BENNY BARMAPOV v. GUY AMUIAL, YOSSI AMUIAL, AVRHAM AMUIAL, REUBEN SASTIEL, SAM MOSHE, et al.
No. 19-12256
United States Court of Appeals, Eleventh Circuit
February 3, 2021
D.C. Docket No. 9:18-cv-80390-WPD. Appeal from the United States District Court for the Southern District of Florida. Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether the district court abused its discretion when it dismissed Benny Barmapov‘s second amended complaint with prejudice because it was a shotgun pleading. The district court dismissed the first amended complaint for the same reason, but it gave Barmapov another chance to file a proper pleading. Unfortunately for Barmapov, his second amended complaint was no better than his first. The district court described it as “a rambling, dizzying array of nearly incomprehensible pleading.” After reviewing it, we agree. Because Barmapov, who was represented by counsel throughout the proceedings, repeatedly failed to file a proper pleading, we conclude that the district court did not abuse its discretion by dismissing his complaint with prejudice, and we affirm.
I. BACKGROUND
Barmapov filed his initial complaint in the district court in March 2018, and he filed an amended complaint five months later. The amended complaint was 116 pages and 624 numbered paragraphs long, and it included 20 causes of action, under both federal and state law, against 23 named defendants and 20 John Doe defendants. The district court dismissed it because it was “in an improper shotgun format.” Barmapov had “lumped together” many of his allegations against the 23 named defendants, rendering his complaint “unclear and confusing as to which [d]efendant [was] being charged with which conduct.” The district court also described the complaint as “devoid of specific allegations” such that it was not clear what each defendant “specifically did to be liable as to each stated count.” Finally, the court criticized the complaint for incorporating about 350 paragraphs into each of the 20 counts, even though the “paragraphs [were] nоt all properly directed at the [d]efendants subject to [each] count, nor [were] they pertinent to each claim.” The court granted Barmapov leave to file a second amended complaint.
In his second amended complaint, Barmapov reduced the number of named defendants
The district court concluded thаt Barmapov‘s second amended complaint “still fail[ed] to provide a short and plain statement justifying relief and . . . allegations that [were] simple, concise, and direct.” Nine of Barmapov‘s counts “incorporate[d] by reference all of the allegations contained in Paragraphs 21–269.” Many of these allegations, the district court said, were “irrelevant to the instant litigation” and “serve[d] to confuse the issues.” Barmapov exacerbated the problem by “continu[ing] to impermissibly lump [d]efendants together . . . , rendering it unclear and confusing as to which [d]efendant [was] being charged with which specific conduct.” Becausе Barmapov had not followed “specific instructions and warnings from the [c]ourt regarding how to formulate a proper pleading,” the district court dismissed his complaint with prejudice.
II. STANDARD OF REVIEW
When a district court dismisses a complaint because it is a shotgun pleading, we review that decision for abuse of discretion. Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).
III. DISCUSSION
A shotgun pleading is a complaint that violates either
Shotgun pleadings “are flаtly forbidden by the spirit, if not the letter, of these rules” because they are “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.” Id. (alterations adopted) (quoting T.D.S., 760 F.2d at 1544 n.14 (Tjoflat, J., dissenting)). Besides violating the rules, shotgun pleadings also “waste scarce judicial resources, inexorably broaden the scope of discovery, wreak havoc on appellate court dockets, and undermine the public‘s respect for the courts.” Vibe Micro, 878 F.3d at 1295 (alterations adopted) (internal quotation marks omitted). We hаve “little tolerance” for them. Id.
“[W]e have identified four rough types or categories of shotgun pleadings.” Weiland, 792 F.3d at 1321. The first is “a complaint containing multiple counts where each count adopts the allegations
Barmapov‘s second amended complaint does not fall into the first category because although nine of the 19 counts incorporate almost every factual allegation in the complaint, none of them adopts the allegations in the preceding counts. It also does not fall into the third сategory because each count presents a unique cause of action. Nor does it fall into the fourth category because even though several of the counts target multiple defendants, these counts “specify[] which of the defendants are responsible for which acts or omissions.” Id.
But the second amended complaint undoubtedly falls into the second category of shotgun pleadings. It is rife with immaterial factual allegations, including five pages and 24 paragraphs of irrelevant details about the alleged criminal backgrounds of some of the defendants. To make matters worse, the complaint then incorporates these paragraphs into 13 of the 19 counts, including counts against defendants who had no part in this background history. Other examples of inconsequential details include Barmapov‘s business background; the relationships among Yossi, Guy, and Avrham Amuial, Terry Rafih, and John Obeid; Barmapov‘s history with Reuben Sastiel; the experiences of Barmapov‘s grandson working for the Amuials; and the contentious business meetings between Barmapov, the Amuials, and Sastiel. In addition, the second amended complaint indiscriminately incorporates and repeats 249 numbered paragraphs of factual allegations—spanning 50 pages—intо nine of the 19 counts, without any effort to connect or separate which of those 249 factual allegations relate to a particular count. As a result, these nine counts include factual allegations that are immaterial to the underlying causes of action. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1359 n.9 (11th Cir. 1997) (describing a complaint in which four counts incorporated all 43 numbered paragraphs of factual allegations, many of which appeared to relate to only one or two counts, as “an all-too-typical shotgun pleading“); see also Weiland, 792 F.3d at 1322 n.12 (identifying Chudasama as an example of one of the second category of shotgun pleadings).
If thеse problems were not enough to make Barmapov‘s second amended complaint a shotgun pleading, the complaint also includes numerous vague and conclusory allegations. It alleges that Yossi Amuial “sabotage[d]” Barmapov‘s efforts to apply for financing, but it provides no explanation as to how this sabotage occurred. It also briefly states that four of the defendants “worked together to forge Barmapov‘s signature” on important paperwork. Later, it states that six of the defendants “worked in concert to forge Barmapov‘s signature” on documents related to a financing agreеment and that one of these defendants then fraudulently notarized Barmapov‘s signature. But the complaint never explains how these alleged forgeries relate to any of the 19 causes of action. Finally, at the end of his narrative account, Barmapov asserts that “Yossi, Guy, Avrham and Reuben . . . expelled him as a member” of the joint venture
Because Barmapov‘s second amended complaint is “replete with conclusory, vague, and immaterial” allegations, a defendant who reads the complaint would be hard-pressed to understand “the grounds upon which each claim [against him] rests.” Weiland, 792 F.3d at 1322–23. Take, for example, the first four counts, which allege that the Amuials and Reuben Sastiel were Barmapov‘s business partners and that they breached their fiduciary duties. The complaint neither quotes nor provides any specific details about the operating agreement for the purported joint venture between Barmapov and these defendants. And its brief explanations of this business arrangement are nonsensical. The complaint states that only one of these four defendants—Sastiel—signed the operating agreement, but it asserts without explanation that the other three still owed fiduciary duties under the agreement. It calls Yossi a “member,” a “manager,” and an “agent” of the joint venture. It refers to Guy as a “member,” a ”de facto manager,” and an “agent and employee.” Finally, it states that Avrham is a “member,” an “agent,” and a ”de facto principal,” in addition to being Barmapov‘s personal “confidant and business advisor.” If Barmapov himself cannot offer a coherent explanation for how the joint venture was structured, we cannot expect the defendants tо do it for him by digging through 50 pages and 249 numbered paragraphs of scattershot factual allegations.
Barmapov argues that because the district court never described his second amended complaint as a “shotgun pleading,” it did not dismiss his complaint for that reason. But the order the district court entered suggests otherwise. After referring to the first amended complaint as a shotgun pleading, the district court explained that Barmapov, in filing his second amended complaint, had “yet again filed a rambling, dizzying array of nearly incomprehensible pleading which still fail[ed] to provide a short and plain statement justifying relief.” We think the meaning wаs obvious: the first amended complaint was a shotgun pleading, and so was the second.
The question remains whether the district court abused its discretion by dismissing the second amended complaint with prejudice. Our precedent is clear: “When a litigant files a shotgun pleading, is represented by counsel, and fails to request leave to amend, a district court must sua sponte give him one chance to replead before dismissing his case with prejudice on non-merits shotgun pleading grounds.” Vibe Micro, 878 F.3d at 1296. Here, Barmapov was represented by counsel, the district court dismissed his first amended complaint after explaining why it was a shotgun pleading, and the cоurt gave him a chance to try again. Barmapov squandered that opportunity by filing another shotgun pleading. Under this circumstance, we have no doubt that the district court did not abuse its discretion.
IV. CONCLUSION
We AFFIRM the district court‘s decision to dismiss the second amended complaint with prejudice.
TJOFLAT, Circuit Judge, concurring:
While I concur in the judgment of the panel, I write separately to express my views on how lawyers and district courts should proceed when faced with a shotgun pleading. My hope, though perhaps naïve, is that this opinion will serve to guide lawyers in this Circuit through the pleadings stage. If future lawyers follow this
My opinion proceeds in two parts. To begin, I explain the roles that plaintiff‘s counsel, district courts, and defense counsel play in paring down unwieldy pleadings, as well as the policies that inform those roles. Then, I briefly discuss Barmapov‘s Second Amended Complaint, identify a claim that may satisfy
I.
A.
The form a complaint takes is, first and foremost, plaintiff‘s counsel‘s responsibility. Over 35 years ago, I stated that we requirе a “pleader to present his claims discretely and succinctly[] so that[] his adversary can discern what he is claiming and frame a responsive pleading, the court can determine which facts support which claims and whether the plaintiff has stated any claims upon which relief can be granted, and, at trial, the court can determine that evidence which is relevant and that which is not.” T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th Cir. 1985) (Tjoflat, J., dissenting). At the time, I was expressly concerned about complaints drafted “to confuse the ‘enemy,’ and the court.” Id. Such complaints allow a plaintiff to “mask[]” “theories of relief not provided by law” that could prejudice a defendant‘s case, id., and it goes without saying that plaintiff‘s lawyers—many too clever for their own good—continue to file shotgun complaints with those goals in mind.
But courts in this Circuit increasingly run across shotgun complaints that are not drafted for the purpose of hoodwinking the opposing party or the district court. Much of the time, these complaints are just poorly written. For example, complaints that may contain meritorious claims but are “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action” are subject to dismissal under our shotgun pleading case law. Weiland v. Palm Beach Cnty. Sheriff‘s Off., 792 F.3d 1313, 1322 (11th Cir. 2015). To an outside observer, disposing of these otherwise viable claims because a plaintiff‘s lawyer pled too many facts1 may seem like strong medicine, particularly in light of
Ashcroft v. Iqbal‘s requirement that a complaint include more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). And it is strong medicine, but for good reason.
The federal judiciary is a system of scarce resources, and “[i]t is not the proper function of courts in this Circuit to parse out [] incomprehensible allegations.” Estate of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th Cir. 2020). Our district courts have neither the manpower nor
Further, district courts are flatly forbidden from scouring shotgun complaints to craft a potentially viable claim for a plaintiff. By digging through a complaint in search of a valid claim, the courts “would give the appearance of lawyеring for one side of the controversy.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1355 n.6 (11th Cir. 2018). This, in turn, would cast doubt on the impartiality of the judiciary. Id. Such a result is plainly inconsistent with the oath to which each judge has sworn. See
Plaintiff‘s lawyers practicing in this Circuit would do well to heed some old advice: “‘In law it is a good policy never to plead what you need not, lest you oblige yourself to prove what you cannot.‘” Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d 1554, 1567 (11th Cir. 1995) (quoting Abraham Lincoln, Letter to Usher F. Linder, Feb. 20, 1848, in The Quotable Lawyer 241 (D. Shrager & E. Frost eds., 1986)). I had hoped that, after thirty-five years of shotgun pleading case law, lawyers would be on sufficient notice that muddled, overpled complaints are subject to dismissal, even if they may contain potentially meritorious claims. But unfortunately, despite my repeated admonitions, I continue to see clients’ rights go unvindicated because of poor drafting by their counsel.
B.
Although plaintiff‘s counsel is the first line of defense, district courts must also shoulder some responsibility in ensuring that shotgun pleadings are nipped in the bud. Indeed, we have repeatedly emphasized district courts’ “duty to define the issues at the earliest stages of litigation” by ordering the repleading of a shotgun complaint. Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998). On the one hand, we
In the long run, the endless onslaught of discovery and the task of—at some point—sifting through the shotgun complaint “is far more time consuming than the work required up front” to dispose of the case. Id. So, rather than suffering through never-ending discovery, district courts faced with a shotgun pleading should—pursuant to their inherent authority—immediately order a repleader and instruct the party to plead its case in accordance with
Shotgun pleadings that ultimately slip past district courts also “wreak havoc on appellate court dockets.” Davis, 516 F.3d at 982. When a district court fails to squeeze a pleading down and determine whether it complies with
So, while I recognize the intense time pressures district courts often face, it is my hope that they will take the opportunity to confront shotgun pleadings head on at the earliest stages of litigation. See Johnson Enters., 162 F.3d at 1333 (discussing the need for “defin[ing] the issues” of a case “at the earliest stages of litigation.“).
C.
Defense counsel serves as a final safeguard against the evils of shotgun pleadings. When faced with a complaint that bears the hallmarks of a shotgun pleading, defense counsel typically has two options. First, they can move the court for a more definite statement pursuant to
Or second, they can move to dismiss the complaint for failure to state a claim under
That said, motions under
But most importantly, defense counsel should never respond to a shotgun pleading in kind. See Paylor, 748 F.3d at 1127 (“Rather than availing itself of the protective tools in the Federal Rules of Civil Procedure, Hаrtford responded to Paylor‘s shotgun pleading with a shotgun answer: 19 one-line affirmative defenses, none of which refers to a particular count, and none of which indicates that Hartford was even aware of when the retaliation and interference allegedly occurred.“). We have expressly condemned the filing of shotgun answers that contain “affirmative defenses that fail[] to respond explicitly to the specific claims plaintiffs [are] independently asserting.” Davis, 516 F.3d at 984. If, rather than heeding the warning of this Court, defense counsel does choose to respond in kind, then they may be knowingly foregoing (for example) attorney‘s fees. See id. (“Given the manner in which both sides chose to litigate this case in the district court, a strategy that complicated our task to no end, we will deny a request for attorney‘s fees from either side.“).
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At bottom, the goals of this Circuit‘s case law addressing shotgun pleadings hinge on a delicate balance of responsibilities. Plaintiff‘s and defense counsel each owe a duty to the federal judiciary to streamline litigation as effectively as possible, as early as possible. In turn, district courts bear some responsibility to step in and ensure that shotgun pleadings do not slip through the cracks, lest they make more work for themselves аnd for the appellate courts. When each party upholds their end of the bargain, the courts of this Circuit can more efficiently vindicate the rights of those who have been harmed.
II.
With these principles in mind, I turn to Barmapov‘s claims. At the outset, it is
Consider, for example, Count X of the Second Amended Complaint. There, Barmapov alleges a claim of fraud against Yossi Amuial, one of Avrham Amuial‘s sons. Under Florida law,5 Barmapov must establish the following elements to prove a claim of fraud: “(1) a false statement concerning a material fact; (2) the representor‘s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and, (4) consequent injury by the party acting in reliance on the representation.” Townsend v. Morton, 36 So. 3d 865, 868
(Fla. Dist. Ct. App. 2010) (quoting Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985)).
Taking the allegations of his Second Amended Complаint as true—as we must, see Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000)—it appears that Barmapov may have pled enough in Count X to survive a
For the first element, Barmapov alleges that Yossi (among others) made false statements at meetings between January 17 and January 24, 2017, regarding the division of profits from the car dealership and the control Barmapov would have over the dealership. Barmapov claims that these were material misrepresentations because he relied on them when deciding whether to invest in the dealership. For the second element, Barmapov alleges that Yossi knew that the representations he made to Barmapov were false and that he never intended for Barmapov to have any control over the dealership. On the third element, Barmapov repeatedly alleges that Yossi intended to induce him to invest millions of dollars into the dealership. And on the fourth element, Barmapov alleges that he in fact invested—and lost—nearly $4,000,000 in the venture as a result of Yossi‘s representations.
An outside observer may feel as though this is enough: Barmapov has alleged that he was harmed, and he has pled facts sufficient to make out a claim of fraud under Florida law. Admittedly, this perspective has some appeal. Reading the Sеcond Amended Complaint, it does appear that Barmapov was swindled by Yossi Amuial and the other Defendants, and one
But in light of the policies I outlined in part I, even the potentially viable claims contained in Barmapov‘s Second Amended Complaint must be dismissed. Faced with a shotgun pleading, the District Court—as we have repeatedly instructed—ordered Barmapov‘s counsel to amend the First Amended Complaint and to address the identified deficiencies. And, for their part, defense counsel—as we have repeatedly instructed—did not respond to the shotgun pleading in kind and instead moved the District Court to dismiss the Second Amended Complaint under
Only Barmapov‘s counsel failed to uphold their end of the bargain. Rather than rectifying the problems in the First Amended Complaint, Barmapov‘s counsel filed a meandering Second Amended Complaint filled with irrelevant facts and conclusory allegations. The District Court simply could not be expected to expend its limited resources to wade through hundreds of paragraphs of superfluous material in an effort to dig up a viable claim. In fact, had the Court done so, it would have impermissibly given “the appearance of lawyering” for Barmapov. Jackson, 898 F.3d at 1355 n.6.
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So, though the panel‘s conclusion today results in an unfortunate outcome for Mr. Barmapov, it is correct. Critics of this Circuit‘s shotgun pleading case law may condemn the emphasis we place on form, but as I have explained, the form of pleadings imposes very real costs on courts, lawyers, and the rights of litigants. For over thirty-five years, lawyers practicing in this Circuit have been aware of our stance on shotgun pleadings, and thus I have little sympathy for lawyers who draft slapdash complaints that are ultimately dismissed. Going forward, it is my hope that this opinion will serve as a guide for lаwyers who truly seek to vindicate their client‘s rights—and avoid unfortunate outcomes for their clients—by filing clear, precise pleadings.