United States District Court

for the

Southern District of Florida

Kenneth C. Griffin, Plaintiff,

v.

Internal Revenue Service and U.S. 

Department of the Treasury, 

Defendants.

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Civil Action No. 22-24023-Civ-Scola

Order Discharging Order to Show Cause

Previously, in denying the Internal Revenue Service and the United 

States Department of the Treasury’s (together, the “Government”) motion to 

dismiss count one of Plaintiff Kenneth C. Griffin’s complaint, the Court found it 

had subject-matter jurisdiction over Griffin’s claim to the extent it was based 

on Charles Edward Littlejohn’s alleged status as an IRS employee. (Order, ECF 

No. 108, 4–7.) On the other hand, the Court expressed concerns about its 

jurisdiction over two alternative theories that Griffin maintains also support 

that same count. (Id. at 4, 8.) But, because the Government had raised those 

issues for the first time in its reply, the Court ordered Griffin to show cause 

why the Court should not dismiss those theories of relief for a lack of subjectmatter jurisdiction. (Id. at 8, 10–11.) Griffin has timely responded to that order 

(Pl.’s Resp., ECF No. 133). After review, the Court discharges its order to show 

cause (ECF No. 108). 

Griffin submits that it would be improper for the Court to dismiss 

alternative theories supporting a claim, based on a lack of subject-matter 

jurisdiction, after the Court has already determined that it has jurisdiction over 

that claim based on another theory. (Pl.’s Resp. at 6, 15, 16.) The Court agrees, 

finding no legal support for the idea that the Court, at the motion-to-dismiss 

stage, should dispense, in piecemeal fashion, with alternative theories

supporting an otherwise viable claim. Indeed, the Court concurs with other 

courts that have indicated that doing so would be improper. C.f. BBL, Inc. v. 

City of Angola, 809 F.3d 317, 325 (7th Cir. 2015) (“A motion to dismiss under 

Rule 12(b)(6) doesn’t permit piecemeal dismissals of parts of claims; the 

question at this stage is simply whether the complaint includes factual 

allegations that state a plausible claim for relief.”) (emphasis in original); 

Hydro-Exc., Inc. v. VCNA Prairie LLC, No. 20 C 00994, 2022 WL 2715856, at *2 

(N.D. Ill. July 13, 2022) (“That the plaintiff identified multiple legal theories to 

support a claim and set them forth as ‘counts’ does not authorize courts to 

dismiss claims on a count-by-count basis.”); Winstead v. Lafayette Cnty. Bd. of 

Case 1:22-cv-24023-RNS Document 154 Entered on FLSD Docket 06/06/2024 Page 1 of 2
Cnty. Commissioners, 197 F. Supp. 3d 1334, 1341 (N.D. Fla. 2016) (“[T]he 

challenged theory can’t be dismissed, either, because dismissal of theories (as 

opposed to claims) is inappropriate at the motion to dismiss stage.”) (“But at 

this early stage, a defendant shouldn’t be able to force a plaintiff to ‘pick a 

theory’ before all the facts are in by moving for partial dismissal of a claim.”). 

Accordingly, to the extent the Government sought dismissal of those 

alternative theories, its motion is denied on that basis as well. 

Done and ordered, in Miami, Florida, on May 30, 2024

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:22-cv-24023-RNS Document 154 Entered on FLSD Docket 06/06/2024 Page 2 of 2