To find bloggable cases, we (well, Bexis) read a lot of cases that don’t turn out to be sufficiently significant to be bloggable.  Even those cases of lesser interest can alert us to trends, if the same issue or argument crops up repeatedly.  One of those is the TwIqbal concept of a “shotgun complaint” – meaning indiscriminate pleading that is violative of Fed. R. Civ. P. 8.  We’ve seen that phrase used enough in various decisions that we had a sense that this concept is most often used in cases litigated down South.  But we’ve only written one post about that, some five years ago.

The recent decision, Phillips v. Cook Inc., 2021 WL 3209860 (M.D. Fla. July 29, 2021), caused us to take a closer look, since we had also seen the term used quite a bit in the Zantac MDL litigation.  We searched for the phrase in federal district courts on Westlaw and came up with just over 1,500 hits.  Separating these cases by judicial district confirmed our suspicions – and honed them.  The “shotgun” complaint is very much an Eleventh Circuit “thing”, with 1337 of 1503 cases employing the phrase from the three states of Alabama, Florida, and Georgia.  Well over half (970) come just from the Northern District of Georgia and the Middle District of Florida.  So in order to “talk southern,” lawyers litigating prescription medical product litigation definitely need to know about the “shotgun complaint.”

Phillips cites Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), which does appear to be the leading case in this arcane field.  “Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly referred to as ‘shotgun pleadings.’”  Id. at 1320.  According to Weiland, the first case to call them such was a dissent in T.D.S. Inc. v. Shelby Mutual Insurance Co., 760 F.2d 1520 (11th Cir. 1985):

“Shotgun” pleadings, calculated to confuse the “enemy,” and the court, so that theories for relief not provided by law and which can prejudice an opponent’s case, especially before the jury, can be masked, are flatly forbidden by the [spirit], if not the [letter], of these rules.

792 F.3d at 1320 (quoting T.D.S., 760 F.2d at 1544, n.14 (Tjoflat, J., dissenting)).

Weiland grouped shotgun complaints into four calibers:

  • “The 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.
  • “The next most common type . . . is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.
  • “The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief.
  • “Fourth, and finally, there is the relatively rare [note, in our experience, this is no longer rare at all] sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.

792 F.3d at 1321-32.  Weiland provided (which we have omitted) lengthy footnotes of cases dealing with each of these four types of improper pleading.  Looking through these footnotes, it doesn’t appear that any of the collected cases involved prescription medical product liability.

But that doesn’t mean – not at all – that shotgun complaints aren’t something that our clients face.  Quite the contrary.  See (in addition to Phillips) Bey v. Teva Pharmaceuticals, USA, Inc., 2021 WL 2633822, at *1 (M.D. Fla. June 25, 2021); Minton v. Ethicon, Inc., 2021 WL 1398965, at *1 (N.D. Fla. April 1, 2021); Rosado-Cabrera v. Pfizer, Inc., 2021 WL 662220, at *2-3 (M.D. Fla. Feb. 19, 2021); In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 7866674, at *7 (S.D. Fla. Dec. 31, 2020); Gergenti v. Ethicon, Inc., 2020 WL 7695646, at *2 (M.D. Fla. Dec. 28, 2020); Smith v. Ethicon, Inc., 2020 WL 9071685, at *2-3 (N.D. Fla. Dec. 28, 2020); Epstein v. Gilead Sciences, Inc., 2020 WL 4333011, at *3 (S.D. Fla. July 27, 2020); Thornton v. Nationall Compounding Co., 2019 WL 2744623, at *11-12 (M.D. Fla. July 1, 2019) (False Claims Act case); Aguilar v. B Braun Medical, Inc., 2019 WL 2173777, at *2 (M.D. Fla. May 20, 2019); Munson v. Insys Therapeutics, Inc., 2018 WL 8244594, at *2 (M.D. Fla. Nov. 6, 2018); Erickson v. Merck & Co., 2018 WL 2357273, at *2-3 (M.D. Fla. May 17, 2018); McGee v. Boehringer Ingelheim Pharmaceuticals, Inc., 2018 WL 1399237, at *5 (N.D. Ala. March 20, 2018); Erickson v. Merck & Co., 2018 WL 3626469, at *3 (M.D. Fla. Feb. 22, 2018); Barnes v. AstraZeneca Pharmaceuticals LP, 253 F. Supp.3d 1168, 1171-72 (N.D. Ga. 2017); Erickson v. Merck & Co., 2017 WL 9938491, at *2-3 (M.D. Fla. Dec. 8, 2017); Thornton v. AstraZeneca Pharmaceuticals LP, 2017 WL 2255776, at *3-4 (N.D. Ga. May 15, 2017); Brazil v. Janssen Research & Development LLC, 249 F. Supp.3d 1321, 1336-37 (N.D. Ga. 2016); Gerold v. Astellas Pharma US, Inc., 2016 WL 1627049, at *1-2 (M.D. Fla. April 25, 2016); Tsavaris v. Pfizer, Inc., 2016 WL 375008, at *2 (S.D. Fla. Feb. 1, 2016) (the case we blogged about before); Gerold v. Astellas Pharma US, Inc., 2015 WL 7759395, at *2-3 (M.D. Fla. Dec. 2, 2015); Lonon v. Globus Medical, Inc., 2015 WL 1032861, at *3 (S.D. Ga. March 9, 2015); Dimieri v. Medicis Pharmaceutical Corp., 2014 WL 6673156, at *2 (M.D. Fla. Nov. 24, 2014); Karhu v. Vital Pharmaceuticals, Inc., 2013 WL 4047016, at *3 (S.D. Fla. Aug. 9, 2013); Batchelor v. Pfizer, Inc., 2013 WL 3873242, at *3 (M.D. Ala. July 25, 2013); Marsar v. Smith & Nephew, Inc., 2013 WL 3199984, at *1 (M.D. Fla. May 30, 2013); Jovine v. Abbott Laboratories, Inc., 795 F. Supp.2d 1331, 1336-37 (S.D. Fla. 2011); Kaufman v. Pfizer Pharmaceuticals, Inc., 2010 WL 9438673, at *3-4 (S.D. Fla. Nov. 23, 2010); Beale v. Biomet, Inc., 2006 WL 8433264, at *4 (S.D. Fla. Aug. 21, 2006).  There is plenty of law here to choose from in putting together a drug/device motion to dismiss a “shotgun complaint,” at least in the Eleventh Circuit.  Chances are that, whatever pleading sin a particular plaintiff has committed, there is a case in the relevant jurisdiction that has already required dismissal.

Significantly, the concept of a “shotgun complaint” is not limited to the Eleventh Circuit.  The Ninth Circuit affirmed dismissal of a “shotgun” pleading in Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011), where after one amendment, the plaintiff’s complaint “continu[ed] to make ‘everyone did everything’ allegations.”  Id. at 958.

In Rosenberg v. C.R. Bard, Inc., 387 F. Supp.3d 572, 582 (E.D. Pa. 2019), the court cited Hynson v. City of Chester Legal Dept., 864 F.2d 1026, 1031 n.13 (3d Cir. 1988), for the Third Circuit also “criticiz[ing]” “shotgun” pleadings, and dismissed the complaint:

Plaintiff has failed to connect the facts alleged in the beginning of her complaint with the specific negligence claim she asserts.  Indeed, the Court (and Defendant) are left to guess not only which facts support Plaintiff’s negligence claim but also which aspect of Defendant’s conduct Plaintiff asserts was negligent.  Therefore, Plaintiff’s negligence claim will be dismissed without prejudice with leave to amend.

Id.  Here are other non-Eleventh Circuit prescription medical product liability cases we’ve found that have dismissed “shotgun complaints.”  Moreno v. Ethicon Inc., 2022 WL 831548, at *1 (S.D. Tex. March 17, 2022); Payton v. Johnson & Johnson, 2021 WL 1923799, at *3-4 (S.D. Ind. May 13, 2021); McCormick v. Caldera Medical, Inc., 2021 WL 488340, at *2 (S.D. Ohio Feb. 10, 2021); Dreifort v. DJO Global, Inc., 2019 WL 5578240, at *7 (S.D. Cal. Oct. 28, 2019); Lynch v. Olympus America, Inc., 2018 WL 5619327, at *14 (D. Colo. Oct. 30, 2018).  So there is room to work with exporting the “shotgun complaint” basis for dismissal to courts outside the Eleventh Circuit.

Finally, another thing about Phillips and the “shotgun complaint” concept that caught our eye is this – it’s something a court not only may, but is required (at least in the Eleventh Circuit), to do sua sponte [for readers not familiar with legal Latin, that means “of its own accord without being requested]:

If, in the face of a shotgun complaint, the defendant] does not move the district court to require a more definite statement, the court, in the exercise of its inherent power, must intervene sua sponte and order a repleader.

Phillips, 2021 WL 3209860, at *2 (quoting McWhorter v. Miller, Einhouse, Rymer & Boyd, Inc., 2009 WL 92846, at *2 (M.D. Fla. Jan. 14, 2009)) (emphasis added).  They’re serious about TwIqbal in the Eleventh Circuit.

So by all means – particularly in the Eleventh Circuit – defendants should declare open season on “shotgun complaints.”