When Is a "Shotgun Pleading" Not a "Shotgun Pleading"?

According to Judge Marra, it's when the defendants can understand the claims made against them:

“Shotgun” pleadings are pleadings in which it is “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Tr. of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996). The Court finds that the Complaint is not a shotgun pleading necessitating dismissal.  Although each count of the Complaint does incorporate by reference all of the preceding allegations, the Court finds the claims are sufficiently definite to enable Defendants to know with what they are charged and to enable Defendants to respond to the allegations. The motion to dismiss the shotgun pleading is denied.

Practitioners, why not just avoid this issue by not incorporating every prior allegation into each count?

Really, how hard is that?

In other news, as David reports, the Bar royally screwed up in how they characterized their "monitoring" of the "underlying proceedings" in a well-publicized case involving Lewis Tein.

Fortunately, I have obtained inside footage of the Bar grievance committee sessions, which seem to be unfolding in the usual manner:

My one piece of advice to these very good attorneys (not that they need any) -- get a mouthpiece/lawyer to do your talking on these types of matters, it's more effective that way.

World's Worst Motion for Judgment on the Pleadings?

I must admit I'm no fan of motions for judgment on the pleadings.

Although I can appreciate their merit in certain situations, oftentimes they are used like "gotcha" moves in a chess match, preying upon technical or innocent errors that are not usually very substantive and which can (and should) be readily fixed in an amended pleading.

For that reason they can be timewasters, and thus frequently pointless.

Judge King seems to have encountered one of the type I'm complaining about:

(1) We have a premature "shotgun pleading" allegation that winds up making you look bad (instead of your opponent); and

(2) We have an Albert Brooksian "look only at paragraph 22 72" argument that asks the Court to ignore entirely the rest of the well-pled allegations in the complaint.

Other than that, I think the motion could be described as a qualified success.

Quick Question -- Can I Incorporate All Prior Allegations Into Each Subsequent Claim for Relief?

Beetle Shotgun

Let's discuss the acceptable level of crushed "common warehouse beetle" in your average serving of Similac baby formula.

I say 14 beetles per serving is acceptable, you say 10 is just right for our little tyke.

Ain't the free market grand?

But poor plaintiff's counsel had some trouble getting his beetles out of the box, so to speak, and Judge Cohn had to explain a few things:

Here, the eight-count Amended Complaint incorporates all of the “foregoing allegations” by reference into each subsequent claim for relief. See, e.g., Amended Complaint at 13. In other words, Plaintiff has filed a shotgun complaint. See Ferrell v. Durbin, 311 Fed. App’x 253, 259 (11th Cir. 2009) (“In shotgun style pleading, the complaint incorporates all of the general factual allegations by reference into each subsequent claim for relief.”). The Eleventh Circuit “has had much to say about shotgun pleadings, none of which is favorable.” Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n. 54 (11th Cir. 2008) (“[S]ince 1985 we have explicitly condemned shotgun pleadings upward of fifty times.”); Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.9 (11th Cir. 2002) (“This court has addressed the topic of shotgun pleadings on numerous occasions in the past, often at great length and always with great dismay.”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir. 2001) (“Shotgun pleadings, if tolerated, harm the court by impeding its ability to administer justice.”); Anderson v. D. Bd. of Trs. of Central Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to administer justice.”). Consequently, the Court will dismiss Plaintiff’s Amended Complaint, in its entirety, for this reason.

This drives me insane.

I mean Brian Tannebaum-with-crappy-internet-lawyer-marketers level insane.

Is there any reason -- ever -- to do this?  Even by accident?

Personally to me it's worse than a typo, it's sort of an intentional effort to purposely look foolish.

Congrats, you've succeeded!

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.