UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-23371-BLOOM/Louis

BELKIS HERNANDEZ,

Plaintiff,

v.

INTEGON NATIONAL INSURANCE

COMPANY and CIT GROUP, INC. d/b/a

CIT BANK, N.A. f/d/b/a FINANCIAL

FREEDOM, a division of CIT BANK, N.A.,

Defendants.

____________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court upon Defendant CIT Bank, N.A.’s (“CIT”) Motion to 

Dismiss the Complaint, ECF No. [8] (“CIT’s Motion”), and Defendant Integon National Insurance 

Company’s (“Integon”) Motion to Dismiss Plaintiff’s Complaint or, Alternatively, Motion to 

Strike Plaintiff’s Demand for Attorneys’ Fees, ECF No. [9] (“Integon’s Motion”), (collectively, 

the “Motions”). Plaintiff Belkis Hernandez (“Plaintiff”) filed a consolidated Amended Response 

in Opposition to both Motions, ECF No. [22] (“Response”). Integon thereafter replied, ECF No. 

[23] (“Reply”). The Court has carefully reviewed the Motions, all opposing and supporting 

submissions, the record in this case, and the applicable law, and is otherwise fully advised. For the 

reasons set forth below, the Motions are granted, and Plaintiff is granted leave to amend.

I. BACKGROUND

Plaintiff initiated this breach of insurance contract action against Defendants1in the 

Eleventh Judicial Circuit in and for Miami-Dade County, Florida, on June 24, 2020. ECF No. [4-

1 CIT and Integon will be collectively referred to as “Defendants” for the remainder of this Order.

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3] (“Complaint”). Defendants jointly removed this action to federal court on August 13, 2020, on 

the basis of diversity jurisdiction. ECF No. [1]. Plaintiff’s Complaint asserts one count for breach 

of contract, based on the following alleged facts: 

Plaintiff owns the property and resides at 6566 Southwest 35th Street, Miami, Florida 

33155 (the “Property”). ECF No. [4-3] at 1, ¶ 3. Integon issued an Insurance Policy, id. at 5-25

(“Insurance Policy” or “Policy”), to insure the Property. Id. at 2, ¶ 8. At all relevant times, “in

consideration of a premium paid by Plaintiff, the Policy was in full force and effect.” Id. at 2, ¶ 9.

On September 10, 2017, the Property suffered severe damage (the “Loss”) from water 

discharge and overflow, and Plaintiff thereafter submitted a claim under the Policy for the damage 

sustained in the Loss. Id. at 2, ¶¶ 10-11. “Defendant has admitted that the Loss is covered and has 

made a partial payment under the Policy.” Id. at 2, ¶ 12. Integon nonetheless failed to provide 

Plaintiff with coverage under the Policy for the remainder of the damages. Id. at 2, ¶ 13.

Moreover, the Complaint realleges all the general factual allegations in its breach of 

contract claim, and sets forth the following additional allegations in support of her claim:

17. The Policy is a valid written contract between Plaintiff and Integon,

wherein Plaintiff agreed to pay a premium and Integon agreed to insure the 

Property.

18. Plaintiff paid all premiums due under the Policy and fully performed her 

obligations under the Policy. 

19. Under the Policy, Integon was obligated to pay the claim for damages, 

which were covered by the Policy.

20. Integon has refused to pay the full amounts due for the damages under 

the Policy. 

21. Integon breached the contract by repudiating its obligations to Plaintiff 

and denying Plaintiff the benefits of the policy. 

22. At all times material hereto, Plaintiff have satisfied all post-loss 

obligations under the Policy. 

23. As a result of Integon’s breach of the contract, Plaintiff has suffered and 

continues to suffer damages.

WHEREFORE, Plaintiff respectfully requests this Honorable Court award 

a judgment for damages against Integon National Insurance Company and CIT

GROUP INC. d/b/a CIT Bank, N.A f/d/b/a Financial Freedom, a division of CIT

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Bank, N.A. for breaching the contract by wrongfully denying coverage and

payment under the Policy and for any additional relief as permitted by law and as

this Court deems appropriate, including interest, costs, attorney’s fees pursuant to 

Florida Statutes §§ 626.9373 or 627.428, and all equitable remedies or other relief 

that may be appropriate.

Id. at 2-3, ¶¶ 17-23.

Upon removing this case to federal court, Defendants filed their respective Motions arguing 

that Plaintiff’s Complaint should be dismissed. CIT argues that Plaintiff fails to state a claim for 

breach of contract against CIT because the Complaint is devoid of any facts or substantive 

allegations concerning CIT’s alleged breach of contract. Integon argues that the Complaint must 

be dismissed for failure to state a claim because Plaintiff is not a party to the Policy, and thus has 

no rights under the Policy as an insured, an intended third-party beneficiary, or a simple loss payee. 

In addition, Integon seeks to strike Plaintiff’s demand for attorneys’ fees because she is not entitled 

to recover fees under either provision cited. Specifically, Integon contends that § 626.9373, Fla. 

Stat., is inapplicable because Integon did not provide insurance coverage as a surplus lines carrier 

and that Plaintiff is also precluded from claiming fees pursuant to § 627.428, Fla. Stat., because 

the Policy establishes that Plaintiff is not a named insured, additional insured, named beneficiary, 

or omnibus insured under the Insurance Policy. 

In her consolidated Response, Plaintiff submits a plethora of different arguments for why 

her Complaint should not be dismissed. In response to Integon’s Motion, Plaintiff argues that she 

is an intended beneficiary under the Policy because she is listed as the borrower in the contract, 

she is a loss payee under a provision of the Policy, and she has an insurable interest in the Property 

and is thus a third-party beneficiary to the Policy, each of which support her claim for breach of 

contract in this case. Plaintiff requests leave to amend her Complaint, should this Court disagree. 

With regard to Integon’s request to strike the demand for attorneys’ fees, Plaintiff maintains that 

she should be allowed to amend her Complaint to assert a claim as a third-party beneficiary, which 

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would entitle her to seek fees, and notes that she could recover fees as an insured or an omnibus 

insured under § 627.428, based on the Policy provision designating her as a loss payee. 

Integon replies that Plaintiff’s Complaint fails to state a claim for any of the theories 

Plaintiff sets forth in her Response, and her failure to plead any facts to support her status as a 

third-party beneficiary or a simple loss payee warrants dismissal. Moreover, Integon argues that 

Plaintiff is not entitled to attorneys’ fees because the Insurance Policy expressly sets forth her 

limited rights as a simple loss payee and any contention that Plaintiff is an insured, an omnibus 

insured, and/or a named beneficiary is “borderline frivolous.” ECF No. [23] at 4. 

Curiously, Plaintiff fails to address any of the arguments in CIT’s Motion regarding the 

insufficiency of the allegations as currently pled. Nonetheless, Plaintiff seeks leave to amend her 

Complaint to assert a claim for declaratory relief against CIT to determine their respective rights 

under the Policy.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8 requires that a pleading contain “a short and plain 

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

Although a complaint “does not need detailed factual allegations,” it must provide “more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on 

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

in original) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a 

right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required 

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to survive a Rule 12(b)(6) motion, which requests dismissal for “failure to state a claim upon which 

relief can be granted.”

When reviewing a motion under Rule 12(b)(6), a court generally must accept the plaintiff’s 

allegations as true and evaluate all plausible inferences derived from those facts in plaintiff’s favor. 

Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1084 (11th 

Cir. 2002). Yet, courts “are not bound to accept as true a legal conclusion couched as a factual 

allegation.” Twombly, 550 U.S. at 555; see also Thaeter v. Palm Beach Cty. Sheriff’s Office, 449 

F.3d 1342, 1352 (11th Cir. 2006). Indeed, “courts may infer from the factual allegations in the 

complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the 

unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605 

F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). On a Rule 12(b)(6) motion, 

courts are generally limited to the facts alleged in the complaint and attached exhibits. Wilchombe 

v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Techs., 

Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) (“[A] document outside the four corners of the 

complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in terms 

of authenticity.” (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002))).

III. DISCUSSION

In their Motions, Defendants both argue that the Court should dismiss Plaintiff’s Complaint 

due to her failure to sufficiently allege facts to support a claim for relief on a breach of contract 

action. The Court agrees and, upon review, addresses the glaring pleading deficiencies throughout 

the Complaint.

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

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

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party must state its claims or defenses in numbered paragraphs, each limited as far as practicable 

to a single set of circumstances.” Fed. R. Civ. P. 10(b). Complaints that fail to comply with these 

rules are sometimes referred to as “shotgun pleadings.” Weiland v. Palm Beach Cty. Sheriff’s 

Office, 792 F.3d 1313, 1320 (11th Cir. 2015).

The Court of Appeals for the Eleventh Circuit has explained:

[t]hough the groupings cannot be too finely drawn, we have identified four rough 

types or categories of shotgun pleadings. The most common type—by a long shot—

is 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. The next most 

common type, at least as far as our published opinions on the subject reflect, is a 

complaint that does not commit the mortal sin of re-alleging all preceding counts 

but is guilty of the venial sin of being replete with conclusory, vague, and 

immaterial facts not obviously connected to any particular cause of action. The third 

type of shotgun pleading is one that commits the sin of not separating into a 

different count each cause of action or claim for relief. Fourth, and finally, there is 

the relatively rare sin of asserting 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. The unifying 

characteristic of all types of shotgun pleadings is that they fail to one degree or 

another, and in one way or another, to give the defendants adequate notice of the 

claims against them and the grounds upon which each claim rests.

Id. at 1321-23; see also Jackson v. Bank of Am., N.A., 898 F.3d 1348 (11th Cir. 2018). Shotgun 

pleadings fail to make the connection between “the substantive count and the factual 

predicates . . . [such that] courts cannot perform their gatekeeping function with regard to the 

averments of [the claim].” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279-80 (11th 

Cir. 2006); Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 205 F.3d 1293, 1295 

(11th Cir. 2002) (explaining that a shotgun pleading is one that contains “several counts, each one 

incorporating by reference the allegations of its predecessors, leading to a situation where most of 

the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions”);

Pelletier v. Zweifel, 921 F.2d 1465, 1517-18 (11th Cir. 1991) (describing such pleadings as “replete 

with factual allegations that could not possibly be material to any of the causes of action they 

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assert”); Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008) (term also refers to 

pleadings that are “replete with factual allegations and rambling legal conclusions”); Davis v. 

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979-80 (11th Cir. 2008) (condemning shotgun 

pleading that bunched together “untold causes of action” in one count). 

“Generally, when ‘a more carefully drafted complaint’ might state a claim, the plaintiff 

must be given a chance to amend before dismissal.” Hollis v. W. Acad. Charter, Inc., 782 F. App’x 

951, 955 (11th Cir. 2019) (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)). 

“However, the district court need not provide such an opportunity where the plaintiff has 

repeatedly failed to cure deficiencies in his complaint through previous amendments or where 

amendment would be futile.” Id. (quoting Bryant, 252 F.3d at 1163). As such, dismissal of a

shotgun pleading with prejudice for a repeated pleading defect is warranted where the plaintiff was

previously given an opportunity to amend the complaint to correct the defect, but failed to do so. 

See Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239 (11th Cir. 2000); Isbrandtsen Marine 

Servs., Inc. v. M/V INAGUA Tania, 93 F.3d 728, 734 (11th Cir. 1996).

The Court concludesthat Plaintiff’s Complaint fails to set forth her breach of contract claim 

in accordance with federal pleading standards. In particular, the Complaint falls into multiple 

shotgun pleading categories because it is “replete with conclusory, vague, and immaterial facts not 

obviously connected to any particular cause of action,” Weiland, 792 F.3d at 1322-23, it “fails to 

separate into a different count each cause of action; [and it] asserts multiple claims against multiple 

defendants without specifying which defendant is responsible for which act,” Embree v. Wyndham 

Worldwide Corp., 779 F. App’x 658, 662 (11th Cir. 2019). “Although the [] complaint enumerates 

the legal rights of which [Plaintiff] was allegedly deprived . . . it does not separate [her] claims by 

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cause of action [or] draw any clear lines between the legal and factual bases for [her] claims[.]” 

Toth v. Antonacci, 788 F. App’x 688, 691 (11th Cir. 2019).

Notably, aside from the jurisdictional allegations, the Complaint is entirely devoid of any 

factual allegations concerning CIT, and it fails to set forth any basis for CIT’s purported breach of 

contract. See generally ECF No. [4-3]. Nonetheless, Plaintiff’s lone count for breach of contract is 

seemingly asserted against both Defendants, as evidenced by CIT’s ultimate inclusion in the 

wherefore clause. There are no allegations in the Complaint that would sufficiently notify CIT of 

the claims against which it must defend in this case. 

Moreover, to the extent that Plaintiff’s Response tries to argue that the Complaint 

sufficiently alleges numerous different theories of contractual liability (i.e., named insured, thirdparty beneficiary, and simple loss payee), this assertion of “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” is improper. Weiland, 792 F.3d at 1323.

In addition, Plaintiff’s Complaint is replete with contradictory allegations, when read 

alongside the Insurance Policy attached as an exhibit to her Complaint. Indeed, even a cursory 

review of the Insurance Policy belies any argument of a plausible right to relief, as currently pled. 

Instead, the Policy, which is issued by Integon, has a header stating, “NOTICE OF LENDERPLACED INSURANCE,” and is titled “Residential Property Hazard Insurance.” ECF No. [4-3] 

at 7. Moreover, the Policy explicitly makes the distinction between who the “NAMED INSURED” 

is and who the “BORROWER” is—listing “Financial Freedom, a division of CIT Bank, N.A.” as 

the “NAMED INSURED” and “Belkis Hernandez” as the “BORROWER.” Id. This distinction is 

critical, in light of the paragraph immediately following the Policy details, which states: 

The NAMED INSURED has purchased insurance on the DESCRIBED 

LOCATION for the amount and premium indicated above.

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The contract of insurance is only between the NAMED INSURED and 

Integon National Insurance Company. There is no contract of insurance between 

the BORROWER and Integon National Insurance Company. The insurance 

purchased is intended for the benefit and protection of the NAMED INSURED, 

insures against LOSS only to the dwelling and OTHER STRUCTURES on the 

DESCRIBED LOCATION, and may not sufficiently protect BORROWER’S 

interest in the property.

Id.

Based on the Policy provisions cited above, it is evident that the Complaint fails to even 

present consistent or clear allegations across the pleading itself and the attached exhibit. As pled, 

Plaintiff’s Complaint fails to give Defendants sufficient notice of the claims asserted against them 

or the factual foundations underlying those claims. Indeed, Plaintiff’s Response to the Motions

perfectly embodies the Court’s conclusion that the Complaint is a shotgun pleading by arguing, 

without any citation to supporting allegations within the Complaint, that she can assert a claim for 

breach of contract against Integon as an insured, an intended beneficiary, a simple loss payee, 

and/or a third-party beneficiary, ECF No. [22] at 4-6, with an entitlement to recover statutory 

attorneys’ fees “as an insured or omnibus insured or named beneficiary,” id. at 7-8; and that she 

can likewise assert a claim for declaratory relief against CIT if permitted to amend to establish her 

rights under the Policy, id. at 6-7. 

The Court concludes that the Complaint in this case is clearly an unacceptable shotgun 

pleading, given the numerous and significant issues addressed above. See Iqbal, 556 U.S. at 678 

(“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” (quoting Twombly, 550 U.S. at 570)). As such, Defendants’ Motions 

must be granted. Nevertheless, as Plaintiff requests leave to amend to cure these blatant 

deficiencies and as this is the first such amendment, the Court will grant Plaintiff’s request. 

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However, the Court strongly cautions Plaintiff that no further amendments will be permitted, 

should she fail to cure the pleading deficiencies discussed in this Omnibus Order.2

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: 

1. CIT’s Motion, ECF No. [8], is GRANTED. 

2. Integon’s Motion, ECF No. [9], is GRANTED. 

3. Plaintiff’s Complaint, ECF No. [4-3], is DISMISSED. Plaintiff may file an 

Amended Complaint consistent with the instructions set forth in this Omnibus 

Order by no later than November 20, 2020. Plaintiff’s failure to timely file an

Amended Complaint will result in the dismissal of this action without further 

notice.

DONE AND ORDERED in Chambers at Miami, Florida, on November 6, 2020.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

2

“When the amended complaint still fails to cure the deficiency, it may be subject to dismissal.” Embree, 

779 F. App’x at 662; see also Weiland, 792 F.3d at 1320 (recognizing that a district court has the “inherent 

authority to control its docket and ensure the prompt resolution of lawsuits,” which includes the ability to 

dismiss with prejudice a complaint that is a shotgun pleading); Jackson, 898 F.3d at 1358 (Implicit in a 

district court’s order to replead is the “notion that if the plaintiff fails to comply with the court’s order . . . 

the court should strike his pleading or, depending on the circumstances, dismiss his case and consider the 

imposition of monetary sanctions” (quotations omitted)).

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