« New Draft Papers | Main | Campus speech (Updated) »

Sunday, February 07, 2021

Shotgun pleadings and the (continued) death of FRCP 12(e)

The creation of "factual insufficiency" under FRCP 8(a)(2) and 12(b)(6) dismissals without prejudice--informally pre-Twiqbal and formally since--made FRCP 12(e) motions for more definite statement into a relic. If the complaint lacked sufficient facts or details, a defendant would move to dismiss for failure to state a claim rather than for a more definite statement. The result is the same--the plaintiff gets another chance to plead--and courts and defendants followed the 12(b)(6) route.

So 12(e) evolved in the other direction, as a tool against prolix complaints--100+ pages, 750+ allegations (often containing irrelevant and inflammatory information), 25+ claims against a random host of defendants, with no clarity about who did what or what conduct violated what rights. Such a complaint fits Rule 12(e)--the massive amount of disorganized information renders the pleading "so vague or ambiguous that the party cannot reasonably prepare a response." Defendants (and courts) should not be required to excavate the rubble of the pleading to figure out what is going on and how to respond.

The Eleventh Circuit has gone a different route. It introduced the doctrine of "shotgun pleadings." It recently described four types of shotgun pleadings (or, probably more accurately, four characteristics, since I imagine they can combine): 1) a complaint with multiple counts in which each count incorporates every prior paragraph, including the paragraphs in the prior counts; 2) a complaint "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;" 3) a complaint that does not separate causes of action into distinct counts; and 4) pleadings with multiple claims against multiple defendants that does not specify who did what or who each claim is brought against. All solid categories. But under the Eleventh Circuit's doctrine, the appropriate tool is a 12(b)(6), not 12(e). More importantly is the consequence: Where a plaintiff represented by counsel has a complaint dismissed as shotgun and fails to request leave to amend, the district court must give one chance to replead. Subsequent shotgun pleadings can be dismissed with prejudice.Using 12(b)(6), and dismissal with prejudice, seems to rest on two ideas. First, if the plaintiff had a valid claim, she would not have filed a shotgun pleading; that she believed it necessary to lard the complaint with extraneous material shows she could not identify facts showing a violation. Second, there is something that looks like a sanction here, especially where plaintiff is counseled. Shotgun pleadings "waste judicial resources waste scarce judicial resources, inexorably broaden the scope of discovery, wreak havoc on appellate court dockets, and undermine the public’s respect for the courts."Meanwhile, the doctrine leaves even less for 12(e) to do.

Posted by Howard Wasserman on February 7, 2021 at 10:11 AM in Civil Procedure, Howard Wasserman | Permalink

Comments

Post a comment