United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on Counter-Defendants' Motions
to Dismiss Counter-Plaintiff McGough's Amended Answer and
Counterclaims for failure to state a claim. (Docs. # 20, 22).
After careful review of the claims (Doc. # 10), the court
finds that it is a classic example of a shotgun pleading. The
Eleventh Circuit has repeatedly stated that such pleadings
“exact an intolerable toll on the trial court's
docket, lead to unnecessary and unchanneled discovery, and
impose unwarranted expense on the litigants, the court and
the court's parajudicial personnel and resources.”
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir.
1997). As such, the Motions to Dismiss are denied and
Counter-Plaintiff McGough's Amended Answer and
Counterclaims is due to be replead.
foreclosure on Counter-Plaintiff McGough's home on March
7, 2018, Counter-Defendant Federal Home Loan Mortgage Company
(“FHLMC”) filed a Complaint in the Circuit Court
of Jefferson County on April 17, 2018, seeking possession of
the property. (Docs. # 20, 22 at ¶¶ 1-2). FHLMC
alleged that McGough (1) had lost the right of redemption
and, (2) after receiving a Notice to Vacate, had refused to
leave the property. (Id. at ¶ 2).
response, Counter-Plaintiff filed an Answer and Counterclaim
on June 19, 2018. (Id. at ¶ 5). After FHLMC
removed the case to federal court on August 1, 2018, McGough
filed an Amended Answer and Counterclaim on August 30, 2018
asserting 21 claims against Counter-Defendant FHLMC and
third-party Defendant New Penn Financial (“New
Penn”). (Id. at ¶ 7, 10). The pleading
includes the following claims: (1) negligence; (2)
wantonness; (3) unjust enrichment; (4) wrongful foreclosure;
(5) slander of title; (6) negligent and/or wanton hiring,
supervision, and/or training; (7) intentional and/or
malicious conduct; (8) invasion of privacy; (9) violations of
the Real Estate Settlement Procedures Act; (10) violations of
the Truth in Lending Act; (11)-(20) violations of the Fair
Debt Collection Practices Act; and (21) breach of contract.
(Doc. # 10).
crux of these claims is that FHLMC and New Penn, allegedly
acting together and along with their agents and employees,
concocted a plan to improperly foreclose on McGough's
home. (Id. at ¶¶ 172-183). As a result,
she asserts that the foreclosure is void. (Id.).
Amended Answer and Counterclaims (Doc. # 10) represents a
morass of conflicting facts and unsubstantiated theories,
making it nearly impossible for the court (not to mention the
Defendants) to parse out the most basic information
surrounding Counter-Plaintiff's mortgage. Federal Rule of
Civil Procedure 8 requires a plaintiff to plead “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Together, the Amended Answer and Counterclaims runs 56 pages
in length detailing 326 paragraphs of allegations-“it
is neither ‘short' nor ‘plain.'”
Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356
(11th Cir. 2018).
The Eleventh Circuit has identified four types of shotgun
The most common type-by a long shot-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. The next most common type, at least
as far as our published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of re-alleging
all preceding counts but is guilty of the venial sin of being
replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action. The
third type of shotgun pleading is one that commits the sin of
not separating into a different count each cause of action or
claim for relief. Fourth, and finally, there is the
relatively rare sin of asserting multiple claims against
multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or
which of the defendants the claim is brought against. The
unifying characteristic of all types of shotgun pleadings is
that they fail to 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 Cty. Sheriff's Office, 792
F.3d 1313, 1321-23 (11th Cir. 2015) (footnotes omitted).
District courts retain the authority to dismiss complaints on
shotgun pleading grounds. Vibe Micro, Inc. v.
Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). But,
the court must grant a plaintiff at least one chance to
remedy such shotgun pleading deficiencies sua sponte
before dismissing an action on shotgun pleading grounds.
Id. “In these cases, even if the parties do
not request it, the district court ‘should strike the
complaint and instruct counsel to replead the case- if
counsel [can] in good faith make the representations required
by Fed.R.Civ.P. 11(b).” Id. (quoting Byrne
v. Nezhat, 261 F.3d 1075, 1133 n. 113 (11th Cir. 2001)).
court finds it necessary to require McGough to replead. Here,
Counter-Plaintiff's pleading is guilty of a “type
two” shotgun pleading offense in that it is
“replete with conclusory, vague, and immaterial facts
not obviously connected to any particular cause of
action.” Weiland, 792 F.3d at 1321-23. The
foundational flaw in Counter-Plaintiffs pleading is she has
failed to define the relationship between FHLMC and New Penn
and those entities' respective roles prior to
foreclosure. She states repeatedly that FHLMC and New Penn
are agents of each other that acted in the line and scope of
the agency relationship between them. (Doc. # 10 at ¶ 7,
183). However, she has not specifically identified FHLMC s
role in her mortgage prior to its purchase of her home in the
foreclosure sale. As currently stated, it is impossible to
analyze her counterclaims since it is unclear which parties
were involved at each stage of the foreclosure process. Thus,
the appropriate remedy is to require Counter-Plaintiff
McGough to replead if she wishes to proceed with her
counterclaims. Vibe Micro, Inc., 878 F.3d at 1295.
reasons explained above, the Motions to Dismiss (Doc. # 20,
22) are due to be denied. Counter-Plaintiff will be required
to replead in order to remedy the deficiencies identified in
this Memorandum Opinion. ...