WESTMORELAND OPPORTUNITY FUND, LLC v. ZAPPALA et al

Filing 118

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 12/15/15. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WESTMORELAND OPPORTUNITY
FUND,LLC,
Plaintiff,

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Civil Action No. 2:13-cv-00456

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v.

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RICHARD A. ZAPPALA, et al.,
Defendants.

U.S. District Judge Mark R. Hornak

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MEMORANDUM OPINION

Mark R. Hornak, United States District Judge

The Defendants have filed a Motion to Dismiss the Second Amended Complaint, ECF
No. 114, along with supporting briefs, ECF Nos. 115, 117. The Plaintiff opposes that Motion.
ECF No. 116. The Defendants contend that the Second Amended Complaint, ECF No. 113, fails
to plead plausible claims for relief, principally because the core paragraphs of that pleading,
Paragraphs 55 and 64, are conclusory in nature and therefore legally insufficient. They also
assert that the Plaintiff broke the rules by filing a Second Amended Complaint that was not a
mirror image of the proposed pleading that was attached to the Plaintiffs operative Motion for
Leave to file a Second Amended Complaint.
The Plaintiff responds by saying that the Second Amended Complaint is sufficiently
specific, and that the Defendants in any event know all about what the allegations of liability and
damages are given the robust record developed in summary judgment proceedings before Judge
Nora Barry Fischer and before this Court. They say that while the Second Amended Complaint
is not exactly what was proposed when leave to file it was sought more than a year ago, the
differences are not sufficiently material to create a problem. 1

1 Of note, the briefs filed as to this Motion contain mutual finger pointing and recitations of seemingly immaterial
assertions about the motives of the litigants and the lawyers. None of that has anything to do with the disposition of
the pending Motion to Dismiss, and has no bearing on the Court's disposition of these matters.

First, the Court concludes that the Defendants' arguments relative to the inadequacy of
the Second Amended Complaint are to a limited extent well-taken. While it is plain to the Court
that all of the lawyers and likely most (if not all) of the litigants know exactly what this case is
all about in terms of the claims and defenses of the parties and the factual predicates of these
arguments, that is not the standard for evaluating the adequacy of a principal pleading. In
particular, the essential, operative paragraphs of the Second Amended Complaint, Paragraphs 55
and 64, are conclusory, and essentially make either generalized allegations or simply recite what
are alleged to be the relevant provisions of an involved agreement.
On the one hand, contrary to the position of the Defendants, a plaintiff need not plead raw
evidence, nor every nook and cranny of its case. That is especially the case here where an
uncommonly hefty factual record has been developed in earlier proceedings in the case. By the
same token, federal civil pleading requires sufficient specificity to both provide notice of the
nature of a claim or defense to the opposing party, but also a basis for the Court to both assess
the plausibility of such matters and to understand and then patrol the contours of the case as the
litigation unfolds. 2 The Second Amended Complaint misses the mark as to the allegations of
those two referenced Paragraphs.
From the Court's perspective, contrary to the assertions of the Plaintiff, ECF No. 116 at
13, neither the Court nor a defendant is required or expected to engage in a scavenger hunt
through a record consisting of hundreds if not thousands of pages to identify the information that
would flesh out a pleading. That is the job of the pleader. Thus, even though it may well be that
the Defendants' Motion and supporting arguments doth protest too much that they do not know

The Plaintiff is simply incorrect when it intimates (or more accurately, comes out and says) that "surprise" is part
of federal civil practice. ECF No. 116 at 12. Not since the adoption of the Federal Rules of Civil Procedure and
their discovery provisions has that been the intended course of proceedings. Yes, surprises often occur in litigation,
but that is not the plan.

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the basis of the Plaintiffs claims given the extensive litigation of this matter to date, 3 in order for
at least the Court to have a clear demarcation of the scope, extent, and essential bases of the
claims and defenses going forward, the factual bases for the generalized allegations of
Paragraphs 55 and 64 need to be set forth in greater and more specific detail.
Second, as to the issue of the Second Amended Complaint as filed being different than
the form of that pleading attached to the Motion, the Defendants are correct that the better and
more proper course would have been for the Plaintiff to re-file its Motion for Leave to Amend
with the exact "new" version attached. The Plaintiff agrees. ECF No. 116 at 14. That said, the
Court can discern exactly no prejudice to the Defendants from proceeding from where we are
now, and given the stage of the case, the Court would have been virtually compelled to permit
the filing of the version of the Second Amended Complaint that was filed if the Court had been
asked to do so in advance.
The Motion to Dismiss is granted to the extent that the Second Amended Complaint is
dismissed without prejudice for the reasons set forth in this Memorandum Opinion. Because the
Court concludes that granting leave to amend would not be futile and is appropriate, the Plaintiff
will be granted leave to file a Third Amended Complaint on or before January 6, 2016. Any
response pursuant to Fed. R. Civ. P. 12 shall be filed within twenty-one (21) days thereafter.

s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: December 15, 2015
cc:
All counsel ofrecord

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Defendants do know enough to describe the results of Plaintiffs position on the merits as "improbable," ECF No.

115 at 2.

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