UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

CASE NO. 20-81123-CIV-CANNON/Reinhart

EUGENE MISQUITH, 

Plaintiff,

v.

ROBERTO BORREGO,

ST. MARY’S MEDICAL CENTER,

PALM BEACH TRAUMA ASSOCIATES, and

PALM BEACH COUNTY HEALTH CARE DISTRICT,

Defendants.

/

ORDER ACCEPTING WITH CLARIFICATIONS 

REPORT AND RECOMMENDATION

THIS CAUSE comes before the Court upon Magistrate Judge Bruce E. Reinhart’s Report 

and Recommendation (the “Report”) [ECF No. 94], entered on September 29, 2021. The Report 

recommends that Defendants’ Joint Motion to Dismiss [ECF No. 86] be granted. Specifically, the 

Report recommends dismissing Counts I–XVIII with prejudice and dismissing Counts XIX–XXI 

without prejudice but without leave to amend. On October 27, 2021, Plaintiff filed his Objections 

to the Report [ECF No. 101]. Defendants filed a Notice of No Objection to the Report 

[ECF No. 95], as well as a Response in Opposition to Plaintiff’s Objections [ECF No. 105]. The 

Court has reviewed the Report, Plaintiff’s Objections, Defendants’ Response, and the full record. 

In light of that review, the Court ACCEPTS the Report but offers the following supplementary 

analysis in response to Plaintiff’s objections. 

FACTUAL & PROCEDURAL BACKGROUND

Plaintiff Eugene Misquith is a 62-year-old Indian American trauma surgeon with a chronic 

heart condition [ECF No. 73 ¶ 15]. On September 12, 2018, Plaintiff was suspended from his job 

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with St. Mary’s Medical Center (“St. Mary’s”), and his trauma staff privileges were subsequently 

terminated [ECF No. 73 ¶ 81]. Plaintiff alleges that Defendants Roberto Borrego, St. Mary’s, 

Palm Beach County Trauma Associates (“Trauma Associates”), and Palm Beach County Health 

Care District (“Health Care District”) violated a variety of Federal and Florida laws by 

discriminating against him on the basis of his age, race, national origin, and disability 

(Counts I–XVI). 1 Plaintiff further alleges that Borrego, St. Mary’s, and Trauma Associates 

violated the Florida Whistleblower Act (“FWA”) by retaliating against him after he raised 

concerns about double-billing (Counts XVII–XVIII). Lastly, Plaintiff alleges that St. Mary’s and 

Health Care District breached their contracts with him (Counts XIX and XXI), and that Health 

Care District breached the implied covenant of good faith and fair dealing (Count XX).

Plaintiff initiated this action on July 13, 2020 [ECF No. 1]. Plaintiff filed his First 

Amended Complaint (“FAC”) on November 12, 2020 [ECF No. 39]. Defendants filed a Motion 

to Dismiss the FAC [ECF No. 53], which the Court granted in part [ECF No. 70], dismissing the 

FAC as a shotgun pleading and giving Plaintiff “one final opportunity to file an amended 

complaint” [ECF No. 70 ¶ 4]. Plaintiff then filed the Second Amended Complaint (“SAC”) on 

June 16, 2021 [ECF No. 73]. Defendants again moved to dismiss[ECF No. 86]. On September 29, 

2021, following referral [ECF No. 88], Magistrate Judge Reinhart entered the instant Report

recommending that all of Plaintiff’s claims be dismissed [ECF No. 94]. The Joint Motion to 

Dismiss [ECF No. 86] is ripe for adjudication.

1

 Plaintiff brings discrimination claims under the Americans with Disabilities Act (“ADA”), Title 

VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act 

(“ADEA”), the Florida Civil Rights Act (“FCRA”), 42 U.S.C. § 1981, and 42 U.S.C. § 1983.

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LEGAL STANDARDS

To challenge the findings and recommendations of a magistrate judge, a party must file 

specific written objections identifying the portions of the proposed findings and recommendation 

to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822 

(11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court 

reviews de novo those portions of the report to which objection is made and may accept, reject, or 

modify in whole or in part, the findings or recommendations made by the magistrate judge. 28 

U.S.C. § 636(b)(1). To the extent a party fails to object to parts of the magistrate judge’s report, 

the Court may accept the recommendation so long as there is no clear error on the face of the 

record. Macort, 208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence 

of an objection. See LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010); Cooper-Houston 

v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). 

Federal Rule of Civil Procedure 8(a)(2) requires a pleading to provide “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To 

satisfy the Rule 8 pleading requirements, a complaint must provide the defendant fair notice of 

what the plaintiff’s claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 

534 U.S. 506, 512 (2002). While a complaint “does not need detailed factual allegations,” it must 

provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause 

of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (explaining that the Rule 8(a)(2) pleading standard “demands more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest 

on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 

(quoting Twombly, 550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized 

that “[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted 

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as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 

678 (quoting Twombly, 550 U.S. at 570); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 

1283, 1288–90 (11th Cir. 2010).

Complaints that violate Rule 8(a)(2) are referred to as “shotgun pleadings.” Weiland v. 

Palm Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). The Eleventh Circuit has 

“identified four rough types or categories of shotgun pleadings,” including: (1) a complaint 

“containing multiple counts where each count adopts the allegations of all preceding counts,” 

(2) a complaint that is “replete with conclusory, vague, and immaterial facts not obviously 

connected to any particular cause of action,” (3) a complaint that does “not separat[e] into a 

different count each cause of action or claim for relief,” and (4) a complaint that “assert[s] 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. at 1321–23. 

More broadly, “[a] dismissal under Rules 8(a)(2) and 10(b) is appropriate where ‘it is virtually 

impossible to know which allegations of fact are intended to support which claim(s) for relief.’” 

Id. at 1325 (emphasis in original) (quoting Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. 

Coll., 77 F.3d 364, 366 (11th Cir. 1996)).

DISCUSSION

The Report recommends dismissing Plaintiff’s discrimination and retaliation claims 

(Counts I–XVIII) with prejudice for failure to state a claim and dismissing Plaintiff’s common law

claims (Counts XIX–XXI) without prejudice, but without further leave to amend, for lack of 

subject matter jurisdiction [ECF No. 94 p. 25]. Although the Report begins its discussion by 

acknowledging that the SAC is “replete with irrelevant facts, statements of legal principles, and 

citations to cases and statutes” and “far from a model of a ‘short and plain statement’ of [Plaintiff’s] 

claims,” the Report does not recommend dismissing the SAC as a shotgun pleading and instead 

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recommends dismissal on other grounds [ECF No. 94 pp. 6–8]. Specifically, the Report avers that 

dismissal of Plaintiff’s ADA, Title VII, ADEA, FCRA, and FWA claims (Counts I–VIII, X–XI, 

and XIII–XVIII) is warranted because the SAC fails to allege that Defendants had the required 

minimum number of employees—an essential element of those causes of actions 

[ECF No. 94 pp. 8–11]. The Report further avers that Plaintiff’s discrimination claims against 

Borrego (Counts II, IV, VI, VIII, XI, XIV, XVI, and XVIII) must be dismissed because the SAC 

does not adequately allege that Borrego is being sued as an “employer” as defined by the relevant 

statutes [ECF No. 94 pp. 11–13]. The Report proceeds to point out, correctly, that Plaintiff’s ADA, 

Title VII, FCRA, ADEA, and 42 U.S.C. § 1981 claims (Counts I–XI, XIII–XVI) rely entirely on 

formulaic and conclusory allegations that do not plausibly establish causes of action 

[ECF No. 94 pp. 15–20], and that Plaintiff’s 42 U.S.C. § 1983 claim (Count XII) fails to allege 

that an official local-government policy was the moving force behind Plaintiff’s injury 

[ECF No. 94 pp. 20–22]. Following its analysis of the discrimination and retaliation claims 

(Counts I–XVIII), and in the absence of any remaining federal claim, the Report recommends 

against the exercise of supplemental jurisdiction over Plaintiff’s common law contract claims 

(Counts XIX–XXI) [ECF No. 94 pp. 23–24].

This Court agrees that dismissal of the SAC, in its entirety, is warranted. As the Report 

points out, the SAC is a 90-page pleading that is “replete with irrelevant facts, statements of legal 

principles, and citations to cases and statutes” [ECF No. 94 p. 6]. For example, the SAC discusses 

the following matters which have little to no relevance to Plaintiff’s claims: a book written by one 

of Plaintiff’s patients about a 2009 mass shooting [ECF No. 73 ¶ 14], a comprehensive account of 

Plaintiff’s personal and professional life leading up to his relationship with Defendants 

[ECF No. 73 ¶¶ 16–19], Florida’s trauma and transfer standards and their underlying policy 

rationales [ECF No. 73 ¶¶ 71–76], and the Internal Revenue Service’s standard for de facto

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employment [ECF No. 73 ¶ 101]. The SAC is further complicated by Plaintiff’s sweeping 

allegations of de facto employment and joint employment, devoid of particularized factual support

[ECF No. 73 ¶¶ 99–115]. In light of the confusing nature of Plaintiff’s allegations, the Eleventh 

Circuit’s established opposition to shotgun pleadings, and the Court’s previous order dismissing 

the FAC as a shotgun pleading, dismissal of the SAC is warranted for failure to comply with

Rule 8(a)(2). See Weiland, 792 F.3d 1321–22.

In addition to this overarching defect, the SAC is plagued by many claim-specific defects. 

As the Report discusses at length, Plaintiff does not adequately allege the required 

minimum number of employees for his ADA, Title VII, ADEA, FCRA, and FWA claims. For 

Counts I, V, X, XIII, XV, and XVII, the SAC alleges, “upon information and belief,” that the 

required minimum number of employees is satisfied [ECF No. 73 ¶¶ 120, 165, 224, 265, 308, 341]. 

The Report avers that these allegations are “not entitled to a presumption of truth,” since they lack 

specific factual support [ECF No. 94 pp. 10–12], and therefore the SAC fails to plausibly allege 

an essential element of those claims. See United Am. Corp. v. Bitmain, Inc., 530 F. Supp. 3d 1241, 

1261 n.21 (S.D. Fla. 2021) (“While ‘information and belief’ pleading can sometimes survive a 

motion to dismiss, a plaintiff must allege specific facts sufficient to support a claim.”); AT&T 

Mobility LLC v. Phone Card Warehouse, Inc., No. 08-CV-1909-ORL-18GJK, 2009 WL 

10671270, at *4 (M.D. Fla. June 25, 2009) (“[Plaintiff’s ‘upon information and belief’ allegation] 

is simply a variation of pleading an element of a cause of action without factual support and will 

not withstand a motion to dismiss.”); see also Twombly, 550 U.S. at 557 (holding that “naked 

assertions, without further factual enhancement, “stop[] short of the line between possibility and 

plausibility.”). Counts II, IV, VI, VIII, XI, XIV, XVI, and XVIII allege even less, stating simply: 

“[t]o the extent that this Court determines that [Defendants] have [the required minimum number 

of employees], we would respectfully allege that they are covered [under the relevant statute]” 

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[ECF No. 73 ¶¶ 133, 153, 179, 201, 235, 289, 325, 357]. Meanwhile, Counts III and VII make no 

mention of this essential element at all. The Court agrees with the Report: the SAC does not 

plausibly allege the required minimum number of employees for any of Plaintiff’s ADA, Title VII, 

ADEA, FCRA, and FWA claims. Nor does the SAC plausibly allege that Defendant Borrego is 

an “employer” as defined by the relevant statutes, as opposed to just an officer or employee acting 

who acted in his individual capacity [see ECF No. 94 pp. 11–13],

2 or that Plaintiff was subjected

to adverse employment actions as a result of discrimination [ECF No. 94 pp. 13–20 (listing 

Plaintiff’s allegations of discrimination and highlighting the lack of factual support for the alleged 

claims)]. On the whole, Plaintiff’s ADA, Title VII, ADEA, FCRA, FWA, and 42 U.S.C. 1981 

claims rely on “conclusory allegations . . . masquerading as facts,” and must be dismissed. Oxford 

Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)

Plaintiff’s claim under 42 U.S.C. § 1983, too, must be dismissed because the SAC does not 

plausibly allege that an official policy was the moving force behind Plaintiff’s termination

[ECF No. 94 pp. 20–22]. In his Objections to the Report, Plaintiff points to the letter of termination 

that he received and its surrounding circumstances in arguing that the SAC plausibly alleges an 

official policy [ECF No. 101 pp. 17–19]. However, the letter of termination simply states that 

Borrego chose to remove Plaintiff from trauma call coverage effective January 1, 2019 

[ECF No. 73-3]. Neither the letter nor the surrounding circumstances cited by Plaintiff identifies 

a formal policy or connects Plaintiff’s termination to said policy in any discernable way. 

Count XII fails to state a claim under 42 U.S.C. § 1983.

Without the accompaniment of any valid federal claims, Plaintiff’s common law contract 

claims must be dismissed for lack of subject matter jurisdiction. In his Objections, Plaintiff argues 

2

 Plaintiff’s brings claims against Borrego in Counts II, IV, VI, VIII, XI, XIV, XVI, and XVIII.

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that, even if the Court were to dismiss his federal discrimination and retaliation claims 

(Counts I–XVIII), the Court ought to exercise supplemental jurisdiction over the remaining claims

(Counts XIX–XXI), because “there are compelling federal interests in [the] case” arising from the 

fact that “federal taxpayer dollars are used to fund Medicare and Medicaid” 

[ECF No. 101 pp. 19–20]. Not so. As the Report indicates, dismissal of common law claims is 

“strongly encouraged or even require[d]” where, like here, the accompanying federal claims are 

dismissed prior to trial [ECF No. 94 p. 24 (quoting L.A. Draper & Son v. Wheelabrator-Frye, Inc., 

735 F.2d 414, 428 (11th Cir. 1984)); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 

(1988) (“[W]hen the federal-law claims have dropped out of the lawsuit in its early stages and only 

state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing 

the case without prejudice.”)]. The attenuated link that Plaintiff offers to justify the continued 

exercise of supplemental jurisdiction over Plaintiff’s state law claims in the absence of any viable 

federal claims is insufficient.

CONCLUSION

Following a de novo review of the Report’s legal conclusions and of the portions of the 

Report to which an objection has been made, the Court hereby ACCEPTS the Report as follows:

1. Defendants’ Joint Motion to Dismiss the Second Amended Complaint [ECF No. 86] is 

GRANTED.

2. Counts I–XVIII are DISMISSED WITH PREJUDICE.

3

3. Counts XIX–XXI are DISMISSED WITHOUT PREJUDICE BUT WITHOUT 

FURTHER LEAVE TO AMEND. 

3

 Pursuant to the Court’s previous Order [ECF No. 70], the SAC was Plaintiff’s final opportunity 

to plead his claims with sufficient and particularized factual support. Moreover, Plaintiff does not 

request an additional opportunity to replead in his Objections to the Report [ECF No. 101].

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4. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Fort Pierce, Florida this 14th day of March 2022.

 _________________________________

 AILEEN M. CANNON

 UNITED STATES DISTRICT JUDGE

cc: counsel of record

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