UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DR. EARL J. CROSSWRIGHT,

Plaintiff, 

v. CASE NO.: 3:20-cv-05963-MCR-HTC

ESCAMBIA COMMUNITY CLINICS,

INC. d/b/a COMMUNITY HEALTH

NORTHWEST FLORIDA,

Defendant.

___________________________________/

DEFENDANT ESCAMBIA COMMUNITY CLINICS, INC.’S

MOTION TO DISMISS SECOND AMENDED COMPLAINT 

AND SUPPORTING MEMORANDUM OF LAW

Defendant, ESCAMBIA COMMUNITY CLINICS, INC. d/b/a 

COMMUNITY HEALTH NORTHWEST FLORIDA (“CHNF” or 

“Defendant”), pursuant to Fed. R. Civ. P. 12(b)(6) and N.D. Fla. Loc. R. 7.1, moves 

to dismiss the Second Amended Complaint [(Doc. 42)] filed by the Plaintiff, DR. 

EARL J. CROSSWRIGHT (“Plaintiff”), with prejudice. 

SUMMARY OF ARGUMENT

Succinctly, the Second Amended Complaint continues to defy this Court’s 

orders and the Federal Rules of Civil Procedure, for this reason and pursuant to this 

Court’s July 26, 2021 Order the Second Amended Complaint should be dismissed 

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with prejudice. CHNF is cognizant of this Court’s limited time and resources, 

accordingly, this Motion will only briefly highlight the continued deficiencies in the 

Second Amended Complaint and incorporates into this Motion the case law and 

arguments included in Section I of CHNF’s Motion to Dismiss Amended Complaint 

(Doc. 29 at 5-8). See Lowden v. William M. Mercer, Inc., 902 F. Supp. 2d 212, 216 

(D. Mass. 1995) (“it is appropriate to incorporate by reference made in a motion to 

dismiss an original complaint despite the subsequent amendment of the complaint

“); see also Shular v. Regency House of Wallingford, Inc., Case No. 3:05CV480 

(RNC), 2006 WL 118383 (D. Conn. Jan. 13, 2006) (same).

PROCEDURAL HISTORY AND NATURE OF THE CLAIMS

1. On July 26, 20211this Court issued an Order granting in part and 

denying in part CHNF’s second Motion to Dismiss, and dismissed Plaintiff’s claims 

for civil theft and unjust enrichment with prejudice, noting Plaintiff “blatantly 

disregarded the Court’s unambiguous directive by once again combining his claims 

for civil theft and unjust enrichment.” (Doc. 35 at 2). The Court also gave Plaintiff 

one “last” “opportunity to amend” the Complaint. Id. at 4. However, in doing so, the 

Court made clear that “[i]f Plaintiff’s second amended complaint [did] not remedy 

 

1 As this Court is aware of the prior history in this case, CHNF omits discussion of 

this Court’s previous dismissals and CHNF’s first and second motions to dismiss.

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the deficiencies identified in [its] Order, the Court [would] dismiss the entire case 

with prejudice.” Id. at 5. One of the deficiencies noted by this Court was the 

Amended Complaint’s continued combination of multiple claims for relief into a 

single count. Id. at 3-4.

2. Plaintiff has now filed its Second Amended Complaint.2(Doc. 40). The 

Second Amended Complaint includes the following claims:

a. Count I – Breach of Contract

b. Count II – Tortious Interference with a Business Relationship 

 During Employment 

c. Count III – Tortious Interference with a Business Relationship 

After Termination

d. Count IV – Tortious Interference with a Prospective Business 

 Relationship

e. Count V – Termination for Report of Failure to Adopt Covid 

 Remediation as required by OSHA

f. Count VI – Florida Civil Rights Act – Race Discrimination

g. Count VII – Florida Civil Rights Act – Job Discrimination

h. Count VIII – Florida Civil Rights Act – Retaliation

 

2 On August 12, 2021, Plaintiff filed a revised Second Amended Complaint, which 

is the operative complaint. (Doc. 42). The revised Second Amended Complaint is 

identical to the original Second Amended Complaint, with the exception that the 

revised Second Amended Complaint, includes documents Plaintiff inadvertently 

failed to attach to the original Second Amended Complaint.

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i. Count IX – Florida Public Whistleblower Act – Retaliation

3. Contemporaneously, Plaintiff filed a Motion for Remand, arguing that 

because Plaintiff had dismissed or dropped all federal claims for relief, the Court 

should now remand the case back to state court. (Doc. 41). That motion was denied 

on August 18, 2021 (Doc. 44).

BASES FOR DISMISSAL AND SUPPORTING

MEMORANDUM OF LAW3

I. Like the Initial Complaint, and the Amended Complaint, the Second 

Amended Complaint is an Impermissible “Shotgun Pleading” Because it 

Includes Different Claims within a Single Count 

The Second Amended Complaint continues to pursue multiple theories of 

recovery, including theories that are governed by different legal standards, in the 

same count. Specifically, Count Four alleges a claim for tortious interference with a 

prospective business relationship, but then goes on to allege that “[i]n addition to 

other Florida law, Defendant violated the Florida Deceptive and Unfair Trade 

Practices Act (“FDUTPA”),” citing to F.S. § 501.204 (2021) and setting forth the 

elements for a claim under FDUTPA. (Doc. 40 at ¶¶ 75-77). Just two paragraphs 

later, in the same count, Plaintiff refers to examples of “illegal restraints constituting 

tortious interference with a business relationship.” Id. at ¶ 80. Tortious Interference 

 

3 This Court is well versed in the standards applicable to motions to dismiss; as such,

CHNF does not reiterate those standards here.

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with a Business Relationship and violation of FDUPTA are two separate causes of 

action under Florida law, one common law and one statutory, and it is entirely 

unclear which, if either, Plaintiff is attempting to raise in Count Four.

Twice this Court has expended its time and resources counseling Plaintiff on 

one of the most fundamental and basic rules of pleading and twice Plaintiff has failed 

to correct the deficiencies. Accordingly, because “Plaintiff’s second amended 

complaint [does] not remedy the deficiencies identified in [the Court’s July 26, 

2021] Order,” CHNF now asks this Court to “dismiss the entire case with prejudice.”

(Doc. 35 at 5).

CONCLUSION

For the foregoing reasons, the Second Amended Complaint should be 

dismissed with prejudice, along with such other and further relief as the Court deems 

appropriate. 

Dated this 23rd day of August, 2021.

[THIS SECTION LEFT INTENTIONALLY BLANK]

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Respectfully submitted,

/s/ Robert J. Sniffen

ROBERT J. SNIFFEN

Florida Bar Number: 0000795

rsniffen@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

and

/s/ Vickie A. Gesellschap________

VICKIE A. GESELLSCHAP

Florida Bar Number: 502456

vgesellschap@sniffenlaw.com

SNIFFEN & SPELLMAN, P.A.

700 South Palafox Street

Suite 95

Pensacola, FL 32502

Telephone: (850) 741-2510

Facsimile: (850) 857-8500

Counsel for Escambia Community 

Clinics, Inc. d/b/a Community Health 

Northwest Florida

WORD COUNT CERTIFICATION 

This document complies with word limits set forth in N.D. Fla. Local Rule 

7.1(F), and contains 998 words, which includes the headings, footnotes, and 

quotations, but does not include the case style, signature block or Certificates of 

Word Count and Service.

/s/ Robert J. Sniffen 

ROBERT J. SNIFFEN

CERTIFICATE OF SERVICE

The undersigned certifies that on this 23rd day of August, 2021, a true and 

correct copy of the foregoing was electronically filed in the U.S. District Court, 

Northern District of Florida, using the CM/ECF system which will send a notice of 

electronic filing to all counsel of record.

/s/ Robert J. Sniffen 

ROBERT J. SNIFFEN

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