ISAACS

v.

ISAACS

On November 15, 2021, Plaintiff Robert Louis Isaacs, appearing pro se, filed the above-styled case on behalf of himself and CARS Asset Partnership, Ltd., against Defendants Steven Allen Isaacs, the Estate of Albert Isaacs, and CARS Asset Group, LLC. Doc. No. 1. On March³, 2022, with leave of Court, Plaintiff filed an amended complaint, this time on behalf of himself only and adding CARS Asset Partnership, Ltd., as a Defendant, along with Steven Allen Isaacs, the Estate of Albert Isaacs, and CARS Asset Group, LLC. Doc. No. 22. On Defendants Cars Asset Group, LLC and Steven Allen Isaacs’ motion, Doc. No. 23,1 the Court dismissed the amended complaint as a shotgun pleading, with leave to replead, if Plaintiff could do so in accordance with Fed. R. Civ. P. 11. Doc. No. 50. See also Doc. No. 45.

On December⁵, 2022, Plaintiff timely filed a second amended complaint, which is now the operative pleading. Doc. No. 51. Like Plaintiff’s prior pleadings, the second amended complaint is not a model of clarity. It is 59 pages in length, and includes 204 numbered paragraphs. Id. Plaintiff has also filed 67

Albert Isaacs’ Estate, from which Plaintiff was excluded as a beneficiary due to language in the will which asked for Plaintiff to be considered to have predeceased Albert Isaacs. Doc. No. 51. As listed in the second amended complaint, Plaintiff appears to allege twelve separate causes of action: (1) “Count – 1, Albert Isaacs Estate PREDECEASED, August 24, 2009 – violation by ALBERT ISAACS ESTATE: PREDECEASED VIOLATION OF STATUTE USE 731.103(3)”; (2) “Count – 2, Albert Isaacs Estate

Breach of Contract of Trust delivery pursuant to Florida Statute 736.0813 and no limitation per fl. st. 736.0604”; (3) “Count – 3, Albert Isaacs 620.8401(1)(a) Partner’s rights and duties”; (4) “Count – 4, Albert Isaacs 620.8401(2) Partner’s rights and

Id. at 37–54.3 Plaintiff appears to seek declaratory and injunctive relief, as well as monetary relief, although the amount is unclear as Plaintiff references “$4,000,000.00,” and half of “$7,293,823.99” with interest.” Id. at 56–58.

Plaintiff alleges that the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, “directly a predeceasing of plaintiff Robert Louis Isaacs living

Amendments. E.g., id. at 7, 8, 10. Defendants Steven Allen Isaacs and Cars Asset Group, LLC (hereinafter, collectively, “Defendants”) move to dismiss the second amended complaint. Doc. No. 53. Defendants contend that Plaintiff’s second amended complaint remains a shotgun pleading, fails to adequately allege a basis for the Court’s jurisdiction, is barred by the Rooker-Feldman doctrine,⁴ fails to state any claim, and asserts claims barred by the statute of limitations. Id. The motion has been referred to the undersigned, see Doc. No. 4, and with Plaintiff’s response, see Doc. No. 55, the matter is ripe for disposition. Upon consideration, I will respectfully recommend that the Court grant the motion, and dismiss the second amended complaint without further leave to amend. I will further recommend that the Court sua sponte dismiss the claims against the Estate of Albert Isaacs.

II. LEGAL STANDARDS.

A 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), so as to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Additionally, “[a] party must state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). Although a court must accept as true well pleaded allegations, it is not bound to accept a legal conclusion couched as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). A pleading must contain

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. For purposes of this analysis, exhibits attached to the complaint are “part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). See also Saunders v. Duke, 766 F. 3d 1262, 1270 (11th Cir. 2014) (“[D]ocuments attached to a complaint or incorporated in the complaint by reference can generally be considered by a federal court in ruling on a motion to dismiss under Rule 12(b)(6).”). “A complaint that fails to comply with Rules⁸ and 10 may be classified as a ‘shotgun pleading.’” Luft v. Citigroup Glob. Mkts. Realty Corp., 620 F. App’x 702, 704 (11th Cir. 2015).5 Shotgun pleadings generally present in one of four ways: (1) 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”; (2) a complaint “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action”; (3) a complaint that fails to separate “into a different count each cause of action or claim for relief”; and (4) complaints containing

“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.” Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F. 3d

1313, 1321–23 (11th Cir. 2015). Each of these types of pleadings fails “to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.” Id. at 1323.

Additionally, under Federal Rule of Civil Procedure 12(h)(3), a district court may at any time, upon motion or sua sponte, act to address the potential lack of

“[I]t is incumbent upon federal courts trial and appellate to constantly examine the basis of jurisdiction, doing so on our own motion if necessary.” Save the Bay, Inc. v. U.S. Army, 639 F. 2d 1100, 1102 (5th Cir. 1981) (citations omitted).⁶

A pro se complaint should be construed leniently, but a court does not have “license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action.” GJR Invs. v. Cty. of Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 556 U.S. 662. Pro se parties must comply with the minimum pleading standards set forth in the Federal Rules of Civil Procedure and the Local Rules. Nawab v. LVNV Funding LLC, No. 5:12-cv-129-Oc- 10PRL, 2012 WL 12918283, at *1 (M.D. Fla. Nov. 19, 2012).

III. ANALYSIS.

A. The Motion to Dismiss.

Upon consideration, Defendants’ motion to dismiss (Doc. No. 53) is well taken. First, the undersigned agrees that the second amended complaint remains a shotgun pleading. Plaintiff’s 59-page, 204-paragraph second amended complaint fails to comply with the federal pleading requirements, and does not

resulting in a massive waste of judicial and private resources” (quotation marks and citations omitted)); Grosz v. SunTrust Bank, No. 8:12-cv-1336-T-23AEP, 2013 WL 12387353, at *3 (M.D. Fla. Aug.⁸, 2013) (dismissing amended complaint as shotgun pleading where the amended complaint contained conclusory allegations, and allegations that were also “overly broad, incongruous, and wholly incomprehensible,” in that each count alleged “several conclusions, facts, and wrongdoers,” and “[t]he specific target, the theory of recovery, and the requested relief for each claim [were] impossible to discern”). Second, and more importantly, the second amended complaint fails to adequately allege that the Court has subject matter jurisdiction over this matter. There are only two possible bases for the Court to exercise jurisdiction in this case, which include federal question jurisdiction under 28 U.S.C. § 1331, or diversity jurisdiction pursuant to 28 U.S.C. § 1332. Federal question jurisdiction exists when the case arises “under the Constitution, laws, or treaties of the United States.” See

28 U.S.C. § 1331. Diversity jurisdiction exists only when there is complete diversity of citizenship between the parties. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). In order to achieve “complete diversity,” no plaintiff may be a citizen of the same state as any of the defendants. See id.7 Here, despite Plaintiff’s assertions to the contrary, the second amended complaint does not allege a federal question, as all of Plaintiff’s causes of action appear to arise under state law. See Doc. No. 51. And Plaintiff’s fleeting references to due process and the Fifth and Fourteenth Amendments are not enough to confer federal question jurisdiction on the Court. See O’Neal v. Allstate Indem. Ins. Co. Inc., No. 20-14712, 2021 WL 4852222, at *3 (11th Cir. Oct. 19, 2021) (citations and quotation marks omitted) (“[T]he mere reference to federal law is insufficient to establish subject matter jurisdiction—the implicated federal issue must be substantial. District courts may dismiss a federal question claim for lack of subject matter jurisdiction when (1) the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction; or (2) such a claim is wholly insubstantial and frivolous.”

Notably, each of the addresses listed are in Florida. See id. Thus, Plaintiff has not established that diversity of citizenship exists. See 28 U.S.C. § 1332.8

F. 4th 23, 31 (11th Cir. 2022) (“[A] federal court cannot address the merits of a dispute unless it satisfies itself that subject-matter jurisdiction exists.” (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998))). And given that Plaintiff has already been given an opportunity to rectify the deficiencies identified herein by amendment, these deficiencies having been specifically brought to Plaintiff’s attention, see Doc. No. 45, I will respectfully recommend that the matter be dismissed without further opportunity to replead. See Jackson, 898 F. 3d at 1358 (a district court does not abuse its discretion in dismissing with prejudice a shotgun pleading if the plaintiff is given an opportunity to first remedy the defects and fails to do so); Chase, 2022 WL 16556815, at *3, report and recommendation adopted, 2022 WL

16558404 (N.D. Fla. Oct. 31, 2022) (dismissing pro se complaint without further leave court’s probate proceedings or to assume general jurisdiction or control of the property in the custody of the state court, the claims fall squarely within the probate exception to federal subject matter jurisdiction.”). And to the extent that Plaintiff is asking this Court to overturn any state court orders entered in the probate proceedings, such request would clearly be barred by the Rooker-Feldman doctrine. See, e.g., Donnelly v. Hudson, No. 6:18- cv-525-Orl-41TBS, 2018 WL 2122873, at *2 (M.D. Fla. Apr.⁹, 2018), report and recommendation adopted, 2018 WL 2118904 (M.D. Fla. May⁸, 2018). to amend where the plaintiff had been given leave to amend to rectify shotgun pleading deficiencies and to adequately state a basis for the court’s subject matter jurisdiction, and the plaintiff failed to do so). But because subject matter jurisdiction has not been established, it appears that the dismissal should be without prejudice. See McIntosh v. Royal Caribbean Cruises, Ltd.,⁵ F. 4th 1309, 1313 (11th Cir. 2021) (“If subject-matter jurisdiction does not exist, dismissal must be without prejudice.”). See also Power v. ChromaDex, Inc., No. 6:22-cv-747-RBD-LHP, 2022 WL 4355735, at *1 (M.D. Fla. Sept. 20, 2022) (addressing report and recommendation recommending dismissal of a second amended complaint for both lack of subject matter jurisdiction and shotgun pleading issues, and determining that given the lack of subject matter jurisdiction, dismissal without prejudice but without further opportunity to replead was appropriate).

B. The Estate of Albert Isaacs.

The second amended complaint names the Estate of Albert Isaacs as a Defendant. Doc. No. 51. However, the Estate of Albert Isaacs does not appear to be a properly named party to these proceedings. See Lara v. Hillsborough Cty. (FL) Sheriff, No. 8:18-cv-2794-T-16SPF, 2019 WL 6251357, at *5 (M.D. Fla. Nov. 22, 2019) (dismissing estate as an improper party, and noting that it is the personal representative of the estate that is the proper party to represent an estate). See also

De La Riva v. Chavez, 303 So. 3d 955, 959 (Fla. 4th Dist. Ct. App. 2020) (“[I]t is wellsettled that an [e]state is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity, that is the proper party.” (quotation marks and citations omitted)). Moreover, even if the Estate of Albert Isaacs were a proper party, the docket does not reflect service of process of any version of the complaint on the Estate of

Albert Isaacs. Thus, pursuant to Federal Rule of Civil Procedure 4(m), the matter is due to be dismissed against the Estate of Albert Isaacs. See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court— on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”). This Report and

Recommendation serves as the requisite notice to Plaintiff as required by Rule 4(m). See, e.g., BWP Media USA Inc. v. All Access Fans, Inc., No. 6:14-cv-337-Orl-31KRS, 2015 WL 13792163, at *2 n.2 (M.D. Fla. Mar. 25, 2015), report and recommendation adopted, 2015 WL 13792221 (M.D. Fla. Apr. 27, 2015); Ranson v. Astrue, No. 8:08-cv- 1928-T-27TGW, 2009 WL 3208448, at *1 (M.D. Fla. Oct.⁶, 2009).9

III. RECOMMENDATION.

For the reasons discussed herein, it is respectfully RECOMMENDED that the Court: 1. GRANT Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. No. 53);

2. DISMISS the second amended complaint (Doc. No. 51) without prejudice but without leave to amend; 3. DISMISS, sua sponte, the claims against the Estate of Albert Isaacs; and thereafter

4. DIRECT the Clerk of Court to close the file.

NOTICE TO PARTIES

A party has fourteen days from the date the Report and Recommendation is served to serve and file written objections to the Report and Recommendation’s factual findings and legal conclusions. Failure to serve written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3-1. Recommended in Orlando, Florida on March 20, 2023.

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LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Presiding District Judge Counsel of Record Unrepresented Party Courtroom Deputy