For practitioners in the Eleventh Circuit, Barmapov v. Amuial, __ F.3d __, 2021 WL 359632 (11th Cir. 2021), should serve as both a cautionary tale and a guide to avoid the forbidden shotgun pleading.
Attorneys well know that the ultimate penalty for filing a shotgun pleading in the Eleventh Circuit is dismissal. Courts do not view the pleading requirements as an emphasis of form over substance. Rather, shotgun pleadings adversely impact every stage of litigation, from discovery all the way to appeals, and courts seldom tolerated them. Despite decades of case law, the problem is so prevalent to warrant the Eleventh Circuit’s recent publication of the Barmapov opinion.
In the words of Judge Tjoflat in his concurring opinion in Barmapov, the Eleventh Circuit’s latest decision should hopefully “serve as a guide for lawyers who truly seek to vindicate their client’s rights.”
A Primer on the Shotgun Pleading
Largely unique to the Eleventh Circuit, a shotgun pleading is one that lacks sufficient clarity to allow the adversary fair notice of the claims or defenses against them. A shotgun pleading will therefore violate FRCP 8(a)(2), FRCP 10(b), or both, and it is described notoriously as “calculated to confuse the enemy” and the court.
The Eleventh Circuit identifies four types of shotgun pleadings:
1) A complaint with multiple counts that incorporate the allegations of every preceding one;
2) A complaint with conclusory, vague, or immaterial facts not connected to a specific claim;
3) A complaint that does not separate each claim into a different count; and
4) A complaint with multiple claims against multiple defendants without specifying which defendant is responsible for an act or omission, or which defendant a claim is against.
Each category is prohibited by the Rules and longstanding Eleventh Circuit precedent.
“A rambling, dizzying array of nearly incomprehensible pleading.”
That’s how the district court described Barmapov’s complaint, and on review, the Eleventh Circuit agreed with that statement.
The complaint was 92 pages long, with 440 numbered paragraphs, and 19 counts against 16 defendants. And, those 19 counts were apparently so vague and confusing that the court was forced to presume they were asserted under Florida law. To make matters worse, Barmapov’s pleading was his second amended complaint, which the district court granted him leave to file when dismissing his first. Because he did not follow “specific instructions and warnings from the court regarding how to formulate a proper pleading,” Barmapov’s complaint was dismissed with prejudice.
Enter the Eleventh Circuit:
In an opinion that is at times blunt, the Eleventh Circuit found that the complaint “undoubtedly falls into the second category of shotgun pleadings” – that is, a complaint “rife with immaterial factual allegations . . . irrelevant details about the alleged criminal background of some of the defendants . . . [and] inconsequential details includ[ing] Barmapov’s business background.” The complaint also “indiscriminately incorporates” 50 pages of allegations into the causes of action, resulting in 9 counts with factual allegations that are irrelevant to the underlying claims. The Eleventh Circuit also criticized the complaint for its vague and conclusory allegations, such as, for example, an alleged sabotage with no explanation of how it occurred, alleged forgeries with no explanation of how they relate to the causes of action, and a “nonsensical” explanation of the parties’ business relationship.
In affirming the district court’s dismissal, the Eleventh Circuit explained that Barmapov had counsel and the chance to file a new complaint that would adhere to the Rules of Court, but, instead, he “squandered that opportunity by filing another shotgun pleading.”
Guiding Lawyers through the Pleadings Stage
In his concurring opinion, Judge Tjoflat penned what he hopes will guide lawyers through the pleadings stage by recognizing the role they play and the policies underlying this distinct body of law.
First and foremost, Judge Tjoflat holds plaintiff’s counsel responsible for the form of a complaint. While understanding of lawyers who plead too many facts and claims—particularly in light of Iqbal and the soaring number of malpractice claims—Judge Tjoflat nevertheless supports the “strong medicine” of dismissing otherwise viable claims contained in a shotgun pleading. The reason? The lack of resources and the inherent impartiality of courts prevent them from sifting through a shotgun pleading to uncover a potentially viable claim. Quoting an adage from Abraham Lincoln, Judge Tjoflat appeals to plaintiff’s lawyers to draft succinct complaints with discretely-presented claims, or risk dismissal of their client’s case.
Guidance was also given to defense counsel who find themselves within the sights of a shotgun pleading. While a motion to dismiss is certainly an option, Judge Tjoflat cautions against filing one where a motion for a more definite statement is more appropriate. Likewise, Judge Tjoflat strongly warns defense counsel against responding in kind with a shotgun answer, containing affirmative defenses that do not explicitly respond to specific claims – all of which the Eleventh Circuit also condemns.
After applying these principles to the facts—and even expressing sympathy when finding Barmapov pled enough to survive a Rule 12 motion—Judge Tjoflat still found the complaint was properly dismissed. Reasoning the form of pleadings imposes real costs on courts, lawyers, and litigants, Judge Tjoflat expressed “little sympathy for lawyers who draft slapdash complaints that are ultimately dismissed.”