The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOHN S. VANDERBOL III, ET AL. §
§
v. § CIVIL NO. 4:19-CV-119-SDJ
§
STATE FARM MUTUAL AUTO §
INSURANCE COMPANY, ET AL. §
MEMORANDUM ADOPTING IN PART REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in
this action, this matter having been heretofore referred to the magistrate judge
pursuant to 28 U.S.C. § 636. On September 1, 2020, the magistrate judge entered
proposed findings of fact and recommendations, (Dkt. #158) (the “Report”), that the
Motion to Dismiss Plaintiffs’ Third Amended Complaint and Brief in Support,
(Dkt. #106), filed by Defendants State Farm Mutual Automobile Insurance Company,
State Farm Fire and Casualty Company, Michael Tipsord, Jon Charles Farney,
Randall Houston Harbert, Paul Joseph Smith, and Stephen Michael Wey be granted.
Plaintiffs John S. Vanderbol III and Erica Quinn filed objections to the Report,
(Dkt. #161) (the “Objections”),1 and Defendants filed a response to the Objections,
1 Plaintiffs also filed a Motion for Leave to File a Brief in Support with Plaintiffs’
Objection to the Magistrate Judge’s Report and Recommendation, (Dkt. #160) (the “Motion
for Leave”), wherein Plaintiffs argue that “there are so many errors, omissions, miscites, and
erroneous conclusions, the local rule’s page limitation places an undue burden on the
Plaintiffs.” Plaintiffs ask that the Court consider Plaintiffs’ twenty-six-page Brief in Support,
(Dkt. #161-1), in addition to their Objections. (Dkt. #160). Further, Plaintiffs appear to
request oral argument on their Motion for Leave and their Objections. See (Dkt. #160).
Defendants argue that Plaintiffs’ Motion for Leave should be denied because the Brief in
Support fails to assert a valid basis for finding error in the magistrate’s judge’s Report,
represents an attempt to “pile even more paper” onto the record, and contains accusations
(Dkt. #166). The Court, having reviewed the Report and considered de novo the
Objections, is of the opinion that the findings, reasoning, and conclusions of the
magistrate judge with respect to Rule 8, (Dkt. #158 at 7–11), are correct and that the
Objections to the Report are without merit. The Court therefore adopts in part the
findings, reasoning, and conclusion of the magistrate judge, including only the
introduction, (Dkt. #158 at 1), the factual and procedural background, (Dkt. #158 at
1–4), and the discussion section concerning Rule 8, (Dkt. #158 at 7–11), which is
dispositive of the instant litigation.
I. BACKGROUND
The factual allegations in this case are set out in further detail by the
magistrate judge in the Report and are not reproduced here in their entirety. In their
Third Amended Complaint, Plaintiffs brought claims against Defendants for alleged
violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, the
Texas Deceptive Trade Practices Act (“DTPA”), and fraudulent inducement.
(Dkt. #134). Plaintiffs generally allege that Defendants participated in various fraud
schemes associated with their promoting and selling insurance policies, causing
Plaintiffs’ damages. See generally (Dkt. #134).
Plaintiffs John S. Vanderbol III and Erica Quinn, proceeding pro se, each filed
suit against Defendants State Farm Fire and Casualty Company (“State Farm Fire”)
against the Court. See (Dkt. #168). Upon review of the Objections and the Brief in Support,
the Court notes that Plaintiffs object to only some of the magistrate judge’s findings in their
Brief in Support. See (Dkt. #161, #161-1). Out of an abundance of caution, the Court will
consider, where necessary, the objections contained in Plaintiffs’ Brief in Support. However,
the Court declines to hear oral argument on Plaintiffs’ Objections. Accordingly, Plaintiffs’
Motion for Leave, (Dkt. #160), is GRANTED in part and DENIED in part.
and State Farm Mutual Auto Insurance Company (“State Farm Auto”) on
February 13, 2019. (Dkt. #1; Case No. 4:19-CV-120, Dkt. #1). Plaintiffs’ original
Complaints were each forty-five pages in length and contained over 125 pages of
attachments. (Dkt. #1; Case No. 4:19-CV-120, Dkt. #1). On April 2, 2019, Defendants
State Farm Fire and State Farm Auto filed a motion to dismiss in each of Plaintiffs’
suits, and both Vanderbol and Quinn filed thirty-one-page First Amended Complaints
on April 23, 2019. (Dkt. #9, #15; Case No. 4:19-CV-120, Dkt. #9, #15). Defendants
State Farm Fire and State Farm Auto then filed their second motion to dismiss in
Vanderbol’s and Quinn’s respective suits on May 3, 2019. (Dkt. #18; Case No. 4:19-
CV-120, Dkt. #18). On May 31, 2019, Vanderbol and Quinn each filed a motion for
sanctions against Defendants State Farm Auto and State Farm Fire based on
Defendants’ filing of the motions to dismiss. (Dkt. #26; Case No. 4:19-CV-120,
Dkt. #27). On June 7, 2019, Defendants State Farm Auto and State Farm Fire moved
to have Vanderbol declared a vexatious litigant. (Dkt. #27).
On June 17, 2019, the magistrate judge consolidated Plaintiffs’ suits,
(Dkt. #33), denied Plaintiffs’ motions for sanctions, (Dkt. #36, #45), and denied
Defendants’ motion to declare Vanderbol a vexatious litigant, while warning
Vanderbol that “sanctions may be imposed for any future vexatious, duplicative, or
harassing conduct or filings.” (Dkt. #47, #51).
On July 3, 2019, Plaintiffs then filed their seventy-one-page Second Amended
Complaint, (Dkt. #39), with over 200 pages of exhibits. (Dkt. #47, #51). On July 12,
2019, Defendants State Farm Fire and State Farm Auto filed their third Motion to
Dismiss, (Dkt. #43), and on September 19, 2019, the Individual Defendants filed their
motion to dismiss, (Dkt. #72). Plaintiffs responded by filing a seventy-page “Rule 12.1
Civil RICO Case Statement,” (Dkt. #73), and 158-page “Plaintiffs’ 1st Amended Rule
12.1 Civil RICO Case Statement,” (Dkt. #89), seeking to supplement their Second
Amended Complaint.
On September 5, 2019, Defendants then filed a Motion for Sanctions,
(Dkt. #67), alleging that Plaintiffs continued to make unsubstantiated criminal
accusations against Defendants’ counsel in filings with the Court. Plaintiffs then filed
a motion to disqualify Defendants’ counsel, (Dkt. #77), arguing that Defendants’
counsel were participants in Defendants’ alleged fraud scheme. On October 9, 2019,
Defendants filed a Motion to Strike Plaintiffs’ Rule 12.1 Civil RICO Case Statement.
(Dkt. #83).
On November 4, 2019, the magistrate judge held a hearing to address the
parties’ various pending motions. (Dkt. #91). During the hearing, the magistrate
judge discussed allowing Plaintiffs to amend their complaint for a third and final time
and expressly warned Plaintiffs that they needed to state their claims “succinctly.”
(Dkt. #96). The magistrate judge then entered an order, (Dkt. #92), directing
Plaintiffs to file their Third Amended Complaint by November 21, 2019, and to
incorporate the arguments set forth in Plaintiffs’ Rule 12.1 Civil RICO Case
Statements within their Third Amended Complaint. The magistrate judge denied
Defendants’ motion for sanctions because Plaintiffs agreed to withdraw their filings
containing personal attacks against Defendants’ counsel, but the Court again warned
Plaintiffs that future bad acts or personal attacks against opposing counsel would not
be tolerated. (Dkt. #95, #104). The magistrate judge also denied Plaintiffs’ motion to
disqualify Defendants’ counsel. (Dkt. #97).
On November 21, 2019, Plaintiffs filed their Third Amended Complaint.
(Dkt. #99). Plaintiffs’ Third Amended Complaint is 383 pages long, with a thirty-five-
page brief in support and twenty-six additional pages of exhibits. (Dkt. #99, #99-1,
#99-2, #99-3, #99-4, #99-5, #99-6, #99-7, #99-8, #99-9). On November 27, 2019,
Plaintiffs again filed a Rule 12.1 Civil RICO Case Statement, (Dkt. #102), which is
128 pages in length. Citing an improperly added party, the Court ordered Plaintiffs
to refile their Third Amended Complaint without any references to State Farm Lloyds
as a defendant in this matter by February 11, 2020. (Dkt. #123). Plaintiffs failed to
file their corrected Third Amended Complaint until April 6, 2020.2 (Dkt. #134).
On July 21, 2020, the magistrate judge heard oral argument, (Dkt. #153), on
the pending motions, including Defendants’ most recent Motion to Dismiss,
(Dkt. #106), and, on September 1, 2020, the magistrate judge entered the Report,
(Dkt. #158), recommending that Defendants’ motion to dismiss be granted and that
Plaintiffs’ claims be dismissed.
2 Plaintiffs filed a Motion for Relief Due to Excusable Neglect, (Dkt. #132), on
March 30, 2020, asking the Court to deem Plaintiffs’ redacted Third Amended Complaint as
timely filed. The magistrate judge granted Plaintiffs’ Motion for Relief Due to Excusable
Neglect on July 21, 2020. (Dkt. #154).
II. DISCUSSION
The Report addresses in turn each of Plaintiffs’ distinct legal claims—which
arise out of RICO, the DTPA, and common-law fraudulent inducement—and whether
Plaintiff has adequately pleaded each claim individually. See (Dkt. #158 at 11–32).
The Report concludes, among other findings,3 that Plaintiffs’ Third Amended
Complaint fails to comply with Federal Rule of Civil Procedure 8 because the
Complaint is too long, verbose, and confusing to constitute a “short and plain
statement of the claim,” as required by Rule 8. (Dkt. #158 at 7–11). Plaintiffs contend,
among other objections, that the Third Amended Complaint is not confusing and that
the Court failed to warn Plaintiffs of the need to comply with Rule 8. See (Dkt. #161-1
at 14–15). For the reasons provided below, this order adopts the Report only in part,
dismissing Plaintiffs’ Complaint in its entirety solely on the basis of the pleadings’
violation of Rule 8. See (Dkt. #158 at 7–11).
Federal Rule of Civil Procedure 8 requires that a complaint contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief,” FED. R. CIV. P. 8(a)(2), “and that each averment be ‘concise, and
direct,’” FED. R. CIV. P. 8(e)(1). Scibelli v. Lebanon County, 219 F.App’x 221, 222
(3d Cir. 2007). Courts have held that the “underlying purpose of Rule 8” is to
“[e]liminate prolixity in pleading and to achieve brevity, simplicity, and
3 In addition to recommending the dismissal of Plaintiffs’ Third Amended Complaint
as violating Rule 8, the Report, relying on Rules 8, 9, and 12(b), concludes that each of
Plaintiffs’ claims—arising out of RICO, the DTPA, and common-law fraudulent
inducement—should be dismissed as inadequately pleaded. See generally (Dkt. #158). As
explained herein, of the Report’s recommended dispositions, this Order adopts only the
Report’s conclusions regarding Rule 8.
clarity.” Gordon v. Green, 602 F.2d 743, 746 (5th Cir. 1979) (quoting Knox v. First Sec.
Bank of Utah, 196 F.2d 112, 117 (10th Cir. 1952)). Accordingly, when a complaint “is
not only of an unwieldy length, but . . . also largely unintelligible,” Stephanatos v.
Cohen, 236 F.App’x 785, 787 (3d Cir. 2007), courts in this Circuit—including this
Court—have deemed the complaint’s dismissal under Rule 8 appropriate. See, e.g.,
Rogers v. Penland, No. 9:03-CV-160, 2004 WL 7330261, at *13 (E.D. Tex. Jul. 28,
2004) (dismissing an eighty-page counterclaim for violating Rule 8); Jaser v. AT&T
Servs. Inc., No. 3:18-CV-3429, 2020 WL 1329151, at *5 (N.D. Tex. Mar. 23, 2020)
(dismissing a 180-page complaint because it was excessively lengthy and repetitious
and thus in violation of Rule 8); Kulksdahl v. Loyola Univ. New Orleans, No. 16-2990,
2016 WL 4261732, *1–2 (E.D. La. Aug. 12, 2016) (dismissing a 130-page complaint
because it was comprised of “rambling, scattered arguments and factual allegations
which unquestionably” violated Rule 8 (citing Gordon, 602 F.2d at 745–76)).
And while the complaint of a pro se litigant is held to “less stringent standards
than formal pleadings drafted by lawyers,” Johnson v. Dodson, No. 2:14–CV–00059,
2014 WL 4513380, at *3 (N.D. Tex. Sept. 12, 2014) (quoting Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002)), “[a] litigant’s pro se status” does not excuse
him or her “for lack of knowledge of the Rules of Civil Procedure.” Thrasher v. City of
Amarillo, 709 F.3d 509, 512 (5th Cir. 2013) (internal citations omitted). Additionally,
district courts enjoy “great leeway in determining whether a party has complied with
Rule 8.” Barnes v. Tumlinson, 597 F.App’x. 798, 799 (5th Cir. 2015) (per curiam)
(quoting Gordon, 602 F.2d at 745).
Further, while a Rule 8 dismissal is normally without prejudice, Bennett-
Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005), “a dismissal with
prejudice [is] warranted” where the Complaint is “of an unwieldy length” and “largely
unintelligible.” Stephanatos, 236 F.App’x at 787; see also 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1217, at 34 (3d ed. 2004) (citing
U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 376–77 (7th Cir. 2003)
(Easterbrook, J.), cert. denied, 540 U.S. 968, 124 S.Ct. 450, 157 L.Ed.2d 313 (2003)
(after three amended complaints plus one “more definite statement,” none of which
satisfied Rule 8(a) or 9(b), dismissal with prejudice was warranted); Strunk v. United
States House of Representatives, 68 F.App’x 233, 235 (2d Cir. 2003) (dismissal with
prejudice was proper where prior leave to amend was extended generously and
successive pleadings remained prolix and unintelligible)).
Here, while Plaintiffs contend that the Third Amended Complaint is formatted
in a linear manner and is therefore not confusing, (Dkt. #161-1 at 13–15), the Court
disagrees. The 383-page Third Amended Complaint clearly runs afoul of Rule 8, as it
is excessively prolix and thus prejudices both Defendants and the Court. See, e.g.,
(Dkt. #96 at 16–17). As the Report and this Order note, many and much shorter
pleadings—presented in a similarly repetitious, verbose, and confusing manner—
have been deemed to violate Rule 8’s “short-and-plain-statement” directive. See supra
pp. 6–7; (Dkt. #158 at 8–9). Additionally, like in Strunk and Garst, Plaintiffs had
numerous opportunities to replead in this case and were urged (to no avail) to do so
more succinctly. See, e.g., (Dkt. #96 at 3, 5, 18). In particular, Plaintiffs’ Second
Amended Complaint, (Dkt. #39), was seventy-one pages with 220 pages of attached
exhibits. The magistrate judge expressly warned Plaintiffs that their claims, as
pleaded in the Second Amended Complaint, (Dkt. #39), were “not succinctly stated or
properly pled.” (Dkt. #96 at 3), and that Plaintiffs would be afforded one additional
opportunity to amend before the Court would decide on Defendants’ motion to
dismiss. (Dkt. #96 at 5).
Nevertheless, Plaintiffs’ Third Amended Complaint spans 383 pages of largely
single-spaced allegations, (Dkt. #134), which is longer and more repetitious still than
each of their prior pleadings. Thus, Plaintiffs flatly declined to heed the Court’s
warnings. For this and the reasons detailed in the Report, (Dkt. #158 at 7–11),
Plaintiffs’ Third Amended Complaint is dismissed with prejudice under Rule 8. The
Court hereby adopts the Report’s findings, reasoning, and conclusions regarding
Rule 8, (Dkt. #158 at 7–11), and responds below to Plaintiffs’ objections thereto.
In their Objections, Plaintiffs fail to distinguish the facts of the instant
litigation from the case law cited in the Report, which establishes that shorter (and
similarly undigestible) pleadings than Plaintiffs’ Third Amended Complaint have
been held by courts to violate Rule 8. (Dkt. #158 at 9). Additionally, Plaintiffs fail to
present case law where, in analogous instances, courts deemed a complaint of similar
nature and length acceptable under Rule 8.
Plaintiffs further contend that Rule 8 should be read together with Rule 9—
which imposes heightened pleading requirements for certain claims—to allow for
Plaintiffs’ lengthy pleadings. (Dkt. #161-1 at 16). However, Rule 9(b)’s requirement
that fraud be pleaded with particularity “does not give [litigants] license to evade the
less rigid—though still operative—strictures of Rule 8.” Ashcroft v. Iqbal, 556 U.S.
662, 686–87, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rule 9 thus cannot rescue a
complaint that is plainly violative of Rule 8.
Finally, Plaintiffs claim, in objecting to the Report, that the magistrate judge
did not actually warn Plaintiffs against violating Rule 8. (Dkt. #161-1 at 15).
Plaintiffs’ contention is both immaterial and erroneous. First, the magistrate judge
is not required to expressly warn Plaintiffs to comply with the Federal Rules of Civil
Procedure, as compliance is expected, and as “[p]ro se litigants are not exempt from
compliance with the rules of procedure.” Beard v. Experian Info. Sols., Inc., 214
F.App’x 459, 462 (5th Cir. 2007) (per curiam). Second, Plaintiffs cannot credibly
allege surprise as they were aware of, and even responded to, Defendants’ Rule 8
challenge on more than one occasion. See, e.g., (Dkt. #24 at 11; Dkt. #46-1 at 12;
Dkt. #106 at 14). Finally, the magistrate judge warned Plaintiffs at the hearing on
November 4, 2019, that their claims, as pleaded in Plaintiffs’ Second Amended
Complaint, (Dkt. #39), were “not succinctly stated or properly pled.” (Dkt. #96 at 3).
In view of the facts and law provided above, Plaintiffs’ Objections regarding Rule 8
are OVERRULED.4
4 In their Brief in Support, Plaintiffs accuse the magistrate court of attacking the
length of Plaintiffs’ Third Amended Complaint by “rolling their eyes in bias alleging the
Plaintiffs to be ‘vexatious’ and ‘crazy.’” (Dkt. #161-1 at 5, 5 n.14). The Court rejects Plaintiffs’
reckless and unfounded suggestion of bias on the part of the magistrate court. No bias
towards Plaintiffs appears anywhere in the record of this case.
III. CONCLUSION
Based on the foregoing, the Report, (Dkt. #158), is hereby adopted in part.
Specifically, the Court adopts the Report’s introduction, (Dkt. #158 at 1), the factual
and procedural background, (Dkt. #158 at 1–4), and the discussion section concerning
Rule 8, (Dkt. #158 at 7–11), which is dispositive of the instant litigation.
It is therefore ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Third
Amended Complaint and Brief in Support, (Dkt. #106), is hereby GRANTED, and
Plaintiffs’ claims are DISMISSED with prejudice.
It is further ORDERED that Plaintiffs’ Objections, (Dkt. #161), are
OVERRULED.
It is further ORDERED that all pending motions or relief not previously
granted are hereby DENIED.