How To Avoid Getting Shot – An Introduction To Shotgun Pleadings | Carlton Fields

The Eleventh Circuit recently reaffirmed its stance on shotgun pleadings, reiterating in Barmapov v. Amuial that district courts have the discretion to dismiss with prejudice a shotgun plea filed by a litigant who is represented by counsel and who does not seek leave to amend, so long as the court has given him or her at least one chance to represent themselves.

This decision is particularly noteworthy, however, because of Judge Tjoflat’s separate agreement, which provides specific guidance on how attorneys and district courts should proceed when dealing with such heavy pleadings – with the aim of both to help attorneys better serve their clients and to reduce the burden that such pleadings place in federal courts. This practical and straightforward advice would be wisely considered by attorneys representing plaintiffs and defendants.

First, in order to best advance the rights of their clients, plaintiffs’ attorneys should present claims in a discreet and succinct manner. Lawyers are warned “never to plead what you do not need, lest you be forced to prove what you cannot”. And they should be warned that even well-founded claims are subject to rejection if not well argued, as unfortunately was the fate of Mr. Barmapov’s potentially viable claims.

Second, district courts are advised to confront pleadings “head on from the earliest stages of litigation,” by immediately ordering a repleader in accordance with the court’s inherent authority. Shotgun pleadings that go through district courts, the agreement says, “sow chaos in appellate court cases,” requiring appellate courts to “review the case and reconstruct the case from zero”.

Finally, defense counsel facing a shotgun plea should either request a more specific statement under rule 12(e) or dismiss for failure to declare under rule 12(b)(6) . While the result may be the same for the first pleadings, defense attorneys are cautioned against “diving straight” into more “laborious” motions to dismiss when a motion for a more specific statement will suffice.

Importantly, the agreement warns that defense counsel should never respond to a shotgun pleading in kind. The Eleventh Circuit has “expressly condemned” the filing of searing responses containing affirmative responses that do not explicitly address the specific asserted claims, and defendants who choose to respond in kind may waive, among other things, the right to attorneys’ fees.

Tips:

  • Part of your job representing your client is to simplify the work of the court. When drafting a complaint, ensure that all claims are pleaded distinctly and are well supported by factual allegations. Never bury a claim in immaterial or conclusive allegations, and plead no more than is necessary or can be proven.
  • When faced with a shotgun plea, think carefully about the repercussions of your response. Avoid responding in kind and ask yourself if a motion for a more specific statement will produce the result you need while conserving client resources.

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