United States District Court, M.D. Alabama, Eastern Division
KAREN ELIZABETH ZUANICH, AUGUST A. ZUANICH, Plaintiffs,
HANKOOK TIRE AMERICA CORPORATION, HANKOOK TIRE CO., LTD., and ENTERPRISE LEASING COMPANY-SOUTH CENTRAL, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.
a products liability action arising under Alabama law.
Plaintiff Karen Elizabeth Zuanich suffered injuries in a
single-car accident when a tire blew on the leased vehicle
she was driving. Zuanich and her husband, August A. Zuanich,
brought claims of negligence, wantonness, Alabama Extended
Manufacturer's Liability Doctrine (AEMLD), breach of
express and implied warranty, fraud, loss of consortium, and
others, against Hankook Tire America Corp., Hankook Tire Co.
(collectively, “Hankook”),  and Enterprise
Leasing Co. (“Enterprise”). The first amended
complaint does not specifically allege which defendant(s)
played which role, merely stating that the tire “was
manufactured and distributed by Hankook and/or
Enterprise.” (Doc. # 27, at 8.)
Tire America filed an answer to the original complaint, (Doc.
# 12), and Enterprise filed a motion to dismiss, (Doc. # 13).
Plaintiffs then filed a first amended complaint that dropped
a nonexistent party from the case. (Doc. # 27.) The court
accordingly denied Enterprise's first motion to dismiss
as moot and ordered Enterprise to respond to the first
amended complaint, (Doc. # 34.), which it did by filing the
motion to dismiss currently under submission, (Doc. # 35).
Hankook Tire Company, a Korean business, has not yet been
served, (Doc. # 30.), and has thus not filed anything in the
case. Hankook Tire America answered the original complaint
but has not responded to the first amended complaint.
the court is Defendant Enterprise's motion to dismiss
itself from Plaintiffs' first amended complaint. (Doc. #
35.) Enterprise seeks dismissal of the claims against it
because, it argues, according to the “innocent
seller” law, Enterprise was “merely a
conduit” of the allegedly defective tire and thus
“not subject to Alabama's products liability
statute.” Ala. Code § 6-5-521. Enterprise further
appears to argue that, since “all [c]ounts asserted
against Enterprise arise out of, and relate to, an
alleged[ly] defective Hankook tire, ” all the claims
against it fail as a matter of law because of its
innocent-seller defense. (Doc. # 35, at 3.) Alternatively,
Enterprise seeks a more definite statement under Rule 12(e)
for “any claims purportedly based upon some legal
theory other than products liability.” (Doc. # 35, at
5.) The court will save Enterprise's innocent-seller
argument for another day, however, because the first amended
complaint is due to be dismissed as noncompliant with the
Federal Rules of Civil Procedure.
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure tests the sufficiency of the complaint
against Federal Rule of Civil Procedure 8. Rule 8 provides
that the complaint must include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). When evaluating a
motion to dismiss under Rule 12(b)(6), the court must take
the facts alleged in the complaint as true and construe them
in the light most favorable to the plaintiff. Resnick v.
AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012).
However, the court need not accept mere legal conclusions as
true. Id. at 1325.
survive a 12(b)(6) motion, the complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Dismissal
under Rule 12(b)(6) is also permitted “when on the
basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.”
Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993); see
also Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)
(explaining that the rule allows a court “to dismiss a
claim on the basis of a dispositive issue of law”).
Plaintiffs' complaint, which contains elements of a
shotgun pleading, must be repleaded.
complaint “must contain . . . a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Each allegation in
the complaint “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1). The complaint must also
“state [the plaintiff's] claims . . . in numbered
paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed.R.Civ.P. 10(b).
The purpose of [Rule 8(a)(2) and Rule 10(b)] is self-evident,
to require the pleader to present his claims discretely and
succinctly, so that [ ] his adversary can discern what he is
claiming and frame a responsive pleading, the court can
determine which facts support which claims and whether the
plaintiff has stated any claims upon which relief can be
granted, and, at trial, the court can determine that evidence
which is relevant and that which is not.
Weiland v. Palm Beach Cty. Sheriff's Office, 792
F.3d 1313, 1320 (11th Cir. 2015) (quoting T.D.S. Inc. v.
Shelby Mut. Ins. Co., 760 F.2d 1520, 1544 n.14 (11th
Cir. 1985) (Tjoflat, J., dissenting)); see also
Twombly, 550 U.S. at 555 (holding that the purpose of
Rule 8(a)(2) is to “give the defendant fair notice of
what the claim is and the grounds upon which it rests”
that violate either Rule 8(a)(2) or Rule 10(b), or both, are
often disparagingly referred to as ‘shotgun pleadings,
'” and have been uniformly rejected by the Eleventh
Circuit. Weiland, 792 F.3d at 1320. There are four
types of shotgun pleadings: (1) pleadings that
“contain[ ] 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”; (2) pleadings
that are “guilty of the venial sin of being replete
with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3)
pleadings that “commit[ ] the sin of not separating
into a different count each cause of action or claim for
relief; and (4) pleadings that commit “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.” Id.
first amended complaint contains elements of a type-one and a
type-four shotgun complaint. The first amended complaint
falls into the first category because each of the twenty
counts adopts and re-alleges every preceding allegation,
filling each count with allegations that are not relevant to
that particular count. This court has warned against such a
Rote and repeated incorporations by reference fill each count
“with factual allegations that could not possibly be
material to that specific count, ” flouting the Rule
10(b) requirement to plead separate claims in separate
counts. Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001). It is not enough to “clearly
incorporate[ ] all ‘facts' ple[aded] in the amended
complaint]” . . . as Plaintiff has done; rather the
supporting facts must be pleaded in the count asserting the
cause of action. See Wagner v. First Horizon Pharm.
Corp., 464 F.3d 1273, 1280 (11th Cir. 2006).
McCall v. Bank of Am., N.A., No. 2:16-CV-184-WKW,
2016 WL 5402748, at *2 (M.D. Ala. Sep. 26, 2016). Plaintiffs
recite the elements of each claim only to re-allege those
elements by reference in successive, unrelated counts. Some
of the counts are brought against both Enterprise and
Hankook, while others are brought against only Hankook; yet,
the incorporation-by-reference paragraphs fill counts
asserted against only ...