VIBE MICRO, INC., a Nevada Corporation, 8 SPEED 8, a foreign corporation, EDWARD MANDEL, an individual, Plaintiffs-Appellants,
IGOR SHABANETS, an individual, SIG CAPITAL, INC., a Florida corporation, RAIN KIOSK, INC., a foreign corporation, KARLA GUARINO, an individual, THOMAS PARKER, an individual, et al., Defendants-Appellees.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 9:15-cv-80999-DMM
WILSON and ROSENBAUM, Circuit Judges, and TITUS, [*] District Judge.
WILSON, Circuit Judge:
appeal concerns the discretion of a district court to dismiss
a complaint on shotgun pleading grounds. Plaintiff Edward
Mandel appeals the district court's dismissal
with prejudice of his Second Amended Complaint (SAC). The
district court, lamenting the shotgun pleading nature of the
First Amended Complaint (FAC), had given Mandel-represented
by counsel that failed to request leave to amend-an
opportunity to replead and a thorough set of directions on
how to remedy the errors in the FAC. When Mandel failed to do
so in the SAC, and perhaps even exacerbated the pleading
issues, the district court dismissed the SAC with prejudice
on Rule 8 grounds. Mandel now argues that the district court
was powerless to do so, and that he deserves at least one
more chance to replead. After reviewing the record and
briefs, and with the benefit of oral argument, we affirm on
most issues, but remand in a limited manner with respect to
the state law claims.
allegedly being the victim of a scheme to force him off the
board of a bill payment terminal company, Edward Mandel sued
numerous defendants in the Southern District of Florida.
Represented by counsel, he filed a six-count original
complaint (OC), alleging breach of fiduciary duty, civil
conspiracy, and violations of the RICO statute. The OC
spanned 49 pages, with 109 pages of exhibits.Amending once as
of right, Mandel, still represented by counsel, filed the
FAC, which had grown to 56 pages and 168 pages of exhibits.
was "a mostly incoherent document" containing
"duplicative, " "inconsistent, " and
"wholly conclusory" allegations in paragraphs that
spanned multiple pages. Vibe Micro v. Shabanets, No.
15-cv-80999, 2015 WL 11438937, at *4 (S.D. Fla. Dec. 4,
2015), ECF No. 97. Its allegations were "oftentimes not
connected to a particular Defendant or set of Defendants,
making it impossible to understand who did what."
Id. In light of these deficiencies, several
defendants filed motions to dismiss. Mandel never requested
leave to amend the FAC, either in his responses to the
motions to dismiss or anywhere else.
district court dismissed the FAC without prejudice for
violating Rule 8.Making an "attempt to understand the
alleged facts, to the extent possible, " however, the
district court enumerated several deficiencies in the FAC,
and stated that Mandel "must cure" them in a SAC if
he wished for the case to continue. Id. This 15 page
order dismissing the FAC thoroughly explained how to improve
the pleadings through a SAC, and the district court sua
sponte allowed Mandel to file a SAC within 10 days.
the SAC did not improve. It ballooned to 70 pages, with 160
pages of exhibits. The "allegations remain[ed]
duplicative, " it "continue[d] to contain labeling
and numerical inconsistencies, " and it
"continue[d] to fail to provide even minimal notice to
the individual Defendants as to what conduct they are alleged
to have participated in." Vibe Micro, Inc. v.
Shabanets, No. 15-cv-80999, 2016 WL 4256915, at *1-2
(S.D. Fla. July 19, 2016), ECF No. 146. Once again, several
defendants filed motions to dismiss, and, once again,
Mandel-still represented by counsel-did not request leave to
amend his pleading.
district court found that the SAC was "a 'shot
gun' pleading of the sort the Eleventh Circuit 'has
been roundly, repeatedly, and consistently condemning for
years, '" and that its "[m]aterial allegations,
if there are any, [were] 'buried beneath innumerable
pages of rambling irrelevancies, ' making no distinction
between the defendants engaged in the various alleged
acts." Id. at *2 (citations omitted). Finding
that it violated Rule 8, the district court dismissed the SAC
with prejudice. After this order dismissing the SAC, Mandel
did not file any motions and did not make any requests for
leave to amend. Rather, he simply appealed the order.
appeal, Mandel admits that the SAC "had not fixed all of
the shot-gun pleading problems that resulted in the dismissal
of the FAC, " but argues that he deserves "at least
one additional opportunity to fix the pleading
problems." The thrust of his argument is that a district
court can never dismiss a pleading with prejudice on Rule 8
shotgun pleading grounds unless it finds evidence of bad
faith. We disagree.
review a dismissal on Rule 8 shotgun pleading grounds for an
abuse of discretion. Weiland v. Palm Beach Cty.
Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir.
2015). Shotgun pleadings violate Rule 8, which requires
"a short and plain statement of the claim showing that
the pleader is entitled to relief, " Fed.R.Civ.P.
8(a)(2), by "fail[ing] to one degree or another . . . to
give the defendants adequate notice of the claims against
them and the grounds upon which each claim rests."
Weiland, 792 F.3d at 1323 (defining the four types
of shotgun pleadings). Courts in the Eleventh Circuit have
little tolerance for shotgun pleadings. See generally
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,
979-80 & n.54 (11th Cir. 2008) (collecting numerous
cases), abrogated on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). They 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." Id. at 981-83
(detailing the "unacceptable consequences of shotgun
district court has the "inherent authority to control
its docket and ensure the prompt resolution of lawsuits,
" which includes the ability to dismiss a complaint on
shotgun pleading grounds. Weiland, 792 F.3d at 1320.
In the special circumstance of non-merits dismissals on
shotgun pleading grounds, we have required district courts to
sua sponte allow a litigant one chance to remedy such
deficiencies. See, e.g., Wagner v. First Horizon
Pharm. Corp., 464 F.3d 1273, 1280 (11th Cir. 2006);
Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir.
2001), abrogated on other grounds by Bridge v. Phoenix
Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131
(2008); Magluta v. Samples, 256 F.3d 1282, 1284-85
(11th Cir. 2001) (per curiam). In these cases, even if the
parties do not request it, the district court "should
strike the complaint and instruct counsel to replead the
case-if counsel could in good faith make the representations
required by Fed.R.Civ.P. 11(b)." Byrne, 261
F.3d at 1133 n.113 (alterations adopted) (quoting Cramer
v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)). This
initial repleading order comes with an implicit "notion