Potter et al v. Regions Bank, No. 2:2009cv00006 - Document 39 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER granting in part and denying in part 24 Motion to strike as provided in the Opinion and Order; dismissing without prejudice Amended Complaint as a shotgun pleading thereby denying as moot 26 Motion to dismiss. Plaintiffs may file a Second Amended Complaint within 21 days. Signed by Judge John E. Steele on 12/4/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION SAM POTTER and JOHN PELUSI, Plaintiffs, vs. Case No. REGIONS BANK, Corporation, an 2:09-cv-006-FtM-29DNF Alabama Defendant. _____________________________________ OPINION AND ORDER This matter comes before the Court on Defendant Region Bank s Motion to Strike Certain Statements in Counts I and II of Plaintiffs Amended Complaint and Incorporated Memorandum of Law in Support (Doc. #24) filed on March 19, 2009. Response (Doc. #28) on April 2, 2009. Plaintiffs filed a Also before the Court is Defendant s Motion to Dismiss Counts III, IV and V of Plaintiffs Amended Complaint and Additional and Alternative Motion for More Definite Statement (Doc. #26), filed on March 19, 2009. Plaintiff filed a Response (Doc. #29) on April 2, 2009. A. Motion to Strike: Defendant seeks to strike statements in paragraphs 6, 9, 12, 14, 20-26, as well as a portion of the prayer for relief of plaintiffs Amended Complaint (Doc. #21). Defendant asserts that the statements and contentions in question pertain to dropped or abandoned claims, recount irrelevant matters set forth in publications, or ask for relief that is unavailable as a matter of law. (Doc. #24, pp. 5-7.) Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a party may move to strike any insufficient defense or any redundant, within the immaterial, pleadings. impertinent, The court or enjoys scandalous broad matter discretion determining whether to grant or deny motions to strike. in Anchor Hocking Corp. v. Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976). However, disfavored by the court. motions to strike are generally See Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991). Under this standard, the Court finds that the following paragraphs of the Amended Complaint should be stricken: the portion of Paragraph 6 stating invasion of privacy, constitutional right of privacy, bailment and conversion; and paragraphs 20-26. motion is otherwise denied as to the other paragraphs. The Since the matter will be dismissed, the issue of appropriate relief can be addressed after a second amended complaint is filed. B. Motion to Dismiss: The Court will short circuit Defendant s pending Motion to Dismiss because it is clear that the Amended Complaint is a type of shotgun complaint often condemned by the Eleventh Circuit. Plaintiffs have improperly incorporated all allegations of each count into every successive count. Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001); Cramer v. Florida, 117 F.3d 1258, 1263 -2- (11th Cir. 1997). Therefore, the Amended Complaint will be dismissed with leave to file a second amended complaint. Accordingly, it is now ORDERED: 1. Defendant Region Bank s Motion to Strike Certain Statements in Counts I and II of Plaintiffs Amended Complaint and Incorporated Memorandum of Law in Support (Doc. #24) is GRANTED IN PART AND DENIED IN PART as set forth above. 2. The Amended Complaint (Doc. #21) is DISMISSED WITHOUT PREJUDICE as a shotgun pleading. Plaintiffs may file a second amended complaint within TWENTY-ONE (21) DAYS of the date of this Opinion and Order. 3. and V Defendant Regions Bank s Motion to Dismiss Counts III, IV of Plaintiffs Amended Complaint and Additional and Alternative Motion for More Definite Statement (Doc. #26) is DENIED as moot in light of the Court s dismissal of the Amended Complaint as a shotgun pleading. DONE AND ORDERED at Fort Myers, Florida, this December, 2009. Copies: Counsel of record -3- 4th day of

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