Plumbers & Pipefitters Local Union 630 Welfare Fund v. Glaxosmithkline LLC

USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 1 of 20

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10335

____________________

IN RE: ZANTAC (RANITIDINE)

PRODUCTS LIABILITY

LITIGAION

___________________________________________________

____

PLUMBERS & PIPEFITTERS LOCAL UNION 630

WELFARE FUND,

Plaintiff-Appellant,

versus

GLAXOSMITHKLINE LLC,

GLAXOSMITHKLINE (AMERICA) INC.,

GLAXOSMITHKLINE PLC,

BOEHRINGER INGELHEIM PHARMACEUTICALS, INC.,

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2 Opinion of the Court 21-10335

BOEHRINGER INGELHEIM CORPORATION, et. al.,

Defendants-Appellees,

PAR PHARMACEUTICALS, INC.,

Defendant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:20-md-02924-RLR

____________________

Before JORDAN and LAGOA, Circuit Judges.*

PER CURIAM:

This appeal involves the dismissal of one of the master com-

plaints in In re Zantac (Ranitidine), MDL No. 2924. That complaint

was described below as the Consolidated Third-Party Payor Class

Complaint, and we will refer to it as the CTPPCC here.

* After oral argument, Judge Luck recused himself from this case. This opinion

is therefore issued by a quorum. See 28 U.S.C. § 46(d); 11th Cir. R. 34-2.

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21-10335 Opinion of the Court 3

I

Three plaintiffs—Plumbers & Pipefitters Local Union 630,

the NECA-IBEW Welfare Trust Fund, and the Indiana Laborers

Welfare Fund—filed the CTPPCC.

Asserting a number of claims, the CTPPCC plaintiffs sued a

number of defendants on behalf of numerous purported nation-

wide and state classes. They alleged that they provide eligible

members with health and welfare benefits, including the payment

of and reimbursement for prescription drugs on behalf of their

members (and their dependents). Those members filled prescrip-

tions requiring reimbursement for Zantac and ranitidine products

in several states.

The CTPPCC divided the defendants into two main groups:

(a) the brand-name manufacturer defendants (who manufactured

and sold Zantac); and (b) the generic manufacturer defendants

(who manufactured and sold generic versions of Zantac containing

ranitidine as an active ingredient). The CTPPCC contained nine

claims: Count 1, a claim under the Racketeer Influence and Cor-

rupt Organizations (RICO) Act, was asserted against the brand-

name manufacturer defendants on behalf of nationwide and state

classes. Counts 2–9 (claims for breach of express warranties, breach

of implied warranties, violations of the Magnuson-Moss Warranty

Act, fraud, negligent misrepresentation and omission, violations of

state consumer protection laws, unjust enrichment, and

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4 Opinion of the Court 21-10335

negligence) were asserted against the generic manufacturer de-

fendants and GlaxoSmithKline on behalf of a nationwide class. 1

A number of defendants moved to dismiss the CTPPCC.

One of the grounds they asserted for dismissal was that the

CTPPCC constituted an impermissible shotgun pleading under

Eleventh Circuit law. The district court agreed with the defendants

on this point, ruled that the CTPPCC was indeed a shotgun plead-

ing, and dismissed it without prejudice and with leave to amend.

See D.E. 2515 at 13 (summary of ruling: “The Court concludes that

the Class Complaints [including the CTPPCC] are both impermis-

sible shotgun pleadings. . . . [T]he Class Complaints are dismissed

without prejudice and with leave to amend.”); D.E. 2515 at 54 (dis-

missing the CTPPCC without prejudice and with leave to amend).

With respect to its shotgun pleading ruling, the district court

explained that the CTPPCC, like other class complaints filed in the

MDL, suffered from two problems. First, it lumped 67 related and

unrelated defendants across two groups, thereby creating confu-

sion and failing to provide a factual basis to distinguish the conduct

of individual defendants. See id. at 22. Second, it incorporated 519

background and factual paragraphs into every count, forcing the

defendants to sift out irrelevant matters and making it virtually im-

possible to know which factual allegations were intended to sup-

port which claims for relief. See id. at 22–23. The court noted that

1 Giventhe procedural basis for our decision, we dispense with further details

concerning the claims asserted by the CTPPCC plaintiffs.

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21-10335 Opinion of the Court 5

its ruling might lead to longer class complaints but said that it could

not permit pleadings that did not comply with Rule 8, provided in-

adequate notice, and unduly burdened the parties. See id. at 23. It

expressed confidence that the plaintiffs, including the CTPPCC

plaintiffs, could replead with precision given its rulings and the ben-

efit of some discovery since the filing of the class complaints. See

id.

The district court explained that it could not definitively rule

on some of the standing questions because of the shotgun pleading

problems presented by the CTPPCC. See id. at 23–24. Neverthe-

less, it resolved some of the standing issues. For example, it ruled

that the named class plaintiffs—including the CTPPCC plaintiffs—

lacked standing to assert claims on behalf of putative class members

whose own claims arose under the laws of other states. See id. at

36. On this ground, the district court dismissed without prejudice

Counts 2, 3, and 5–9 of the CTPPCC to the extent they were

brought under the laws of certain states. See id. at 37–38. 2

In separate orders, the district court granted the motions of

several groups of defendants to dismiss certain claims (including

those asserted in the CTPPCC) on the basis of federal preemption.

Some of the dismissals on this ground were with prejudice, but

2These jurisdictions were Alaska, Arkansas, California, Connecticut, Dela-

ware, the District of Columbia, Hawaii, Idaho, Kansas, Massachusetts, New

Hampshire, New York, North Dakota, Oklahoma, Puerto Rico, Rhode Island,

South Dakota, Vermont, Virginia, Washington, and West Virginia.

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6 Opinion of the Court 21-10335

others were without prejudice and with leave to amend. See gen-

erally D.E. 2512, 2513, 2516, 2532.

All three of the CTPPCC plaintiffs declined to amend their

complaint. See D.E. 2694 at 2. Of the three, only Plumbers filed a

notice of appeal.3

II

More than three weeks before Plumbers filed its initial brief,

the appellees (who were the defendants below) moved to dismiss

the appeal for lack of jurisdiction. Focusing on the orders and is-

sues identified in the notice of appeal, the appellees argued that the

appeal was moot because Plumbers apparently did not seek to ap-

peal one of the district court’s independent grounds for dismissal

of the CTPPCC—that it constituted a shotgun pleading. Because

that ground was apparently not going to be challenged, the appel-

lees asserted that nothing that this court could do on appeal could

revive the CTPPCC.

3 Plumbers admits that its notice of appeal erred in listing the district court’s

order on innovator liability claims, D.E. 2516, rather than the orders dismiss-

ing certain claims on preemption and standing grounds, D.E. 2515. See Ap-

pellants’ Resp. to Mot. to Dismiss at 8 n.2. But Plumbers is correct that, under

our precedent, “an appeal is not lost” if such a mistake does not “mislead or

prejudice the respondent.” Nichols v. Ala. State Bar., 815 F.3d 726, 730 (11th

Cir. 2016) (citations omitted). Here, Plumbers sufficiently indicated that it

wished to appeal the district court’s rulings on “‘preemption and standing

grounds.’”

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21-10335 Opinion of the Court 7

In its initial brief, Plumbers challenged the dismissal of the

CTPPCC only with respect to the district court’s standing and

preemption rulings. See Appellants’ Br. at iii–iv (table of contents),

1–2 (statement of the issues), 23–26 (summary of the argument),

27–41 (argument on standing), 41–57 (argument on preemption).

Nowhere in that brief did Plumbers contest the district court’s rul-

ing that the CTPPCC constituted a shotgun pleading that was sub-

ject to dismissal.

On the same day that it filed its initial brief, Plumbers re-

sponded to the appellees’ motion to dismiss the appeal for lack of

jurisdiction. Plumbers explained that it had chosen not to amend

the CTPPCC as permitted by the district court, and as a result un-

der Eleventh Circuit law the dismissal without prejudice became

final at the end of the amendment period, thereby permitting it to

appeal. See, e.g., Schuurman v. Motor Vessel Betty K V, 798 F.2d

42, 445 (11th Cir. 1986). Plumbers also maintained that the shot-

gun pleading ruling made no difference to appealability because it

was barred from amending certain claims (e.g., those that relied on

a misbranding theory). The shotgun pleading ruling, Plumbers ar-

gued, only constrained the manner in which it was to replead any

theories left open by the preemption rulings. And because it had

chosen not to amend the CTPPCC, it would have no claims to al-

lege in an amended complaint that followed the court’s shotgun

pleading instructions. Finally, Plumbers disagreed with the appel-

lees’ mootness argument. According to Plumbers, the appeal was

not moot because if we reversed the standing and preemption

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8 Opinion of the Court 21-10335

rulings, it could pursue those theories on remand and then would

follow the district court’s instructions as to how to remedy the

shotgun pleading problems.

III

A threshold issue is whether Plumbers has standing to pur-

sue its claims. See Bowsher v. Synar, 478 U.S. 714, 721 (1986). Ar-

ticle III standing has three components: (1) the plaintiff must have

“suffered an injury in fact, (2) that is fairly traceable to the chal-

lenged conduct of the defendant[s], and (3) that is likely to be re-

dressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

578 U.S. 330, 338 (2016). “[A]t the pleading stage, the plaintiff must

clearly . . . allege facts demonstrating each element” of stand-

ing. Id. (internal quotation marks omitted).

A

Here, the first element of standing is generally undisputed.

Plumbers has alleged that the manufacturers of Zantac and other

ranitidine products caused them economic injury “because [it]

made payments or reimbursements for a product that was eco-

nomically worthless.” D.E. 888 at ¶ 14. Its alleged economic injury

satisfies Article III’s injury-in-fact requirement. See Debernardis v.

IQ Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019) (“Cer-

tainly, an economic injury qualifies as a concrete injury.”).

We turn, then, to traceability. None of the defendants here

deny that they manufactured ranitidine products, but the CTPPCC

plaintiffs originally brought suit against dozens of defendants.

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21-10335 Opinion of the Court 9

Plumbers listed 50 of those defendants in its notice of appeal, and

later clarified in its reply brief that it had “abandoned every claim

against any brand-name defendant,” Appellant’s Reply Br. at 4, so

we granted a joint motion to dismiss those defendants from this

appeal. Of the remaining defendants, Plumbers has only alleged

“exemplar payments for generic ranitidine” for, at most, 14 of the

22 named generic manufacturer defendants.4

Plumbers had to sufficiently allege how its injuries are trace-

able to the conduct of each defendant. See Wilding v. DNC Ser-

vices Corp., 941 F.3d 1116, 1126 (11th Cir. 2019) (concluding that,

because some plaintiffs had failed to allege whether or not they do-

nated to a political candidate before or after certain false statements

were made, they had failed to allege that their injuries were fairly

4 Those defendants are Par Pharmaceutical Inc.; Amneal Pharmaceuticals

LLC; Amneal Pharmaceuticals of New York, LLC; Teva Pharmaceuticals

U.S.A., Inc.; Glenmark Pharmaceuticals, Inc., USA; Glenmark Pharmaceuti-

cals Ltd.; Wockhardt USA LLC; Wockhardt, Ltd; Sandoz Inc.; Lannett Co.,

Inc.; Nostrum Laboratories, Inc.; Strides Pharma, Inc.; Dr. Reddy’s Laborato-

ries Inc.; and Dr. Reddy’s Laboratories, Ltd. The defendants originally argued

that Plumbers only alleged representative reimbursements for 11 entities.

That is true, but some of those allegations could implicate multiple compa-

nies. For example, Plumbers alleges that it reimbursed purchases for products

made by “Wockhardt” but it is unclear if that implicates both Wockhardt USA

LLC and Wockhardt, Ltd. See D.E. 888 at ¶ 219. These two entities are sub-

sidiaries of Wockhardt, Ltd., and the CTPPCC plaintiffs referred to them col-

lectively as “Wockhardt” when describing the generic manufacturer defend-

ants in their complaint. See id. at ¶¶ 112–16. And at least one of the alleged

reimbursements is to a company called “Akorn Hi Tech,” which is not a de-

fendant in this litigation. See id. at ¶ 219.

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10 Opinion of the Court 21-10335

traceable to those false statements). Because Plumbers only al-

leged injuries traceable to 14 defendants, it only has standing to

pursue its claims against those 14. Plumbers cannot haul into court

parties that did not allegedly cause harm, even on behalf of un-

named class members. See Stevens v. Osuna, 877 F.3d 1293, 1311

(11th Cir. 2017) (affirming dismissal of claims against a government

official because the plaintiff had failed to allege sufficient facts to

demonstrate a constitutional violation by that official). The district

court seemed to acknowledge this problem in its order but did not

clearly rule on the question.

Given Plumbers’ continued pursuit of its claims, we make

clear that we affirm the district court to the extent that it dismissed

for lack of standing Plumbers’ claims against defendants who it did

not allege caused it financial (or other) injury. As to the 14 defend-

ants who did manufacture products allegedly purchased by Plumb-

ers’ members (and who were then reimbursed by Plumbers), they

do not dispute that such an economic injury is fairly traceable to

them as the manufacturers of those drugs.

Plumbers seeks redress for its injuries under two federal laws

and dozens of state laws. We assume those claims are meritorious

when assessing Article III standing. See Culverhouse v. Paulson &

Co., Inc., 813 F.3d 991, 994 (11th Cir. 2016) (citing City of

Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003)). A favorable

decision on one of Plumbers’ claims—all of which stem from the

same pocketbook injury—“would likely redress that injury by

awarding [Plumbers] damages against” the responsible defendants.

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21-10335 Opinion of the Court 11

See Fox v. Ritz-Carlton Hotel Co., L.L.C., 977 F.3d 1039, 1047 (11th

Cir. 2020) (citing Resnick v. AvMed, Inc., 693 F.3d 1317, 1324 (11th

Cir. 2012)). And because Plumbers has standing on at least one of

its claims, this “is sufficient to satisfy Article III’s case-or-contro-

versy requirement” with respect to its appeal. Cf. Rumsfeld v.

F.A.I.R., Inc., 547 U.S. 47, 52 n.2 (2006) (explaining that the pres-

ence of one party with standing is sufficient to establish a justiciable

matter on appeal).

B

Plumbers challenges another one of the district court’s

standing rulings on appeal: the dismissal of “claims on behalf of

class members whose claims arise under the laws of states in which

no named [CTPPCC plaintiff] reside[s] or purchased ranitidine

products.” D.E. 2515 at 34. Plumbers argues that its ability to raise

these claims for putative class members is one of representative ca-

pacity under Federal Rule of Civil Procedure 23—not one of con-

stitutional significance under Article III. We agree.

“[S]tanding is not dispensed in gross.” DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 353 (2006). A plaintiff “must demon-

strate standing separately for each form of relief sought,” and

“standing as to one claim [does not] suffice for all claims arising

from the same ‘nucleus of operative fact.’” Id. at 352. “Standing

requirements,” moreover, “apply with no less force in the class ac-

tion context.” Fox, 977 F.3d at 1046 (citing Lewis v. Casey, 518 U.S.

343, 357–58, 358 n.6 (1996)).

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Article III has “two related, but distinct” requirements for

class representative standing. See id. (citing Mills v. Foremost Ins.

Co., 511 F.3d 1300, 1307 (11th Cir. 2008)). First, the class repre-

sentative must satisfy the “individual standing prerequisites” of Ar-

ticle III. See Mills, 511 F.3d at 1307. Second, the class representa-

tive “must also ‘be part of the class and possess the same interest

and suffer the same injury as the class members.’” Id. (quoting

Prado-Steinman ex. Rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th

Cir. 2000)).

Plumbers alleged that the unnamed class members all suf-

fered similar “economic losses” from the defendants’ “breaches of

express and implied warranties, wrongful acts, fraudulent misrep-

resentations and omissions, and negligence.” D.E. 888 at ¶ 491.

Recognizing that some of the class members’ claims may fall under

the laws of other states, Plumbers makes certain representations

about the similarities of some of its claims from state to state. For

Counts 2, 3, 7, and 9, Plumbers alleges that the laws of those states

are substantially similar to each other, or that the allegedly injuri-

ous conduct falls within the meaning of the laws of all relevant ju-

risdictions. With respect to the claims for common law fraud

(Count 5) and negligence (Count 6), Plumbers does not identify

any particular jurisdiction as the source of law underlying its

claims. Plumbers’ lack of specificity on this choice-of-law question

may present a merits problem, but we are unconvinced that it con-

stitutes an Article III standing problem.

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21-10335 Opinion of the Court 13

The question the defendants raise—whether Plumbers itself

has causes of action under the dozens of state statutes it invokes—

is not a standing question at all. It is, instead, a Rule 12(b)(6) merits

issue. Four of our sister circuits have reached similar conclusions.

See Morrison v. YTB International, Inc., 649 F.3d 533, 536 (7th Cir.

2011); Langan v. Johnson & Johnson Consumer Companies, Inc.,

897 F.3d 88, 93, 96 (2d Cir. 2018); In re Asacol Antitrust Litig., 907

F.3d 42, 49 (1st Cir. 2018); Mayor of Baltimore v. Actelion Pharms.

Ltd., 995 F.3d 123, 134 (4th Cir. 2021).

In Morrison and Langan, the Seventh and Second Circuits

held that whether class members’ claims fall under another state’s

laws is a Rule 23 matter and not a standing issue. In Morrison, the

Seventh Circuit rejected the defendants’ argument that plaintiffs

residing outside the state of Illinois lacked standing to pursue a class

claim under the Illinois Consumer Fraud Act, explaining that “this

application of choice-of-law principles has nothing to do with

standing, though it may affect whether a class should be certified—

for a class action arising under the consumer-fraud laws of all 50

states may not be manageable, even though an action under one

state’s law could be.” 649 F.3d at 536. In Langan, the Second Cir-

cuit applied Morrison to a case more similar to this one and con-

cluded that “as long as the named plaintiffs ha[d] standing to sue

the named defendants, any concern about whether it is proper for

a class to include out-of-state, nonparty class members with claims

subject to different state laws is a question of predominance under

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14 Opinion of the Court 21-10335

Rule 23(3)(b), . . . not a question of ‘adjudicatory competence’ un-

der Article III.” 897 F.3d at 93 (citations omitted).

The First and Fourth Circuits have been slightly more exact-

ing. The First Circuit agreed with the Seventh and Second Circuits

in In re Asacol, but only so long as “the named plaintiffs parallel

those of the putative class members in the sense that, assuming a

proper class is certified, success on the claim under one state’s law

will more or less dictate success under another state’s law.” 907

F.3d at 49. Finally, the Fourth Circuit explained in Actelion Phar-

maceuticals that a plaintiff may have failed to state a claim under a

state statute’s requirements by failing to reside in the state whose

law it invoked, but “[n]onetheless, the claims that the plaintiffs

made on behalf of class members who purchased [the drug at issue]

in States other than [the states in which the plaintiffs resided] need

not be stricken or disregarded;” those counts “define[d] class mem-

bers’ claims” and “may be considered in determining whether the

plaintiffs’ claims” satisfy the typicality and commonality require-

ments of Rule 23. See 995 F.3d at 134. 5

5 The Fourth Circuit reasoned that the defendants’ arguments against standing

sounded more in what it called “statutory standing,” Actelion Pharmaceuti-

cals, 995 F.3d at 134, or what the Supreme Court has characterized as an in-

quiry into the nature of a litigant’s cause of action to sue under a statute, which

is “not derived from Article III” at all. See Lexmark Intern, Inc. v. Static Con-

trol Components, Inc., 572 U.S. 118, 126 (2014). According to the Supreme

Court, these labels cover “three broad principles: the general prohibition on a

litigant’s raising another person’s legal rights, the rule barring adjudication of

generalized grievances more appropriately addressed in the representative

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In sum, all circuits which have addressed whether a plaintiff

can represent unnamed class members whose claims fall under dif-

ferent states’ laws have concluded that it is a question that concerns

Rule 12(b)(6) or Rule 23—not Article III. A leading class action

treatise is of the same view. See William B. Rubenstein, 1 Newberg

on Class Actions § 2:6 (5th ed. & Dec. 2021 update) (“[W]hen a class

plaintiff shows individual standing, the court should proceed to

Rule 23 criteria to determine whether, and to what extent, the

plaintiff may serve in a representative capacity on behalf of the

class.”).

Our precedents do not dictate otherwise. In Prado, we ex-

plained that “it is well-settled that prior to the certification of a

class, and technically speaking before undertaking any formal typi-

cality or commonality review, the district court must determine

that at least one named class representative has Article III standing

to raise each class subclaim.” 221 F.3d at 1279. Accordingly, we

remanded and directed the district court to “ensure that at least one

named representative of each class or subclass ha[d] standing for

branches, and the requirement that a plaintiff’s complaint fall within the zone

of interests protected by the law invoked.” Id. at 126 (citation omitted). In

Actelion Pharmaceuticals, the Fourth Circuit held that “the plaintiffs did not

allege facts to show that they satisfied the statutory requirements of States

other than Maryland, California, and Florida” and consequently could “not

seek relief for their own injuries under those States’ statutes.” 995 F.3d at 134

(citing CGM, LLC v. BellSouth Telecomms, Inc., 664 F.3d 46, 52 (4th Cir.

2011) (“A dismissal for lack of statutory standing is effectively the same as a

dismissal for failure to state a claim.”)).

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16 Opinion of the Court 21-10335

each proffered class or subclass claim.” Id. at 1280. But we did so

in the context of a Rule 23(f) interlocutory appeal and through the

lens of Rule 23(a). See id. at 1282–83. Nothing in Prado suggests

an Article III limitation on a class representative’s ability to repre-

sent unnamed class members based on the laws of states where

their similar injuries took place. To the contrary, Prado noted the

“fluid nature of class certification rulings” and explained that “ex-

tensive interlocutory review” of the standing objections seemed

“particularly inappropriate” given that the “factual record is not

fully developed” and “at worst several new named representatives

would have to be added to the class or several of the subclaims

would have to be amended or dropped.” Id. at 1278.

In Mills, we similarly “stress[ed] that the fact that the [named

plaintiffs] ha[d] standing as putative class representatives [was] an

issue distinct from whether they qualif[ied] under Rule 23 to repre-

sent the class.” 511 F.3d at 1307. So too here. Plumbers has stand-

ing to bring some of its claims, but whether it is ultimately an ap-

propriate class representative for individuals whose claims may

arise under the laws of other states is a question falling under Rules

12(b)(6) or 23 and one that has yet to be argued, much less decided.

Finally, in Fox we reasoned that the plaintiff had standing to

sue Ritz-Carlton for the conduct of restaurants he had never visited

because “Fox and the class members have suffered the same eco-

nomic injury from Ritz-Carlton’s gratuity and sales tax practices

across its properties in Florida,” and “[w]hile those injuries may

have occurred on different days at different restaurants, those facts

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21-10335 Opinion of the Court 17

do not change what injuries Fox alleged those class members suf-

fered.” 977 F.3d at 1047. The same is true in this case. The fact

that the unnamed class members’ injuries may have occurred in

other states does not change things so long as the alleged injuries

and interests are substantially the same.

In sum, we conclude that Plumbers had Article III standing

to bring its claims against the defendants who allegedly sold

ranitidine products to its members and for which it provided exem-

plar reimbursements. For class representation purposes, “the

claims that the plaintiffs made on behalf of class members who [re-

imbursed purchases of ranitidine products in other states] need not

be stricken or disregarded,” as those claims “may be considered”

when determining the appropriateness of class certification under

Rule 23. See Actelion Pharmaceuticals Ltd., 995 F.3d at 134. The

district court erred in ruling otherwise.

IV

That said, the district court’s ruling that the CTPPCC con-

stituted a shotgun pleading was an independent basis for dismissal.

To recap, the district court concluded that the CTPPCC lumped

over 60 related and unrelated defendants across two groups,

thereby creating confusion and failing to provide a factual basis for

distinguishing the conduct of individual defendants. Moreover,

each count of the CTPPCC incorporated the same preceding 519

background and factual paragraphs, making it virtually impossible

to know which factual allegations are intended to support which

claim for relief.

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18 Opinion of the Court 21-10335

As noted, Plumbers has not challenged the shotgun pleading

ruling in any way on appeal. And that is a problem, because “[t]o

obtain reversal of a district court judgment that is based on multi-

ple, independent grounds an appellant must convince us that every

stated ground for the judgment against him is incorrect. When an

appellant fails to challenge properly on appeal one of the grounds

on which the district court based its judgment, he is deemed to

have abandoned any challenge of that ground, and it follows that

the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian

Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). By not attacking the

shotgun pleading ruling, Plumbers has left us with no choice but to

affirm the dismissal of the CTPPCC.

Plumbers cannot avoid the effect of the principle articulated

in Sapuppo by arguing that the shotgun pleading concerns do not

matter because it is only seeking to appeal the standing and

preemption rulings and because it did not have the opportunity to

fix the shogun pleading problems. And it also cannot get around

Sapuppo by arguing it will remedy the shotgun pleading problems

on remand if we reverse the standing and preemption rulings.

There is no futility exception to Sapuppo. Had Plumbers wished

to preserve its ability to amend its complaint after an appeal, it

should have fixed the shotgun pleading problems prior to appeal-

ing.

The appellees argue in their motion to dismiss that Plumb-

ers’ failure to challenge the shotgun pleading ruling makes the ap-

peal moot, but we disagree. An appeal must be dismissed as moot

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21-10335 Opinion of the Court 19

if an “event occur[ring] while [the] appeal is pending . . . makes it

impossible for the court to grant ‘any effectual relief whatever’ to

a prevailing party.” Church of Scientology of California v. United

States, 506 U.S. 9, 12 (1992) (citation omitted). Typically, that event

is external to the parties’ appellate litigation conduct. See, e.g.,

United States v. Juvenile Male, 564 U.S. 932, 937 (2011) (juvenile’s

appeal of supervision condition requiring registration as a sex of-

fender became moot when the order of supervision expired).

We recognize that some of our sister circuits have couched

the failure to appeal all alternative grounds in mootness terms. See,

e.g., R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 443 n.7

(6th Cir. 2005); Horizon Bank & Trust Co. v. Massachusetts, 391

F.3d 48, 53–54 (1st Cir. 2004). But the better approach, and the one

we have followed in cases like Sapuppo, is to treat that failure as

requiring an affirmance on the merits. See also Nagle v. Alspach, 8

F.3d 141, 143 (3d Cir. 1993); Williams v. Leach, 938 F.2d 769, 772–

73 (7th Cir. 1991); 5 C.J.S. Appeal and Error § 839 (March 2022 up-

date).

Mootness, according to the Supreme Court, is an Article III

concern, see, e.g., Arizonans for Official English v. Arizona, 520

U.S. 43, 67 (1997), and we have never suggested that an appellant’s

failure to challenge all alternative grounds on appeal leaves us with-

out a justiciable case or controversy. “[A]s long as the parties have

a concrete interest, however small, in the outcome of the litigation,

the case is not moot.” Knox v. Service Employees, 567 U.S. 298,

307–-08 (2012) (internal quotation marks and citation omitted).

The appellees’ argument “confuses mootness with the merits”

USCA11 Case: 21-10335 Date Filed: 11/07/2022 Page: 20 of 20

20 Opinion of the Court 21-10335

because the “prospects of success are . . . not pertinent to the moot-

ness inquiry.” Chafin v. Chafin, 568 U.S. 165, 174 (2013). We there-

fore conclude that Plumbers’ failure to challenge the district court’s

shotgun pleading ruling does not deprive us of Article III jurisdic-

tion.

IV

Because Plumbers has allegedly been injured by some of the

defendants and those injuries are redressable by a favorable deci-

sion, it has Article III standing to pursue some of its claims. Its abil-

ity (or inability) to sue under the laws of states where it never re-

imbursed purchases of ranitidine by unnamed class members does

not implicate Article III standing, and the district court’s conclusion

to the contrary was mistaken. But Plumbers was put on notice,

before it filed its initial brief, that a failure to challenge the district

court’s shotgun pleading ruling could be problematic. By not con-

testing that ruling, Plumbers has given us no choice but to affirm

the dismissal of the CTPPCC.

DISMISSED IN PART, REVERSED IN PART, and

AFFIRMED IN PART.