Judge Tjoflat on shotgun pleadings

by Walter Olson on May 2, 2014

Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:

We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .

That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.

After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):

Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.

That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,

the District Court tossed the case overboard to a Magistrate Judge for discovery.

At that point it was too late: the discovery goat rodeo had begun.

Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.

The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.

{ 1 comment }

1 Carol Herman 05.02.14 at 5:32 pm

You call it “discovery.” I call it “going fishing.” And, the worst part is that the legal-hokus-pocus is done as if there was a judge in the room. Or the testimony was given in front of a grand jury.

And?

Lawyers getting paid to play “got-cha.”

Lesson to learn? BOTH sides has horrible attorneys! Maybe, YELP should go after those involved with terrible lawyers, and get the news out onto a social media platform.

How to rate an attorney? How about similar to a taxi ride. You enter thinking your fare will be fair. And, then both sides have attorneys showing up with milking cans. (You know, behind the scenes they like each other.)

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