Thursday, April 10, 2014

Judge Tjoflat Shoots the S*%t Out of Shotgun Pleadings!


 We've certainly had our fun over the years with shotgun pleadings.

Just the simple inanity of them, in direct proportion to how easy they are to correct and/or avoid, and the mind-numbingly stupid and pointless pleadings practice they engender.

Well I see I'm not alone.

In fact, I believe Judge T (who has written about this in the past) may have even exceeded our level of ire.

So........are you in the mood for a good old-fashioned Judge Tjoflat rant?

Then sit back and enjoy:
We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .

That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem. See Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 (11th Cir. 2008) (“[T]his court has been roundly, repeatedly, and consistently condemning [shotgun pleadings] for years, long before this lawsuit was filed.”)

 The story is, by now, a familiar one: the plaintiff kicks things off with a shotgun pleading, where “each count . . . adopts the allegations of all preceding counts. Consequently, allegations of fact that may be material to a determination of count one, but not count four, are nonetheless made a part of count four . . . . [I]t is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).

In this case, Paylor’s counsel conceded outright at oral argument that Paylor’s complaint “doesn’t meet the [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)] standard.” And indeed, both the complaint and the amended complaint are almost totally useless. The reader learns that there is a statute called the Family Medical Leave Act, and hears in Counts II and III the allegation that “[Hartford] violated the Family Medical Leave Act by interfering with and/or denying [Paylor’s] leave under the act and by ultimately terminating [Paylor],” and that “[Hartford] has violated the FMLA by retaliating against [Paylor] for [Paylor’s] exercising and/or attempting to exercise [her] rights under the Family Medical Leave Act,” but that is all the reader learns. No specific factual allegation informs the reader how, precisely, the defendant interfered with or retaliated against the plaintiff.

Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.

 Rather than availing itself of the protective tools in the Federal Rules of Civil Procedure, Hartford responded to Paylor’s shotgun pleading with a shotgun answer: 19 one-line affirmative defenses, none of which refers to a particular count, and none of which indicates that Hartford was even aware of when the retaliation and interference allegedly occurred. At oral argument, Hartford’s counsel acknowledged that the complaint was totally lacking in specifics, but maintained—in essence—that all’s well that ends well: after all, the parties were able to sort things out through discovery. Even if that were true—and it isn’t, as evidenced by the parties’ ongoing bickering over even the most picayune facts in the case—why should parties wait until discovery to identify, with precision, the subject of the litigation? That is exactly backward. Civil pleadings are supposed to mark the boundaries for discovery; discovery is not supposed to substitute for definite pleading.

In any case, the parties delivered this mess to the District Court. Instead of demanding a repleader, see Davis, 516 F.3d at 984 (“In light of defense counsel’s failure to request a repleader, the court, acting sua sponte, should have struck the plaintiff’s complaint, and the defendants’ answer, and instructed plaintiff’s counsel to file a more definite statement. The necessity for doing so should have become starkly apparent on reading the complaint.”), the District Court tossed the case overboard to a Magistrate Judge for discovery.

At that point it was too late: the discovery goat rodeo had begun. Because a Magistrate Judge has no authority to narrow the scope of discovery (because that would constitute a dispositive ruling, a power forbidden to Magistrate Judges, see 28 U.S.C. § 636(b)(A)), the parties had a free hand to take depositions and collect affidavits, business records, and interrogatories—most of which bear no obvious connection to the crux of the dispute. By the time the case wheezed its way back to the District Judge, she unhappily discovered that the record had become “voluminous,” consisting of “hundreds of pages of deposition testimony, witness affidavits, correspondence, various business records, and discovery responses.” Hollinger, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 7.

The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.
Here here!

Even Frank Gallagher would be impressed by the depth, breadth, and sheer entertainment value of that one.

But what is Judge T talking about with the Magistrate Judges and discovery disputes -- isn't one of their main jobs to weigh in on discovery disputes and rule on the proper scope of discovery?

12 comments:

  1. Yeah, right. Good luck if you find yourself before Whackadoodle. She'll tell you how great and smart she is, all the while fantasizing that she is smarter than the real judges on the 11th, never no mind those pesky real judges on the district bench to whom she has to begrudgingly answer. A walking reversal, that Mag.

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  2. I agree with SFL's comment about the curious statement about the power of the MJ to limit discovery… but how about footnote 2:

    2 See also Starship Enter. of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243 (11th Cir. 2013); PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802 (11th Cir. 2010); Cook v. Randolph Cnty., Ga., 573 F.3d 1143 (11th Cir. 2009); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273 (11th Cir. 2006); Ambrosia Coal & Const. Co. v. Pages Morales, 368 F.3d 1320 (11th Cir. 2004); Strategic Income Fund, LLC v. Spear, Leeds, and Kellogg Corp., 305 F.3d 1293 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001); Johnson Enters. of Jacksonville, Inc., v. FPL Group, Inc., 162 F.3d 1290 (11th Cir. 1998); BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322 (11th Cir. 1998); GJR Inves., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359 (11th Cir. 1998); Cramer v. State of Florida, 117 F.3d 1258 (11th Cir. 1997); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162 (11th Cir. 1997); Cesnik v. Edgewood Baptist Church, 88 F.3d 902 (11th Cir. 1996); Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir. 1996); Boatman v. Town of Oakland, Fla., 76 F.3d 341 (11th Cir. 1996); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364 (11th Cir. 1996); Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554 (11th Cir. 1995); Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992); Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991); Fullman v. Graddick, 739 F.2d 553 (11th Cir. 1984).

    That's a shotgun footnote.

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  3. I love Shameless. Watching it makes my family feels so 'pedestrian.'

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  4. Deleting a few cites from that footnote and adding some commentary and parentheticals would have made the late Dan Pearson proud.

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  5. Confused Tjoflat FanApril 10, 2014 at 1:03 PM

    I agree with Tjoflat in all respects but one. Many of his decisions on shotgun pleadings -- including, incidentally, this one -- say that the proper way or, now, one of the proper ways to address shotgun pleadings is through a motion for a more definite statement (which, let's be honest, is sort of a relic that probably ought to be struck from the federal rules altogether on grounds of antquity or redundancy (see also, incidentally, Rule 12(c) on motions for judgment on the pleadings -- also pretty useless); I digress, sorry). The other way, as this decision points out, is through a motion to dismiss for failure to state a claim. I have no quarrel with a defense attorney's using either approach, but I find them somewhat inconsistent. Indeed, the decision from the former Fifth Circuit that he cites in this decision states that a district judge can't dismiss a complaint simply because it's vague. If that's still true -- and, in the light of TwIqbal, I'm not so sure it is -- then which is it?

    By the way, don't dismiss this concern as purely theoretical. I recently moved to dismiss a complaint on the grounds that said complaint was a shotgun pleading (objectively and under Tjoflat's standards, it was). You know what the plaintiff said in response? That I ought to have moved for a more definite statement, citing Tjoflat's decisions. Fortunately, Tjoflat had by then issued another decision affirming a district court's order dismissing a complaint on the grounds that it was a shotgun pleading, so I had law on my side for the reply. But I can't say that I disagreed with the plaintiff, and I understand where the plaintiff was coming from.

    So, boys and girls, I pose to you a question: after this decision, why would you move for a more definite statement when Rule 12(b)(6) is now an established, available tool for you to use?

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  6. Details! Details!

    maria elena perez!

    The Chief's FAVORITE!

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  7. If the shotgun nature of it is simply reincorporating all prior paragraphs into each count, then a more definite statement motion is just a thumbsucker and I'd go right to a motion to dismiss on substantive grounds and add that defect as an additional ground.

    We're getting a bit wonky today!

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  8. Back to the nerdy-looking PI lawyer… what's his name?

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  9. Where can I get tickets to the discovery goat rodeo?!

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  10. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3....

    Yeah there is no Rule 12(b)(6)3 and Rule 10(b) allows incorporation by reference to prior allegations in the complaint.

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  11. Not every prior paragraph in the count

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