The Scrivener: Shotgun Pleadings

THE SCRIVENER Shotgun PleadingsBy Scott MoïseMy history with shotguns is not good. I was a pre-teen the first time I ever picked up a shotgun. Dad-dy thought I should have a target practice lesson in our back yard, but the recoil from my first shot almost took off my shoulder. So that was the last time I shot the gun. Many years later, I was going through airport security so I could board a flight to New York for depo-sitions. While I was waiting for my big canvas carryon bag to reach the end of the baggage screening con-veyor belt, the TSA agent ordered me to the side. Frowning and tense, he asked if I wanted to declare any-thing in my bag. “Rats,” I thought, “I forgot to take out the Diet Coke.” Within minutes, four additional agents surrounded me, total over-kill for a Diet Coke. One agent then reached into the bag and—to my complete shock—reported into his walkie-talkie that he had confis-cated “five rounds of live ammo.” Five. Rounds. Of. Live. Ammo. In. My. Bag. In. An. Airport. The live ammo turned out to be shotgun shells that I am 99% sure belonged to my high-school son, although he denies this fact. Unbelievably, after taking my identification and making several calls while I wait-ed, paralyzed, the agents returned smiling and said I could go board my flight. Yes, it had a good ending, but I never wanted to see another shotgun or shell, ever. Then, along came shotgun pleadings, bane of my existence. What are shotgun pleadings, and why are they so bad?Over 130 years ago, a judge in Georgia described the ideal pleading: Pleading is pure statement; just as much as a letter addressed to your sweetheart or your wife or your friend. The plaintiff complains that he has such a case, and he tells you what it is. The defendant says either that that is not so, or something else is so, and he makes his state-ment. The true rule ought to be this: the statement ought to consist precisely of what has to be [proven]. It ought not to fall short, or go beyond. If it goes beyond, it has surplusage mat-ter that is unnecessary. What-ever is irrelevant, whatever is non-essential in statement, ought not to be in. Let the law declare that every man’s plead-ings shall embrace a full and clear statement of all matters of fact, which he is required to [prove], and no other.Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1316 (11th Cir. 2015) (quoting Logan Bleckley, “Pleading,” 3 Ga. Bar Assoc. Report 40, 41–42 (1886)). Shotgun plead-ings are the opposite of this. South Carolina federal district courts have defined a “shotgun pleading” as “[a] complaint that fails to articulate claims with suffi-cient clarity to allow the defendant to frame a responsive pleading.” In re SCANA Corp. Sec. Litig., No. CV 3:17-2616-MBS, 2019 WL 1427443, at *5 (D.S.C. Mar. 29, 2019); Hill v. Stryker Sales Corp., No. 4:13-CV-0786-BHH, 2014 WL 4198906, at *2 (D.S.C. Aug. 20, 2014) (citations omitted). The Stryker court noted that when reading a shotgun pleading, “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” 2014 WL 4198906, at *2. Further, shotgun pleadings vio-late two pleading rules of civil pro-cedure: (1) Rule 8(a)(2) requires that “[a] pleading which states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” (2) Rule 10(b) requires that “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A lat-er pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.”But violating rules and bedev-iling defendants are not the only problems with shotgun pleadings. A shotgun pleading, whether filed by plaintiffs or defendants, “ex-act[s] an intolerable toll” on the trial court’s docket; leads to unnec-essary and unchanneled discovery; imposes unwarranted expense on the litigants, the court, and the court’s personnel and resources; delays justice; and causes difficul-ties to the courts of appeals and their litigants. Amin v. Mercedes-Benz USA, LLC, 349 F. Supp. 3d 1338, 1349 (N.D. Ga. 2018). The “unify-ing characteristic” of all shotgun pleadings is that they fail to give the defendants adequate notice of November 2020 63the claims against them and the grounds upon which each claim rests. Weiland, 792 F.3d at 1323.How can I recognize a shotgun pleading?After reading many cases that spoke evil about shotgun pleadings, I knew they were deficient, but it was hard to recognize one when I saw it because a lot of complaints are difficult to answer but they do not get dismissed or denigrated by the courts. The Eleventh Circuit, which has led the judicial charge against shotgun pleadings, had “en-gaged in a ‘thirty-year salvo of crit-icism aimed at shotgun pleadings’” but had not clearly defined them. To remedy the situation, the court did a lot of research and identified four types of shotgun pleadings:(1) a complaint containing multiplecounts where each count adoptsthe allegations of all precedingcounts, causing each successivecount to carry all that camebefore and the last count tobe a combination of the entirecomplaint;(2) a complaint that does not com-mit the mortal sin of re-allegingall preceding counts but is guiltyof the venial sin of being repletewith conclusory, vague, andimmaterial facts not obvious-ly connected to any particularcause of action;(3) a complaint that does notseparate into a different counteach cause of action or claim forrelief; and(4) a complaint asserting multi-ple claims against multipledefendants without specifyingwhich defendant is responsiblefor which acts or omissions, orwhich defendant the claim isbrought against.Weiland, 792 F.3d at 1320 (11th Cir. 2015); see also Amin v. Mercedes-Benz USA, LLC, 349 F. Supp. 3d 1338, 1348–49 (N.D. Ga. 2018).Defense lawyers, please note that although complaints may be the most likely violators of the shotgun rule, any pleading can be a “shotgun.” See Prayor v. Fulton Cty., No. 1:08-CV-3772-WSD, 2009 WL 981996, at *5 (N.D. Ga. Apr. 13, 2009) (“It goes without saying that a plaintiff with a solid case does not need to file a shotgun complaint. By the same token, a defendant with a strong defense need not file a shotgun answer.”).(1)Incorporating the allegationsof all preceding counts into subse-quent countsThis is the most common type of shotgun pleading, and what makes it confusing is that it seems to be explicitly allowed under Rule 10(c), which allows statements in a pleading to be incorporated by reference in a different part of the pleading or in any motion. “Proper-ly used, such incorporation pro-motes simple, concise pleadings.” Defestino v. Kennedy. No. CV-F-08-1269 LJO DLB, 2009 WL 63566, at *4 (E.D. Cal. Jan. 8, 2009).However, the practice of wholesale incorporation of all allegations from preceding para-graphs may constitute shotgun pleadings. See, e.g., Lilly v. Ozmint, No. 2:07-1700-JFA-RSC, 2009 WL 632094, at *2 n.2 (D.S.C. Jan. 6, 2009) (noting with disfavor the plaintiff’s use of shotgun pleading in which he incorporated nonspecific allega-tions from a prior complaint into an amended complaint); see also Bailey v. Janssen Pharmaceutica, Inc., 288 Fed. App’x 597, 602–04 (11th Cir. 2008) (chiding litigants for incorporating several counts from preceding paragraphs, resulting in later counts containing irrele-vant factual allegations and legal conclusions); Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356 (11th Cir.2018) (“[I]t is an incomprehensibleshotgun pleading. It employs amultitude of claims and incorpo-rates by reference all of its factualallegations...