United States District Court, M.D. Florida, Tampa Division
P. FLYNN, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Set Aside Previous
Motion to Amend and Request for Leave to Amend Complaint in
Light of New Claims (“Motion”) (Doc. 38) and
Defendants' responses in opposition (Docs. 43, 46, and
50). Upon consideration, Plaintiff's Motion is denied.
more than 21 days from the service of a responsive pleading,
a party may amend its pleading “only with the opposing
party's written consent or the court's leave, ”
which “[t]he court should freely give when justice so
requires.” Fed.R.Civ.P. 15(a)(2). A motion for leave to
amend may be denied “(1) where there has been undue
delay, bad faith, dilatory motive, or repeated failure to
cure deficiencies by amendments previously allowed; (2) where
allowing amendment would cause undue prejudice to the
opposing party; or (3) where amendment would be
futile.” In re Engle Cases, 767 F.3d 1082,
1108- 09 (11th Cir. 2014). A “denial of leave
to amend is justified by futility when the complaint as
amended is still subject to dismissal.” Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir.
2004) (citation omitted).
seeks to amend her Amended Complaint (Doc. 11) to add: (1) TD
Auto Finance, LLC (“TD Auto”) as an additional
defendant; (2) claims against Bank of America and Portfolio
Recovery Associates, LLC's (“Portfolio”) for
violating the Fair Debt Collection Practices Act
(“FDCPA”); and (3) claims for civil conspiracy
and civil aiding and abetting against Leonard Wolfe
(“Wolfe”), an employee of Portfolio, and various
attorneys involved in a 2016 litigation initiated by
Portfolio against Plaintiff (the “2016
Lawsuit”). While not specified in her Motion,
Plaintiff does not assert any claim against Equifax or
Experian in her proposed second amended complaint. For the
reasons stated below, Plaintiff's Motion is denied.
reviewing Plaintiff's proposed second amended complaint,
the Court applies the “liberal construction to which
pro se pleadings are entitled.” Holsomback
v. White, 133 F.3d 1382, 1386 (11th Cir. 1998). Liberal
construction, however, does not mean that a pro se
plaintiff can file an impermissible shotgun pleading. See
Wilson v. Suarez, No. 17-CV-20718, 2018 WL 9458287, at
*4 n.4 (S.D. Fla. Sept. 4, 2018). A “shotgun
pleading” is a pleading that fails in “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
County Sheriff's Off., 792 F.3d 1313, 1323 (11th
Cir. 2015). Among the various shotgun pleadings identified by
the Eleventh Circuit, two are relevant here. Id. at
1322-23 (identifying four types of shotgun pleadings). The
first 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.” Id. The second type is a complaint
which does not separate into “a different count each
cause of action or claim for relief.” Id. at
1323. Plaintiff's proposed second amended complaint
suffers from both deficiencies.
than specifying the factual allegations supporting each of
the seven counts and seventeen claims described in her
proposed second amended complaint, Plaintiff incorporates by
reference “all relevant paragraphs of this [proposed
second amended] Complaint.” (Doc. 38 at 8, 10-12,
14-20, and 25-26). Defendants and the Court are left to
figure out on their own which facts are relevant to each
specific claim. This type of pleading is impermissible.
See Pelletier v. Zweifel, 921 F.2d 1465, 1587 (11th
Cir.1991) (describing “quintessential shotgun
pleadings” as those that force the “district
court [to] sift through the facts presented and decide for
[itself] which were material to the particular cause of
action asserted”). In addition, Paragraph 3
“incorporates by reference all of the above factual
paragraphs of this [proposed second amended] Complaint,
” however, there are no such “above factual
paragraphs.” Paragraphs 1 and 2 only state the nature
of the action and the jurisdiction and venue.
proposed second amended complaint also is a shotgun pleading
because it alleges up to five claims in a single count and
combines Counts 6 and 7. See Weiland, 792 F.3d at
1323 (describing one type of shotgun pleading as “one
that commits the sin of not separating into a different count
each cause of action or claim for relief”);
Bickerstaff Clay Prods. Co. v. Harris Cnty., 89 F.3d
1481, 1485 n. 4 (11th Cir. 1996) (“The complaint is a
typical shotgun pleading, in that some of the counts present
more than one discrete claim for relief”); Cesnik
v. Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir.
1996) (stating that a complaint that “was framed in
complete disregard of the principle that separate, discrete
causes of action should be plead in separate counts” is
a shotgun pleading). In order to promote clarity, each claim
founded on a separate transaction or occurrence must be
stated in a separate count. See Fed. R. Civ. P.
10(b); Anderson v. Dist. Bd. of Trustees of Cent. Fl.
Comm. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (stating
that failure to “present each claim for relief in a
separate count, as required by Rule 10(b), ”
constitutes shotgun pleading).
result, Plaintiff's proposed second amended complaint is
a shotgun pleading that does not give adequate notice to
Defendants of the factual grounds supporting each of
Plaintiff's claims. See Weiland, 792 F.3d at
1323. “Courts 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). They “waste scarce judicial
resources, inexorably broaden[ ] the scope of discovery,
wreak havoc on appellate court dockets, and undermine[ ] the
public's respect for the courts.” Id.
Thus, the proposed second amended complaint, in its current
shotgun form, is futile.
Joinder of TD Auto
adding parties, motions for leave to amend under Rule 15 are
simultaneously governed by Rule 20(a), Federal Rules of Civil
Procedure. See Lee Meml. Health System v. Glob. Excel
Mgt., Inc., No. 217CV458FTM99MRM, 2018 WL 3913909, at *6
(M.D. Fla. Aug. 2, 2018). A plaintiff may join unrelated
claims and various defendants in one action if the claims
arise “out of the same transaction, occurrence, or
series of transactions or occurrences, ” and “any
question of law or fact common to all defendants will arise
in the action.” Fed.R.Civ.P. 20(a)(2).
alleges that she signed a loan with TD Auto to finance the
purchase of a vehicle. She further claims that despite paying
the loan in full, TD Auto reported the loan as in default to
credit reporting agencies such as Defendants Experian and
Equifax. Joinder of TD Auto as a defendant is improper
because Plaintiff has not alleged that her claims against TD
Auto arise out of the same transaction, occurrence, or series
of transactions or occurrences as those against the other
proposed second amended complaint, Plaintiff does not specify
the transactions and occurrences from which Plaintiff's
claims against Bank of American or Portfolio arise. In the
Amended Complaint, however, Plaintiff alleges that despite
notifying her creditors of being a victim of identity theft,
the creditors failed to investigate the disputed debts and
reported the debts to Equifax and Experian. While Plaintiff
similarly alleges that TD Auto inaccurately reported a debt
that Plaintiff did not owe, Plaintiff's claims against TD
Auto and the other Defendants arise out of unrelated
occurrences. Specifically, Plaintiff's claims against TD
Auto arise out of the alleged misapplication of payments to
the auto loan owed by Plaintiff to TD Auto, while
Plaintiff's asserted claims against the other Defendants
arguably arise out of a common occurrence of identity theft.
See Interscope Records v. Does 1-25, No.
6:04-CV-197-ORL-22, 2004 WL 6065737, at *5 (M.D. Fla. Apr. 1,
2004), report and recommendation adopted, No.
6:04-CV-197-ORL, 2004 WL 7078585 (M.D. Fla. Apr. 27, 2004)
(“Courts have consistently severed claims against
unrelated defendants where the only similarity between the
defendants are the allegations ...