Filed: May 28, 2015
Latest Update: May 28, 2015
Summary: ORDER WILLIAM H. STEELE , Chief District Judge . This matter is before the Court on the defendants' motion for judgment on the pleadings. (Doc. 69). The parties have submitted briefs in support of their respective positions, (Docs. 69, 73, 74, 77), and the motion is ripe for resolution. 1 The operative pleading is the second amended complaint. (Doc. 56). This pleading was filed in response to the Court's order granting the defendants' motion to dismiss the first amended complaint, which o
Summary: ORDER WILLIAM H. STEELE , Chief District Judge . This matter is before the Court on the defendants' motion for judgment on the pleadings. (Doc. 69). The parties have submitted briefs in support of their respective positions, (Docs. 69, 73, 74, 77), and the motion is ripe for resolution. 1 The operative pleading is the second amended complaint. (Doc. 56). This pleading was filed in response to the Court's order granting the defendants' motion to dismiss the first amended complaint, which or..
More
ORDER
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the defendants' motion for judgment on the pleadings. (Doc. 69). The parties have submitted briefs in support of their respective positions, (Docs. 69, 73, 74, 77), and the motion is ripe for resolution.1
The operative pleading is the second amended complaint. (Doc. 56). This pleading was filed in response to the Court's order granting the defendants' motion to dismiss the first amended complaint, which order also authorized the plaintiffs to file a second amended complaint. (Doc. 50).
The Court found that the RICO and fraud claims (Counts I and III) were due to be dismissed for failure to comply with Rule 9(b), and that the breach of contract claim (Count II) was due to be dismissed for failure to allege the plaintiffs' performance under the parties' contract. (Doc. 50 at 5-7). The Court did not find the defendants' objections to the remaining six counts (Counts IV-IX) to merit dismissal. (Id. at 7-9). However, the Court did condemn the entire amended complaint as a shotgun pleading and therefore dismissed the amended complaint in its entirety. (Id. at 10-12).
As pointed out by the plaintiffs, the second amended complaint corrects none of the deficiencies that resulted in dismissal of the first amended complaint.2 The current iteration of the complaint adds a number of lengthy, rambling paragraphs of factual allegations,3 but it does not provide the information required by Rule 9(b), and it does not allege the plaintiffs' performance under the parties' contract. The plaintiffs' response to the defendants' motion (improperly) attempts to provide factual allegations missing from the second amended complaint, but even it fails to address the many holes in the pleading.4 In addition, the second amended complaint is every bit the impermissible shotgun pleading its predecessor was. Especially as burdened by the new factual material, the second amended complaint also violates Rules 8(d)(1) and 10(b).5
"As we have stated on several occasions over the past twelve years, if, in the face of a shotgun complaint, the defendant does not move the district court to require a more definite statement, the court, in the exercise of its inherent power, musts intervene sua sponte and order a repleader." Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001). "Implicit in such instruction is the notion that if the plaintiff fails to comply with the court's order — by filing a repleader with the same deficiency — the court should strike his pleading or, depending on the circumstances, dismiss his case and consider the imposition of monetary sanctions." Id. The Court quoted this rule in its previous order, (Doc. 50 at 10), and the plaintiffs could not possibly be unaware of it.
Because the plaintiffs have failed to comply with the Court's order to file a non-shotgun pleading, the second amended complaint is stricken in its entirety. The plaintiffs may file a third amended complaint on or before June 17, 2015, failing which the Court will enter final judgment in favor of the defendants. The third amended complaint must correct the deficiencies identified in this order and in the previous Court order. (Doc. 50).6 The Court does not anticipate extending the plaintiffs any additional opportunities to file an acceptable pleading.
To the extent the defendants seek the relief set forth above, their motion is granted. To the extent they seek other or additional relief, their motion is denied.
DONE and ORDERED.