Downing v. Midland Funding LLC et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/12/2016. (AVC)
2016 Jan-12 PM 04:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDLAND FUNDING, LLC, et al.,
Case No.: 2:15-cv-00737-RDP
This case is before the court on Defendant Midland Funding, LLC’s Motion for More
Definite Statement (Doc. # 43) and Motion to Stay Discovery and Suspend Scheduling Order
(Doc. # 44), both filed December 3, 2015. The Motions are both fully briefed. (Docs. # 43, 49,
52; 44, 50, 53).
Plaintiff filed her Complaint on April 30, 2015. (Doc. # 1). Defendant Midland Funding,
LLC (“Midland”) timely filed an Answer to that Complaint. (Doc. # 16). After the court held a
scheduling conference, Plaintiff filed her Amended Complaint. (Doc. # 38). The Amended
Complaint added no new parties, but increased the number of counts (which alleged violations of
the Federal Debt Collection Practices Act (“FDCPA”)) and also made additional factual
Midland responded by filing the subject Motions (Docs. # 43, 44), which are opposed by
Plaintiff. (Docs. # 49, 50, 52, 53). Midland argues that the Amended Complaint is a disfavored
“shotgun pleading” making it impossible for Midland to formulate a meaningful response.
(Docs. # 42, 52). Midland also requests a stay of discovery pending Plaintiff’s filing of a new
complaint and Midland’s possible filing of a motion to dismiss. (Docs. # 44, 53). Plaintiff has
responded by asserting that Midland’s Motions are disingenuous and that Midland can ascertain
the allegations against it. (Docs. # 49, 50).
After careful review, and for the reasons stated below, the court concludes that Midland’s
Motions (Docs. # 43, 44) are due to be denied.
In its Motion for More Definite Statement, Midland moves, pursuant to Federal Rule of
Civil Procedure 12(e), for a more definite statement in accordance with Federal Rules of Civil
Procedure 8 and 10, and also asserts that Plaintiff’s Amended Complaint (Doc. # 38) is a
disfavored “shotgun pleading.” (Doc. # 43).
Midland also argues in its Motion To Stay
Discovery And Suspend Scheduling Order that discovery should be stayed pending the outcome
of the Motion For More Definite Statement and any subsequent motion to dismiss. (Doc. # 44).
The Amended Complaint is not a disfavored “shotgun pleading”
Rule 12(e) provides in pertinent part that “[a] party may move for a more definite
statement of a pleading to which a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). A Rule
12(e) motion is an appropriate response to a “shotgun pleading.” Anderson v. Dist. Bd. of Trs. of
Cent. Fla. Cmty. Coll., 77 F.3d 364, 367 (11th Cir. 1996). A shotgun pleading tends to violate
Federal Rules of Civil Procedure 8(a)(2) 1 and 10(b). 2 Weiland v. Palm Beach Cty. Sheriff’s
A pleading “must contain a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2).
“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so
would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a
denial--must be stated in a separate count or defense.” Fed. R. Civ. P. 10(b).
Office, 792 F.3d 1313, 1320 (11th Cir. 2015). “The problem with shotgun pleadings ‘is that they
fail to one degree or another, and in one way or another, to give the defendants adequate notice
of the claims against them and the grounds upon which each claim rests.’” Wright v. Watson,
No. 15-cv-34, 2015 WL 4873381, at *3 (M.D. Ga. Aug. 13, 2015) (quoting Weiland, 792 F.3d at
Plaintiff’s Amended Complaint is not a shotgun pleading, even if it bears some
characteristics of one. The Amended Complaint is akin to that reviewed by the court in Wright
and adjudged to suffice under Rules 8(a)(2) and 10(b). See Wright, 2015 WL 4873381. First, as
in Wright, the Amended Complaint contains “multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count to carry all that came before.”3
Id. at *3 (quoting Weiland, 792 F.3d at 1321). But, while it may have been preferable for
Plaintiff not to have pleaded her claims in this fashion, “this is not a situation where a failure to
more precisely parcel out and identify the facts relevant to each claim materially increased the
burden of understanding the factual allegations underlying each count.” Weiland, 792 F.3d at
1324. Indeed, “[i]t is not difficult to understand what the Defendants ‘were alleged to have done
and why they were liable for doing it.’” Wright, 2015 WL 4873381, at *3 (quoting Weiland, 792
F.3d at 1324).
The Amended Complaint puts Midland on notice of the allegations against it—that is,
eight counts “exclusively against Defendant Midland” alleging violations of the FDCPA (Counts
I-VIII); one count against all Defendants for invasion of privacy arising in part from debt
collection activities (Count IX); three counts “exclusively against Defendant Midland” regarding
Unlike many shotgun pleadings, however, the Amended Complaint does not contain multiple counts
where each one adopts the allegations of each preceding count, “causing each successive count to carry all that came
before and the last count to be a combination of the entire complaint.” Weiland, 792 F.3d at 1322 (emphasis
added); (see Doc. # 38).
the hiring, training and supervision of incompetent debt collectors (one for negligence, one for
wantonness, and one for intentional) (Counts X-XII); one count against all Defendants for
negligence and wantonness (Count XIII); one count “exclusively against Defendant Midland” for
malicious prosecution (Count XIV); and one count against all Defendants for violations of the
FCRA (Count XV). (Doc. # 38). These counts stand in contrast to the five causes of action
alleged in the initial Complaint which alleged violations of the FCRA by all Defendants (Count
One); invasion of privacy by all Defendants (Count Two); negligent, wanton, and/or intentional
hiring and supervision of incompetent employees or agents by all Defendants (Count Three);
negligence/wantonness by all Defendants (Count Four); and malicious prosecution and abuse of
process by Midland only (Count Five). (Doc. # 1). Midland filed an Answer in response to the
initial Complaint, even though that Complaint combined more types of causes of action into a
single count (e.g., Count Three) and did not as clearly specify which Defendant is liable for
which cause of action as does the Amended Complaint. (Compare Docs. # 1 and 38). While not
conclusive, the filing of the Answer to the initial Complaint tends to persuade the court that
Defendant understood Plaintiff’s allegations and therefore “did not [then] move for a more
definite statement under [Rule] 12(e) or otherwise assert [any] difficulty knowing what [was]
alleged . . . and why [it was] liable . . . .” Weiland, 792 F.3d at 1324. And now, if anything, the
Amended Complaint better separates claims and clearly specifies which counts apply to
Midland. 4 (See Doc. # 38). Thus, Midland has no sufficient basis to move for a more definite
Even so, it is true that the Amended Complaint does set forth a number of allegations
such that it, at times, “is replete with conclusory, vague, and immaterial facts not obviously
The court notes that the Amended Complaint adds eight counts of violations under the FDCPA, which
would require related factual allegations to prove.
connected to any particular cause of action.” Weiland, 792 F.3d at 1322. To be sure, Plaintiff
makes reference to multiple unnamed other lawsuits by and against Midland, and asserts the
findings of Congress in passing the Fair Debt Collections Practices Act. 5 (Doc. # 38). Also, the
Amended Complaint repeats some paragraphs that appear to re-state some facts instead of
reciting or alleging something new. (Id.). Granted, these instances are confusing and make the
Amended Complaint more cluttered than it perhaps should be, and even may cause it to look like
a classic shotgun pleading.
However, just as students are often warned against judging a book by its cover, the fate of
a complaint is not to be determined by stylistic shortcomings. To that end, while the Amended
Complaint bears many of the hallmarks of a shotgun pleading, the Eleventh Circuit in Weiland
suggests that district courts in our circuit should look to substance over form. See Weiland, 792
F.3d at 1326 (holding that the court is “not retreating from this circuit’s criticism of shotgun
pleadings, but instead [is] deciding that, whatever [its] faults, [the complaint is] informative
enough to permit a court to readily determine if they state a claim upon which relief can be
granted”). The court in Weiland examined more than sixty published decision regarding shotgun
pleadings and, “[i]n the hope [it] could impose some clarity,” determined that “[t]he unifying
characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in
one way or another, to give the defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at 1321, 1323. Specifically, the Eleventh Circuit
ruled that the district court abused its discretion in dismissing the plaintiff’s third amended
complaint on the grounds that it was a shotgun pleading that (1) incorporated all of the factual
allegations contained in forty-nine paragraphs inclusive, and (2) failed to identify which
The court presumes these references are made to support a case for punitive damages, which are requested
in the Prayer For Relief. (Doc. # 38).
allegations were relevant to the elements of which legal theories. Id. at 1324, 1326. Significant
to the Weiland court was that “this is not a situation where a failure to more precisely parcel out
and identify the facts relevant to each claim materially increased the burden of understanding the
factual allegations underling each count.” Id. at 1324.
As in Weiland, the Amended Complaint here “looks, at first glance, like the most
common type of shotgun pleading. But it is not.” Weiland, 792 F.3d at 1324. For one thing,
“[t]he allegations of each count are not rolled into every successive count on down the line.” Id.
And, for another, “[t]he task of figuring out which of the  paragraphs that are incorporated
into [the counts] are relevant to [each] claim . . . is hardly a task at all.” Id. at 1324-25. Indeed,
“[i]t is greatly simplified by the organization of the  paragraphs of factual allegations into
[five] subsections” (in addition to the introduction and sections on jurisdiction, venue, and the
parties). 6 Id. at 1325; (Doc. # 38).
Just as such factors weighed against finding a shotgun
complaint in Weiland, they weigh against such a finding here.
Further, the stylistic inefficiencies of the Amended Complaint do not violate the
requirement that the complaint be a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Moreover, and in any event, Plaintiff’s
failure to specify purportedly similar lawsuits by and against Midland does not cause the
Amended Complaint to rise to the necessary level of vagueness or ambiguity required for a grant
of the Motion For More Definite Statement. See Erickson v. Hunter, 932 F. Supp. 1380, 1385
(M.D. Fla. 1996). Moreover, “[d]iscovery is the correct vehicle to obtain information necessary
for trial.” Id. at 1384.
Those subsections are labelled “Recognition By Congress of the Widespread Abuse by Collectors,” “The
Small Claims Court Complaint,” “Midland Loses The collection Case,” “Defendants Falsely Credit Reports on
Plaintiff’s Credit,” and “Remaining Factual Allegations.” (Doc. # 38).
At worst, some allegations are “over-inclusive” and “poorly drafted,” but in this instance
verbosity and poor draftsmanship do not inhibit the provision of adequate notice. Weiland, 792
F.3d at 1321, 1325. To be sure, this court is able to establish the claims asserted against
Midland. And, if the Amended Complaint were a true shotgun pleading, it would be “difficult to
understand what the Defendants ‘were alleged to have done and why they were liable for doing
it.’” Wright, 2015 WL 4873381, at *3 (citation omitted). But, Midland’s Co-Defendant TD
Bank USA did not appear to have any difficulty in understanding what it was alleged to have
done and why—TD Bank filed an answer to the Amended Complaint. (Doc. # 41); cf. Weiland,
792 F.3d at 1316 (“The complaint . . . does not approach th[e] ideal [pure statement free of
surplusage matter], but it claims that the plaintiff has a case, and parts of it do a good enough job
telling what that case is to require the defendants to say ‘either that that is not so, or something
else is so.’”).
While it is Midland’s Motion For More Definite Statement that is under
consideration here (and not TD Bank’s), the court determine that the Amended Complaint puts
Defendants on adequate notice, and Midland can reasonably file an appropriate responsive
Accordingly, the court “concludes that the ‘counts are informative enough to permit a
court to readily determine if they state a claim upon which relief can be granted.’” Wright, 2015
WL 4873381, at *4 (quoting Weiland, 792 F.3d at 1326). The court cannot say that “it is
virtually impossible to know which allegations of fact are intended to support which claim(s) for
relief.” Weiland, 792 F.3d at 1325 (quoting Anderson, 77 F.3d at 366) (emphasis in original)
(internal quotations omitted). Thus, the court will not order a more definite pleading, and
Midland’s Motion For More Definite Statement (Doc. # 43) is due to be denied.
Discovery does not need to be stayed in this case
Midland’s Motion To Stay Discovery And Suspend Scheduling Order (Doc. # 44) is also
due to be denied. First, the court’s denial of Midland’s Motion For More Definite Statement
leaves the stay request unsupported. Second, Midland is on notice that Plaintiff alleges certain
violations, including violations of the FDCPA. Whether each individual cause of action may
survive a later-filed dispositive motion, if any, is not a reason to halt discovery.
Additionally, Midland has previously answered Plaintiff’s initial Complaint. (Doc. # 16).
That Complaint alleged similar violations of (1) the FCRA, (2) invasion of privacy, (3)
negligent, wanton, and/or intentional hiring and supervision of incompetent employees or agents,
(4) negligence/wantonness, and (5) malicious prosecution and abuse of process. (See Docs. # 1,
16). These same counts appear in the Amended Complaint (albeit separated into eight causes of
action instead of five). (Doc. # 38). Further, the count for invasion of privacy (which included
an express reference to the FDCPA) arose from Midland’s (and other Defendant’s) allegedly
illegal debt collection actions. (See Docs. # 1, 38; see also Doc. # 16). The fact that Midland
filed an Answer to those claims indicates that, as early as June 29, 2015 (the date the Answer to
the initial Complaint was filed), Midland understood the claims asserted against it and was
prepared to conduct discovery regarding those claims.
And, the discovery as to those causes of action would include quite similar (if not, in
many instances, precisely the same) discovery as the causes of action newly alleged in the
Amended Complaint. (Compare Docs. # 1 and 38). Therefore, because there is no danger of
“extended and largely aimless discovery” that would drown this court “in an uncharted sea of
depositions, interrogatories, and affidavits,” there is no reason to suspend discovery. 7 Johnson
Enterprises of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998).
For these reasons, Midland’s Motions For More Definite Statement and To Stay
Discovery And Suspend Scheduling Order (Docs. # 43, 44) are due to be denied. A separate
order will be entered.
DONE and ORDERED this January 12, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
However, the parties Joint Motion For Extension of Deadlines (Doc. # 57) is due to be granted in a
separate order, and the discovery deadlines (among others) will be extended.
Furthermore, the court’s denial of the request for a blanket stay of discovery does not mean that the parties
cannot agree to voluntarily halt discovery (at least on certain issues) pending the outcome of the pleading stage. For
example, Midland may not be able to answer Interrogatory No. 1 (attached as “Exhibit A” to Midland’s reply brief)
until filing a responsive pleading asserting affirmative defenses. (See Doc. # 53-1). During the course of this
litigation, counsel can and should be professional and courteous to each other, and that professionalism and courtesy
must begin now.
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