United States District Court, M.D. Florida, Fort Myers Division
4720 SE 15TH AVENUE LLC., a Florida limited liability company Plaintiff,
AFCO CREDIT CORPORATION, PRIME RATE PREMIUM FINANCE CORPORATION, INC. and SCOTTSDALE INSURANCE COMPANY, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Defendant Scottsdale Insurance Company's
Motion to Dismiss the Third Amended Complaint (Doc. 56), and
Plaintiff 4720 SE 15th Avenue LLC's response in
opposition (Doc. 58). For the below reasons, the Court denies
an insurance dispute case. Plaintiff secured a property
casualty insurance policy from Scottsdale in April 2017.
(Doc. 51 at 3). Defendants Prime Rate Premium Finance
Corporation, Inc. and AFCO Credit Corporation helped
Plaintiff finance the policy. (Id. at 3-4). Matters
soured when Hurricane Irma damaged Plaintiff's property
in September 2017. (Id. at 4). Plaintiff made an
insurance claim. But Scottsdale denied coverage because the
policy ended months earlier when Plaintiff did not pay the
now sues Defendants for negligence and breach of contract.
After removal, a round of motions to dismiss, and another
motion for leave to amend, the Third Amended Complaint is the
operative pleading. (Doc. 1; Doc. 36; Doc. 50; Doc. 51).
Although AFCO and Prime Rate have answered the Third Amended
Complaint, Scottsdale moves to dismiss it as a shotgun
pleading and failing to state a plausible breach of contract
claim (Doc. 56).
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must accept all factual
allegations as true and view them in a light most favorable
to the plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). This preferential standard of review,
however, does not permit all pleadings adorned with facts to
survive to the next stage of litigation. The Supreme Court
has been clear on this point- a district court should dismiss
a claim where a party fails to plead facts that make the
claim facially plausible. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible when the court can draw a reasonable inference,
based on the facts pled, that the opposing party is liable
for the alleged misconduct. See Iqbal, 556
U.S. at 678. This plausibility standard requires “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550
U.S. at 557 (internal quotation marks omitted)).
pleadings are also problematic under the Federal Rules of
Civil Procedure. The unifying characteristic of shotgun
pleadings is “they fail[ ] to one degree or another,
and in one way or another, to give the defendants adequate
notice of the claims against them and the grounds upon which
each claim rests.” Weiland v. Palm Beach Cty.
Sheriff's Off., 792 F.3d 1313, 1323 (11th Cir.
2015). Generally, “[c]ourts in the Eleventh Circuit
have little tolerance for shotgun pleadings.” Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir.
2018) (citations omitted).
argues the Third Amended Complaint is an impermissible
shotgun pleading because it re-incorporates factual
allegations into subsequent counts and comingles several
breach of contract allegations in Count V. (Doc. 56 at 1-4).
The Court disagrees.
incorporates the first 27 allegations, which includes
jurisdictional and general facts, into each claim. (Doc. 51
at 5-11). This pleading is acceptable. A plaintiff may
incorporate general and jurisdictional allegations into each
separate count without automatically transforming the
complaint into an impermissible shotgun pleading. See
Clark v. Sch. Bd. of Collier Cty., Fla., No.
2:13-cv-820-FtM-29MRM, 2016 WL 1617920, at *3 (M.D. Fla. Apr.
22, 2016) (finding no shotgun pleading where the plaintiff
incorporated jurisdictional and general allegations in each
claim); Gibbs v. MLK Express Services, LLC, No.
2:18-cv-434-FtM-38MRM, 2019 WL 480508, at *2 (M.D. Fla. Feb.
7, 2019) (finding an amended complaint was not an shotgun
pleading where plaintiff merely incorporated the factual
allegations into each claim); Am. Coastal Ins. Co. v.
Electrolux Home Products, Inc., No.
2:19-cv-180-FtM-99MRM, 2019 WL 2411195, at *1 (M.D. Fla. June
7, 2019) (finding a plaintiff may incorporate the general
allegations section into each count of a complaint without it
becoming a shotgun pleading). The Third Amendment Complaint
does not incorporate the substance of each preceding claim
into the next claim.Nor does it fall into any shotgun
pleading category. See Weiland, 792 F.3d at
similarly argues the Third Amended Complaint violates
Fed.R.Civ.P. 10(b) because it lumps several breach of
contract theories against Scottsdale into one count. Rule
10(b) requires that
[a] party must state its claim or defenses in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances. A later pleading may refer by number to
a paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded upon a separate transaction or
occurrence-and each defense other than a denial-must be
stated in a separate count or defense.
Fed. R. Civ. P. 10(b). Although Plaintiff alleges different
theories on how Scottsdale breached the insurance contract,
Rule 10(b) does not require separating each theory.
SeeF.D.I.C. v. Lennar Corp., No.
12-CV-595-FtM-38, 2014 WL 201670, at *6 (M.D. Fla. Jan. 17,
2014) (“A party may include in a single count all
theories of recovery so long as those theories are all
premised on the same facts.”). Plaintiff's breach
of contract theories are premised on the same set of facts
and circumstances: Scottsdale's failure to pay the
insurance claim after it improperly cancelled the policy. The
Third Amended Complaint puts Scottsdale on notice of the
allegations against it. The pleading does not make it
“virtually impossible to know which allegations of fact