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Stenzel v. Equifax Information Services, LLC

United States District Court, M.D. Florida, Tampa Division

January 6, 2020




         Before 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.


         After 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).

         Plaintiff 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”).[1] 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.

         I. Shotgun Pleadings

         In 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.

         Rather 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.

         Plaintiff's 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).

         As a 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.

         II. Joinder of TD Auto

         When 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).

         Plaintiff 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 Defendants.

         In the 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 ...

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