When dealing with shotgun pleadings, are we following the law?

Every so often—as our friend South Florida Lawyers has pointed out—the Eleventh Circuit tells us something about “shotgun pleadings,” which, roughly, are pleadings that don’t conform to the federal pleading standards found in Federal Rules of Civil Procedure 8 and 10. In a pair of decisions issued this month, the Eleventh Circuit told us how properly to respond to or deal with shotgun pleadings. But do we—lawyers and judges of the Southern District of Florida—follow the Eleventh Circuit’s advice?

In Weiland v. Palm Beach County Sheriff’sOffice, the court, per Chief Judge Carnes, “examined more than sixty published decisions since” Judge Tjoflat used the term “shotgun pleading” in a 1985 dissenting opinion, and “identified four rough types or categories of shotgun pleadings.” Chief Judge Carnes also restated the procedure on dealing with shotgun pleadings, thus:

While plaintiffs have the responsibility of drafting complaints, defendants are not without a duty of their own in this area. We have said that a defendant faced with a shotgun pleading should “move the court, pursuant to Rule 12(e), to require the plaintiff to file a more definite statement.” But we have also advised that when a defendant fails to do so, the district court ought to take the initiative to dismiss or strike the shotgun pleading and give the plaintiff an opportunity to replead. Where a plaintiff fails to make meaningful modifications to her complaint, a district court may dismiss the case under the authority of either Rule 41(b) or the court’s inherent power to manage its docket.

The second decision (unpublished) gave similar instructions.

My sense is that lawyers and judges of the Southern District of Florida rarely, if ever, follow these instructions, however well-established they may be. If my sense is correct, I suspect that there are a few reasons for this.

First, the instructions don’t fit with practice. It’s not uncommon to encounter the “most common type” of shotgun pleading (especially if the complaint is written by an out-of-circuit lawyer). Per Chief Judge Carnes, “[t]he most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” But Rule 12(e), which is designed for pleadings that are “so vague or ambiguous that the party cannot reasonably prepare a response,” is often ill-suited for this kind of shotgun pleading. After all, just because one count’s allegations are incorporated into another doesn’t necessarily render the complaint unreasonably difficult to respond to. So you move to dismiss, instead.

A second reason is timing. Our judges, as they often say, are busy. And it can take months—even for relatively straightforward threshold motions—to be fully briefed and decided. Meanwhile, the parties are off and running with discovery. So even if you might otherwise be inclined to seek a more definite statement, you’ll more likely seek a dismissal.

Finally, I suspect that our judges, given their large case loads, can’t usually devote their resources to scanning new cases for shotgun pleadings and to ordering re-dos. True, many of our judges will order a new complaint (or throw you out of court entirely) if you fail, say, to properly plead diversity of citizenship. But if jurisdiction isn’t obviously a problem, judges might simply prefer to leave it to the litigants to point out a complaint’s deficiencies, which is in keeping with what judges usually do. In an albeit different context, Judge Tjoflat, in an important decision, once cautioned district courts not to do the work that litigants should do: “Our adversarial system requires it; district courts cannot concoct or resurrect arguments neither made nor advanced by the parties.”

To be sure, I’m not advocating that we should intentionally disregard the Eleventh Circuit’s well-established procedures on dealing with shotgun pleadings. I do suspect, however, that they’re not being followed, or being followed only rarely.