PITNER

v.

COSTCO WHOLESALE CORPORATION

Defendant. ______________________________________/

ORDER GRANTING “DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT”

This matter is before the Court on “Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint,” filed December 10, 2021. (Doc. 44). Plaintiff, pro se, filed a response in opposition on December 30, 2021. (Doc. 46). After reviewing the motion, response, court file, and record, the Court finds as follows: Background¹ Plaintiff Todd Christopher Pitner was a member of Defendant Costco Wholesale Corporation’s membership club. On November 13, 2020, Plaintiff attempted to enter a Costco store, and a store employee requested that he don a mask before entering. Plaintiff refused, an altercation ensued, and Defendant cancelled Plaintiff’s Costco membership days later. Plaintiff brings this suit based

[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.). As Plaintiff in this case is proceeding pro se, the Court more liberally construes the pleadings. Alba v. Montford, 517 F. 3d 1249, 1252 (11th Cir. 2018). However, a pro se plaintiff must still conform with procedural rules and the Court does not have “license to act as de facto counsel” on behalf of a pro se plaintiff. United States v. Padgett, 917 F. 3d 1312, 1317 (11th Cir. 2019). Analysis A shotgun pleading is one where “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief” and the defendant therefore cannot be “expected to frame a responsive pleading.” See

Anderson v. Dist. Bd. Of Trustees of Cent. Fla. Cmty. College, 77 F. 3d 364, 366 (11th Cir. 1996). The Eleventh Circuit has identified four primary types of shotgun pleadings: (1) Complaints 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) Complaints that do not commit the mortal sin of re-alleging all preceding counts but 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) Complaints that commit the sin of not separating into a different count each cause of action or claim for relief; and

(4) Complaints that assert multiple claims against multiple defendants without specifying which of the defendants are responsible for which actions or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F. 3d 1313, 1321-23 (11th Cir. 2015). More important than fitting neatly into these four roughly defined categories is the reason these types of pleadings are so problematic: they all fail “to give the defendant[] adequate notice of the claims against [it] and the grounds upon which each claim rests.”² Id. at 1323.

Plaintiff’s third amended complaint remains a shotgun pleading. Count II reincorporates the allegations of Count I, committing the “mortal sin” described in prong one of Weiland. Moreover, Plaintiff has been warned – on numerous occasions – to separate his claims into separate counts. In Counts I and II, Plaintiff incorporates an affidavit that references several claims, including a breach of contract claim. In Count II, Plaintiff appears to assert claims for ADA retaliation,

interference, and discrimination. A district court must generally permit a plaintiff at least one opportunity to amend a shotgun complaint’s deficiencies before dismissing the complaint with prejudice. Vibe Micro, Inc. v. Shabanets, 878 F. 3d 1291, 1295 (11th Cir. 2018). “Implicit in such a repleading order is the notion that if the plaintiff fails to comply with the court’s order – by filing a repleader with the same deficiency – the court should strike his pleading or, depending on the circumstances, dismiss his case and consider the imposition of monetary sanctions.” Jackson, 898 F. 3d at 1358 (11th

GRANTED.

(2) Plaintiffs third amended complaint (Doc. 42) is DISMISSED WITH

PREJUDICE.

(3) The Clerk is directed to terminate any pending motions and deadlines, and thereafter close this case. DONE and ORDERED in Chambers, in Tampa, Florida, this 4th day of January, 2022.

nf |

—

-TOMBARBER i (asssti—‘“‘it*™”

UNITED STATES DISTRICT JUDGE