Dismissal of Voluminous "Shotgun Complaint"​ Affirmed by 11th Circuit, Even Though Containing Some Valid Claims

Timothy Kowal, Esq.
  •  
February 10, 2021

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in federal court, where a "short and plain statement" is required. Often, the rule is relaxed in practice, due to the difficulty of enforcing it.

Too often, says the 11th Circuit. In Barmapov v. Amuial, No. 19-12256 (11th Cir. Feb. 3, 2021), the court affirmed the dismissal with prejudice of a shotgun pleading, even though it probably contained some meritorious claims. What put the court over the edge was that plaintiff was represented by counsel, and the district court gave counsel an opportunity to clean up the "meandering" complaint some 100 pages long, which "lumped together" allegations against more than a dozen defendants, including immaterial allegations about criminal backgrounds and pointless personal history, and "vague and conclusory" allegations, 50 pages of which were "indiscriminately incorporate[d] and repeat[ed]" into nine of the 19 counts.

Yet plaintiff's counsel squandered the opportunity. As the 11th Circuit ominously observed, "the number of legal malpractice claims has recently 'soared,' and the number of large payouts has increased."

"Shotgun pleadings" are prohibited by Federal Rules of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim," and Rule 10(b), which requires numbered paragraphs in a complaint, each to be "limited as far as practicable to a single set of circumstances."

Chief Judge Pryor, writing for the panel, wrote that precedent in the 11th Circuit is clear: "When a litigant files a shotgun pleading, is represented by counsel, and fails to request leave to amend, a district court must sua sponte give him one chance to replead before dismissing his case with prejudice on non-merits shotgun pleading grounds." Vibe Micro, Inc. v. Shabanets878 F.3d 1291, 1296 (11th Cir. 2018). The district court having given counsel that chance, and counsel having squandered it, the panel found little difficulty in affirming the dismissal.

Judge Tjoflat wrote separately to impress upon the bar that "short and plain statement" means "short and plain statement." Too many plaintiff's lawyers, noted Judge Tjoflat, are "too clever for their own good." "Shotgun pleadings" are "calculated to confuse the 'enemy,' and the court, so that theories for relief not provided by law and which can prejudice an opponent's case, especially before the jury, can be masked." Weiland v. Palm Beach Cnty. Sheriff's Office792 F.3d 1313, 1320 (11th Cir. 2015) (alterations adopted) (quoting T.D.S. Inc. v. Shelby Mut. Ins. Co.760 F.2d 1520, 1544 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting)).

"To an outside observer, disposing of these otherwise viable claims because a plaintiff's lawyer pled too many facts may seem like strong medicine.... And it is strong medicine, but for good reason." "It is not the proper function of courts in this Circuit to parse out [] incomprehensible allegations."

Shotgun pleading may even expose the pleader to contempt: "the deliberate use of a shotgun pleading to impede the orderly process of a case is an "abusive litigation tactic[]" that could warrant a citation for criminal contempt."

Judge Tjoflat laid some of the blame at the feet of district judges: "district courts must also shoulder some responsibility in ensuring that shotgun pleadings are nipped in the bud." That is because "when shotgun complaints are allowed to survive past the pleadings stage, "all is lost—extended and largely aimless discovery will commence, and the trial court will soon be drowned in an uncharted sea of depositions, interrogatories, and affidavits."

When faced with a shotgun complaint, defendants have two options: move for a more definite statement under FRCP 12(e), or move to dismiss under FRCP 12(b)(6). But defense counsel "should never respond to a shotgun pleading in kind," that is, by filing a "shotgun answer," with one-line affirmative defenses.

With all that said, Judge Tjoflat went on to state plaintiff here "may have pled some claims that could have survived" the motion to dismiss, and that it does appear [plaintiff] was swindled" by the defendants into "invest[ing] millions of dollars in a scam."

Yet despite that it contains some valid claims, the shotgun complaint "must be dismissed," because plaintiff's "counsel failed to uphold their end of the bargain" by rectifying the problems the district identified in the earlier complaint.

"I have little sympathy," Judge Tjoflat concluded, "for lawyers who draft slapdash complaints that are ultimately dismissed."

Look for this "strong medicine" to be adopted in more federal courts in response to shotgun pleading.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.