JOHN E. STEELE, District Judge.
This matter comes before the Court on various motions to dismiss plaintiff's Second Amended Complaint (Docs. ##137, 139, 142-146); Motions to Strike Responses in Opposition (Docs. ##151, 181); as well as the Court's review of the Second Amended Complaint (Doc. #132) filed on July 7, 2011. Plaintiff filed responses. (Docs. ##153-158; 169-173.) Defendants seek to dismiss the Second Amended Complaint with prejudice. Defendants Echevarria & Associates, P.A., Elizabeth Frau and Erin C. Cullaro (collectively, Echevarria Defendants) also seek to strike plaintiff's responses in opposition to the pending motions to dismiss and the "Plaintiffs' [sic] Sworn Affidavit Proferring [sic] Evidence to be Attached to Second Amended Verified Complaint and any and all Future Complaints and/or Motions and Responses" (Affidavit)(Doc. #149). For the reasons discussed below, the various motions are granted and this matter is dismissed with prejudice.
The Court will first address the procedural posture of this case. Plaintiff, Patricia (Davidson) Cowan (Cowan or plaintiff) initially filed her complaint on July 22, 2009. (Doc. #1.) The Complaint was 127 pages, 379 paragraphs, and 26 counts. Following several motions to dismiss and a motion to quash, on September 14, 2010, the Court dismissed the Complaint without prejudice for failure to meet the pleading requirements of Fed. R. Civ. P. 8 and 10. (Doc. #95.) The Court, noting Cowan's pro se status, took the opportunity to explain in detail plaintiff's responsibilities and obligations regarding filing a proper complaint. The Court instructed Cowan to file a "short and plain statement" regarding her claims and provided the plaintiff with the applicable rules of law to assist her in filing her first amended complaint.
Thereafter, Cowan filed her First Amended Complaint on October 5, 2010. (Doc. #97.) The First Amended Complaint contained more paragraphs than the original complaint (
Plaintiff filed her Second Amended Complaint on July 7, 2011. (Doc. #132.) The Second Amended Complaint is 124 pages, 426 paragraphs, and contains thirty-six (36) counts.
Finally, on November 11, 2011, Cowan filed a "Plaintiff's Edited Verified Complaint." (Doc. #159.) On November 30, 2011, the Court struck the document noting that its June 17, 2011, Opinion and Order clearly stated that plaintiff would have one final chance to file her Second Amended Complaint. (Doc. #161.) The Court further noted that the Edited Verified Complaint added new defendants and charges and contained 164 counts, 1,665 paragraphs, and was 452 pages in length without the Certificate of Service. Finally, the Court noted that Cowan did not seek leave to amend the complaint nor did the Court provide leave. (
The Court now turns to the specific allegations of the Second Amended Complaint which appears to concern two foreclosure actions on Cowan's home. Although the Second Amended Complaint is largely incomprehensible, the Court discerns the following facts: In or about 2000, defendant Wells Fargo Bank Minnesota (Wells Fargo) filed an improper foreclosure action against plaintiff in the Circuit Court of the Twentieth Judicial Circuit of Florida. Plaintiff contends that this action was fraudulent because the alleged default was caused by the misuse of his mortgage payments by defendants Well Fargo, Advanta Mortgage, Fidelity & Deposit Insurance, and Codilis and Stawiarski, P.A. Plaintiff filed a counter-claim in that action. On January 13, 2000, the foreclosure action was dismissed with prejudice and plaintiff's mortgage was reinstated as of the date the foreclosure action was filed.
Thereafter, the mortgage was allegedly fraudulently assigned several times to different entities, including some of the defendants, and eventually was assigned to defendant MTGLQ Investors, L.P. Plaintiff contends that Wells Fargo and the various assignees committed various types of fraud by improperly charging her for flood and hazard insurance, although she already carried flood and hazard insurance through a different carrier. In addition, the various defendants improperly charged her for late fees, and failed to apply her "suspended mortgage payments" back to her mortgage. The Defendants also improperly changed the mortgage payment schedule. (
In the thirty-six count Second Amended Complaint, Cowan contends that the various defendants were engaged in an "enterprise" that engaged in extortionate credit transactions, embezzlement, mail fraud, and financial institution fraud and attempted to collect "unlawful debt" and fraudulently made litigation threats in violation of civil Racketeer Influenced and Corrupt Organizations (RICO) laws. Further, the various defendants committed insurance fraud, malpractice and maliciously prosecuted Cowan. Plaintiff further alleges that the second foreclosure action constituted double jeopardy in violation of the Fifth Amendment to the United States Constitution.
The Echevarria defendants seek to strike Cowan's Affidavit and her various responses to the pending motions to dismiss. The Echevarria defendants seek to strike the plaintiff's affidavit as an impermissible attempt to amend the complaint. They seek to strike the various responses pursuant to Fed. R. Civ. P. 12(f) as redundant, immaterial, and impertinent to the proceedings. Further, the Echevarria defendants contend that the responses are not a legal memoranda and violate the local rules of the Middle District of Florida. (
The Second Sworn Affidavit (Doc. #149), read liberally, seeks to amend the Complaint with an additional 96 pages and 204 paragraphs of "proof" supporting the complaint. However, the second sworn affidavit contains no supporting documentation and instead consists solely of additional allegations against the various defendants. Nowhere within the lengthy document does Cowan seek leave to amend the complaint nor does she provide any basis for the court to find good cause to do so. This Court has already provided Cowan with ample opportunity to amend her complaint and is not inclined to do so again. Accordingly, the document is stricken and will not be considered. The Second Amended Complaint (Doc. #132) remains the current and operative pleading.
Plaintiff has filed numerous lengthy responses to the various motions to dismiss pending before the court.
Middle District of Florida Local Rule 3.01(b)(emphasis added). Local Rule 3.01(c) provides that motions seeking leave to file a response in excess of twenty (20) pages shall not exceed three (3) pages. All of Cowan's responses greatly exceed this limit. Cowan makes no attempt in any of the eleven (11) relevant responses
Further, under Fed. R. Civ. P. 12(f), "the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike are disfavored, and will be denied unless the allegations have no possible relation to the controversy, may confuse the issues, or may cause prejudice to one of the parties.
The Court notes that the various responses provided by Cowan are repetitive of one another. Particularly in the instances where plaintiff filed multiple responses to the same motion (
Although the Court, on two separate occasions, detailed the deficiencies of plaintiff's complaints and provided detailed instructions on how to cure the various deficiencies, the Second Amended Complaint does not conform to the pleading requirements of Federal Rules of Civil Procedure 8 and 10 by providing a
The Court has gone through great lengths on more than one occasion to outline Cowan's responsibility to comply with the Federal Rules and provided her with specific instructions on how to comply with such rules. Despite this Court's efforts, plaintiff has again filed an insufficient pleading.
Accordingly, it is now
1. The Echevarria defendant's Motions to Strike (Docs. ## 151, 181) are
2. The Defendants' Motions to Dismiss (Docs. ## 137, 139, 142, 143, 144, 145, 146) are
3. The Second Amended Complaint (Doc. # 132) is