Civil Procedure

11th Circuit rages against 'incomprehensible' shotgun complaint, concludes lawyer's intent was delay

  • Print.

A federal appeals court is shining a light on so-called shotgun complaints in an order asking a lawyer to show cause why he shouldn’t be sanctioned.

The Atlanta-based 11th U.S. Circuit Court of Appeals said Birmingham, Alabama, lawyer Kenneth Lay had filed “a multi-count, incomprehensible” lawsuit as part of a scheme to delay or prevent a foreclosure for his client homeowners. The Daily Report and Lexology have coverage of the Aug. 3 order and opinion upholding dismissal of the lawsuit.

The 11th Circuit said Lay’s initial and amended lawsuits for alleged wrongful foreclosure were shotgun complaints that were eventually dismissed by the trial judge. On appeal, he sought six extensions to file an opening brief and four more extensions to file a reply brief.

Shotgun complaints are lawsuits that lack specificity. According to the Daily Report, they list multiple counts that incorporate by reference the allegations in the prior count. They may name multiple defendants, without specifying which claims apply to which defendants.

“We have condemned shotgun pleadings time and again, and this is why we have repeatedly held that a district court retains authority to dismiss a shotgun pleading on that basis alone,” the appeals court said in an opinion by Circuit Judge Gerald Tjoflat.

In the first complaint, “the causes of action were not defendant-specific, all were based on all of the complaint’s 24 introductory paragraphs, and all 14 causes of action incorporated all previous allegations,” Tjoflat said. “This made it impossible for any defendant to reasonably frame an answer.”

The first suit was filed in a county court and removed to federal court, where the amended complaint was filed. It was also a shotgun pleading, though it “halfheartedly” sought to cure the defects by naming which counts pertained to each defendant, Tjoflat wrote. But it was still “incomprehensible,” the appeals court said. (The amended complaint is Exhibit 1 at page 25 of the opinion.)

According to the appeals court, the amended complaint violated federal rules requiring “a short and plain statement of the claim.”

“The prosecution of an incomprehensible amended complaint with repeated requests for extensions in the district court and the prosecution of a frivolous appeal with repeated requests for extensions in this court, taken together, reveal Mr. Lay’s motive in filing this lawsuit,” Tjoflat said. “His motive was, and is, to delay or prevent the completion of [the bank’s] foreclosure. This constitutes an abuse of judicial process.”

A concurrence said Lay’s true motivation may never be known. “Perhaps the plaintiff’s attorney engineered a scheme, perhaps not,” the concurrence said. “It would be unfortunate, indeed outrageous, if Mr. Lay’s pleas for extensions, both at the district and appellate levels (due to travel, workload, repeated illness, hospitalization and death in the family) were not made in good faith and one large ruse. We may never know his true motivation.”

The appeals court’s order asks Lay to show cause why he should not have to pay double the costs and expenses of the opposing parties, including their attorney fees.

Lay didn’t immediately respond to a voicemail message seeking comment.

The case is Jackson v. Bank of America.

Give us feedback, share a story tip or update, or report an error.