United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court upon sua sponte review of pro
se Plaintiffs Lilia Mesa and Damian Mesa's Amended
Complaint, filed on March 30, 2017. (Doc. # 13). For the
reasons that follow, the Court dismisses the Amended
Complaint and grants the Mesas leave to file a second amended
complaint by May 3, 2017.
Mesas initiated this action on February 23, 2017. (Doc. # 1).
The Court sua sponte dismissed the Complaint as a shotgun
complaint on February 28, 2017. (Doc. # 12) . The Mesas then
filed their Amended Complaint on March 30, 2017. (Doc. # 13).
Amended Complaint, the Mesas allege that the nine Defendants
violated numerous federal statutes including the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692
et seq.; the Fair Credit Reporting Act (FCRA), 15
U.S.C. §§ 1681 et seq.; the Truth in
Lending Act (TILA), 15 U.S.C. §§ 1601 ejt
seq.; the Real Estate Settlement Procedures Act
(RESPA), 12 U.S.C. §§ 2601 et. seq.; the
Home Ownership and Equity Protection Act (HOEPA), 15 U.S.C.
§§ 1639 et seq.; and the Dodd-Frank Wall
Street Reform and Consumer Protection Act. The Mesas also
bring claims under the Florida Consumer Collection Practices
Act and the Florida Fair Lending Act, as well as a common law
claim for negligent misrepresentation. Many of the claims are
brought "in recoupment."
the Mesas allege that Defendants - including various loan
servicers and mortgage holders, a law firm, an attorney from
that firm, and an unknown appraiser - refused to answer their
requests for information while servicing their mortgage,
failed to report their debt as disputed, and used unfair debt
collection methods while initiating foreclosure proceedings.
Court construes pro se pleadings liberally and holds them to
a less stringent standard than those drafted by attorneys.
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). But, "a pro se litigant is still required to
conform to procedural rules, and a district judge is not
required to rewrite a deficient pleading." McFarlin
v. Douglas Cty., 587 F.App'x 593, 595 (11th Cir.
2014). A district judge may sua sponte dismiss a complaint
for failure to comply with the federal rules. Id.
(citations omitted). Likewise, "[t]he district judge
also has the inherent authority sua sponte to require the
plaintiff to file a more definite statement."
Id. (citing Fikes v. City of Daphne, 79
F.3d 1079, 1083 n.6 (11th Cir. 1996)) .
to Rule 8(a), Fed. R. Civ. P., a pleading that states a claim
must contain, among other things, "a short plain
statement of the claim showing that the pleader is entitled
to relief." Additionally, Rule 10(b) provides that
" [a] party must state its claims or defenses in
numbered paragraphs, each limited as far as practicable to a
single set of circumstances." Fed.R.Civ.P. 10(b). Taken
together, these rules "require the pleader to present
his claims discretely and succinctly." Fikes,
79 F.3d at 1082 (citation omitted).
that fail to plead discretely and succinctly are often
shotgun complaints. The Eleventh Circuit has described four
varieties of shotgun complaints: (1) "a complaint
containing multiple counts where each count adopts the
allegations of all preceding counts"; (2) a complaint
that is "replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of
action"; (3) a complaint that does "not separat[e]
into a different count each cause of action or claim for
relief"; and (4) a complaint that "assert[s]
multiple claims against multiple defendants without
specifying which of the defendants are responsible for which
acts or omissions, or which of the defendants the claim is
brought against." Weiland v. Palm Beach Cty.
Sheriff's Office, 792 F.3d 1313, 1322-23 (11th Cir.
2015). "The unifying characteristic of all types of
shotgun pleadings is that they fail to give the defendants
adequate notice of the claims against them and the grounds
upon which each claim rests." Id. at 1323.
cases, it is "virtually impossible to know which
allegations of fact are intended to support which claim(s)
for relief." Anderson v. Dist. Bd. of Trs. of Cent.
Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). A
defendant faced with such a complaint is not expected to
frame a responsive pleading. Id. "The Federal
Rules of Civil Procedure, pertinent precedent, sound
principles of litigation management, and fairness to the
opposing party almost uniformly commend requiring a litigant
to submit a complaint that is not a 'shotgun
pleading' and that otherwise complies with the salutary
rules of pleading." Stevens v. Barringer, No.
2:11-cv-697-UA-SPC, 2013 WL 24272, at *2 (M.D. Fla. Jan. 2,
Amended Complaint is an improvement upon the Complaint but it
is also a shotgun pleading. While shorter than the 117 page
Complaint, the Amended Complaint's allegations are still
long and rambling, spanning 82 pages and 367 paragraphs.
(Doc. # 13). There are 213 paragraphs in the factual
allegations, making it difficult to determine what facts are
truly necessary to support the Mesas' claims.
the allegations in the Amended Complaint still appear
irrelevant to the claims. For example, the Amended Complaint
contains a section in the factual allegations titled
"The Federal Bureau of Investigation (FBI) Defines
Mortgage Fraud, " in which the Mesas "allege that
[they] are victims of more than one of the above schemes laid
out by the FBI as a scam for mortgage fraud, proving for a
criminal damage under TILA, RESPA, HOEPA and FLA." (Doc.
# 13 at ¶ 143). But, this is a civil case - not a
criminal action. SeeFisher v. Conseco Fin.
Co., No. 3: 07CV2 66/RV/MD, 2007 WL 3012881, at *3 (N.D.
Fla. Oct. 12, 2007)("Rarely is there a private right of
action under a criminal statute." (citing Chrysler
Corp. v. Brown, 441 U.S. 281, 316 (1979)). As the