Filed: Aug. 09, 2013
Latest Update: Aug. 09, 2013
Summary: ORDER RICHARD A. LAZZARA, District Judge. Before this Court is Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint and Request for Sanctions in the Form of Costs and Attorney's Fees. (Dkt. 28). Plaintiff has not filed a response, and the time has passed for filing one pursuant to Local Rule 3.01(b). After careful consideration of the Defendant's submissions, together with the procedural history of this case, the Court concludes that the motion should be granted and the case dism
Summary: ORDER RICHARD A. LAZZARA, District Judge. Before this Court is Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint and Request for Sanctions in the Form of Costs and Attorney's Fees. (Dkt. 28). Plaintiff has not filed a response, and the time has passed for filing one pursuant to Local Rule 3.01(b). After careful consideration of the Defendant's submissions, together with the procedural history of this case, the Court concludes that the motion should be granted and the case dismi..
More
ORDER
RICHARD A. LAZZARA, District Judge.
Before this Court is Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint and Request for Sanctions in the Form of Costs and Attorney's Fees. (Dkt. 28). Plaintiff has not filed a response, and the time has passed for filing one pursuant to Local Rule 3.01(b). After careful consideration of the Defendant's submissions, together with the procedural history of this case, the Court concludes that the motion should be granted and the case dismissed against this Defendant.1
The Third Amended Complaint2 is the fourth complaint filed in this action. Plaintiff has been advised by this Court in two prior orders3 of the fatal insufficiencies in the allegations of the past complaints. The Court does not see any significant changes, however, in this Third Amended Complaint that would salvage this action against the Hernando County Supervisor of Elections.4
In the last order dismissing the Second Amended Complaint entered June 20, 2013,5 this Court instructed Plaintiff to identify the proper party defendant and to state a cause of action against such defendant. As had been noted in the order of May 6, 2013., dismissing the First Amended Complaint, the two Defendants are separate entities, one of which is Plaintiff's employer. See Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1341-44 (11th Cir. 1999).6 Plaintiff now asserts that, on the one hand, both Hernando County and the Hernando County Supervisor of Elections are his employers, and, on the other hand, only Hernando County is his employer.7 Plaintiff appears to be combining the two distinct entities into one employer, which he may not do. His allegations make clear that the alleged racial discrimination derived from the "unlawful employment practices" of Hernando County,8 and the acts of one particular county commissioner. He complained to the Supervisor of Elections and to the Hernando County Human Resources Department and also filed a formal complaint against the Supervisor of Elections.9 Although he claims to have been employed by Hernando County, he was terminated by the Supervisor of Elections.10 His repeated reference to the "Defendants" plural makes this Third Amended Complaint an impermissible shotgun pleading. Cf. Jordan v. PHH Mortg. Corp., No. 1:10-cv-967-TWT-CCH, 2010 WL 5058638 (N.D. Ga. Nov. 5, 2010) (finding that plaintiff's reference to multiple defendants where only one defendant was named, makes it "impossible to ascertain what factual allegations correspond with each claim and which claim is directed at which defendant."), report and recommendation approved in 2010 WL 5055809 (N.D. Ga. Dec. 6, 2010).
Based on the facts as asserted in the Third Amended Complaint, the only actions of discrimination are alleged to have been committed by a county commissioner, who is not under the supervision of the Supervisor of Elections. Amidst all of the references to both Defendants as employers, Plaintiff admits that he was fired by the Supervisor of Elections. The separateness of the Defendants belies any conclusion that the Supervisor of Elections may be responsible for the actions of a county commissioner. Consequently, the Third Amended Complaint is dismissed with respect to the Hernando County Supervisor of Elections.
It is therefore ORDERED AND ADJUDGED that Defendant's Motion to Dismiss the Third Amended Complaint (Dkt. 28) is GRANTED. This case is hereby dismissed as to Defendant Hernando County Supervisor of Elections only. Defendant's request for costs and attorney's fees is denied.
DONE AND ORDERED.