Eleventh Circuit Offers Cautionary Note on Pleading, Briefing

In an opinion that addresses a variety of Title VII claims, the Eleventh Circuit Court of Appeals offered the following comments about the impact that “shotgun pleadings” have on the federal courts:

[T]he mischief shotgun pleadings causes undermines the public’s respect for the courts – the ability of the courts to process efficiently, economically, and fairly the business placed before them.  At an increasing rate, civil litigants are avoiding the federal district courts; they go elsewhere, to other fora, for the resolution of their disputes, especially complicated commercial disputes.  The federal courts’ civil caseloads reflect this. . . . This has a negative effect on the development of the rule of law in the federal courts.  When issues that ought to be presented to the courts for clarification, and to stabilize the rule of law, are removed to non-judicial fora for resolution, the public bears the cost . . .

Davis et al. v. Coca-Cola Bottling Co., No. 05-12998 (11th Cir. Feb. 6, 2008).  The Court recognized that “shotgun pleadings” are “fueled in no small part by the lawyers’ fear that if they do not include everything but the kitchen sink in their pleadings, they may be sued for malpractice.”  Id., n. 69.  


The Court began its comments regarding shotgun pleadings:

"If the framers of the Federal Rules of Civil Procedure could read the record in this case . . . they would role over in their graves. In fashioning the Rules, they assumed that complaints would be drafted as clearly and definitively as possible, so that the defendant could understand the cause(s) of action the plaintiff was asserting and frame a responsive pleading, and the district court, having a clear and definitive response before it, could recognize the parties’ claims and defenses, identify the issues of fact to be litigated, and proceed to a just result. The framers also assumed that the lawyers appearing before the district courts would adhere to the standards of professional responsibility and conduct, and that , as officers of the court, would be aware that the federal courts constitute a scarce resource for resolving disputes and that their failure to adhere to these standards would likely yield countless untoward, and totally unacceptable, consequences. This case confounds these assumptions."

With respect to matters of appellate procedure, the Court noted that it has the authority to affirm a district court judgment on a ground that the district court did not reach, but it did not exercise that authority in this case. Additionally, “it is well settled in this circuit that an argument not included in the appellant’s opening brief is deemed abandoned. And presenting the argument in the appellant’s reply does not somehow resurrect it.” (citations omitted) Consequently, the court refused to consider one plaintiff’s appeal from the trial court’s finding that his Title VII hiring claim was time-barred because the plaintiffs’ opening brief contained no argument regarding that claim. The section in the plaintiffs’ reply brief devoted to the issue came too late to invite appellate review. “The district court denied Davis’s claim as time-barred. We affirm the court’s decision not on the ground that the claim is time-barred, but on the ground that the claim has been abandoned.”