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Negron v. Selene Finance, LP

United States District Court, M.D. Florida, Tampa Division

June 23, 2017

WILLIAM NEGRON, Plaintiff,
v.
SELENE FINANCE, LP and CITFMORTGAGE, INC., Defendants.

          ORDER

          Charlene Edwards Honeywell United States District Judge

         This 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[1], 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.

         I. STATEMENT OF FACTS[2]

         This 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.

         On 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.

         On 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[3]. Id. at ¶ 24.

         On 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.

         Plaintiff 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.

         Plaintiff 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 (“FCCPA”).

         Plaintiff 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.

         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.

         Plaintiff, 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 Complaint's shortcomings.

         II. LEGAL STANDARD

         To 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).

         III. DISCUSSION

         A. The Complaint is a Shotgun Pleading

         In 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).

         Here, 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.

         B. Selene's ...


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