Vibe Micro, Inc. v. Igor Shabanets

Case: 16-15276 Date Filed: 01/03/2018 Page: 1 of 10

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-15276

________________________

D.C. Docket No. 9:15-cv-80999-DMM

VIBE MICRO, INC.,

a Nevada Corporation,

8 SPEED 8,

a foreign corporation,

EDWARD MANDEL,

an individual,

Plaintiffs - Appellants,

versus

IGOR SHABANETS,

an individual,

SIG CAPITAL, INC.,

a Florida corporation,

RAIN KIOSK, INC.,

a foreign corporation,

KARLA GUARINO,

an individual,

THOMAS PARKER,

an individual, et al.,

Defendants - Appellees.

Case: 16-15276 Date Filed: 01/03/2018 Page: 2 of 10

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 3, 2018)

Before WILSON and ROSENBAUM, Circuit Judges, and TITUS, * District Judge.

WILSON, Circuit Judge:

This appeal concerns the discretion of a district court to dismiss a complaint

on shotgun pleading grounds. Plaintiff Edward Mandel1 appeals the district court’s

dismissal with prejudice of his Second Amended Complaint (SAC). The district

court, lamenting the shotgun pleading nature of the First Amended Complaint

(FAC), had given Mandel—represented by counsel that failed to request leave to

amend—an opportunity to replead and a thorough set of directions on how to

remedy the errors in the FAC. When Mandel failed to do so in the SAC, and

perhaps even exacerbated the pleading issues, the district court dismissed the SAC

with prejudice on Rule 8 grounds. Mandel now argues that the district court was

powerless to do so, and that he deserves at least one more chance to replead. After

*

Honorable Roger W. Titus, United States District Judge for the District of Maryland, sitting by

designation.

1

Mandel controls Vibe Micro, Inc., another plaintiff. Mandel also purported to sue in a

derivative manner on behalf of 8 Speed 8, Inc. All three entities are appellants in this matter.

For simplicity, we refer to the plaintiffs collectively as Mandel.

2

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reviewing the record and briefs, and with the benefit of oral argument, we affirm

on most issues, but remand in a limited manner with respect to the state law claims.

I.

After allegedly being the victim of a scheme to force him off the board of a

bill payment terminal company, Edward Mandel sued numerous defendants in the

Southern District of Florida. Represented by counsel, he filed a six-count original

complaint (OC), alleging breach of fiduciary duty, civil conspiracy, and violations

of the RICO statute. The OC spanned 49 pages, with 109 pages of exhibits.2

Amending once as of right, Mandel, still represented by counsel, filed the FAC,

which had grown to 56 pages and 168 pages of exhibits.

The FAC was “a mostly incoherent document” containing “duplicative,”

“inconsistent,” and “wholly conclusory” allegations in paragraphs that spanned

multiple pages. Vibe Micro v. Shabanets, No. 15-cv-80999, 2015 WL 11438937,

at *4 (S.D. Fla. Dec. 4, 2015), ECF No. 97. Its allegations were “oftentimes not

connected to a particular Defendant or set of Defendants, making it impossible to

understand who did what.” Id. In light of these deficiencies, several defendants

filed motions to dismiss. Mandel never requested leave to amend the FAC, either

in his responses to the motions to dismiss or anywhere else.

2

Our detailing of the length of Mandel’s complaints should not be construed as an indictment

against all long complaints. Rather, the recitation here serves as one illustration of the shotgun

nature of the pleadings in this case. Mandel admits on appeal that the final complaint remained a

shotgun pleading.

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The district court dismissed the FAC without prejudice for violating Rule 8.3

Making an “attempt[] to understand the alleged facts, to the extent possible,”

however, the district court enumerated several deficiencies in the FAC, and stated

that Mandel “must cure” them in a SAC if he wished for the case to continue. Id.

This 15 page order dismissing the FAC thoroughly explained how to improve the

pleadings through a SAC, and the district court sua sponte allowed Mandel to file a

SAC within 10 days.

Unfortunately, the SAC did not improve. It ballooned to 70 pages, with 160

pages of exhibits. The “allegations remain[ed] duplicative,” it “continue[d] to

contain labeling and numerical inconsistencies,” and it “continue[d] to fail to

provide even minimal notice to the individual Defendants as to what conduct they

are alleged to have participated in.” Vibe Micro, Inc. v. Shabanets, No. 15-cv-

80999, 2016 WL 4256915, at *1–2 (S.D. Fla. July 19, 2016), ECF No. 146. Once

again, several defendants filed motions to dismiss, and, once again, Mandel—still

represented by counsel—did not request leave to amend his pleading.4

The district court found that the SAC was “a ‘shot gun’ pleading of the sort

the Eleventh Circuit ‘has been roundly, repeatedly, and consistently condemning

3

See Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the

pleader is entitled to relief”).

4

Mandel argues that his request for “further relief . . . that the Court deems fair, just and

equitable” in his response to a motion to dismiss somehow was tantamount to a request for leave

to amend. We reject this argument.

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for years,’” and that its “[m]aterial allegations, if there are any, [were] ‘buried

beneath innumerable pages of rambling irrelevancies,’ making no distinction

between the defendants engaged in the various alleged acts.” Id. at *2 (citations

omitted). Finding that it violated Rule 8, the district court dismissed the SAC with

prejudice. After this order dismissing the SAC, Mandel did not file any motions

and did not make any requests for leave to amend. Rather, he simply appealed the

order.

On appeal, Mandel admits that the SAC “had not fixed all of the shot-gun

pleading problems that resulted in the dismissal of the FAC,” but argues that he

deserves “at least one additional opportunity to fix the pleading problems.” The

thrust of his argument is that a district court can never dismiss a pleading with

prejudice on Rule 8 shotgun pleading grounds unless it finds evidence of bad faith.

We disagree.

II.

We review a dismissal on Rule 8 shotgun pleading grounds for an abuse of

discretion. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1320

(11th Cir. 2015). Shotgun pleadings violate Rule 8, which requires “a short and

plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.

Civ. P. 8(a)(2), by “fail[ing] to one degree or another . . . to give the defendants

adequate notice of the claims against them and the grounds upon which each claim

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rests.” Weiland, 792 F.3d at 1323 (defining the four types of shotgun pleadings).

Courts in the Eleventh Circuit have little tolerance for shotgun pleadings. See

generally Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979–80 & n.54

(11th Cir. 2008) (collecting numerous cases), abrogated on other grounds by Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). They waste scarce

judicial resources, “inexorably broaden[] the scope of discovery,” “wreak havoc on

appellate court dockets,” and “undermine[] the public’s respect for the courts.” Id.

at 981–83 (detailing the “unacceptable consequences of shotgun pleading”).

A district court has the “inherent authority to control its docket and ensure

the prompt resolution of lawsuits,” which includes the ability to dismiss a

complaint on shotgun pleading grounds. Weiland, 792 F.3d at 1320. In the special

circumstance of non-merits dismissals on shotgun pleading grounds, we have

required district courts to sua sponte allow a litigant one chance to remedy such

deficiencies. See, e.g., Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273,

1280 (11th Cir. 2006); Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001),

abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S.

639, 128 S. Ct. 2131 (2008); Magluta v. Samples, 256 F.3d 1282, 1284–85 (11th

Cir. 2001) (per curiam). In these cases, even if the parties do not request it, the

district court “should strike the complaint and instruct counsel to replead the

case—if counsel could in good faith make the representations required by Fed. R.

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Civ. P. 11(b).” Byrne, 261 F.3d at 1133 n.113 (alterations adopted) (quoting

Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)). This initial repleading

order comes with an implicit “notion that if the plaintiff fails to comply with the

court’s order—by filing a repleader with the same deficiency—the court should

strike his pleading or, depending on the circumstances, dismiss his case and

consider the imposition of monetary sanctions.” Id. at 1133.

However, this rule does not extend indefinitely. We have held that a

“district court is not required to grant a plaintiff leave to amend his complaint sua

sponte when the plaintiff, who is represented by counsel, never filed a motion to

amend nor requested leave to amend before the district court.” Wagner v. Daewoo

Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). We

specifically adopted this rule in Daewoo’s Rule 12(b)(6) context to prevent

litigants from getting “two bites at the apple” when appealing final orders of the

district court. Id. at 543. Under our pre-Daewoo rule,5 the appellant achieved

success on a Rule 12(b)(6) appeal whether we reversed or affirmed: if we

reversed, the appellant won on the merits of his appeal; if we affirmed, the

appellant received another chance to replead without ever having to ask the district

court for one. Id. Interpreting Daewoo in a shotgun pleading context, we have

5

See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam) (“Where a more carefully

drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the

complaint before the district court dismisses the action with prejudice.”), overruled by Daewoo,

314 F.3d at 541.

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noted that the case “recognizes the potential for abuse that follows allowing

plaintiffs to appeal dismissed complaints as long as the district court freely permits

amendment.” First Horizon, 464 F.3d at 1280 n.7.

Reading these cases together, we hold the following: When a litigant files a

shotgun pleading, is represented by counsel, and fails to request leave to amend, a

district court must sua sponte give him one chance to replead before dismissing his

case with prejudice on non-merits shotgun pleading grounds. 6 In the repleading

order, the district court should explain how the offending pleading violates the

shotgun pleading rule so that the party may properly avoid future shotgun

pleadings. Although the Byrne line of cases requires one sua sponte chance to

amend a shotgun pleading, Daewoo operates in the background. After that one

Byrne opportunity to replead comes and goes, Daewoo’s rule operates to allow the

district court to dismiss with prejudice if the party has still neither filed a compliant

pleading nor asked for leave to amend. See First Horizon, 464 F.3d at 1280 n.7

(construing Daewoo in a shotgun pleading context). This holding “ensures that the

issues get defined at the earliest stages of litigation,” Byrne, 261 F.3d at 1133

n.113, while also weighing the important concerns upon which Daewoo rested,

including judicial efficiency, finality, and limiting lengthy delays or abuse of the

courts. See Daewoo, 314 F.3d at 542–44.

6

Here, as in Daewoo, we “decide and intimate nothing about a party proceeding pro se.”

Daewoo, 314 F.3d at 542 n.1.

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In this case, the district court sua sponte gave Mandel a chance to replead

and remedy his shotgun pleading issues, and provided him with a veritable

instruction manual on how to do so. Mandel did not fix the problem. Since he

admits on appeal that the complaint at issue remained a shotgun pleading, the

district court could not have abused its discretion in dismissing it on shotgun

pleading grounds. Further, he did not ask the district court for leave to amend, and

the district court was not required to sua sponte give him any additional chances to

remedy the Rule 8 violations. Therefore, we affirm the district court’s dismissal

with prejudice of the federal claims in the SAC.

III.

When all federal claims are dismissed before trial, a district court should

typically dismiss the pendant state claims as well. See United Mine Workers of

Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966); see also Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7, 108 S. Ct. 614, 619 & n.7 (1988)

(“[I]n the usual case in which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the pendant jurisdiction doctrine—

judicial economy, convenience, fairness, and comity—will point toward declining

to exercise jurisdiction over the remaining state-law claims.”). Although it is

possible for the district court to continue to exercise supplemental jurisdiction over

these pendant claims, Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342,

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1352 (11th Cir. 1997), if the district court instead chooses to dismiss the state law

claims, it usually should do so without prejudice as to refiling in state court.

Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999).

We find that to be particularly the case where, as here, the dismissal occurs

without any analysis of the merits of the state claims. The district court dismissed

the entire SAC with prejudice on non-merits Rule 8 grounds. However, to

whatever extent that the SAC includes state law claims, the dismissal should have

been without prejudice as to refiling in state court. Therefore, we remand for the

limited purpose of clarifying the order in this respect.

IV.

Mandel is not entitled to another chance to replead. The district court sua

sponte gave him an opportunity to correct the shotgun pleading issues in his

complaint, and provided him with specific instructions on how to properly do so.

He did not fix it. We will not adopt a rule requiring district courts to endure

endless shotgun pleadings. Therefore, although we remand for the limited purpose

of clarifying that the dismissal of the state law claims is without prejudice as to

refiling in state court, we affirm on all other issues.

AFFIRMED IN PART, LIMITED REMAND IN PART.

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