United States District Court, M.D. Florida, Orlando Division
E. MENDOZA, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Plaintiff's Motion to
Dismiss Absolute Medical's Counterclaim (Doc. 41), to
which Absolute Medical, LLC filed a Response (Doc. 45). This
cause is also before the Court on Defendant Dave Hawley's
Motion to Dismiss (Doc. 75), Defendant Absolute Medical
LLC's Motion to Dismiss (Doc. 76), Defendant Greg
Soufleris's Motion to Dismiss (Doc. 77), Defendant
Absolute Medical Systems, LLC's Motion to Dismiss (Doc.
83), and Defendant Ryan Miller's Motion to Dismiss (Doc.
84). Plaintiff filed an Omnibus Response (Doc. 90) to the
motions to dismiss, to which Defendants filed a Reply (Doc.
96). For the reasons set forth herein, the motions to dismiss
will be granted in part and denied in part.
is a medical device company that manufactures products used
to treat spine disorders. (Am. Compl., Doc. 68, ¶ 83).
Absolute Medical, LLC (“Absolute Medical”) became
an exclusive distributor of Plaintiff's products.
(Id. ¶ 32). Plaintiff and Absolute Medical
entered into a Sales Agreement, in which Absolute Medical
agreed to distribute Plaintiff's products in a designated
sales territory for a five-year term. (Doc. 19-1 at 3). The
Sales Agreement also contained an arbitration clause
requiring the parties to arbitrate any “controversy,
dispute or question” in connection with the Sales
Agreement. (Id. at 15-16). To assist in the
distribution of Plaintiff's products, Absolute Medical
hired a team of sales representatives, including Defendants
Dave Hawley and Ryan Miller. (See Id. ¶ 34).
the end of the five-year term, Defendant Greg Soufleris,
president and sole member of Absolute Medical, (Doc. 68
¶ 90), notified Plaintiff of his intent to end Absolute
Medical's partnership with Plaintiff, (id.
¶ 48). Absolute Medical later dissolved. (Id.
¶ 11). Meanwhile, Soufleris filed articles of
incorporation with the state of Florida to form another
company, Absolute Medical Systems, LLC (“AMS”).
(Id. ¶ 12). AMS was formed by Soufleris to
distribute medical products for Alphatec Spine, Inc.
(“Alphatec”), Plaintiff's competitor.
(Id.). Similarly, Hawley and Miller resigned from
Absolute Medical to work for Alphatec. (Id.
¶¶ 19, 21). Through their work with Alphatec, AMS
and Hawley allegedly converted Plaintiff's custom
surgical instruments and solicited former clients of
Plaintiff. (Id. ¶¶ 60, 62).
December 29, 2017, Plaintiff commenced the instant action,
asserting claims for injunctive relief, breach of contract,
conversion, and violations of the Florida Deceptive and
Unfair Trade Practices Act. (See generally Compl.,
Doc. 1). Absolute Medical filed a counterclaim alleging
breach of contract. (Counterclaim, Doc. 26, at 18-22).
Plaintiff filed an Amended Complaint, and Defendants moved to
dismiss the case. (See Doc. Nos. 75, 76, 77, 81,
83). In the interim, the Court entered an Order compelling
arbitration on Plaintiff's breach of contract claim,
Count II, and staying Counts III, in part, VI, VII, VIII, and
IX of the Amended Complaint until arbitration is completed.
(See generally May 31, 2019 Order, Doc. 178).
pleading that states a claim for relief 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).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party
may move to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” In determining
whether to dismiss under Rule 12(b)(6), a court accepts the
factual allegations in the complaint as true and construes
them in a light most favorable to the non-moving party.
See United Techs. Corp. v. Mazer, 556 F.3d 1260,
1269 (11th Cir. 2009). Nonetheless, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions, ” and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Furthermore, “[t]o 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.'” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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
argue that Plaintiff's Amended Complaint should be
dismissed because it constitutes a shotgun pleading and
because Plaintiff failed to state a claim. Plaintiff argues
that Absolute Medical's counterclaim should be dismissed
for failure to state a claim. Each of those arguments will be
addressed in turn.
general matter, “[t]he failure to identify claims with
sufficient clarity to enable the defendant to frame a
responsive pleading constitutes a ‘shotgun
pleading.'” Beckwith v. BellSouth Telecomms.
Inc., 146 Fed.Appx. 368, 371 (11th Cir. 2005) (per
curiam) (citing Byrne v. Nezhat, 261 F.3d 1075,
1029-30 (11th Cir. 2001)). “Shotgun pleadings wreak
havoc on the judicial system” and “divert already
stretched judicial resources into disputes that are not
structurally prepared to use those resources
efficiently.” Wagner v. First Horizon Pharm.
Corp., 464 F.3d 1273, 1279 (11th Cir. 2006) (quotation
omitted). As such, “[w]hen presented with a shotgun
complaint, the district court should order repleading sua
sponte.” Ferrell v. Durbin, 311 Fed.Appx.
253, 259 n.8 (11th Cir. 2009) (per curiam); see also
Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc.,
162 F.3d 1290, 1333 (11th Cir. 1998) (noting that shotgun
pleadings drain judicial resources, and the district should
act sua sponte to define the issues at the earliest
Eleventh Circuit has defined four types of shotgun pleadings.
“The most common type-by a long shot-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.” Weiland v.
Palm Beach Cty. Sheriff's Office, 792 F.3d 1313,
1321 (11th Cir. 2015). The second most common type “is
a complaint that . . . is guilty of the venial sin of being
replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action.”
Id. at 1331-32. “The third type of shotgun
pleading is one that commits the sin of not separating into a
different count each cause of action or claim for
relief.” Id. at 1322-23. “Fourth, and
finally, there is the relatively rare sin of asserting
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.” Id. at 1323.
argue that Plaintiff's Amended Complaint constitutes an
impermissible shotgun pleading because it fails to
incorporate any factual allegations or misidentifies which
factual allegations apply to which Counts. Upon review of the
Amended Complaint, each Count clearly identifies which
portions of the general allegations are being ...