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Tuesday, July 10, 2012

Lance Armstrong gets sua sponte Twiqbaled

Yesterday morning, Lance Armstrong filed a lawsuit and motion for a TRO in federal court in Texas against the United States Anti-Doping Agency and its CEO, seeking to halt USADA's doping investigation. The lawsuit claimed tortious interference with contract and violation of Fifth Amendment due process. The lengthy (80 pages, 261 paragraphs), rhetorically loaded complaint derides USADA's "kangaroo court" and its belief that it is "above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules." And those are the mild parts.

Upon initial review, I questioned the Fifth Amendment claim because I doubt USADA or its CEO acts under color of federal law (assuming the concept even still exists for private entities after Minneci). It certainly is not a federal actor based on the facts contained in the pleading.

In any event, we may have to wait a few days to find out. Yesterday afternoon, District Judge Sam Sparks sua sponte dismissed the complaint without prejudice. Judge Sparks said the complaint is "far from short" and the claims not "plain," buried in "excessive" rhetoric; the court was "not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants." He noted that "[c]ontrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism. All parties, and their lawyers, are expected to comply with the rules of this Court, and face potential sanctions if they do not." A complaint, the court said, requires facts, not a "lengthy and bitter polemic against the named defendants."

This is an extraordinary order. I have written before about pleading as press release (Elizabeth Thornburg coined the term). The district court in the Duke lacrosse lawsuits took the plaintiffs to task for ther overly long and overly overheated complaints, but that was in the course of ruling on 12(b)(6) motions and was done largely in passing and as a reminder to the lawyers going forward. I have never seen a court preemptively and unilaterally reject a complaint for overdoing the rhetoric. Especially since, while Armstrong unquestionably was speaking to the sports media and the world, I am not sure the rhetoric here is so much more excessive than in many other pleadings I have seen.

I am not a fan of this sort of over-the-top pleading, but it is becoming more common. So while I am surprised by the order, I am glad to see a judge halting these practices. Perhaps this is judicial order as press release. Judge Sparks knows the world is watching this lawsuit and he is proactively seizing control over the case and making clear to the parties and attorneys that they litigate for the court, not for the press.

One final question: Did Judge Sparks go too easy on Armstrong's lawyers? He never even hints at sanctions, although we can see this dismissal as functionally equivalent to a non-monetary sanction imposed sua sponte. But the admonitions about following the rules and not using litigation for PR purposes seemed primarily directed at Armstrong, even though his lawyers (and he is represented by Patton Boggs and Williams and Connolly) obviously wrote that paper.

[Update: It turns out Judge Sparks has something of a reputation for radical-and-perhaps-inappropriate efforts to control what he sees as attorney misconduct. (H/T: Bryan Camp of Texas Tech)]

Posted by Howard Wasserman on July 10, 2012 at 10:17 AM in Civil Procedure, Current Affairs, Howard Wasserman | Permalink


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I too was surprised by the attack on Armstrong himself. I am not sure I have seen that before. It suggests that he drafted the document and should understand the rules. Isn't that why the work is done by his attorneys. He strikes me as a guy who does not like to be embarrassed and may well be a bit unhappy with his representation. Perhaps that is what the judge figured as well.

Posted by: Jeff | Jul 12, 2012 1:06:59 AM

Ah, I see, my mistake. I'm not sure that any particular part of Rule 11 is violated here though. Maybe 11(b)(1), but I don't think the pleading, taken as a whole, is "presented for an improper purpose," though certain parts of it might be inflammatory or harassing and the excessive length could, I suppose, needlessly increase the cost of litigation. I think those things are incidental, though, and the plaintiff's purpose in filing the complaint is not improper, likelihood of actually winning aside.

I think you're right that the "impertinent material" objection is a better grounds, as it specifically allows a court to strike impertinent, scandalous, etc. material "on its own." 12(f)(1). I get the feeling the court would not be inclined to go through the whole pleading and pick out what to strike, though.

Posted by: JMD | Jul 11, 2012 4:57:31 PM

That this is becoming increasingly common does not mean it is either right or a good thing. So I'm all for a court taking steps to put a stop to it. But it seems to me that Rule 11 would have been the more appropriate route here. First, there is explicit authority to raise sanctions sua sponte in Rule 11; a challenge to the sufficiency of the complaint is waivable by the defendant and the court less explicitly authorized to raise it on its own (although that power to control the case is inherent). Second, the defect here is that Armstrong and his lawyers were obnoxious and abusive in the complaint. But it seems pretty clear what they were alleging and the factual support is in the complaint (whether it is legally sufficient is another issue), so I am not sure this really was an 8(a)(2) defect, as opposed to a problem of having impertinent material or needing a more definite statement.

Posted by: Howard Wasserman | Jul 11, 2012 4:19:10 PM

why would that be arguably more appropriate?

Posted by: cyclist | Jul 11, 2012 3:14:57 PM

You state that you've never seen an order like this before; neither have I. Likewise, you indicate that over the top pleading is becoming more common. So, for a practice that is becoming more common and has, to the best of your or my knowledge, never resulted in a sua sponte dismissal, you want to also add sanctions??? Seems like that would be crazy over the top to me.

Posted by: Waldo | Jul 11, 2012 3:13:56 PM

I meant sanctions for *this* pleading. The arguably more-appropriate move for the court would have been an Order to Show Cause under Rule 11 or a move directly to sanctions, not a sua sponte dismissal for failing to satisfy FRCP 8(a).

Posted by: Howard Wasserman | Jul 11, 2012 2:29:57 PM

"He never even hints at sanctions..."

Uh, from the last page of the order:
"Armstrong is advised, in the strongest possible terms, and on pain of Rule 11 sanctions, to omit any improper argument, rhetoric, or irrelevant material from his future pleadings."

Posted by: JMD | Jul 11, 2012 2:22:36 PM

Perhaps the proper interpretation of the dismissal is that no civil complaints are proper and all should be dismissed sua sponte. Too long and complex and a la Armstrong they run afoul of 8(a)(2). Insufficiently long and complex and they run afoul of Twiqbal. My interpretation would have the salutary effects of considerably lightening the workload of the federal courts and protecting righteous corporate defendants from all those money-grubbing plaintiffs.

Posted by: Rick Bales | Jul 10, 2012 5:32:52 PM

Rule 12(e) doesn't seem to contemplate a sua sponte dismissal, which makes sense in the ordinary case I guess -- let the defendant make a motion if it can't figure out how to respond. But here we had a request for a TRO, so the judge has to make a determination if the claims are likely meritorious enough to justify entry of the injunction. It seems acceptable to me for a judge to make a sua sponte determination of the intelligibility of complaint in that circumstance.

Posted by: Bruce Boyden | Jul 10, 2012 12:10:42 PM

If I'm the defendant, I would have been thinking 12(e) (which is primarily used to attack "prolixity" in complaints) and 12(f), striking the immaterial, impertinent, or scandalous matter. But courts typically don't do any of those things sua sponte.

Posted by: Howard Wasserman | Jul 10, 2012 11:19:18 AM

Oops, I meant 12(e), motion for a more definite statement, not 12(d).

Posted by: Bruce Boyden | Jul 10, 2012 11:11:58 AM

Interesting. I've seen courts emphasize the "short and plain" language from Rule 8(a)(2) before, but I've always thought that must be wrong -- 8(a)(2) sets a floor, not a ceiling. If it's *justified*, obviously your complaint can be long and complex -- a massive chemical contamination class action, for example. Rule 8(a)(2) if interpreted as a ceiling has no exception for justifiable prolixity, so I think the "must" has to be a minimum only. The proper dismissal route here I think has to be 12(d), that the complaint is so long and filled with apparently irrelevant stuff that it's difficult to figure out what, exactly, it is claiming.

The Rule 11 question is interesting also. Is playing to the press an "improper purpose"? Perhaps it needlessly adds to the defendant's costs, because the defendant has to answer all of the allegations put in there just for PR value.

Posted by: Bruce Boyden | Jul 10, 2012 11:09:38 AM

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