Friday, January 21, 2011

Strategic "Shotgun Pleading" Defense Tragically Misfires.

I always say file a motion that won't be a complete and utter waste of time for everyone involved.

That's sort of a baseline rule of thumb that we like to practice by here in SFL land.

Well, take a gander at this Order from Judge Marra and judge for yourself if the baseline was hit in this case:
Defendants Planet Kids, Inc., Planet Kids at Cypress Lakes, Inc., Planet Kids II-IX, Inc., Planet Kids XII, Inc., Planet Kids XIV, Inc., Planet Kids XVI-XVII, Inc. and Manuel Sarriea (“Defendants”) move to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the sole basis that the Complaint is a “shotgun pleading.” According  to Defendants, the Complaint impermissibly “incorporates by reference every paragraph that precedes it which is the definition of a shotgun pleading.” (Mot. at 4.)

The Court begins its discussion by noting that the proper remedy for a shotgun pleading is the alternative relief of a more definite statement under Rule 12(e), and not a motion to dismiss pursuant to Rule 12(b)(6) as sought here. Anderson v. District Board of Trustees of Central Florida Community College, 77 F.3d 364, 366 (11th 1996). A defendant faced with a shotgun pleading “is not expected to frame a responsive pleading;” however, once a more definite statement is provided, “the defendant will be able to discern what the plaintiff is claiming [in order] to frame a responsive pleading.” Id. Significantly, in the instant action, Defendants filed an answer to each and every count of the Complaint. (DE 10.) Filing an answer suggests to this Court that it was not “virtually impossible” for Defendants “to know which allegations of fact are intended to support which claim(s) for relief.” Id.

Indeed, it is clear from the Complaint that Plaintiff is accusing Defendants of violating various intellectual property and trade practices relating to its “Your Baby Can®” products. In other words, both the Court and Defendants can ascertain from the Complaint how Plaintiff was allegedly wronged by Defendants, what legal theories Plaintiff is pursuing and how the factual assertions play into those legal theories. As such, this is not a shotgun pleading and Defendants' motion is denied.
 Ok, let's start with the "shotgun pleading" part.

Sure you could file a motion for more definite statement, as opposed to a 12(b)(6) motion, but why file anything at all?

How about calling opposing counsel and saying "you know that guy who files a complaint and includes by reference every single paragraph of the preceding count in each count, thus converting the complaint into an M.C. Escher-esque nightmare where each count folds up upon each other, endlessly, over and over and over again?  You're that guy."

That way the lawyer can amend, use up his free shot, and you can frame a response against a properly-pled complaint without making the other guy look bad.

Or you can file a 12(b)(6) motion and make everyone look bad.

Then you have the fact that the defendants answered anyway -- which as pointed out by Judge Marra moots the substantive purpose of the requested dismissal (assuming there ever was one).

Oy with this whole practice of law.


Anonymous said...

Oofah-- slow news day?

Anonymous said...

names. we want names. we demand names. give us names. save us the time and $.65 pacer search for the name of mr. shotgun pleader and the name of mr. i don't know that answering moots my 12b motion. in the immortal words of sky king: give it up.

your $.65 said...

Shotgunner=Stephen D. Milbrath,
Allen Dyer Doppelt Milbrath & Gilchrist

answer then mover=Larry Corman,
Greenspoon Marder PA

The Constant Complainer said...

SFL, you mean that baseless motions actually get filed in court these days? LOL. Just kidding. I know they do. And it's a shame. There's nothing quite worse than having to spend money to defend, or worse yet, make a court appearance, to answer to BS. Or to get embarassed as a part of the process.

The Constant Complainer said...

OMG, SFL, here's one for you. Talk about a baseless law suit. This guy sued after a "tragic" incident in Las Vegas. Enjoy!

Anonymous said...

2:59: LMAO!!!!!!!!!!!

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Anonymous said...

Pro Se Middle District of Florida Scott V Yellon seems to have went down that path. Shotgun pleading after a defendants response incorporating the plausible pleading of the ProSe.

What will he do August 9, 2013 Appeal or amend???

Anonymous said...

Pro Se Shot Gun with a responsive defense Middle District of Florida?