United States District Court, M.D. Florida, Tampa Division
ORDER GRANTING “DEFENDANT BOSTON SCIENTIFIC
CORPORATION'S MOTION TO DISMISS PLAINTIFF'S
BARBER UNITED STATES DISTRICT JUDGE
matter is before the Court on “Defendant Boston
Scientific Corporation's Motion to Dismiss
Plaintiff's Complaint and Incorporated Memorandum of Law,
” filed by counsel on July 24, 2019. (Doc. # 7). On
August 7, 2019, Plaintiff Donna McGee responded in opposition
to Defendant's motion to dismiss. (Doc. # 11). After
reviewing the motions, court file, and the record, the Court
finds as follows:
27, 2019, Plaintiff filed suit against Boston Scientific
Corporation for damages she allegedly sustained from the
implantation her Obtryx Transobturator Mid-Urethral Sling
System. (Doc. # 1). She brings seven claims for relief: (1)
strict liability - failure to warn; (2) strict liability -
manufacturing defect; (3) strict liability - design defect;
(4) negligence; (5) fraud; (6) negligent misrepresentation;
and (7) fraud by concealment. Boston Scientific argues that
Plaintiff's complaint is a shotgun pleading that warrants
dismissal, and that several of Plaintiff's causes of
action are barred by Florida law or inadequately pled. (Doc.
#7). In her response in opposition, Plaintiff requests that
the Court allow her to amend her complaint, should it find
her pleadings deficient. (Doc. # 11).
shotgun pleading is one where “it is virtually
impossible to know which allegations of fact are intended to
support which claim(s) for relief” and the defendant
therefore cannot be “expected to frame a responsive
pleading.” See Anderson v. Dist. Bd. Of Trustees of
Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir.
1996). The Eleventh Circuit has identified four primary types
of shotgun pleadings:
(1) Complaints 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;
(2) Complaints that do not commit the mortal sin of
re-alleging all preceding counts but are guilty of the venial
sin of being replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of
(3) Complaints that commit the sin of not separating into a
different count each cause of action or claim for relief; and
(4) Complaints that assert multiple claims against multiple
defendants without specifying which of the defendants are
responsible for which actions or omissions, or which of the
defendants the claim is brought against.
Weiland v. Palm Beach Cty. Sheriff's Office, 792
F.3d 1313, 1322-23 (11th Cir. 2015). A district court must
generally permit a plaintiff at least one opportunity to
amend a shotgun complaint's deficiencies before
dismissing the complaint with prejudice. Vibe
Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th
complaint contains counts that reallege all prior claims
before it, committing the “mortal sin” described
in prong one of Weiland. 792 F.3d at 1322-23. More
specifically, counts two through seven incorporate all
preceding paragraphs, thereby incorporating prior claims.
This constitutes a shotgun pleading.
it will be necessary for Plaintiff to file an amended
complaint, the Court need not address Defendant's
arguments that several of Plaintiff's causes of action
are barred by Florida law or inadequately pled. See
Shaffer v. Bank of N.Y. Mellon & Shellpoint LLC, No.
8:17-cv-565-T-33AAS, 2017 WL 1653789, at *1 (M.D. Fla. May 2,
2017) (“As the Court has determined that repleader is
necessary, the Court declines to address Defendants'
argument that all counts fail to state claims upon which
relief can be granted.”).
the Court dismisses the complaint and directs Plaintiff to
file an amended complaint correcting the aforementioned
deficiencies within the timeframe specified below.
ADJUDGED, and DECREED:
“Defendant Boston Scientific Corporation's Motion
to Dismiss Plaintiffs Complaint and Incorporated Memorandum