2021, while he was present at No Name
Bar operated by Lace Futch, he was shot by a patron and, as a
result, suffered personal injuries.
negligence against Lace Futch.

Id.

Id.

Jones brought claims of

At the time of the alleged

shooting, Lace Futch had a commercial general liability insurance
policy with Owners Insurance Company (“the Policy”).

Dkt. No. 1

¶ 34.

Owners designated attorneys to defend against Jones’s

claims.

See Dkt. No. 20 at 27.

On October 9, 2023, Owners Insurance Company (“Owners”) filed
this declaratory judgment action against Meshawn Jones and Nancy
Futch, the executrix of Lace Futch’s estate.

Dkt. No. 1.

Owners

seeks a declaration as to whether the Policy issued to Lace Futch
affords coverage for the claims asserted and damages sought by
Jones in the underlying lawsuit.

See generally id.

On November 27, 2023, Nancy Futch (hereinafter “Futch”) filed
an answer to Owners’ complaint, as well as a counterclaim.
No. 20 at 1, 26.

Dkt.

In the counterclaim, Futch explains that, at the

time she became aware of Jones’s claim against Lace Futch and the
No Name Bar, Lace Futch had passed away.
20-5 at 2.

See id. at 28; Dkt. No.

Futch alleges she “reported and filed a claim for the

loss with [Owners] as soon as practical after being notified of
the claim.”

Dkt. No. 20 at 28.

Futch then alleges that, despite

designating attorneys to represent her, “[Owners] has failed to
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provide [her] with adequate legal representation under the terms
of the [P]olicy.”

Id. at 29.

Specifically, she alleges Owners

“has failed to provide [her] sufficient defense . . . upon the
Underlying Lawsuit” and “ha[s] not met with or kept [her] properly
advised on the status of the Underlying Lawsuit.”

Id. at 27.

Futch also asserts Owners has “wrongfully defamed” Lace Futch.
Id. at 28.
distress,

Futch states Owners’ actions have caused her extreme
and

she

has

suffered

damages

and

attorney’s

fees

extending from the underlying lawsuit as well as this lawsuit.
Id. at 27-28.

She brings claims for breach of contract, id. at

28, and attorney’s fees, id. at 30.
On December 18, 2023, Owners filed a motion to dismiss or
strike Futch’s counterclaim.
12(b)(6), 12(f)).

Dkt. No. 26 (citing Fed. R. Civ. P.

Owners primarily argues that Futch fails to

state a claim upon which relief can be granted.
Futch opposes the motion.

See id. at 1, 5.

Dkt. Nos. 31, 35.
LEGAL STANDARD

In deciding whether a complaint states a claim for relief,
the Court must accept the facts alleged in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.

Ray

v. Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir. 2016).
But the Court should not accept allegations as true if they merely
recite the elements of the claim and declare that they are met;

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legal conclusions are not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
So

viewed,

inferential

a

complaint

allegations

must

respecting

“contain

either

all

material

the

direct

or

elements

necessary to sustain a recovery under some viable legal theory.”
Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 128283 (11th Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr.
for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)). Ultimately,
if “the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—
but it has not ‘show[n]’—'that the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (emphasis added)(quoting Fed. R. Civ. Proc.
8(a)(2)).
DISCUSSION
Owners argues Futch’s counterclaim allegations fail to state
a claim for which relief can be granted. Dkt. No. 26 at 5. Indeed,
Futch’s allegations are vague.
(“[Owners]

has

failed

to

See, e.g., Dkt. No. 20 at 29

provide

[her]

with

adequate

legal

representation under the terms of the [P]olicy.”); id. at 27
(Owners “has failed to provide [her] sufficient defense . . . upon
the Underlying Lawsuit” and “ha[s] not met with or kept [her]
properly advised on the status of the Underlying Lawsuit.”).
In her response to Owners’ motion to dismiss or strike, Futch
makes additional factual allegations—which are not contained in
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her counterclaim—to support her allegation that Owners has failed
to provide her with a sufficient defense in the underlying action.
See generally Dkt. No. 31.

She states “[t]he only time the law

firm communicated with [her] was when Jeremy W. Willis . . .
advised her that [a certain] law firm was representing her.”
at 3.

Id.

She states “[t]he record in the Underlying Lawsuit shows

that the only activity in the case on behalf of [Futch] was to
answer the complaint, answer one calendar call, and agree to the
substitution of parties at approximately the same time Plaintiff
filed for this declaratory judgment action.”
complains

“no

discovery

[was]

performed,”

Id. at 2-3.
and

her

She

designated

attorneys never contacted witnesses and “never gave her a copy of
any of the proceedings nor attempted to get any information she
might have about the case.”

Id. at 3.

Futch argues that her counterclaim sufficiently states a
claim for relief because she “incorporated all of the facts,
admissions,

denials

counterclaim.
Futch’s

answer

and

Defenses

in

her

Answer”

into

her

Dkt. No. 31 at 4; see also Dkt. No. 20 at 27.
is

twenty-five

pages,

consists

of

sixty-eight

paragraphs, and references four exhibits, which themselves consist
of thirty-five pages.

See Dkt. Nos. 20, 20-1, 20-2, 20-3, 20-4.

The counterclaim itself contains only five factual allegations.
Dkt. No. 20 at 27-28.

As for causes of action, Futch asserts a

claim for breach of contract and a claim for attorney’s fees.
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Id.

at 28-30.

Though the crux of Futch’s breach of contract claim is

based on her assertion that Owners has failed to provide her with
adequate legal representation in the underlying case as required
by the Policy, id. at 29, she also mentions Owners’ “failure to
indemnify,” id., as well as Owners’ “bad faith,” id. at 30.

In

her claim for attorney’s fees, Futch again mentions Owners’ bad
faith.

Id.

In her prayer for relief, Futch requests (1) that

this case be dismissed and costs awarded to her; (2) that the Court
declare Owners owes a duty to defend or indemnify Lace Futch’s
estate; (3) that these proceedings be stayed until the Georgia
Bureau of Investigation can complete its investigation of the facts
in the underlying case; (4) that these proceedings be stayed so
Futch can file a motion for summary judgment in the underlying
case; (5) that judgment be entered in Futch’s favor and that she
be awarded damages; (6) that the Court bind the parties with the
requested judgment; (7) that the Court dismiss Owners’ complaint
and award Futch “all damages, costs, expenses, and attorney’s fees
that the estate is entitled to receive;” and (8) that the Court
grant Futch any further relief to which she is entitled.

Id. at

30-31.
The pleading violations here are two-fold.

First, Futch’s

counterclaim contains only two separate counts—breach of contract
and attorney’s fees—yet she mentions potential claims related to
Owners’ wrongful defamation of Lace Futch, id. at 20, Owners’
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failure to indemnify, id. at 29, and Owners’ bad faith, id. at 26.
The organization of the counterclaim renders it difficult to
discern precisely what claims Futch intends to bring.

Second,

Futch’s

factual

counterclaim

allegations.

is

vague

and

largely

devoid

of

Id. at 27-28 (counterclaim containing only five

factual allegations).

Thus, Owners cannot be expected to respond

when the basis for her claims is unknown.
When a single count presents several distinct claims for
relief, the pleading is a shotgun pleading.

Bickerstaff Clay

Prods. Co. v. Harris Cnty., Ga., 89 F.3d 1481, 1485 n.4 (11th Cir.
1996) (“The complaint is a typical shotgun pleading, in that some
of the counts present more than one discrete claim for relief.”).
Rule 10(b) requires each claim or defense to be set forth in a
separate count precisely to avoid the scenario presented here where
several claims are subsumed into a single count.
The

issue

is

further

compounded

by

Futch’s

attempt

to

supplement her counterclaim’s mere five factual allegations by
incorporating by reference her answer, which is twenty-five pages
long, consists of sixty-eight paragraphs, and references four
exhibits, which themselves consist of thirty-five pages.

It is

exceedingly difficult to sift through that voluminous content and
determine which allegations pertain to which claims. The inclusion
of vague and irrelevant allegations is another hallmark of a

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shotgun pleading.

Weiland v. Palm Beach Cnty. Sheriff’s Office,

792 F.3d 1313, 1321-22 (11th Cir. 2015).
Finally, while Futch’s response to Owners’ motion contains
additional factual allegations pertaining to her claim, that is
procedurally improper.

The factual allegations supporting her

claim must be contained in her counterclaim, not in a responsive
brief.

Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for

Disease Control & Prevention, 623 F.3d 1371, 1371 (11th Cir. 2010)
(quotation marks omitted) (When deciding Rule 12(b)(6) motions,
“it is generally true that the scope of the review must be limited
to the four corners of the complaint.”); SE Prop. Holdings, LLC v.
Braswell, No. 13-0267, 2013 WL 4498700, at *5 n.6 (S.D. Ala. Aug.
21, 2013) (“The sufficiency of plaintiff’s Complaint must be
evaluated

based

on

its

contents,

not

those

of

a

subsequent

memorandum of law.”).
Though the Court has determined that Futch’s counterclaim is
a shotgun pleading, the Court will permit her to file a more
definite statement of her claims.

“[D]istrict courts have a

‘supervisory obligation,’ under Rule 12(e), to sua sponte direct
a plaintiff to better plead his complaint ‘when a shotgun complaint
fails

to

adequately

link

a

cause

of

action

to

its

factual

predicates.’” Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App'x
274, 277 (11th Cir. 2008) (quoting Wagner v. First Horizon Pharm.
Corp., 464 F.3d 1273, 1275 (11th Cir. 2006)).
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Further, “[w]here

a more carefully drafted complaint might state a claim, a plaintiff
must be given at least one chance to amend the complaint before
the district court dismisses the action with prejudice.”

Bank v.

Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam).
Accordingly, Owners’ motion to dismiss or strike Futch’s
counterclaim, dkt. no. 26, is DENIED at this time.

Futch is

ORDERED to file a more definite statement of her counterclaim
within twenty (20) days of the date of this Order.

Her failure to

do so will result in dismissal of her counterclaim with prejudice.
Further,

Futch

is

warned

that

her

failure

to

clearly

assert

sufficient facts to state a claim for relief in a coherent manner
will result in dismissal of her counterclaim.
CONCLUSION
Owners’ motion to dismiss or strike Futch’s counterclaim is
DENIED at this time.

Dkt. No. 26.

Futch is ORDERED to file a

more definite statement of her claims, as directed above, within
twenty days of the date of this Order.
SO ORDERED this 7th day of February, 2024.

_________________________________
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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