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Scott Weinerth v. Harvey Ayers

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION


December 1, 2010

SCOTT WEINERTH, PLAINTIFF,
v.
HARVEY AYERS, CITY OF PUNTA GORDA, FLORIDA, POLICE OFFICER, IN HIS INDIVIDUAL CAPACITY, DEFENDANT.

OPINION AND ORDER

This matter comes before the Court on defendant's Motion to Dismiss Plaintiff's First Amended Complaint/Motion for More Definite Statement (Doc. #13) filed on April 19, 2010. Plaintiff filed a Response in Opposition (Doc. #16) on May 6, 2010.

I.

In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). "To survive dismissal, the complaint's allegations must plausibly suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative level; if they do not, the plaintiff's complaint should be dismissed." James River Ins. Co. v. Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The former rule -- that "[a] complaint should be dismissed only if it appears beyond doubt that the plaintiffs can prove no set of facts which would entitle them to relief," La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) -- has been retired by Twombly. James River Ins. Co., 540 F.3d at 1274. Thus, the Court engages in a two-step approach: "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Dismissal is warranted under FED. R. CIV. P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford County, 960 F.2d 1002, 1009-10 (11th Cir. 1992).

On June 30, 2010, after defendant's motion was filed, the Eleventh Circuit determined that there is no longer a heightened pleading standard for 42 U.S.C. § 1983 cases after Iqbal. "Pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a defense shall now be held to comply with the standards described in Iqbal." Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

II.

Defendant argues that the First Amended Complaint (Doc. #11) is a shotgun pleading, and that it fails to meet the heightened pleading standard for an individual officer entitled to assert qualified immunity. Defendant further argues that the Counts improperly appear to include 3 separate and distinct claims within the same count, contrary to Fed. R. Civ. P. 10(b).

As a preliminary matter, the Court agrees with plaintiff that incorporation of Count I into Count II can easily be rectified, but an Amended Complaint will be required for other reasons. The Court finds that the motion is otherwise due to be granted, without prejudice, based on the Rule 10(b) argument. The false arrest*fn1 and malicious prosecution*fn2 state claims possess separate elements of proof, and the factual allegations applicable to each should therefore be set forth separately in different counts. To the extent*fn3 that plaintiff is also asserting a claim for false imprisonment, the basis for such a claim should also be stated in a separate count.

Accordingly, it is now

ORDERED: Defendant's Motion to Dismiss Plaintiff's First Amended Complaint/Motion for More Definite Statement (Doc. #13) is GRANTED IN PART AND DENIED IN PART. The First Amended Complaint is dismissed without prejudice to filing an Second Amended Complaint within TWENTY-ONE (21) DAYS of this Opinion and Order.

DONE AND ORDERED at Fort Myers, Florida, this 1st day of December, 2010.

Copies:

Counsel of record


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