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.)Ok, let's start with the "shotgun pleading" part.
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.
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.