JIGGETTS et al v. DISTRICT OF COLUMBIA et al
Filing
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MEMORANDUM OPINION granting Defendants' 41 Motion to Dismiss. See attached document for details. Signed by Judge Ketanji Brown Jackson on January 13, 2017. (lckbj2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TENISHA N. JIGGETTS, et al.,
Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
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Civ. No. 15-cv-0752 (KBJ)
MEMORANDUM OPINION
On March 5, 2016, Plaintiffs Tenisha N. Jiggetts and Karen W. Cooper
(“Plaintiffs”) filed a Fourth Amended Complaint against the District of Columbia and
seven of its individual employees (collectively, “Defendants”). Jiggetts and Cooper
formerly worked for the Superior Court of the District of Columbia, and their lawsuit
arises out of a series of allegedly discriminatory and tortious acts they allegedly faced
in the context of their employment. Plaintiffs’ Fourth Amended Complaint (hereinafter
referred to as “the complaint”) contains 20 separate claims for relief, and generally
asserts that (1) Defendants violated 42 U.S.C. § 1983 by depriving Plaintiffs of their
rights under the First, Fourth, and Fifth Amendments to the U.S. Constitution; (2)
Defendants’ discriminatory and/or retaliatory conduct violated Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; and (3) Defendants have
committed the common law torts of assault, battery, negligence, and intentional and
negligent infliction of emotional distress. (See 4th Am. Compl., ECF No. 37, at 48–
76.) 1
Before this Court at present is Defendants’ motion to dismiss Plaintiffs’ Fourth
Amended Complaint. (See Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 41.)
Defendants argue that Plaintiffs’ pleading—which is 78 pages long and contains more
than 450 paragraphs—should be dismissed for failure to comply with Federal Rule of
Civil Procedure 8, and that, in any event, Counts I and II (Section 1983 claims brought
against various individual defendants) must be dismissed for failure to state a claim
upon which relief can be granted. (See id. at 3–4.) For the reasons explained below,
this Court agrees with Defendants that Plaintiffs’ Fourth Amended Complaint fails to
comply with Rule 8’s pleading and notice requirements. Furthermore, the Court notes
that Plaintiffs have previously been granted several opportunities to produce a
complaint that satisfies Rule 8 and thereby provides Defendants with succinct and
sufficient notice of the legal theories that undergird Plaintiffs’ claims and the particular
allegations that support them. Plaintiffs’ Fourth Amended Complaint continues to
contain scattershot assertions of fact that are not properly directed at the myriad legal
claims that are inserted into the pleading, and this Court has little confidence that yet
another try would yield a different result. Consequently, Defendants’ motion to dismiss
the complaint is GRANTED, and this case will be DISMISSED without prejudice and
in its entirety on Rule 8 grounds alone. A separate order consistent with this
Memorandum Opinion will follow.
1
Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.
2
I.
BACKGROUND
A.
Alleged Facts
Tenisha Jiggetts and Karen Cooper, two African-American females, are former
employees of the District of Columbia. (See 4th Am. Compl. ¶ 11.) Jiggetts, who is
forty-six years old, “served as the attorney advisor to the Criminal Division at the
Superior Court of the District of Columbia” (id.), and Cooper, who is sixty-one, “served
as a supervisor” in that same division (id.). Plaintiffs allege that, on numerous
occasions, several employees of the Superior Court of the District of Columbia—
namely, Defendants Daniel W. Cipullo, Cheryl Bailey, Anne Wicks, Yvonne MartinezVega, Richard Parris, Nancy McKinney, and Belinda Carr—subjected Plaintiffs and
other Superior Court employees to a variety of “racial, gender, age and compensation
discrimination, harassment, a hostile work environment, interference and retaliation[.]”
(Id. ¶ 19; see also id. ¶¶ 13, 153–54, 167, 176, 233.) Plaintiffs’ Fourth Amended
Complaint describes a plethora of events, encounters, and general working conditions
that range from instances of purported “bullying” and name-calling (id. ¶ 49) to less
favorable treatment (see id. ¶ 54), including untimely and/or poor performance
evaluations (see id. ¶¶ 78, 225). The complaint describes some acts that were allegedly
directed against Plaintiffs personally (see, e.g., id. ¶ 32), while other acts appear to
have been taken against other Superior Court employees (see, e.g., id. ¶¶ 51, 76–77) or
racial minorities in general (see, e.g., id. ¶¶ 46, 54, 70). Jiggetts claims that she was
also involved in physical or verbal altercations with Defendants Parris and Cipullo (see
id. ¶¶ 119–120, 128, 132), after which she was unlawfully suspended, and her
employment was terminated (see id. ¶¶ 131, 135). Cooper alleges that, as a result of
3
some or all of the aforementioned acts, she was ultimately forced to resign. (See id.
¶ 238.)
B.
Procedural History
1. Plaintiffs’ Complaints
Plaintiffs have submitted five complaints in this matter, the first of which was
filed on May 20, 2015. Plaintiffs’ initial complaint, which was brought against the
District of Columbia and individual defendant Cipullo, was 56 pages long, contained
477 paragraphs, and alleged 15 separate statutory and constitutional violations. (See
Compl., ECF No. 1.) 2 For the next 18 months, Plaintiffs sought leave to amend their
complaint three times. (See Motions for Leave to File Amended Complaints, ECF
Nos. 10, 27, 31.) At each turn, Plaintiffs increased the number of claims, the number of
defendants, and the breadth and depth of their factual allegations. (See, e.g., 1st Am.
Compl., ECF No. 11 (raising 27 counts in a 56-page, 482-paragraph pleading brought
against six total defendants); 2nd Am. Compl., ECF No. 30 (raising 29 counts in a
73-page, 593-paragraph pleading brought against six total defendants); 3rd Am. Compl.,
2
Fourteen of the counts in the initial complaint pertained only to Jiggetts and one was brought by
Cooper. Jiggetts claimed: (1) gender discrimination under Title VII; (2) race discrimination under
Title VII; (3) race, gender, and color discrimination against Cipullo under the D.C. Human Rights Act;
(4) race, gender, and color discrimination against the District of Columbia under the D.C. Human
Rights Act; (5) hostile work environment under Title VII; (6) retaliation under Title VII; (7) common
law false imprisonment against Cipullo; (8) false imprisonment against the District of Columbia
through vicarious liability; (9) intentional infliction of emotional distress against Cipullo;
(10) intentional infliction of emotional distress against the District of Columbia through vicarious
liability; (11) Fifth Amendment rights violation, pursuant to the Equal Pay Act, based on gender;
(12) assault against the District of Columbia through vicarious liability; (13) Section 1983 claim
against the District of Columbia based on her Fifth Amendment rights against a pattern or practice of
unequal treatment; and (14) negligent training, supervision, and retention claim against the District of
Columbia. (See Compl. at 15–50.) Cooper asserted only that the District of Columbia and individual
defendant Cipullo had violated her Fifth Amendment rights pursuant to the Equal Pay Act. (See Compl.
at 52–56.)
4
ECF No. 32 (raising 51 counts in a 135-page, 1072-paragraph pleading brought against
eight total defendants).)
At a status conference on February 11, 2016, the parties agreed to the Plaintiffs’
filing of a fourth amended complaint. (See Feb. 11, 2016 Hr’g Tr., ECF No. 49, at 9–
10.) 3 A Court order memorializing this agreement followed. (See Min. Order of Feb.
11, 2016.) Then, on March 5, 2016, Plaintiffs filed the instant pleading (the Fourth
Amended Complaint), which stands at 78 pages and 459 paragraphs long. The Fourth
Amended Complaint alleges statutory, constitutional, and common-law violations in the
context of 20 counts that have been brought against the District of Columbia and seven
of its employees, both in their individual and official capacities. (See 4th Am. Compl.)
While shorter in length than many of its predecessors, the Fourth Amended
Complaint is hardly a model of clarity. For example, Plaintiffs’ Tenth Count extends
over twenty-two paragraphs (see id. ¶¶ 351–72) and is titled “MIXED MOTIVE RACE,
AND/OR SEX, AND/OR AGE AND/OR RETALIATION IN VIOLATION OF TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. § 2000(e)
HOSTILE WORK ENVIRONMENT AND THE ADEA JIGGETTS AND COOPER
AGAINST THE DISTRICT OF COLUMBIA” (id. at 63). As far as the Court can
discern, in this one count alone Jiggetts and Cooper allege that the District of Columbia
(through the acts of any, some, or all of the individual Defendants) violated Title VII
and the ADEA, when it “interfered and obstructed [Jiggetts’s] requests for a transfer to
another division” (id. ¶¶ 353–54); “failed to promote [Cooper]” (id. ¶¶ 355–56); “failed
3
This agreement was reached at the Court’s urging, in order to avoid Defendants’ anticipated filing of a
Rule 8 motion to dismiss regarding the Third Amended Complaint, and to accommodate the Court’s
stated concerns regarding the excessive length and lack of clarity in that pleading. (See Feb. 11, 2016
Hr’g Tr. at 9–10.)
5
to select [Cooper] for the Special Proceedings Branch and Quality Assurance Branch
Chief positions” (id. ¶¶ 357–58); interfered, obstructed and abolished Plaintiffs’
“compressed days off” (see id. ¶¶ 95, 359–62); gave Plaintiffs low performance ratings
(see id. ¶¶ 363–66); “interfered with, obstructed and terminated [Jiggetts’s]
employment” (id. ¶ 368; see also id. ¶ 368); and constructively discharged Cooper (see
id. ¶¶ 369–70). This one count also alleges that each of these events was motivated (in
whole or in part) by discriminatory animus due to Jiggetts’s and Cooper’s race or
gender or age, and/or was undertaken in retaliation for their engaging in protected EEO
activity—or some combination of some or all of these improper motives—and that,
through it all, Defendants subjected Jiggetts and Cooper to a hostile work environment.
(See id. ¶¶ 351–72; see also id. at 69 (attributing the conduct in Count Ten to each and
every one of these theories).)
2. Defendants’ Motion to Dismiss
On April 8, 2016, Defendants filed a joint Motion to Dismiss Plaintiffs’ Fourth
Amended Complaint, which argues that the pleading should be dismissed in its entirety
for lack of clarity and brevity pursuant to Rule 8(a). (See Defs.’ Mot. at 3, 7–8.)
Defendants contend that the complaint’s lengthy factual narrative is hopelessly vague
and “almost entirely divorced from . . . the legal basis for their claims” (id. at 7), and
thus requires Defendants to guess which of the myriad acts recited in the complaint
pertains to each of the 20 counts (see id. at 3 (describing the complaint as riddled with
“scattershot factual allegations that Plaintiffs largely fail to connect with their mottled
legal theories”)). In this regard, Defendants maintain that, the sheer “breadth of the
factual allegations”—when coupled with the complaint’s varied and wide-ranging legal
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contentions—renders the pleading incapable of providing “adequate notice of the basis
of Plaintiffs’ claims” as Rule 8(a) requires. (Id. at 7, 8.) Defendants also challenge the
Section 1983 claims that are based on alleged violations of the First and Fifth
Amendments (Counts I and II) on the grounds that these particular claims are “plainly
deficient” (id. at 3), and must be dismissed for failure to state a claim upon which relief
can be granted (see id. at 8–13).
In opposition, Plaintiffs argue that the amended complaint is necessarily lengthy
because it contains every fact required to state their legal claims; and, indeed, the “facts
follow a logical progression that provides the defendants and the Court with fair notice
of the claims being asserted, so that defendants may be able to prepare a responsive
answer and an adequate defense.” (Pls.’ Opp’n to Defs.’ Mot. to Dismiss (“Pls.’
Opp’n”), ECF No. 43, at 5.) With respect to Defendants’ contentions regarding
Counts I and II, Plaintiffs insist that these claims are viable because their EEOC
complaints qualify as protected speech under the First Amendment (see id. at 5–9), and
because the myriad personnel actions laid out in the amended complaint reasonably
support an inference of “intentional racial discrimination” in violation of the Fifth
Amendment (id. at 19; see also id. 12–19 (setting forth examples of discriminatory
conduct laid out in the amended complaint, but warning that the list is not exhaustive)).
Defendants’ motion to dismiss Plaintiffs’ Fourth Amended Complaint is now ripe
for this Court’s review.
II.
LEGAL STANDARDS
Federal Rule of Civil Procedure 8(a) mandates that a complaint “must contain
. . . a short and plain statement of the claim showing that the pleader is entitled to
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relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(d)(1) further elucidates this mandate, by
requiring that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P.
8(d)(1). “Taken together, Rules 8(a) and [8(d)(1)] underscore the emphasis placed on
clarity and brevity by the federal pleading rules[,]” Ciralsky v. CIA, 355 F.3d 661, 669
(D.C. Cir. 2004) (internal quotation marks and citation omitted), and it is well
established that Rule 8 “sets out a minimum standard for the sufficiency of complaints”
in order “to give fair notice of the claim[s] being asserted” and the grounds upon which
they rest, “so as to permit the adverse party the opportunity to file a responsive answer,
prepare an adequate defense and determine whether the doctrine of res judicata is
applicable[,]” Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977) (citations omitted);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (explaining that the
requirements of Rule 8 are meant “to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests” (alteration in original) (internal quotation
marks and citation omitted)).
Significantly, pursuant to these rules, “[t]he court or opposing party must be able
to understand whether a valid claim is alleged and if so what it is.” Poblete v. Indymac
Bank, 657 F. Supp. 2d 86, 96 (D.D.C. 2009) (internal quotation marks and citation
omitted). “[W]hat is the proper length and level of clarity for a pleading . . . is largely
a matter that is left for the discretion of the trial court,” and varies from case to case
depending on “the nature of the action, the relief sought, and the respective positions of
the parties in terms of the availability of information and a number of other pragmatic
matters.” 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1217
(3d ed. 2004). “Still, a complaint that is excessively long, rambling, disjointed,
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incoherent, or full of irrelevant and confusing material” will patently fail the Rule’s
standard, and so will “a complaint that contains an untidy assortment of claims that are
neither plainly nor concisely stated, nor meaningfully distinguished from bold
conclusions, sharp harangues and personal comments.” T.M. v. District of Columbia,
961 F. Supp. 2d 169, 174 (D.D.C. 2013) (internal quotation marks and citations
omitted). And if a complaint fails to comport with the standards of Rule 8, the court
may dismiss the pleading or the action. See Fed. R. Civ. P. 41(b); see also Ciralsky,
355 F.3d at 669 (explaining that “Rule 41(b) authorizes the court to dismiss either a
claim or an action because of the plaintiff's failure to comply with” Rule 8); Kuehl v.
FDIC, 8 F.3d 905, 908 (1st Cir. 1993) (“A district court has the power to dismiss a
complaint when a plaintiff fails to comply with the Federal Rules of Civil Procedure,
including Rule 8(a)(2)’s ‘short and plain statement’ requirement.”).
“When a trial court concludes that an initial complaint fails to satisfy Rule 8, an
appropriate remedy is to strike the complaint . . . and to provide the plaintiff with an
opportunity to file an amended complaint that complies with the Rules.” Achagzai v.
Broad. Bd. of Governors, 109 F. Supp. 3d 67, 69 (D.D.C. 2015); Muhammad v. Dine,
No. 14-cv-507, 2014 WL 1284761, at *1 n.1 (D.D.C. Mar. 26, 2014), aff’d, 602 F.
App’x 542 (D.C. Cir. 2015); cf. United States ex rel. Shea v. Verizon Commc’ns, Inc.,
160 F. Supp. 3d 16, 30 (D.D.C. 2015) (noting that “a complaint begins an action, but
amendment or dismissal without prejudice of that complaint does not end the action[;
a]s long as the complaint may be amended, the action itself continues”). However, “the
federal courts are far less charitable when one or more amended pleadings already have
been filed with no measurable increase in clarity.” 5 Wright & Miller, Federal Practice
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& Procedure § 1217. If a plaintiff has been given ample opportunity to comply with
Rule 8 but fails to do so, or if the amended pleading suffers from similar
insufficiencies, then it is appropriate for the Court to dismiss the case without providing
another opportunity to amend. See Ciralsky, 355 F.3d at 669 (affirming dismissal of the
entire action because the amended complaint suffered from the same Rule 8
deficiencies); Gardner v. United States, 211 F.3d 1305, 1309 (D.C. Cir. 2000)
(observing that dismissal pursuant to Rule 41(b) should be taken “after unfruitful resort
to lesser sanctions” (citation omitted)); Shallal v. Gates, 254 F.R.D. 140, 143–44
(D.D.C. 2008) (noting that the “unusual remedy” of dismissing an action for failure to
comply with a court order is warranted where a complaint, despite multiple attempts to
amend, repeatedly fails to comply with the Federal Rules).
Notably, a court must be cautious about dismissing a case with prejudice on
Rule 8 grounds, because doing so forecloses the plaintiff’s opportunity to file a cured
complaint in future proceedings and start the action anew. See Burrell v. AT & T, 63 F.
App’x 588, 589 (2d Cir. 2003) (noting that dismissing the action without prejudice is “a
lesser sanction than dismissal with prejudice”); see also Kuehl, 8 F.3d at 908
(explaining that the “federal rules promote the disposition of claims on the merits rather
than on the basis of technicalities,” so “courts should be reluctant to impose a dismissal
with prejudice for a rules violation that is neither persistent nor vexatious, particularly
without some review of the merits”). Thus, dismissals without prejudice are the norm
absent exceptional circumstances, such as where “a party fails or refuses to file an
amended and simplified pleading or does not exercise good faith in purporting to do
so[.]” 5 Wright & Miller, Federal Practice & Procedure § 1217; see also Griffin v.
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Milwaukee Cty., 369 F. App’x 741, 743 (7th Cir. 2010) (“A court is free to dismiss a
complaint with prejudice when the plaintiffs have been given opportunities to amend,
but fail to do so.”).
III.
ANALYSIS
Plaintiffs have had five opportunities to produce a complaint that satisfies the
standards set forth in Federal Rule of Civil Procedure 8(a) and (d)(1), and yet the
Fourth Amended Complaint continues to contain prolix, irrelevant, and scattershot
assertions of fact that are not clearly or properly aligned with the myriad legal claims
that randomly appear in the 78-page pleading. Thus, as explained below, the complaint
at issue does not comply with the requirements of Federal Rules, and at this point the
Court has abandoned all hope that the myriad deficiencies in Plaintiffs’ complaint will
be addressed in the context of the instant action. Consequently, Defendants’ motion to
dismiss will be granted, and this case will be dismissed without prejudice and in its
entirety.
A.
Plaintiffs’ Fourth Amended Complaint Fails To Meet Rule 8’s Clarity
And Brevity Standards
The Fourth Amended Complaint violates Rule 8 in at least three respects: (1) it
is unnecessarily detailed and lengthy; (2) it contains irrelevant and confusing material;
and (3) it lacks sufficient clarity to give fair notice of the claims raised and their basis.
First, Plaintiffs’ pleading is unnecessarily lengthy, and thus fails on its face to
provide “simple, concise and direct” factual averments and a “short and plain”
statement of the legal claims. To be sure, Plaintiffs have made an attempt to reduce the
overall length of the pleading. (Compare 3rd Am. Compl. (135 pages long), with 4th
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Am. Compl. (78 pages long).) But their Fourth Amended Complaint remains “quite
long—a point that is more than simply a matter of aesthetics.” Ciralsky, 355 F.3d at
669. It is well established that “[un]necessary prolixity in a pleading places an
unjustified burden on the court and the party who must respond to it because they are
forced to select the relevant material from a mass of verbiage.” Id. (internal quotation
marks and citation omitted).
That task has proven to be overwhelming in the instant case. Put frankly, it is
nearly impossible to discern the essential facts that underlie Plaintiffs’ legal claims
because of the excessively lengthy recitation of events and myriad seemingly irrelevant
descriptions that are presented in this pleading. (See, e.g., 4th Am. Compl. ¶¶ 14–18,
163–67 (detailing Jiggetts’s and Cooper’s academic and professional background); id.
¶¶ 32–40, 78–82, 86, 217–26, 229–30 (describing, at length and repeatedly, the
performance evaluation process and the circumstances surrounding the Plaintiffs’
untimely receipt of certain negative evaluations); id. ¶¶ 35, 71, 79, 85, 88, 91, 96, 105,
116–19, 169, 174, 204, 207–08, 230 (explaining the manner in which Defendants’
conduct allegedly violated several internal personnel policies, without explaining the
legal significance of these purported violations); id. ¶¶ 206–07 (describing personal
inconveniences that Cooper allegedly experienced from changes to her work schedule);
id. ¶¶ 19–20, 53–54, 65–69, 136, 141–43, 147–57, 177, 201, 215–16, 221, 225, 232–35,
240–50 (making generalized and conclusory allegations regarding the conduct
described, in a manner that mirrors the 29-page legal elements section).)
Second, and relatedly, because the Fourth Amended Complaint contains
seemingly irrelevant and unnecessary facts, the actual factual basis of Plaintiffs’ legal
12
claims (whatever it may be) is obscured, which makes the pleading hopelessly
confusing. Ordinarily, excessive detail is mere “[s]urplusage [that] can and should be
ignored[,]” United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378
(7th Cir. 2003), but in some cases, excessive averments regarding extraneous facts
“make a complaint unintelligible, by scattering and concealing in a morass of
irrelevancies the few allegations that matter[,]” id.
The instant complaint unquestionably falls into the unintelligible category. For
example, Plaintiffs include a host of facts that relate to their employment but do not
clearly pertain to the legal claims they allege, such as descriptions of allegedly
discriminatory conduct to which other individuals were subjected; these descriptions
are either wholly irrelevant to the matter at hand or are inexplicably (and possibly
erroneously) being recited as grounds for some of Plaintiffs’ claims. (See, e.g., 4th Am.
Compl. ¶¶ 22–23 (complaining about the selection of McKinney, a less-qualified
“Caucasian female,” to a position that “Jiggetts did not apply for” because Cipullo’s
alleged racial bias discouraged Jiggetts from pursuing it); id. ¶ 24 (complaining that
McKinney was not reprimanded after making a mistake, but failing to provide a
relevant comparator, or to explain the significance of the event).) Because these
additional factual averments relate to the general subject matter at issue in the
complaint (i.e., discrimination and retaliation), one cannot easily discern the
significance of these extraneous facts, and thus it is exceedingly difficult for
Defendants to determine the basis for Plaintiffs’ claims, as necessary to prepare a
proper answer. See Brown v. Dalton, No. 96-5285, 1997 WL 362505, at *1 (D.C. Cir.
May 5, 1997) (noting that when a complaint “contains numerous unnecessary averments
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and is so lengthy and confusing[,]” the defendant “cannot be expected to formulate a
response that would apprise [the plaintiff] of the allegations in the complaint that stand
admitted and will not be in issue at trial and those that are contested and will require
proof to be established” (internal quotation marks and citations omitted)). Thus, some
of the unnecessary facts not only complicate the exercise of discerning the legal
landscape, they also actively prevent Defendants from adequately raising certain
defenses to the complaint. 4
The third problem that arises from Plaintiffs’ Fourth Amended Complaint is that
the myriad factual allegations are entirely divorced from the various legal claims that
Plaintiffs assert. The Fourth Amended Complaint consists of 43 pages of facts that
detail countless events and acts of various Defendants with respect to one or both
Plaintiffs (see 4th Am. Compl. ¶¶ 14–250), followed by 29 pages of pure legal language
that repeatedly lists the elements of a host of legal claims (see id. ¶¶ 251–459). Each of
the 20 counts generally “incorporate[s] by reference” every paragraph before it, and
4
One particularly potent example of how the excessive and extraneous matter in Plaintiffs’ Fourth
Amended Complaint impedes an effective defense is manifest in the difficulty that any defendant would
have when formulating an argument about administrative exhaustion or the untimely filing of
administrative complaints with respect to Plaintiffs’ Title VII and ADEA claims. The complaint makes
numerous vague allegations regarding administrative complaints that may or may not form the basis of
the current suit. (See 4th Am. Compl. ¶¶ 82–83 (alleging that Jiggetts’s complaints against Cipullo
were filed with the Clerk of the Court and with Cipullo himself); id. ¶ 98 (stating that, “[o]n or about
September 22, 2014, solely as a result of the culmination of Cipullo’s discriminatory, harassing,
abusive and retaliatory conduct as described herein, Jiggetts filed an EEOC Charge of
Discrimination”); id. ¶ 49 (asserting that “Cooper filed a bullying complaint against Cipullo regarding
[derogatory name-calling] and due to other abusive conduct” with an unnamed agency or department);
id. ¶ 6 (noting that “[o]n June 19, 2015, Cooper filed a Charge of Discrimination with the U.S. Equal
Employment Opportunity Commission”); id. ¶ 203 (stating that Cooper filed her EEO complaint on
June 25, 2014); id. ¶ 65 (referring to several complaints filed by African-American employees with
unspecified agencies at unspecified times); id. ¶ 51 (asserting that “Sonia Miranda . . . , a female
African-American Courtroom Clerk Trainer in the DC Superior Criminal Division filed an EEOC
complaint against Cipullo”).) But in the absence of clarity regarding which of these administrative
actions truly matters with respect to the claims that Plaintiffs are alleging in the instant case,
Defendants cannot possibly articulate an argument regarding administrative exhaustion.
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most counts fail to give any indication of the particular allegations that correspond to
the legal theories and claims that are alleged in the count at issue. (Id. ¶ 251; see also,
e.g., id. ¶¶ 265, 274, 282, 293, 304.) And this same core flaw appears in every one of
the amended pleadings that Plaintiffs have filed with this Court; that is, in each, the
reader must “guess at what factual allegations underpin each claim, making it difficult
to evaluate which, if any, show that Plaintiffs are entitled to relief.” (Defs.’ Mot. at 3.)
Count Ten in the Fourth Amended Complaint provides a clear illustration of the
complaint’s deficiencies in this regard. This count spans 21 paragraphs, and 18 of them
make muddled statements that indiscriminately assert different legal theories and that
only refer to the underlying facts in passing. By way of example, here are four of the
“claims” in Count Ten that pertain to Plaintiff Cooper:
355. Defendant District of Columbia discriminated against
Cooper based on her race (African-America), and/or sex (female) and/or
age (date of birth __/__/1954) in retaliation for her opposing an unlawful
discriminatory employment practice and for her engagement in protected
EEO activity when it failed to promote her.
356. Defendant District of Columbia discriminated against
Cooper based on her race (African-American), and/or sex (female) and/or
age (date of birth __/__/1954) for her engagement in protected EEO
activity when it failed to promote her.
357. Defendant District of Columbia discriminated against
Cooper based on her race (African-America), and/or sex (female) and/or
age (date of birth __/__/1954) in retaliation for her opposing an unlawful
discriminatory employment practice and for her engagement in protected
EEO activity when it failed to select her for the Special Proceedings
Branch and Quality Assurance Branch Chief positions.
358. Defendant District of Columbia discriminated against
Cooper based on her race (African-American), and/or sex (female) and/or
age (date of birth __/__/1954) for her engagement in protected EEO
activity when it failed to select her for the Special Proceedings Branch
and Quality Assurance Branch Chief positions.
15
(4th Am. Compl. ¶¶ 355–58.) Because each of these averments is vaguely worded,
nearly identical, and comes after 43 pages of facts that recount numerous events that
may (or may not) pertain to these claims, one cannot readily discern what claims are
being made in relation to what conduct, and more specifically, one does not know
whether Plaintiff Cooper is complaining about four different instances of a failure to
promote or alleging four distinct theories of liability with respect to a single failure-topromote event (i.e., her non-selection for the Special Proceedings Branch and Quality
Assurance Branch Chief positions). And this confusion regarding the events that are
being referenced is only the tip of the iceberg: each of these four repetitive paragraphs
regarding Cooper’s “non-selection” are almost indistinguishable, and appear to rest, at
least in part, on a theory of “retaliation” that is based on purported “EEO activity”
and/or “opposing an unlawful discriminatory employment practice” (id. ¶ 355), but
there are no allegations in the complaint that Cooper engaged in any EEO-related
activity or voiced her opposition to any practice before the alleged “non-selection” took
place. 5
The fact that there are multiple legal theories smooshed into each of the counts
merely muddles matters, and thereby exacerbates the lack-of-clarity problem. During
the February 11th hearing, the Court commented, with respect to the 12 separate
discrimination claims that appeared in the Third Amended Complaint, that if the same
facts underlay some the counts but the claim is being attributed to alternative motives
5
Cooper avers that she filed EEO complaints on two different dates (see 4th Am. Compl. ¶ 6 (stating
Cooper filed her EEO complaint on June 19, 2015); see also id. ¶ 203 (stating Cooper filed her EEO
complaint on June 25, 2014)), but both of these filings occurred after the alleged “non-selection” of
July 2013 (see id. ¶¶ 180–82), making it legally and factually impossible for the purported EEO
activities, which had not yet taken place, to be a motivating factor in Cipullo’s selection.
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for the allegedly discriminatory or retaliatory act (i.e., gender or race) then the counts
could be merged together, so long as the federal or state laws being asserted as the basis
for the claim share a common legal standard. (See Feb. 11, 2016 Hr’g Tr. at 4–5.)
Plaintiffs then apparently proceeded to merge the 12 discrimination-related counts into
only four counts in the Fourth Amended Complaint, but did not take care to analyze the
facts that give rise to each count or the legal standards upon which they turned. The
significance of this oversight cannot be overstated: Title VII and the ADEA, for
instance, have “materially different” burdens of persuasion, their legal standards are not
interchangeable, their statutory elements are not always coterminous, and notably, the
ADEA (unlike Title VII) does not “authorize[] a mixed-motives age discrimination
claim.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). And even with
respect to Title VII violations, the standards applicable to the various legal theories that
can underlie a Title VII claim can be incongruous: e.g., “race” and “gender”
discrimination can form the basis of a “mixed-motive” claim because they need only be
a “motivating factor” of the adverse employment action; however, retaliation must be
the “but-for” cause of the adverse act and thus cannot be brought as a mixed-motive
claim under Title VII. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2534 (2013). Thus, it is needlessly confusing to present all-in-one counts that purport
to seek relief for discrimination on the basis of age, race, and gender and retaliation.
(See, e.g., 4th Am. Compl. at 63 (Count Ten).)
These illustrations are among the many problems that exist with respect to all of
the counts in the Fourth Amended Complaint, and they amply demonstrate that, in its
current form, Plaintiffs’ Fourth Amended Complaint fails to provide sufficient notice of
17
the nature and grounds of Plaintiffs’ legal claims. Moreover, “[i]t is counsel’s
responsibility, not the Court’s, to organize th[e] information prior to the filing of a
complaint into the ‘clear and concise’ statements required by the Rules.” Chennareddy
v. Dodaro, 282 F.R.D. 9, 16 (D.D.C. 2012). And it is clear beyond cavil that “[a]
‘shotgun pleading’—one in which ‘it is virtually impossible to know which allegations
of fact are intended to support which claim(s) for relief’—does not comply with the
standards of Rule[] 8[.]” Kabbaj v. Obama, 568 F. App’x 875, 879 (11th Cir. 2014).
B.
Plaintiffs’ Apparent Belief That The Pleading Standards Require
Excessively Detailed Allegations Of Fact, Along With An
Indiscriminate Pack Of Potential Legal Theories, Is Mistaken
In opposition to Defendants’ motion to dismiss, Plaintiffs maintain that they
have “included all of the necessary facts” required in order to state a claim for relief
under the “heightened pleading requirement” detailed in Bell Atlantic Corporation v.
Twombly, 550 U.S. 544 (2007), and Iqbal v. Ashcroft, 556 U.S. 662 (2009). (Pls.’
Opp’n at 5.) But this Court finds, as others have before it, that distilling the facts into a
coherent recitation of essential information “would not have reduced [Plaintiffs’]
chances of success on the merits[.]” Ciralsky, 355 F.3d at 671. Indeed, in contrast to
Plaintiffs’ contentions, the Supreme Court’s decisions in Iqbal and Twombly clarify that
“[s]pecific facts are not necessary” in order to state a claim for relief; to the contrary,
the pleading need only “‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (emphasis
added) (quoting Twombly, 550 U.S. at 555); see also Iqbal, 556 U.S. at 678 (“[T]he
pleading standard Rule 8 announces does not require detailed factual allegations”
(internal quotation marks and citation omitted)). Thus, if Plaintiffs had taken steps to
18
pare down the complaint in compliance with Rule 8, instead of loading up their
pleading with every conceivable detail that related to any and all aspects of Plaintiffs’
employment, such edits would not necessarily have given rise to a successful
subsequent challenge by Defendants for failure to state a claim under Rule 12(b)(6), as
Plaintiffs maintain.
What is more, Plaintiffs’ suggestion that there is a tension between complying
with Rule 8 and stating a claim, such that including excessive detail is unavoidable, is
misguided. The Rules make clear that, as far as claims are concerned, form and
substance are two different things. Rule 8, which “requir[es] each averment of a
pleading to be simple, concise, and direct, applies to good claims as well as bad, and is
a basis for dismissal independent of Rule 12(b)(6).” Chennareddy, 282 F.R.D. at 16 n.6
(internal quotation marks omitted) (quoting McHenry, 84 F.3d at 1179). And, notably,
this Court expresses no opinion as to the viability of Plaintiffs’ allegations here. That
is, even if the counts in the Fourth Amended Complaint actually state a claim upon
which relief can be granted, “why should the court be obliged to try” to “navigate
through these papers” in order to make that determination? United States ex rel. Garst,
328 F.3d at 378. Rule 8(a)’s very purpose is to relieve the Court (and opposing
counsel) of that burden: it “requires parties to make their pleadings straightforward, so
that judges and adverse parties need not try to fish a gold coin from a bucket of mud.”
Id.
Plaintiffs are also wrong to contend that their claims are sufficiently clear
because Defendants “were able to prepare a table of allegations, setting out the factual
and legal basis for each claim,” and thus should be deemed to have “sufficient notice of
19
the factual allegations for each of the claims that the plaintiffs are seeking relief.”
(Pls.’ Opp’n at 5.) In this Court’s view, the fact that Defendants have done yeoman’s
work in trying to make sense of Plaintiffs’ impenetrable pleading does not mean their
chart is any less of an exercise in guesswork, nor does it relieve Plaintiffs of their Rule
8 responsibility of making their claims clear and concise. In any event, Defendants’
table merely lists various aspects of the Fourth Amended Complaint—(1) the count
numbers; (2) the underlying legal theories; (3) the statutory, constitutional, or common
law bases; (4) the Defendant who is accused of the alleged violation; and (5) the
Plaintiff that is seeking redress (see Defs.’ Mot. at 5–6)—and (despite its title) this
compilation does not really attempt to identify the “Factual Basis” for any given legal
count, let alone succeed in doing so (id. at 5).
C.
The Entire Action Will Be Dismissed Without Prejudice
Plaintiffs have already had myriad proverbial bites at the apple in this case—
each of which was unsuccessful, even after explicit instructions—and the Court does
not anticipate that any additional opportunities to amend the complaint will be
productive. Under these circumstances, when “determining whether a dismissal is
warranted, the court considers the effect of a plaintiff’s dilatory or contumacious
conduct on the court’s docket, whether the plaintiff’s behavior has prejudiced the
defendant, and whether deterrence is necessary to protect the integrity of the judicial
system.” Allen v. United States, 277 F.R.D. 221, 223 (D.D.C. 2011) (internal quotation
marks and citation omitted). And if the court opts to dismiss the lawsuit, it must
“explain why dismissal is warranted and why other measures are likely to be
20
ineffective.” Mikkilineni v. Penn Nat. Mut. Cas. Ins. Co., 271 F. Supp. 2d 151, 154–55
(D.D.C. 2003).
Here, the Court has decided to follow the well-established practice of dismissing
the case when a plaintiff has already been afforded the opportunity to amend her
pleading but has failed to cure the infirmities. See, e.g., Ciralsky, 355 F.3d at 669
(upholding the district court’s dismissal of the entire action without prejudice when the
defendant was given a prior opportunity to correct the error but his amended complaint
suffered from the same Rule 8 defects); Shallal, 254 F.R.D. at 140 (same); Burrell, 63
F. App’x at 589 (same); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (noting
the district court’s power “to dismiss a prolix complaint without leave to amend in
extraordinary circumstances, such as where leave to amend has previously been given
and the successive pleadings remain prolix and unintelligible”). Furthermore, this
Court finds that, given the lengthy procedural history of this case, any further
opportunity to amend would prove futile, see McHenry, 84 F.3d at 1178, and would
unfairly waste the defendants’ time and the Court’s resources, see United States ex rel.
Garst, 328 F.3d at 378 (“Federal judges have better things to do [than try to discern
unclear or disconnected claims], and the substantial subsidy of litigation (court costs do
not begin to cover the expense of the judiciary) should be targeted on those litigants
who take the preliminary steps to assemble a comprehensible claim.”). Plaintiffs have
“had a [number of] chance[s] to make meaningful modifications to their complaint and,
indeed, were given some advice about how to do so”; yet, it appears that they have
“squandered” these opportunities. Kuehl, 8 F.3d at 908.
21
Notably, the instant action will be dismissed without prejudice—a remedy that,
absent any statute of limitations issues, will permit Plaintiffs to file a new complaint
that complies with Rule 8 “in a separate action in this judicial district or as one or more
actions in other venues.” Mouzon v. Radiancy, Inc., 309 F.R.D. 60, 65 (D.D.C. 2015). 6
The Court notes that, “[b]ecause [Plaintiffs] may refile the same suit on the same claim,
dismissal without prejudice does not constitute such a harsh sanction and does not
foreclose a determination on the merits.” Sharif v. Wellness Int’l Network, Ltd., 376
F.3d 720, 725 (7th Cir. 2004); see also Ciralsky, 355 F.3d at 671 (finding that, while
dismissing a case with prejudice for failure to comply with Rule 8 would have been too
harsh a sanction, “there was nothing about [dismissing the action without prejudice]
that would have barred the plaintiff from correcting the complaint’s defects and filing a
new lawsuit” and thus doing so was an appropriate remedy); Brown, 1997 WL 362505
at *1 (affirming the district court’s dismissal of the entire case pursuant to Rule 8
because it did not preclude plaintiff “from filing a new complaint, so long as the
complaint provides a brief and clear statement limited to the claims that [she] seeks to
litigate”); Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492
F.3d 1158, 1162 (10th Cir. 2007) (“[D]ismiss[ing] a case without prejudice for failure
to comply with Rule 8 of course allows the plaintiff another go at trimming the
6
Plaintiffs have not informed this Court of any statute of limitations issues that could arise in a new
case. See Osborn v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015) (concluding that “[w]here, as . . .
here, a plaintiff has not notified the district court that a statute of limitations issue might bar the
plaintiff ‘from correcting the complaint’s defects and filing a new lawsuit,’ a dismissal of the case
without prejudice is not an abuse of discretion”), cert. granted, 136 S. Ct. 2543 (2016), and cert.
granted sub nom. Visa Inc. v. Stoumbos, 136 S. Ct. 2543 (2016), and cert. dismissed as improvidently
granted sub nom. Visa v. Osborn, No. 15-961, 2016 WL 6808590 (U.S. Nov. 17, 2016).
22
verbiage; [and] accordingly, a district court may, without abusing its discretion, enter
such an order without attention to any particular procedures.”).
IV.
CONCLUSION
This Court agrees with Defendants that Plaintiffs’ Fourth Amended Complaint
lacks brevity, conciseness, and clarity, and thus fails to provide “adequate notice of the
basis of Plaintiffs’ claims” in violation of the Federal Rules. (Defs.’ Mot. at 8.) The
unnecessary level of prolixity, detail, and disconnect within the facts and legal claims
make it impossible for this Court or Defendants’ counsel to proceed with this litigation
in any reasonable manner. See Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273,
1279 (11th Cir. 2006) (explaining that, “without any obvious means of connecting
Plaintiffs’ causes of action with the allegation underlying those causes, the court is
unable to determine whether Plaintiffs’ claims are meritorious” (quotation marks and
citation omitted)); Chennareddy, 282 F.R.D. at 16 (“Indeed, it is [precisely] because of
this lack of clarity and brevity that the Court is unable to determine whether there are
sufficient facts to state a claim for relief[.]”). The dismissal of this case without
prejudice, as set forth in the accompanying order, leaves open the opportunity for
Plaintiffs to simplify and clarify their pleading in a future lawsuit, and will permit the
presiding court to reach the merits of the sufficiency of the complaint’s allegations.
Ketanji Brown Jackson
DATE: January 13, 2017
KETANJI BROWN JACKSON
United States District Judge
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