Cramer v. State of Florida

United States Court of Appeals,

Eleventh Circuit.

Nos. 95-2660, 95-2850, 95-2859.

Earl L. CRAMER, an individual, on behalf of himself and all others similarly situated; and,
Robin Kessler, an individual, and on behalf of herself and all others similarly situated, Plaintiffs-
Appellants,

v.

STATE OF FLORIDA; Lawton Chiles; Shirley O. Gooding; Gerald A. Lewis; Broedell
Plumbing Supply, Inc., a Florida corporation, et al., Defendants-Appellees.

Russell ARQUETTE, Plaintiff-Appellant,

v.

SARASOTA COUNTY SCHOOL BOARD, a Sarasota County government agency, and Riscorp
Management Services, Inc., a Florida corporation d/b/a Sarasota International Risk and Insurance
Services, Inc., Defendants-Appellees.

James E. MORRISON, Plaintiff-Appellant,

v.

JANSEN AND SONS OF FLORIDA, INC., a Florida Corporation and Florida Employers
Insurance Service Corporation, a Florida Corporation, Defendants-Appellees.

July 24, 1997.

Appeals from the United States District Court for the Middle District of Florida. (No. 94-1995-Civ-
T-21(A), Ralph Nimmons, Judge.

Before TJOFLAT and C0X, Circuit Judges, and VINING*, Senior District Judge.
TJOFLAT, Circuit Judge.

These consolidated appeals present the appellants' vague and poorly articulated claims that

a myriad of defendants discriminated against them on the basis of their disabilities, in violation of

Title I of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12111-12117 (1994), by

complying with the terms of Florida's workers' compensation statute. We affirm the district court's

dismissal of appellants claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief. We

begin with a discussion of the background leading up to these cases, then turn to an examination of

*
Honorable Robert L. Vining, Jr., Senior U.S. District Judge for the Northern District of
Georgia, sitting by designation.
what claims appellants make in their virtually indecipherable complaints, and conclude with an

explanation of why we affirm the district court's judgment.

I.

Under the Florida workers' compensation law ("the Florida law"), an employee who suffers

an on-the-job injury that leaves him with a permanent partial bodily impairment is eligible for

certain benefits. See Fla. Stat. § 440.15 (1993 & 1994 Supp.). The statutory scheme provides that

these benefits are determined by reference to an impairment rating schedule: the higher the

employee's impairment rating, as determined by the employee's physician, the more benefits the

employee receives. See id.1

Each of the appellants in these consolidated appeals was injured on the job and suffered a

permanent, partial bodily impairment. In each case, the appellant's physician, after concluding that

the appellant had reached "maximum medical improvement," assigned an impairment rating

pursuant to the statutory scheme. Appellant Earl Cramer was dissatisfied with the level of benefits

commensurate to the impairment rating assigned him—9% permanent, partial disability of the body

as a whole—and filed a claim for disability benefits with the Florida Division of Workers'

Compensation (the "Division"). He asked the Division to grant him benefits "equal to the same as

those that were being provided to other disabled workers" on the ground that Title I of the ADA,

which makes it unlawful for employers to discriminate against "qualified individuals" on account
of their disabilities, effectively requires that all persons entitled to compensation benefits under a

state workers' compensation law receive identical benefits.2 Appellant Robin Kessler, after being
assigned an impairment rating of 7% by her physician, also filed a claim with the Division. She

1
The statutory scheme was substantially revised for 1994. Two of the appellants were injured
in 1993 and therefore are subject to the 1993 version of the Florida law, and two were injured in
1994 and therefore are subject to the 1994 version. See Garcia v. Carmar Structural,Inc., 629
So.2d 117, 119 (Fla.1993). The changes made to the scheme are not relevant for present
purposes. The point is that both schemes tie the total benefits for which an injured employee is
eligible to that employee's impairment rating. This basic scheme remains in place today.
2
Cramer apparently accepted as correct the impairment rating his physician gave him. What
he sought was more compensation than the Florida law provided for his rating—that is, the same
benefits accorded "all other disabled workers." Cramer did not indicate what benefits "all other
disabled workers" were receiving and thus the amount he should receive.
sought disability benefits "equal to the eligibility provided to all other disabled workers entitled to

"impairment' benefits."3 Appellant James Morrison's physician assigned him a 9% impairment

rating. Appellant Russell Arquette's physician assigned him a 10% impairment rating. It is unclear

from the complaint whether or not Morrison and Arquette filed claims in the Division challenging

the level of benefits accorded to them on the basis of these disabilities.

While Cramer and Kessler's claims were pending before the Division, those appellants,

having obtained right-to-sue letters from the Equal Employment Opportunity Commission, filed in

the district court the lawsuit now before us in appeal number 95-2660. They named as defendants

their respective employers, their employers' workers' compensation insurers and/or insurance

servicing agents,4 as well as the State of Florida, the Governor of Florida, the Treasurer and

Insurance Commissioner of Florida, the Florida Secretary of the Department of Labor and

Employment Security, and the state Comptroller (the "state defendants"). All of these defendants

are appellees.

Although the complaint Cramer and Kessler filed does not inform us of the Division's

disposition of their claims, we now know that the Division rejected Cramer's claim; that Cramer

appealed its decision to the First District Court of Appeal; and that that court certified to the

Supreme Court of Florida the same issue Cramer now raises: Whether the Florida law's use of

impairment ratings violates Title I of the ADA. Cramer v. Brodell Plumbing Co., 661 So.2d 122
(Fla. 1st. Dist. Ct. App. 1995). We also know that the supreme court answered the question in the

negative, holding that the Florida law's use of impairment ratings to determine benefits does not

violate the ADA. Cramer v. Broedell Plumbing Supply, 675 So.2d 118 (Fla.1996) (citing Barry v.

Burdines, 675 So.2d 587 (Fla.1996)). The Division's rejection of Cramer's claim was therefore

3
Like Cramer, Kessler did not indicate the amount of compensation that she was attempting to
recover.
4
Cramer's employer was Broedell Plumbing Supply, Inc.; its insurer is FCCI Mutual
Insurance Co. ("FCCI"). FCCI's servicing agent, also a named defendant in the case, is Florida
Employers' Insurance Service Corp. Kessler's employer was Winn-Dixie Stores, Inc. Its
servicing agent, also a named defendant, is Crawford & Company.
affirmed.5 Cramer did not petition the Supreme Court of the United States for a writ of certiorari;

accordingly, the individual claim he presents here has been disposed of once and for all. See District

of Columbia Court of Appeals v,. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 1315, 75 L.Ed.2d

206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362

(1923).

Cramer and Kessler's complaint is a rambling "shotgun" pleading that is so disorganized and

ambiguous that it is almost impossible to discern precisely what it is that these appellants are

claiming. The complaint states, in its first paragraph, that "[t]he jurisdiction of this Court is invoked

under the provisions of the Americans With Disabilities Act ... 42 U.S.C. § 12112 et seq., and

pursuant to 42 U.S.C. § 2000(e) et seq., for the purpose of determining the question of actual

controversy between the parties as herein more fully appears."6 By citing these statutory provisions,

Cramer and Kessler informed the district court that they were prosecuting ADA discrimination

5
Cramer's counsel, Alex Lancaster, Amy Sergent, and Deborah Conley, failed to inform the
district court or this court that the issue before us was raised in an appeal to the First District
Court of Appeal, that that court certified the issue before us to the Supreme Court of Florida, and
that the supreme court decided the issue adversely to Cramer. In citing several lists of "related
cases" to the district court—some of which they had brought—counsel made no reference to
Cramer's appeal to the First District Court of Appeal. Counsel also omitted to include this
appeal in citing "related cases" to us, despite the fact that they had several opportunities to do so.

Nor did counsel inform us of Cramer's appeal in oral argument—even though a
member of this court suggested to Lancaster that the appropriate forum for challenging
the Florida law was the First District Court of Appeal, not a federal district court.
Cramer's attorney should have responded to this suggestion by stating that Cramer had
pursued the state court route and that the Florida Supreme Court had decided the issue
against him.

We discovered what appeared to be Cramer's state court appeal while preparing
this opinion. We asked counsel, by letter, to inform this court whether that case was
indeed Cramer's case. In response, Cramer's counsel confessed that the case was indeed
Cramer's. Counsel's failure to disclose the existence of Cramer's state court litigation is
reprehensible. We surmise that counsel intended to conceal the matter from this court
because they knew that the Rooker-Feldman doctrine barred Cramer's suit, which, in
effect asked us to review Florida Supreme Court's decision. See infra.
6
We assume this refers to 42 U.S.C. § 2000e-5(f)(3), which provides in pertinent part that
"[e]ach United States district court ... shall have jurisdiction of actions brought under [42 U.S.C.
§ 2000e-5]," and to 42 U.S.C. § 12117(a), which provides that "[t]he powers, remedies, and
procedures set forth in section[ ] ... 2000e-5 ... shall be the powers, remedies, and procedures this
subchapter provides to ... any person alleging discrimination on the basis of disability in
violation of any provision of [Title I of the ADA]."
claims—claims that their employers had discriminated against them on account of their disabilities.

The remaining defendants, they alleged, were liable for such discrimination because they

"conspired" with the employers; that is, their employers discriminated against them pursuant to a

conspiracy entered into by all of the defendants.

Cramer and Kessler asked that the court enter judgment "granting [them] eligibility for

"wage loss' and "impairment disability' benefits based upon their respective disabilities and not

merely upon impairment ratings."7 What such eligibility would mean in terms of benefits was not

set forth, but we presume that it would mean that appellants would receive benefits equal to those

that the statutory schedule provided for the highest impairment rating.8

Cramer and Kessler also asked the district court to enter an order modifying the impairment

rating scheme of the Florida law. They contended that any benefits paid pursuant to a state workers'

compensation law must be paid on the basis of the ADA definition of disability: "a physical or

mental impairment that substantially limits one or more of [a person's] major life activities ...; a

record of such an impairment; or being regarded as having such an impairment." 42 U.S.C. §

12102(2). Thus, according to the complaint, anyone meeting this definition would be entitled to the

same level of benefits—that accorded the highest impairment rating. Because the appellants had

not received that level of benefits, they also asked the court to order the appellees to pay them the

difference between the benefits they actually received and the benefits they would have received if
they had been accorded the highest impairment rating.

Perhaps sensing that the district court lacked either the capacity or the authority to modify

the Florida law, Cramer and Kessler also asked the court to enter a judgment declaring that the

Florida law's impairment rating scheme is invalid because it fails to provide benefits on the basis of

7
This language presumably means the same thing as "equal to the eligibility provided to all
other disabled workers entitled to "impairment' benefits," the language Cramer and Kessler used
in presenting their claims to the Division.
8
We are confident that Cramer and Kessler's complaint makes this claim. Whether it makes
the claims we describe in the text which follows, however, is debatable. We give the plaintiffs
the benefit of the doubt because, in reviewing the sufficiency of a complaint disposed of under
Fed.R.Civ.P. 12(b)(6), we have a duty to determine whether the allegations of a complaint,
construed in the light most favorable to the plaintiff, state a claim for relief.
the ADA's definition of disability. Because this would effectively gut Florida's workers'

compensation scheme, Cramer and Kessler presumably would be free to pursue their common law

remedies; specifically, they could sue their employers under the law existing prior to the Florida's

enactment of the workers' compensation law.9

Finally, Cramer and Kessler's complaint sought class action relief on behalf of "each and

every injured worker who may be entitled to workers' compensation disability benefits pursuant to

Fla. Stat. § 440.15 (1990) and Fla. Stat. § 440.15 (1993) after July 26, 1992, who is disabled or

perceived as disabled pursuant to the A.D.A." The district court dismissed Cramer and Kessler's case

without addressing the question of class certification.10

Appellants Morrison and Arquette, proceeding with the same law firm that brought Cramer

and Kessler's suit, brought separate suits against their employers and their employers' servicing

agents.11 These suits are before us in appeals 95-2859 and 95-2850. Their complaints mirror

Cramer and Kessler's shotgun complaints with three major exceptions: (1) they contain no class

action allegations, (2) they do not seek to have the Florida law declared invalid, and (3) in addition

to asking for the same compensation payments Cramer and Kessler seek, they seek money damages

for "emotional pain and suffering, mental anguish and the loss of the enjoyment of life."12

9
The Florida law expressly preempts common law tort remedies for on-the-job injuries
suffered by workers in Florida. See Fla. Stat. ch. 440.11(1) (1993 & 1994 Supp.).
10
The complaint alleges that because they are disabled, Cramer and Kessler are not only
entitled to the highest level of scrutiny under the due process and equal protection privileges of
the State and Federal Constitutions, but also [are] entitled to require the State to use the least
intrusive means of achieving the goals of the State in the absence of a compelling state interest.

Because the complaint does not suggest, much less allege, that the defendants,
acting alone or in concert, actually denied Cramer or Kessler a federal or state
constitutional right, and further, since the complaint does not invoke the district court's
federal question jurisdiction, see 28 U.S.C. § 1331 (1994), we treat the references to due
process and equal protection and the federal and state constitutions as mere window
dressing.
11
Morrison's employer is Jansen and Sons of Florida, Inc., whose servicing agent is Florida
Employers Insurance Service Corp. Arquette's employer is Sarasota County School Board; its
servicing agent is Riscorp Management Services, Inc.
12
Morrison's and Arquette's complaints contain no references to due process, equal protection,
or the federal and state constitutions.
 In each case, the appellees individually moved to dismiss the respective complaint pursuant

to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief. The district court granted their

motions, and these appeals followed. We consolidated them for oral argument and disposition.

II.

Before we explain why appellants' complaints fail to state a claim for relief, we note that the

district court, acting on its own initiative, should have stricken appellants' complaints and instructed

counsel to replead their cases—if counsel could in good faith make the representations required by

Fed.R.Civ.P. 11(b).13 The court clearly had the power to do this. As we have stated on several other

occasions, shotgun complaints of the sort filed in these cases are altogether unacceptable. See e.g.,

Ebrahimi v. City of Huntsville Board of Ed., 114 F.3d 162 (11th Cir.1997) (per curiam); Cesnik v.

Edgewood Baptist Church, 88 F.3d 902, 905 & n. 9 (11th Cir.1996) cert. denied, --- U.S. ----, 117

S.Ct. 946, 136 L.Ed.2d 834 (1997); Anderson v. District Bd. of Trustees of Cent. Fla. Community

College, 77 F.3d 364, 366-67 (11th Cir.1996); Pelletier v. Zweifel, 921 F.2d 1465, 1517-18 (11th

Cir.), cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991); Fullman v. Graddick, 739

F.2d 553, 557 (11th Cir.1984).

Shotgun pleadings, whether filed by plaintiffs or defendants, exact an intolerable toll on the

trial court's docket, lead to unnecessary and unchannelled discovery, and impose unwarranted

expense on the litigants, the court and the court's parajudicial personnel and resources. Moreover,

justice is delayed for the litigants who are "standing in line," waiting for their cases to be heard. The

courts of appeals and the litigants appearing before them suffer as well. Because the complaints in

this case are practically incomprehensible, oral argument was necessary in order to determine what

13
Rule 11(b) states in relevant part:

By presenting to the court ... a [complaint], an attorney ... is certifying that to the
best of the [attorney's] knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances,—

(1) it is not being presented for any improper purpose ...; [and]

(2) the claims ... and other legal contentions therein are warranted by existing law
or by nonfrivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law....
appellants were claiming. Because the district court had not required appellants to replead their

claims in an intelligible fashion, appellants' argument to us was not helpful.14 As is often the

situation when we review a civil case framed with shotgun pleadings, on close scrutiny these appeals

simply "fell apart."

III.

We consider first appellants' individual claims under the ADA seeking compensation benefits

on the basis of their "disability." We then consider their claim that the impairment ratings feature

of the Florida law should be modified or declared invalid.

A.

Appellants claim that their employers discriminated against them on account of their

disabilities in violation of the ADA. Because such discrimination was the product of a conspiracy

between their employers, on the one hand, and the employers' insurance carriers and insurance

servicing agents and the state defendants, on the other hand, appellants contend that the latter are

also liable to them under the ADA. The monetary recovery appellants seek against the appellees,

jointly and severally, is the difference between the benefits they have received under the Florida law

and the benefits they would have received had they been awarded benefits on the basis of their

disabilities: the highest level of benefits available.

We dispose of appellants' claims against the employers' insurers and insurance servicing

agents and the state defendants by holding that such claims are patently frivolous. First, appellants

have pled no facts indicating that these appellees conspired with the employers. Second, appellants'

attorneys have cited no authority which holds, or even hints at the possibility, that these appellees

could be held liable under the ADA.15 We therefore move to appellants' ADA claims against their

14
Because appellees were unable to discern what appellants were claiming—other than money
and an opportunity to litigate the claims of thousands of class members—their argument also
was, for the most part, unhelpful.
15
As noted in the text infra, the ADA prohibits discrimination by "covered entities," which are
"an employer, employment agency, labor organization or joint labor-management committee."
42 U.S.C. § 12111(2). Appellants have not alleged, and could not allege without running afoul
of Fed.R.Civ.P. 11, that the employers' insurers and/or insurance servicing agents or the state
defendants were covered entities under the ADA.
employers.

In order to state a claim under the ADA, a plaintiff must allege (1) that he suffers from a

disability, (2) that he is a qualified individual, and (3) that a "covered entity" discriminated against

him on account of his disability. See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th

Cir.1997). The appellants fail to state a claim because they do not sufficiently allege that they are

"qualified individuals" within the meaning of the ADA.

The ADA defines a "qualified individual" as an "individual with a disability who, with or

without reasonable accommodation, can perform the essential functions of the employment position

that such individual holds or desires." 42 U.S.C. 12111(8). Only appellant Morrison alleges that

he is a "qualified individual," but his complaint contradicts this by stating that he is unable to return

to work or perform the essential functions of his job. Appellants Cramer, Kessler, and Arquette do

not allege that they are "qualified individuals." They could not do so because, as they state in their

complaints, they are unable to perform the essential functions of their jobs. In short, no appellant

states a claim for relief under the ADA.

B.

The appellants also seek a court order either modifying the Florida law or declaring it

invalid. It is unclear under what legal theory the appellants make this claim. To the extent that the

appellants seek this relief under the ADA, we must reject their claims because they do not allege that

they are "qualified individuals" and therefore do not state a claim for relief under the ADA. See

supra part III.A. To the extent that appellants attempt to make this claim under some other

unspecified legal theory, we lack subject matter jurisdiction to hear this claim. The appellants

invoked the district court's subject matter jurisdiction pursuant to the ADA only. At no point in their

complaint did they invoke the federal question jurisdiction of the district court, see 28 U.S.C. §

1331, or assert claims under a federal statute other than the ADA.

The fact that appellants seek to prosecute this claim as a class action on behalf of "each and

every worker who may be entitled to workers' compensation disability benefits [pursuant to Florida

law and] who is disabled or perceived as disabled pursuant to the A.D.A." does not change the
result. A plaintiff may not maintain a class action on behalf of others if the plaintiff himself has not

alleged that he has suffered, or will suffer, an actual injury.16 O'Shea v. Littleton, 414 U.S. 488, 493-

95, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974) (holding that such a plaintiff does not establish an

Article III case or controversy and therefore cannot seek relief for himself or any of the alleged class

members). As noted above, Cramer and Kessler have not alleged that they are "qualified

individuals" who have suffered discrimination at the hands of their employers; they therefore have

alleged no injury under the ADA. Nor have they alleged any other injury. Moreover, Cramer and

Kessler's complaint also fails even to allege that the class members are "qualified individuals"

entitled to the protections of the ADA. Cramer and Kessler have thus filed a class action lawsuit in

which neither the named class representatives nor the purported class members have suffered a

cognizable injury.

IV.

If appellants Morrison and Arquette believe that they have been shortchanged by the benefits

they have received for their injuries because Florida has not adopted the ADA's definition of

disability, we suggest that they follow the route Cramer and Kessler took: they can file a claim for

increased benefits with the Division. If the Division rejects their claims, they can appeal to the First

District Court of Appeal of Florida, and if the state courts reject their claims, they can seek review

in the Supreme Court of the United States. What they cannot do is file a complaint in federal court

which fails to state a cause of action but asks the court to issue a judgment endorsing appellant's

reading of the Florida law in the wake of the ADA's enactment. Because appellants fail to state a

claim for relief under the ADA, and because we have no jurisdiction to consider any other claims,

we AFFIRM the judgment of the district court dismissing appellants' claims for failure to state a

claim for relief.

The appellants' appeal of the district court's dismissal of their claims against the employers'

insurance companies, insurance servicing agents, and state defendants is particularly disturbing to

16
Nor does bringing a claim as a class action under Fed. Rule Civ. P. 23 provide an
independent basis for federal court subject matter jurisdiction. See Willy v. Coastal Corp., 503
U.S. 131, 135-136, 112 S.Ct. 1076, 1079, 117 L.Ed.2d 280 (1992).
the court. Appellants' allegations that these parties conspired with the appellants' employers to

violate the ADA are nothing more than bald conclusions. Nowhere in their complaints is there an

allegation of fact that would permit the inference that such a conspiracy existed and that, pursuant

to the conspiracy, the employers achieved its objective—discrimination against qualified individuals

in violation of the ADA.

We cannot let this conduct go unsanctioned. Fed. R.App. P. 38 provides that "[i]f a court

of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice

from the court and reasonable opportunity to respond, award just damages and single or double costs

to the appellee." We hereby give appellants' counsel, Lancaster, Sergent, and Conley, twenty-one

days from the date of the publication of this opinion in which to show cause, in the form of a letter

addressed to the clerk of this court, why we should not order counsel to pay to these appellees

double costs and the expenses, including attorneys' fees, see Pelletier, 921 F.2d at 1523, they

incurred in defending these appeals.17

SO ORDERED.

17
Our cases hold that Rule 38 sanctions may be imposed on counsel. See e.g., Taiyo Corp. v.
Sheraton Savannah Corp., 49 F.3d 1514, 1515 (11th Cir.1995)(finding counsel liable for Rule 38
sanctions).