United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on review of defendants Bank of
America, N.A. and Federal National Mortgage Association's
Motion to Dismiss (Doc. #20) filed on May 13, 2019. Plaintiff
has failed to file a response and the time to do so has
passed. For the reasons that follow, the motion is granted.
Thomas Gambucci has filed a multiple-count Second Amended
Complaint against defendants Bank of America, N.A., Federal
National Mortgage Association, and Usset, Weingarden, &
Liebo, PLLP. (Doc. #17.) The claims all relate to a
foreclosure on a piece of property in the State of Minnesota.
Defendants Bank of America, N.A. and Federal National
Mortgage Association have filed a motion to dismiss on the
grounds that (1) this is not the proper venue and (2) the
Second Amended Complaint constitutes a shotgun pleading.
(Doc. #20, pp. 5-8.) Because the Court agrees with the latter
argument, the Second Amended Complaint will be dismissed with
leave to amend.
Federal Rule of Civil Procedure 8(a)(2), 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). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id.; Edwards v. Prime, Inc.,
602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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, but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Dusek v.
JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir.
2016) (citations omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678. Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible. Chaparro v. Carnival Corp., 693 F.3d
1333, 1337 (11th Cir. 2012) (citations omitted). 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.” Iqbal, 556 U.S.
claim in the Second Amended Complaint re-alleges and
incorporates by reference the allegations contained in the
paragraphs alleged previously. (Doc. #17, pp. 4-13.)
Defendants argue the Second Amended Complaint constitutes
“a classic ‘shotgun pleading'”
requiring dismissal. (Doc. #20, pp. 7-8.) The Court agrees.
See Weiland v. Palm Beach Cty. Sheriff's Office,
792 F.3d 1313, 1321 (11th Cir. 2015) (describing four types
of shotgun pleadings, the most common of which “is a
complaint containing multiple counts where each count adopts
the allegations of all preceding counts, causing each
successive count to carry all that came before and the last
count to be a combination of the entire complaint”);
see also LaCroix v. W. Dist. of Ky., 627 Fed.
App'x 816, 818 (11th Cir. 2015) (“[A]lthough
pro se pleadings are held to a less strict standard
than pleadings filed by lawyers and thus are construed
liberally, this liberal construction does not give a court
license to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to
sustain an action. Even a pro se litigant is
required to comply with the rules of procedure.” (marks
and citations omitted)). Therefore, the Court dismisses the
Second Amended Complaint without prejudice on shotgun
pleading grounds with leave to amend. If the Third Amended
Complaint is a shotgun pleading it will be dismissed with
prejudice without further notice and without leave to amend.
it is now
Motion to Dismiss (Doc. #20) is GRANTED and
the Second Amended Complaint is dismissed without
prejudice to filing a Third Amended Complaint within
TWENTY-ONE (21) DAYS of this Opinion and