United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge
matter comes before the Court upon Defendant Selene Finance
LP's Motion to Dismiss or in the Alternative Motion for a
More Definite Statement (Doc. 11). Plaintiff, proceeding
pro se, responded in opposition to the
motion (Doc. 13). The Court, having considered the
parties' submissions and being fully advised in the
premises, will now grant-in-part and deny-in-part
Selene's Motion. The Court also finds that the Complaint
is a shotgun pleading subject to dismissal.
STATEMENT OF FACTS
dispute arises over the actions taken by Selene Finance LP
(“Selene”) and CitiMortgage Inc.
(“CitiMortgage”) to foreclose property.
Plaintiff's company, FTB Partners LLC
(“FTB”), purchased the real property in dispute
located at 818 Eagle Lane in Apollo Beach, Florida, (the
“Property”) on July 7, 2015. Doc. 1 at ¶ 14.
Plaintiff purchased the Property in a Bankruptcy Trustee
sale. Id. The deed for the sale of the Property was
recorded on August 5, 2015, in Hillsborough County.
Id. at ¶18.
December 18, 2015, Don Keys (“Keys”), an agent of
Selene, appeared at the Property to notify Plaintiff that the
Property had been foreclosed. Id. at ¶ 19. At
the time, Plaintiff was residing at the Property.
Id. Keys offered $3, 500 in exchange for the keys to
the Property, and for Plaintiff to vacate the home.
Id. Plaintiff notified Keys that there were
negotiations pending to liquidate the lien from CitiMortgage.
Id. at ¶ 20.
January 8, 2016, Plaintiff found that the locks on the doors
had been changed. Id. at ¶ 21. On January 10,
2016, Keys returned to the Property to take pictures and
change the locks again. Id. at ¶ 22. On
February 8, 2016, Plaintiff discovered a contractor and an
exterminator, both hired by Selene, inside of the Property.
Id. at ¶ 23. Keys notified Plaintiff by
telephone that he changed the locks on the door again.
Id. On March 4, 2016, Plaintiff arrived at the
Property to find that the locks were changed by a Selene
agent, yet again. The agent left a notice on the door to
contact Wells Fargo. Id. at ¶ 24.
March 6, 2016, Jeff Lancaster, an agent for Selene, arrived
at the Property to ensure the Property was vacant, as well as
to cut the grass and dispose of all of the contents within
the Property. Id. at ¶ 25. Plaintiff notified
Mr. Lancaster that there were still negotiations taking place
between Plaintiff and CitiMortgage. Id. at ¶
26. Lancaster then left the Property. Id.
contacted Selene and the agents to request that they stop
trespassing on the Property. Id. at ¶ 27. The
agents notified Plaintiff that they would continue with the
lock-out process and removal of his personal property,
id. at ¶ 28, and directed Plaintiff to
“straighten it out with the bank.” Id.
at ¶ 29.
was then evicted by the agent, id. at ¶ 30, and
noticed, upon arriving to the Property, that his personal
property had been removed. Id. at ¶ 32.
Plaintiff brings the instant action in response, alleging
that Selene violated the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692 and 1692f(6)
(“FDCPA”) and the Florida Consumer Collection
Practices Act, Fla. Stat. § 559.55
asserts the following causes of action: Count I, violation of
the FDCPA against Selene; Count II, unlawful eviction against
CitiMortgage; Count III, trespass against CitiMortgage and
Selene; Count IV, intentional infliction of emotional
distress against CitiMortgage and Selene; Count V, negligence
against CitiMortgage and Selene; Count VI, statutory
conversion, receipt or concealment against Selene; and Count
VII, common law conversion against CitiMortgage and Selene.
now moves to dismiss the claims against it, or in the
alternative, requests a more definite statement. Selene
argues that the Complaint does not sufficiently allege that
Selene is a debt collector as defined by the FDCPA, 15 U.S.C.
§ 1692(a)(6); nor does it contain a concise statement of
the claim to establish grounds that the Plaintiff is entitled
to relief. Selene further argues that the Complaint does not
state a claim upon which relief can be granted. Additionally,
Selene argues that, if the Court does not dismiss the
Complaint with prejudice, because the Plaintiff asserts vague
allegations it is entitled to a more definite statement.
in his response in opposition to the Motion, attempts to
provide a more definite statement and includes many more
factual allegations than those provided in the Complaint. But
an Amended Complaint is the appropriate avenue to provide
these allegations, not a response to the Defendant's
Motion to Dismiss. Plaintiff also attempts to add three
additional counts and several exhibits to his Complaint,
which is also improper in response to a motion to dismiss,
absent the filing of an amended complaint. The Court will now
address Defendant's arguments and discuss the
survive a motion to dismiss, a complaint “must contain
. . . a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). To establish
grounds for entitlement to relief, a Plaintiff is required to
provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). Furthermore, “to survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft, 556 U.S. at
679. “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.” Ashcroft, 556
U.S. at 679. The court has discretion in determining whether
legal conclusions stated as “factual allegations”
in the complaint are to be accepted as true.
Twombly, 550 U.S. at 570. Because the Plaintiff
proceeds pro se, the Court will construe his pleadings
liberally and will hold his pleadings to a “less
stringent standard” than that of a licensed attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Complaint is a Shotgun Pleading
addition to the requirement that a pleading contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” a party's claims
must be “limited as far as practicable to a single set
of circumstances . . . [and] must be stated in a separate
count or defense.” Fed.R.Civ.P. 10(b). Failure to
comply with these rules may result in a shotgun pleading.
Shotgun pleadings “incorporate every antecedent
allegation by reference into each subsequent claim for
relief.” Wagner v. First Horizon Pharm. Corp.,
464 F.3d 1273, 1279 (11th Cir. 2006). “A complaint that
fails to articulate claims with sufficient clarity to allow
the defendant to frame a responsive pleading constitutes a
‘shotgun pleading.' ” Lampkin-Asam v.
Volusia County School Bd., 261 Fed.Appx. 274, 277 (11th
Cir. 2008). Complaints that are “disjointed,
repetitive, disorganized and barely comprehensible”
also constitute shotgun pleadings. Id. at 276. In
the event of a shotgun pleading, the court should strike or
dismiss the complaint and instruct Plaintiff to file a more
definite statement. See Davis v. Coca-Cola Bottling Co.
Consol., 516 F.3d 995, 984 (11th Cir. 2008).
the Complaint contains seven counts, some of which are
unrelated to one another. All counts, however, incorporate
the preceding allegations by reference. As a result, the
counts are vague, repetitive, and contain factually
irrelevant information. Therefore, the Complaint is
defective, as it is an impermissible shotgun pleading. The
Court will dismiss the Complaint on this basis.