HOROWITZ

v.

PFIZER INC

Dr. Leonard Horowitz, proceeding pro se, has sued Pfizer Inc., Moderna Inc., Henry Schein, Inc. (“Schein”), and The Hearst Corporation (“Hearst”). (Doc. 1.) But the nature of his Complaint makes it almost impossible to determine what, exactly, he has sued them for. Although each Defendant has moved to dismiss on various grounds, all agree that Dr. Horowitz has filed an impermissible shotgun pleading. (Docs. 48, 54, 56, 63.) And they are correct. The Complaint spans some 340 paragraphs across 90 pages and teems with vague, conclusory, and immaterial allegations seemingly unrelated to any legal theory for which Dr. Horowitz seeks redress. Those legal theories (and the parties he seeks to hold liable) change page by page, filing by filing, further preventing the Court from reaching the merits of Defendants’ motions to dismiss in any meaningful way. Simply put, the Court cannot make heads or tails of the pleading. Accordingly, the Complaint (Doc. 1) is DISMISSED without prejudice.

APPLICABLE LEGAL STANDARDS¹

Dr. Horowitz is proceeding without legal counsel. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Even so, the Supreme Court has “never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113 (1993); Moon v. Newsome, 863 F. 2d 835, 837 (11th Cir. 1989) (pro se litigants “subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure”). Thus, while the Court must liberally construe Dr. Horowitz’s filings, it cannot act as his de facto counsel by rewriting them. GJR Invs., Inc. v. Cnty. of Escambia, 132 F. 3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Ashcroft v. Iqbal, 566 U.S. 662 (2009). A pro se party may violate the Federal Rules of Civil Procedure by filing a shotgun pleading. A shotgun pleading may be a complaint that: (1) is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action”; or (2) “assert[s] multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or

DISCUSSION

The opaque, conclusory nature in which Dr. Horowitz has alleged Defendants’ liability makes his Complaint extraordinarily difficult to parse. As best the Court can tell, Dr. Horowitz is pursuing two overarching harms. The first involves Dr. Horowitz’s loss of income as a result of Defendants conspiring to discredit him and his healthcare products in favor of their own. The second seems to be a general grievance on behalf of the public at large which may (or has) suffer(ed) injury because of what he believes are unsafe COVID-19 vaccines.

I. Background

A. The Smear Campaign

Dr. Horowitz is a “retired doctor of medical dentistry and oral surgery” and a “Levitical priest by bloodline.” (Doc. 1 at 8, ¶ 1.) He created and brought to market a product called “OxySilver with 528” (“OxySilver”) which purportedly uses light and sound frequency to provide consumers with therapeutic benefits. (See id. at 20–21, ¶¶ 66–70.) He describes OxySilver as an “alternative to antibiotics and COVID-19 vaccines” given its “broad-spectrum anti-viral and anti-bacterial” properties. (Id. at 7 & 21, ¶ 69.) Furthermore, because of his scientific and religious beliefs, Dr. Horowitz’s work, he contends, has “substantially contributed to ‘vaccine hesitancy.’” (Id. at 7.) Dr. Horowitz alleges Defendants engaged in a concerted and on-going campaign to defame, discredit, and smear him and his products. Due to this conspiracy, OxySilver “sales plummeted from approximately $1 million annually between 2008 to 2010, to less than $200,000.00 in 2011, 2012 and forward.” (Id. at 23, ¶ 76.)

But he offers no facts explaining how Defendants did that. Instead, he pivots to allegations of an unholy union between “Big Tech” and “Big Pharma” which implicates the likes of Google, YouTube, Facebook, Wikipedia, the Bill & Melinda Gates Foundation, MSNBC, NBC, ABC News, CNN, the McChrystal Group, the Poynter Institute, the CIA, the United Kingdom’s GCHQ, and many, many others. (See, e.g., Doc. 1 at 23, ¶¶ 78–79; 53, ¶ 160; 80, ¶ 288.) He contends that Dr. Anthony Fauci, M.D. stood to benefit from and participated in this ongoing conspiracy. (See id. at 63–65.) According to Dr. Horowitz, these actors censored him on social media and published statements making him out as a conspiracy theorist. The “why” also fluctuates depending on the specific paragraph of the Complaint—Defendants are either working to “defend pharmaceutical-industry interests [and] protect their markets,” or they are conspiring with the government “for public health and national security reasons.” (Id. at 7; 23, ¶ 80.) In any event, Dr. Horowitz alleges all Defendants are liable for the actions of each other and their cohorts because of prior business dealings and because they share the same institutional investors and shareholders. (Id. at 14–15; 27, ¶ 100.)

B. COVID-19 Vaccines

Dr. Horowitz spends as many pages of his Complaint detailing his belief that COVID-19 was “developed in a lab.” (Doc. 1 at 31–35.) And despite alleging Defendants’ “co-conspirators and scammers included government agents and agencies,” (id. at 80–81, ¶ 291), Dr. Horowitz confusingly alleges Defendants also defrauded the FDA and the general public when they made false advertisements about the safety and efficacy of their COVID-19 vaccines, (id. at 35–52). He “researched and analyzed the PFIZER [sic] and MODERNA [sic] research protocols,” concluding that statements promoting the vaccines were “false and misleading pursuant to safety assurances.” (Id. at 1, n.1.) Ostensibly, this is because Defendants are engaged in a “scheme and conspiracy to defraud the federal government and society by falsifying COVID-19 safety averments in favor of Defendants’ alleged monopoly.” (Id. at 16, ¶ 48.)

C. Legal Theories

Against this backdrop, Dr. Horowitz raises claims for: (1) violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201–.213; (2) tortious interference; (3) civil conspiracy; (4) retaliatory personnel action under Fla. Stat. § 448.102(3); and (5) injunctive relief. These, however, are merely what he titles his various claims. Dr. Horowitz also indiscriminately references violations of other laws, including: (1) Florida’s private Whistleblower Act; (2) the Religious Freedom Restoration Act; (3) criminal conspiracy to defraud the United States, 18 U.S.C. § 371; (4) “RICO”; (5) “the FTC Act,” 15 U.S.C. § 52;

and (6) Florida’s Antitrust Act—just to name a few. Exacerbating the problem, his responses allege new theories such as a claim under 42 U.S.C. § 1983. (See, e.g., Doc. 1 at 5, 15–16; Doc. 61 at 16.)

II. Shotgun Pleading & Article III Standing

A. Shotgun Pleading

To put it bluntly, Dr. Horowitz’s Complaint is a textbook shotgun pleading.

It fails to distinguish between Defendants’ conduct and lacks facts detailing which party took what action and when. For example, the Complaint alleges that Wikipedia (a nonparty) deleted Dr. Horowitz’s online biography on April 30, 2008. (Doc. 1 at 22, ¶ 73.) But nothing ties Defendants to this action. Instead, the Complaint generally references “online agents and media provocateurs presumably allied with Defendants,” (id. at 22, ¶ 74), and “an extensive propaganda enterprise commissioned by the Defendants[’] privies-in-interest,” (id. at 26, ¶ 93).

To be fair, Dr. Horowitz attempts to show some sort of common thread among the parties and their cohorts, but this assumption of shared liability relies on tangential, thrice-removed connections based on alleged business partnerships in unrelated ventures. (See, e.g., id. at 22–23.) As an example, Count VII is for retaliatory personnel action under Fla. Stat. § 448.102(3).2 Dr. Horowitz alleges Schein fired him in 1993 but does not allege he ever worked for the other named Defendants. Yet he seeks to hold them all

“comparatively liable for ‘retaliatory personal action’ under Florida law.” (Doc. 1 at 84–85.) The problem is Dr. Horowitz has simply lumped Defendants together and, at best, pleaded facts that are “merely consistent with” Defendants’ liability. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Because of the many irrelevant factual allegations, Dr. Horowitz’s incorrect and impermissible reliance on legal conclusions of shared liability, and the Complaint’s failure to differentiate between Defendants, the Court finds that “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs., 77 F. 3d 364, 366 (11th Cir. 1996).

B. Article III Standing

These failings, as Defendants rightly point out, also implicate the Court’s subject matter jurisdiction in at least two ways. First, Dr. Horowitz must allege a “concrete and particularized” injury that affects him in a personal and individual way. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). He does not claim that he ever received Pfizer or Moderna’s COVID-19 vaccines, or that he relied on their statements about the same in any way. Rather, a portion of his Complaint seeks to vindicate consumers who “have suffered and will continue to suffer injuries as a

Defendants did rather than “the independent action of some third party not before the [C]ourt.” Lujan, 504 U.S. at 561 (quotation omitted). Here, Dr. Horowitz claims that Defendants’ actions caused sales of OxySilver to plummet “[b]etween 2009 and 2012.” (Doc. 1 at 76, ¶ 265.) Once again, the Complaint never states what specifically the named Defendants did that caused this purported decline. Dr. Horowitz is trying to hold Defendants liable for the actions of third parties not before the Court without first pleading facts that establish a connection between those parties and Defendants. To the extent that the Complaint does note Defendants’ specific conduct—Pfizer and Moderna’s statements about vaccine safety and efficacy in 2020 and a Hearst article published in 2016—the Court fails to see how those actions caused a decline in OxySilver’s sales beginning in 2009. The timeline does not work. Although Defendants have raised various, facially meritorious defenses to the Complaint, the Court is not sure it can even entertain those defenses.³ The Court, despite Defendants’ urging, cannot dismiss any of the claims with prejudice because it cannot reach the merits of a claim without jurisdiction. See Kennedy v. Floridian Hotel, Inc., 998 F. 3d 1221, 1235 (11th Cir. 2021). At bottom, Dr. Horowitz must amend his Complaint—this much is clear. III. Leave to Amend Perhaps anticipating this conclusion, Dr. Horowitz has offered “to amend his Complaint in order to express these claims more succinctly and identify all actors and their connections with greater specificity.” (Doc. 58 at 23.) The Court should provide a plaintiff with at least one opportunity to amend a deficient shotgun pleading. Vibe Micro, Inc. v. Shabanets, 878 F. 3d 1291, 1295 (11th Cir. 2018). This, of course, is subject to reasonable conditions and limitations, meaning even the leniency afforded pro se litigants cannot extend indefinitely. See, e.g., Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 276 (11th Cir. 2008) (dismissing pro se plaintiff’s pleading, with prejudice and after amendment,

for being a “labyrinth of claims, counts, accusations and repetition”).

The Court thus takes this opportunity to identify specific deficiencies with the Complaint. Dr. Horowitz is warned that if his amended pleading suffers from the same shortcomings, the Court will dismiss this matter with prejudice and entertain requests from Defendants for their attorneys’ fees and costs incurred in defending this lawsuit. (See, e.g., Doc. 63 at 25.)5 First, “[w]ithout more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.” Twombly, 550 U.S. at 556–57. Dr. Horowitz fundamentally misunderstands what agreements can support agency, enterprise, or conspiracy liability so that he may hold one Defendant liable for the actions of another.6 It is not enough for him to show that Defendants had some sort of

378, 381 (Fla. 3d DCA 2011) (discussing elements of civil conspiracy under Florida law). Finally, the Court advises Dr. Horowitz to seriously consider the purpose of his suit and whether such grievances are amenable to the judicial process.⁷ The Court pauses to emphasize the following point: Hearst has raised the notion that

Dr. Horowitz may be litigating this action in bad faith. (See Doc. 63 at 27 n.5.) The Complaint references a September 2016 Popular Mechanics article which Hearst published. (Doc. 1 at 28, ¶ 105.) Dr. Horowitz attaches the article as Exhibit¹ in his response to Hearst’s motion to dismiss. (Doc. 69-1.)8 There, it is reported that Dr. Horowitz confronted the author and said, “I just want you to know that if you degrade and disparage me and libel me in your article . . . I will devote everything I have to exposing Popular Mechanics and the people behind it.” (Id. at 12.) In opposing Hearst’s request for fees, Dr. Horowitz asks that the Court not punish him “for making good on his promise.” (Doc. 69 at 27.) To be perfectly clear, the Court is not finding one way or the other whether Dr. Horowitz is litigating this action in bad faith. Nor does the Court raise this issue to discourage Dr. Horowitz from amending his Complaint—it is his constitutional right to petition the courts for redress and this Court’s duty to ensure that Dr. Horowitz is afforded due process. But the above remarks, combined with

1. The Complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE to Dr. Horowitz filing an amended pleading consistent with this Order and the applicable Federal Rules of Civil Procedure. 2. The accompanying motions for judicial notice (Docs. 55, 57, 62, 72, 76, 80) are DENIED AS MOOT and without prejudice to the parties’ abilities to renew them, if appropriate, after the filing of an amended complaint. Dr. Horowitz is admonished that he should refrain from

filing any frivolous motion for judicial notice that does not directly relate to the material allegations of his amended pleading. 3. On or before September 9, 2021, Dr. Horowitz is DIRECTED to file an amended pleading consistent with this Order. Dr. Horowitz is hereby warned that his failure to comply fully and meaningfully with this Order will result in the dismissal of this action. Furthermore, if Dr. Horowitz is litigating this dispute in bad faith, the Court may impose appropriate sanctions including, but not limited to, an award of Defendants’ reasonable attorneys’ fees.⁴, Defendants’ motions (Docs. 48, 54, 56, 63) are DENIED WITHOUT PREJUDICE to the extent they seek any greater or different relief than this Order grants. ORDERED at Fort Myers, Florida, on August 19, 2021. ff } i ;

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE