Opinion
Case No. 2:05-cv-81-FtM-29DNF.
October 13, 2005
OPINION AND ORDER
This matter is before the Court on consideration of the Magistrate Judge's Report and Recommendation (Doc. #36), filed September 8, 2005. Plaintiff seeks to take what appears to be a garden-variety denial of disability benefits ERISA claim and expand it into a federal RICO claim. The Report and Recommendation recommended that plaintiff's Motion for Leave to Amend Complaint (Doc. #20) be denied. The Report and Recommendation pleased neither party, and both filed objections (Docs. #37, 38, 43, 44). The Court does not necessarily find the position of either party completely convincing, but prefers that the procedural posture of the case be modified.
The Court prefers to deal with the sufficiency of any complaint in this case without the overlay of a "futility" issue regarding amending. As the magistrate judge correctly found, the proposed Second Amended Complaint is insufficient on its face with regard to its allegations of a pattern of racketeering activity. E.g., Aldridge v. Lily-Tulip, Inc. Salary Retirement Plan Benefits Committee, 953 F.3d 587 (11th Cir. 1992). Additionally, the proposed Second Amended Complaint is a shotgun pleading routinely condemned by the Eleventh Circuit because plaintiff improperly incorporated all allegations of each count into every successive count. Strategic Income Fund, L.L.C. v. Spear, Leeds Kellogg Corp., 305 F.3d 1293, 1295-1296 n. 9 (11th Cir. 2002); Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001); Cramer v. State of Florida, 117 F.3d 1258, 1263 (11th Cir. 1997). The Court will therefore allow plaintiff to file a third (and final) amended complaint setting forth his claims, and will deal with any resultant legal issues relating to the sufficiency of the pleading in any motion to dismiss subsequently filed.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation is hereby accepted and adopted to the extent that plaintiff's Motion for Leave to Amend Complaint (Doc. #20) is DENIED.
2. Plaintiff is granted leave to file a Third Amended Complaint within TEN (10) DAYS of the date of this Opinion and Order.
DONE AND ORDERED.