# Hill v. McCarthy

> District Court, N.D. Alabama · August 2, 2021

URL: https://www.frixlaw.com/law-library/cases/9990464

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** August 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9990464

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

JACOB HILL, )
)
Plaintiff, )
)
vs. ) Case No. 5:20-cv-01595-HNJ
)
CHRISTINE WORMUTH, Secretary of the )
Army, and BRANDY RAY, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

This action proceeds before the court on Defendants Christine Wormuth1 (“the
Army”) and Brandy Ray’s Motion for More Definite Statement and Motion to Dismiss
Brandy Ray as a Defendant. (Doc. 9). Defendants seek an order dismissing Jacob Hill’s
claims against Ray for failure to state a claim upon which relief may be granted pursuant
to Federal Rule of Civil Procedure 12(B)(6). The motion also seeks to compel Hill to

1 Hill initiated this lawsuit against former Acting Secretary of the Army Ryan D. McCarthy in his
official capacity. (Doc. 1). Wormuth succeeded McCarthy as Secretary of the Army, and, pursuant to
Federal Rule of Procedure 25(d), became the defendant to this action. Fed. R. Civ. P. 25(d) (“An
action does not abate when a public officer who is a party in an official capacity . . . ceases to hold
office while the action is pending. The officer’s successor is automatically substituted as a party.”).
This lawsuit thus constitutes an action against Secretary Wormuth in her official capacity, and, in turn,
an action against the Army. See Loeffler v. Frank, 486 U.S. 549, 562 n.8 (1988) (Title VII lawsuit against
an agency head in his or her official capacity constitutes a lawsuit against the agency); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits generally represent only another
way of pleading an action against an entity of which an officer is an agent . . . .”); Adams v. Cobb Cty.
Sch. Dist., 242 F. App’x 616, 617 n.1 (11th Cir. 2007) (per curiam) (a Title VII claim against an officer
in his or her official capacity remains redundant where the plaintiff also names the officer’s employer
as a defendant).
replead his claims against the Army pursuant to Federal Rule of Civil Procedure 12(e).
The court concludes Hill’s claims against Ray warrant dismissal because she

constitutes an individual employee against whom Hill possesses no private right of
action pursuant to Title VII. In addition, the court concludes the Army demonstrates
it possesses sufficient notice of the allegations in Hill’s Complaint, and thus fails to
establish an entitlement to a more definite statement pursuant to Rule 12(e). Therefore,

based upon the analyses herein, the court GRANTS IN PART and DENIES IN
PART Defendants’ Motion for More Definite Statement and Motion to Dismiss
Brandy Ray as a Defendant.
STANDARDS OF REVIEW
Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint
if it fails to state a claim for which relief may be granted. In Ashcroft v. Iqbal, 556 U.S.
662 (2009), the Court revisited the applicable standard governing Rule 12(b)(6) motions
to dismiss. First, courts must take note of the elements a plaintiff must plead to state
the applicable claims at issue. Id. at 675.

After establishing the elements of the claim at issue, the court identifies all well-
pleaded, non-conclusory factual allegations in the complaint and assumes their veracity.
Id. at 679. Well-pleaded factual allegations do not encompass mere “labels and

conclusions,” legal conclusions, conclusory statements, or formulaic recitations and
threadbare recitals of the elements of a cause of action. Id. at 678 (citations omitted).
In evaluating the sufficiency of a plaintiff’s pleadings, the court may draw reasonable
inferences in plaintiff’s favor. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d

1242, 1248 (11th Cir. 2005).
Third, a court assesses the complaint’s well-pleaded allegations to determine if
they state a plausible cause of action based upon the identified claim’s elements. Iqbal,
556 U.S. at 678. Plausibility ensues “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” and the analysis involves a context-specific task requiring a court
“to draw on its judicial experience and common sense.” Id. at 678, 679 (citations
omitted). The plausibility standard does not equate to a “probability requirement,” yet

it requires more than a “mere possibility of misconduct” or factual statements that are
“merely consistent with a defendant’s liability.” Id. at 678, 679 (citations omitted).
More pertinent for the claims at bar, however, a “complaint fails to state a claim
for which relief may be granted when the law does not recognize the claim or cause of

action asserted. See, e.g., Cone Fin. Grp., Inc. v. Emps. Ins. Co., 476 F. App’x 834, 835–36
(11th Cir. 2012) (the plaintiff’s claim could not withstand a Rule 12(b)(6) motion to
dismiss because the law did not recognize the cause of action asserted).”

Notwithstanding the foregoing Rule 12(b)(6) and Iqbal plausibility standards, the
court must construe Hill’s pro se complaint more liberally than it would pleadings drafted
by attorneys. Hughes v. Rowe, 449 U.S. 5, 9 (1980). “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per
curiam). However, pro se pleadings still must allege factual allegations that “raise a right

to relief above the speculative level.” Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir.
2014) (internal quotation marks omitted).
Rule 12(e)
Pursuant to Federal Rule Civil Procedure 12(e), a defendant may file a motion

seeking “a more definite statement” of a complaint “which is so vague or ambiguous
that the [defendant] cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). The
defendant bears the burden of demonstrating a complaint portrays a lack of clarity
reasonably foreclosing the ability to prepare a responsive pleading, which represents a

“very high standard.” Advance Tr. & Life Escrow Servs., LTA v. Protective Life Ins. Co., No.
2:18-CV-1290-KOB, 2020 U.S. Dist. LEXIS 79679, at *9 (N.D. Ala. May 6, 2020)
(citation omitted); see FNB Bank v. Park Nat’l Corp., No. 13–0064–WS–C, 2013 WL
1748796, at *6 (S.D. Ala. Apr. 23, 2013) (the defendant failed to demonstrate the need

for a more definite statement pursuant to Rule 12(e)); 5C CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1378 (“Most federal courts
cast the burden of establishing the need for a more definite statement on the movant.”).

Further, given the “liberal pleading standard[s]” set forth in Federal Rule of Civil
Procedure 8, Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245,
1261 (11th Cir. 2015), and “the plethora of available pretrial discovery procedures,”
Blumenthal v. Smith, No. 6:17-cv-975-Orl-40TBS, 2018 U.S. Dist. LEXIS 221164, at *9
(M.D. Fla. Feb. 26, 2018), the law generally disfavors motions for a more definite
statement and courts grant them sparingly. See Fathom Exploration, LLC v. The

Unidentified Shipwrecked Vessel or Vessels, 352 F. Supp. 2d 1218, 1221 (S.D. Ala. 2005)
(“Motions for more definite statement are viewed with disfavor and are rarely
granted.”); 5C WRIGHT & MILLER, supra, § 1376 (“[T]he availability of a motion for a
more definite statement is quite restricted. . . . [T]he class of pleadings that are

appropriate subjects for a motion under Rule 12(e) is quite small.”).
The Rule 12(e) standard “strike[s] at unintelligibility rather than [a complaint’s]
lack of detail.” 2 MOORE’S FEDERAL PRACTICE § 12.36[1]. Thus, the court must deny
a Rule 12(e) motion “if the complaint attacked thereby, considered as a whole, fairly

gives notice of the claim or claims asserted therein so as to permit the filing of a
responsive answer.” Herman v. Cont’l Grain Co., 80 F. Supp. 2d 1290, 1297 (M.D. Ala.
2000). “Nevertheless, when a plaintiff fails to identify key facts, unduly increasing the
burden of understanding the factual allegations, district courts may grant a 12(e) motion

for a more definite statement.” Tolbert v. High Noon Prods., LLC, No. 4:18-CV-00680-
KOB, 2019 U.S. Dist. LEXIS 2937, at *7 (N.D. Ala. Jan. 8, 2019). “[T]o withstand a
motion under Rule 12(e) a pleading must be sufficiently intelligible for the district court

to be able to make out one or more potentially viable legal theories on which the
claimant might proceed.” 5C WRIGHT & MILLER, supra, § 1376.
THE COMPLAINT AND OTHER RELEVANT BACKGROUND

This case proceeds on Plaintiff Jacob Hill’s Complaint against Defendants
Brandy Ray and the Army. (Doc. 1). Hill, proceeding pro se, filed a form Complaint for
Employment Discrimination on October 13, 2020, alleging various violations of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Id. at 3).
Hill, an African-American male, alleges the Army discriminated against him on the basis

of his race, color, and sex by subjecting him to “[u]nequal terms and conditions of [his]
employment.” (Id. at 4–5).
Hill elaborated his allegations as follows:
Disparate treatment discrimination based on my race (Black-American)
and sex (mal[e]) by [Ray].

Subjected to [non-sexual] harassment in continuation of [Ray] blaming
incidents on [me].

Never allowed to fill [Ray’s] supervisor position in her absence while
rotating for others to fill that are equal in [my] rank . . . .

[Ray] would not acknowledge the team lead duties [I] held with [my]
previous supervisor. She would not allow [me] the award of Quality Step
Increase.

(Id. at 5). Hill further stated he constitutes the “only black male with [a] high position
under [Ray’s] supervision.” (Id.) He specified that the alleged discriminatory acts
occurred during the period April 16, 2017, to May 2, 2018, “and [remained] ongoing to
December 2019.” (Id. at 4). Hill alleged he suffered $37,426.00 in lost wages due to
the Quality Step Increase denial. (Id. at 6).
Hill appended to his Complaint a July 16, 2020, final order the Army issued vis-
à-vis a complaint he filed with the Equal Employment Opportunity (“EEO”) Office

on June 19, 2018.2 (Id. at 9–17). The final order describes Hill’s allegations as follows:
[Ray] . . . discriminated against [Hill] and subjected [him] to harassment
(non-sexual) on the bases of race (black), color (black), and sex
(male) . . . when:

1. From mid-December to May 2, 2018, Ms. Ray did not allow [Hill] to
perform [his] duties as Team Leader, such as not allowing [him] to brief
[his] Information Technology (IT) section during staff call and refusing to
allow [him] to serve as Acting Branch Chief in her absence, unlike [his]
co-workers;

(b) On April 16, 2018, Ms. Ray blamed [Hill] for issuing out a laptop; and

(c) On May 2, 2018, [Hill] requested a Quality Step Increase (QSI) for the
most recent performance rating cycling ending March 31, 2018, but Ms.
Ray did not give [him] a response.

(Id. at 9–10).3
On November 30, 2020, Hill filed a notice informing the court that prior to filing
his Complaint, he appealed from the Army’s final order to the EEOC’s Office of
Federal Operations (“OFO”) on July 29, 2020,4 and the OFO issued a decision

2 Federal Rule of Civil Procedure 10 provides “[a] copy of a written instrument that is an exhibit to a
pleading is part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). Hill’s attachment does not
include a copy of his EEO complaint.

3 The Army’s final order implements a decision rendered by an Equal Opportunity Employment
Commission (“EEOC”) Administrative Law Judge granting the Army’s motion for summary
judgment on Hill’s claims and dismissing his complaint. (Doc. 1 at 10).

4 Hill furnished the Army a copy of his appeal request. (Doc. 8 at 3).
affirming the Agency’s final order on October 26, 2020.5 (Doc. 8). The OFO’s decision
recites Hill’s allegations as printed in the Army’s final order and quoted above.6 (Id. at

4–5). Further, Hill’s appeal request states, in pertinent part:
[Ray] ensured her input eliminated [Hill] from getting promoted due to
changing the points and was alleged at [sic] providing answers to one of
the employees seeking promotion. . . . .

. . .

[Ray’s] involvement with the promotion system involves her relationship
with Mr. Steve Dirigo wh[o] is a relative. Her purpose was to ensure he
received a (White) employee in his Division. . . . .

There was more harassment done during that time and after, but only one
incident was placed on this EEOC grievance. [Ray] continued to harass
by . . . mov[ing] new equipment when [it] arrives when no one is in the
supply room . . . and this equipment would be already on [Hill’s] property
sheet, so if not found [he] would pay for the equipment. She would never
come back and state should [sic] move the equipment. [Hill] [is] held
accountable for all equipment and [he is] the first [who] will pay for it . . . .

(Id. at 3).7

5 Hill appended to his notice a copy of his appeal request and the OFO’s decision. (Doc. 8 at 3–11).
Prior to Hill’s November 30, 2020, notice, the court lacked knowledge that he filed and maintained
an appeal with the OFO when he filed his October 13, 2020, Complaint in this action.

6 The OFO’s decision portrays it assessed Hill’s claims pursuant to the disparate treatment and
harassment frameworks . (Doc. 8 at 6–8). The OFO appended a certificate of mailing to its decision
depicting it served a copy of its decision upon the Army. (Doc. 8 at 4–5).

7 When assessing a Rule 12(e) motion, the court may properly consider the defendant’s “knowledge
of the information sought.” 2 MOORE’S FEDERAL PRACTICE § 12.36[3]; accord Casanova v. Ulibarri, 595
F.3d 1120, 1125 (10th Cir. 2010). Because, as elaborated below, Hill’s appeal request and the OFO’s
decision depict the Army possesses knowledge of the nature and bases for Hill’s claims, the court may
consider these documents as filed in Hill’s October 10, 2020, notice. See Amin v. Mercedes-Benz USA,
LLC, 349 F. Supp. 3d 1338, 1351–52 (N.D. Ga. Dec. 18, 2018) (in assessing the defendant’s Rule
12(e) motion, the court considered its notice of appearance in the case and previously filed stipulation,
as both evidenced the defendant’s knowledge of the plaintiff’s claims); 5C CHARLES ALAN WRIGHT
Defendants filed the instant Motion on January 19, 2021. (Doc. 9).

DISCUSSION

I. Hill Fails to State a Claim Upon Which Relief May Be Granted
Against Ray Because She Does Not Constitute an “Employer”
Pursuant to Title VII
Defendants beseech the court to dismiss Hill’s claims against Ray pursuant to
Rule 12(b)(6) because she constitutes “an individual employee,” and thus stands as an
improper defendant to his Title VII action. (Doc. 9 at 3). Title VII provides that “[a]ll
personnel actions affecting employees . . . in military departments . . . shall be made
free from any discrimination based on race, color, [or sex].” 42 U.S.C. § 2000e-16(a).
Section § 2000e-16 further specifies that in any civil action properly filed by a federal
employee “aggrieved by the final disposition of his [administrative] complaint, . . . the
head of the department, agency, or unit, as appropriate, shall be the defendant.”

§ 2000e-16(c).
Based upon this statutory language, Title VII does not expose individual federal
employees to liability, and, concomitantly, a plaintiff may not assert a Title VII claim
against an employee or supervisor in her individual capacity. See, e.g., Laurent v. Potter,

405 F. App’x 453, 455 (11th Cir. 2010) (the district court properly dismissed the
plaintiff’s Title VII claims against individual federal employees because the head of the

& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1378 (“Whether [the defendant] will
succeed in discharging [the Rule 12(e)] burden depends on . . . the availability of information from
other sources that may clear up the pleading . . . .”).
United States Postal Service constituted the only proper defendant to the action
pursuant to § 2000e-16(c)) (citing Newbold v. U.S. Postal Serv., 614 F.2d 46, 47 (5th Cir.

1980) (per curiam), cert. denied, 449 U.S. 878, (1980)) (the plaintiff improperly named an
individual employee as a defendant in a Title VII suit against the United States Postal
Service));8 Bryant v. United States Dep’t of Agric., 967 F.2d 501, 503 (only the Secretary of
Agriculture constituted the proper defendant to the plaintiff’s Title VII action); Bates v.

Tenn. Valley Auth., 851 F.2d 1366, 1368 (11th Cir. 1988) (the district court properly
dismissed the plaintiff’s claims against the defendants who did not constitute the head
of the Tennessee Valley Authority).
Pursuant to the foregoing binding and persuasive authority, Hill may not press

his Title VII claims against Ray, as Secretary Wormuth constitutes the only proper
defendant in the instant action. Consequently, Hill fails to state a claim upon which
relief may be granted against Ray pursuant to Rule 12(b)(6). See Reyna v. Donley, 479 F.
App’x 609, 611 (5th Cir. 2012) (the district court properly granted the individual

employee-defendant’s Rule 12(b)(6) motion because he did not constitute a proper
defendant pursuant to § 2000e-16(c)); Manigault v. Astrue, No. 1:11-CV-0793-MHS-JFK,
2011 U.S. Dist. LEXIS 160794, at *5–6 (N.D. Ga. Nov. 16, 2011) (the court dismissed

the plaintiff’s Title VII claims against the individual employee-defendants pursuant to
Rule 12(b)(6)); accord Hill-Brown v. Peters, No. 1:09-CV-00848-TCB-ECS, 2010 U.S. Dist.

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all Fifth Circuit decisions decided prior to October 1, 1981.
LEXIS 150673, at *7 (N.D. Ga. Feb. 12, 2010). The court thus GRANTS Defendants’
Motion to Dismiss Brandy Ray as a Defendant and DISMISSES WITH

PREJUDICE Hill’s Title VII claims against Ray.
II. The Army Fails to Demonstrate It Cannot Reasonably Prepare a
Response to Hill’s Complaint Without a More Definite Statement
The Army contends Hill’s Complaint comprises conclusory and vague
allegations lacking adequate factual support, and thus constitutes an improper “shotgun
pleading”9 that deprives the Army “of notice . . . of the precise contours of Hill’s claims

and the grounds upon which they rest.” (Doc. 9 at 6). In particular, the Army maintains
Hill “does not allege any facts to support his assertion that his race or sex motivated
the alleged mistreatment about which he complains,” thus rendering his allegations
mere “garden-variety workplace grievances” that fail to demonstrate an entitlement to

9 The Eleventh Circuit condemns as a “shotgun pleading” any “complaint that violates either Federal
Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.” Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th
Cir. 2021). Pursuant to Rule 8(a)(2), a complaint “must contain . . . a short and plaint statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 10(b), provides,
in pertinent part, that a plaintiff must state his claims “in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b). Rule 10(b) further states that “[i]f
doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must
be stated in a separate count . . .” Id.

The Eleventh Circuit categorized shotgun pleadings into “four rough types”: (1)
“a complaint containing multiple counts where each count adopts the allegations of all preceding
counts”; (2) “a complaint . . . replete with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action”; (3) a complaint failing to separat[e] into a different count
each cause of action or claim for relief”; and (4) a complaint “asserting multiple claims against multiple
defendants without specifying which of the defendants are responsible for which acts or omissions,
or which of the defendants the claim is brought against.” Weiland v. Palm Beach Cty. Sheriff's Off., 792
F.3d 1313, 1321–23 (11th Cir. 2015). “The unifying characteristic of all types of shotgun pleadings,”
the Court elaborated, “is that they fail to one degree or another, and in one way or another, to give
the defendants adequate notice of the claims against them and the grounds upon which each claim
rests.” Id. at 1323.
relief. (Id. at 4–5). The Army further specifies that Hill failed to articulate “the identity
and positions of the individuals [he] claims were treated more favorably,” and he did

not delineate his claims “in numbered paragraphs or his causes of action in separate
counts.” (Id. at 6). The Army thus bids the court to issue an order requiring Hill to
provide a more definite statement of his claims pursuant to Rule 12(e).
To recount, Rule 12(e) permits a defendant to request a more definite statement

of a complaint that fails to furnish adequate notice of the claims asserted therein – and
thus prevents the defendant from reasonably preparing a response – because of its
vagueness or ambiguity. Fed. R. Civ. P. 12(e). Accordingly, as elaborated previously, a
defendant may properly utilize Rule 12(e) only to seek clarification of a complaint which

fails to present intelligible claims. See 2 MOORE’S FEDERAL PRACTICE § 12.36[1].
Further, “motions for a more definite statement should be strictly limited to those few
instances in which a significant advancement of the litigation will result from a grant of
the defendant’s motion.” 5C WRIGHT & MILLER, supra, § 1378. Applying the foregoing

standards to the instant Motion, the Army fails to establish Hill’s Complaint “is so vague
or ambiguous” that it cannot reasonably prepare a responsive pleading. Fed. R. Civ. P.
12(e).

As an initial matter, the Army’s Motion belies any contention it lacks sufficient
notice of the nature and bases of the claims Hill asserts against it. Based upon the
Complaint, the Army discerned “four forms of mistreatment” Hill alleges he suffered
“on the basis of his race and sex”: “harassment in having ‘incidents’ blamed on him;
(2) being prevented from temporarily filling the supervisor role in Ray’s absence; (3) the
fact that Ray would not ‘acknowledge the team lead duties’ he performed under a

previous supervisor; and (4) the fact that he was not awarded a Quality Step Increase.”
(Doc. 9 at 4). By delineating Hill’s allegations as such, the Army demonstrates an
understanding of the nature of the discrimination claims he presents and the grounds
therefor. The Army’s own framing of Hill’s allegations thus undermines the contention

the Complaint manifests so vaguely or ambiguously it forecloses the reasonable
preparation of a response. See Cox v. Me. Mar. Acad., 122 F.R.D. 115, 116 (D. Me. 1988)
(“[A] rule 12(e) motion properly is granted only when a party is unable to determine the
issues he must meet.”).

Further notice of Hill’s claims flows from the prior EEOC proceedings. As
elaborated previously, Hill filed a complaint with the Army’s EEO Office that
progressed through the EEOC’s initial review and appeal channels. And significantly,
in its final order implementing the EEOC’s decision, the Army articulated Hill’s claims

with particularity. To recount, the Army specified that Hill claimed Ray discriminated
against him and “subjected [him] to harassment (non-sexual) on the bases of race
(black), color (black), and sex (male)” because “[f]rom mid-December to May 2, 2018,

[she] did not allow [him] to perform [his] duties as Team Leader, such as not allowing
[him] to brief [his] Information Technology (IT) section during staff call and refusing
to allow [him] to serve as Acting Branch Chief in her absence, unlike [his] co-workers;”
“[o]n April 16, 2018, [she] blamed [him] for issuing out a laptop”; and “[o]n May 2,
2018, [he] requested a Quality Step Increase (QSI) for the most recent performance
rating cycling ending March 31, 2018, but [she] did not give [him] a response.” (Doc.

1 at 9–10). The OFO framed Hill’s claims correspondingly in its decision affirming the
Army’s final order, which, according to the certificate of mailing, it served upon the
Army. (Doc. 8 at 4–5). These articulations of Hill’s claims accord with the Complaint
and the Army’s afore-cited interpretation thereof, and thus further undermine the

Army’s contention it cannot discern the nature or bases of the claims absent a more
definite statement.
Moreover, Hill presented additional factual allegations in the appeal request he
furnished to the Army. As discussed previously, Hill alleged Ray “ensured her input

eliminated [him] from getting promoted due to changing the points,” and he contended
“[h]er purpose was to ensure [Dirigo] received a (White) employee in his Division.”
(Doc. 8 at 3). This allegation clearly pertains to Hill’s claim, as portrayed in his
Complaint, that Ray did not award him a Quality Step Increase based upon his race.

Hill’s appeal further discussed Ray allegedly “mov[ing] new
equipment . . . already on [his] property sheet” and causing him to pay for the
equipment, (id.), which may reasonably relate to his claim that Ray discriminatorily

“blam[ed] incidents on [him].” (Doc. 1 at 5). The same observation ensues vis-à-vis
the OFO’s resolution of Hill’s claim that a Branch Chief (ostensibly Ray) erroneously
blamed Hill for improperly issuing a laptop to an employee (doc. 8 at 5, 7), which
represents a claim covered by the EEOC’s Administrative Law Judge prior to Hill filing
the complaint at bar.
To be sure, Hill’s contention that Ray engaged in “more harassment . . . during

that time and after,” while citing “only one incident” on his EEO complaint, (doc. 8 at
3), casts ambiguity on whether Ray’s alleged moving of the equipment relates to her
alleged blaming of Hill for “incidents.” (Doc. 1 at 5). Yet discovery devices, rather
than Rule 12(e), constitute the proper vehicle for the Army to pursue any desired

clarification. See Herman, 80 F. Supp. at 1297 (“A motion for a more definite statement
under Rule 12(e) is not to be employed as a substitute for pre-trial discovery
proceedings.”).
In short, the Army’s own Motion and participation in the EEOC proceedings

demonstrates that it stands on reasonable notice of the nature and bases of the claims
Hill asserts against it. Such notice, in turn, negates its alleged need for a more definite
statement of Hill’s claims. See Armelin v. Donahue, No. 11–cv–00048–MSK–KLM, 2012
WL 5250393, at *7 (D. Colo. Sept. 5, 2012) (the court denied the defendant’s Rule 12(e)

motion because the defendant participated in the prior EEO administrative
proceedings, and thus demonstrated an understanding of the plaintiff’s claims); Seum v.
McClure Staffing LLC, No. 5:11CV79, 2012 WL 254146, at *7 (N.D. W. Va. Jan. 27,

2012) (“The defendants’ own files should provide sufficient information by which to
investigate the allegations for the purposes of a response, and where they do not, [Rule
8(b)] ‘would permit them to plead that they lacked sufficient information to form a
belief as to the truth of the allegations and would give this plea the effect of a denial.’”)
(alterations omitted) (quoting Hodgson v. Va. Baptist Hosp., 482 F. 2d 821, 824 (4th Cir.
1973)); Cranston v. Baltimore & Ohio R.R. Co., 16 F.R.D. 318, 319 (W.D. Pa. 1954) (the

court denied the defendant’s motion for a more definite statement because it possessed
the collective bargaining agreement upon which the plaintiff sued, and, therewith
reasonably possessed knowledge of the provisions it allegedly breached); 2 MOORE’S
FEDERAL PRACTICE § 12.36[3] (“[I]n determining whether to grant a motion for more

definite statement, the court often considers whether the movant has knowledge of the
information sought. If the movant’s existing knowledge enables it to file a responsive
pleading, the court will often deny the motion even if the pleading arguably fits the
‘vague and ambiguous’ Rule 12(e) standard.”).

As for the Army’s specific contention that it requires a more definite statement
because Hill failed to present his “claims in numbered paragraphs or his causes of action
in separate counts,” the foregoing notice discussion likewise diminishes the strength of
this argument. (Doc. 9 at 6). To revisit, Rule 10(b) requires a plaintiff to “state [his]

claims . . . in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” Fed. R. Civ. P. 10(b). The purpose of this requirement “is to provide
an easy mode of identification for referring to a particular paragraph in a prior pleading

or for cross-referencing within a single pleading.” 5A WRIGHT & MILLER, supra, § 1323
(4th ed.). Importantly, however, “a pleading that is comprehensible and presents no
interpretive difficulties to the parties or the district court because of its form is not
rendered insufficient because of the absence of numbers before each paragraph.” Id.
This exception precisely obtains here. The Army’s own enumeration of Hill’s claims in
its Motion, together with its defending against Hill’s claims at the administrative level,

demonstrates its ability to comprehend his Complaint. The Army thus fails to establish
how Hill’s failure to state his claims in numbered paragraphs poses an “interpretive
difficult[y]” it cannot overcome without a more definite statement. Id.
Similarly, although Hill did not set forth his causes of action in separate counts,

Rule 10(b) requires such styling only “[i]f doing so would promote clarity.” Fed. R. Civ.
P. 10(b). Generally, therefore, “if the defendant is able to ascertain the precise nature
of the claim being asserted against [it], separate statements under Rule 10(b) will not be
required.” 5A WRIGHT & MILLER, supra, § 1324. Here, Hill’s Complaint plainly

indicates he pursues race, color, and gender claims pursuant to Title VII.
Immediately above the section in which he described Ray’s alleged
discrimination, Hill stated, “Disparate treatment discrimination based on my race
(Black-American) and sex (mal[e]).” (Doc. 1 at 5). Hill further stated he constitutes the

“only black male with [a] high position under [Ray’s] supervision.” (Id.) Presumably,
therefore, Hill maintains that Ray’s allegedly discriminatory conduct – which the Army
deciphered as “four forms of mistreatment” – violated Title VII’s prohibition against

race and gender discrimination, and framed corresponding causes of action. (Doc. 9 at
4). In addition, as elaborated previously, the OFO’s decision portrays it assessed Hill’s
claims pursuant to the disparate treatment and harassment frameworks. (Doc. 8 at 6–
8).
Thus, based upon Hill’s Complaint and the development of his claims during the
administrative proceedings, the Army may reasonably ascertain the nature and bases of

the claims Hill asserts against it, notwithstanding his failure to present them in separate
counts. See Farrar v. City of Chicago, 291 F. Supp. 2d 747, 751 n.2 (N.D Ill. 2003) (“While
separation of [the plaintiff’s] claims would have facilitated clear presentation, pro se
complaints should be liberally construed.”). Hill’s and the Army’s statuses as the sole

parties to this action buttresses this conclusion.10 See Davis v. Coca-Cola Bottling Co.

10 The court heeds the Army’s contention that Hill’s Complaint falls within the letter of the Eleventh
Circuit’s definition of a “shotgun pleading . . . that commits the sin of not separating into a different
count each cause of action or claim for relief.” Weiland, 792 F.3d at 1322. Even so, as elaborated in
the foregoing discussion, Hill’s Complaint nevertheless “give[s] [the Army] adequate notice of the
claims against [it] and the grounds upon which each claim rests,” and thus lacks the fundamental (and
fatal) characteristic “unifying” the shotgun pleadings the Eleventh Circuit rebukes. Id. at 1323. Hill’s
Complaint thus does not violate the spirit of the Eleventh Circuit’s proscription against shotgun
pleadings, even if it bears a deficiency typical of the same. See ANZ Advanced Techs., LLC v. Bush Hog,
LLC, No. 09-00228-KD-N, 2009 U.S. Dist. LEXIS 97246, at *5 (S.D. Ala. Sept. 29, 2009) (The
complaint did not constitute an improper “shotgun pleading” because it did not leave the reader
“guessing from . . . as to how plaintiff[s] w[ere] wronged, what defendants are alleged to have done,
how plaintiffs contend that defendants are liable for those acts and omissions, or how the factual
allegations are possibly material to the particular causes of action asserted.”) (alterations in original)
(quoting Garrett v. Stanton, No. 08-0175-WS-M, 2008 U.S. Dist. LEXIS 86249, *31 n.15 (S.D. Ala. Oct.
28, 2008)).

Similarly, despite any shortcomings, Hill’s Complaint does not portend the discovery issues “shotgun
pleadings” commonly incite. As the Eleventh Circuit explained, “shotgun pleadings” pose
complications because properly drafted pleadings “mark the boundaries for discovery”; thus, a
pleading comprising only vague or ambiguous allegations, or lengthy allegations lacking delineation by
claim or cause of action, may cause the parties to engage in needlessly expansive and costly discovery.
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1125–28 (11th Cir. 2014); see Staggers v. Int’l Longshoremen’s
Ass’n, No. 20-cv-24202-BLOOM/Otazo-Reyes, 2021 U.S. Dist. LEXIS 16072, at *12 (S.D. Fla. Jan.
28, 2021) (“Shotgun pleadings fail to make the connection between ‘the substantive count and the
factual predicates . . . [such that] courts cannot perform their gatekeeping function with regard to the
averments of [the claim].’”) (quoting Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279–80 (11th
Cir. 2006)); Garrett, 2008 U.S. Dist. LEXIS 86249, *31 n.15 (“Perhaps chief among [the “ills of shotgun
pleading”] is the inevitable propagation of unnecessarily broad discovery, with the case proceeding
along aimlessly because the inclusion of numerous extraneous and immaterial allegations incorporated
into every single claim for relief renders it virtually impossible to delineate reasonable discovery
Consol., 516 F.3d 955, 980 (11th Cir. 2008) (the plaintiffs impermissibly violated Rule
10(b) by failing to state their claims in separate counts because the complaint named

eight plaintiffs and failed to designate which plaintiff(s) asserted which cause(s) of
action), abrogated on other grounds by Iqbal, 556 U.S. 662, and Twombly, 550 U.S. 544, as
recognized in LaCroix v. W. Dist. of Ky., 627 F. App’x 816 (11th Cir. 2015); Beckley v.
McDonald’s USA, LLC, No. 2:16-cv-00054-WHA, 2017 U.S. Dist. LEXIS 16877, at *6

(M.D. Ala. Feb. 7, 2017) (The court granted the defendants’ Rule 12(e) motion because
the plaintiff’s complaint failed to “ascribe actionable conduct to particular causes of
action and to individual defendants,” and thus “impose[d] an onerous duty on th[e]
Court and [the defendants] to sift through [the plaintiff’s] pleading to match claims to

facts.”).
Furthermore, even if “key questions” vis-à-vis Hill’s claims remain

boundaries.”). Hill’s Complaint adequately frames the scope of discovery because, as discussed
previously, it permits the Army to identify the nature and bases of the discrimination claims asserted,
and reasonably prepare a good-faith response. C.f. Bennett v. Nationstar Mortg., LLC, No. 15-00165-
KD-C, 2015 U.S. Dist. LEXIS 119532, at *42 (S.D. Ala. Aug. 17, 2015) (the plaintiff’s complaint
constituted a “shotgun pleading” that warranted a more definite statement because the allegations
engendered confusion, and thus posed the risk of unwieldy and overly broad discovery).

Accordingly, because Hill’s Complaint does not incite the practical concerns reflected in the Eleventh
Circuit’s “shotgun pleading” strictures, the Army finds no refuge in the same. See Oppenheimer v.
Robison, No. 1:20-cv-152-TFM-N, 2020 U.S. Dist. LEXIS 173560, at *9 (S.D. Ala. Sept. 22, 2020)
(although the plaintiff’s complaint portrayed characteristics of a “shotgun pleading,” the court denied
the defendants’ Rule 12(e) motion because the complaint nevertheless placed the defendants on
sufficient notice of the allegations asserted therein); Amin, 349 F. Supp. 3d at 1351 (“While it is true
that Plaintiffs’ Complaint does ‘incorporate by reference each allegation set forth in the preceding
paragraphs,’ . . . the Court finds it implausible that Daimler is unable to ascertain the claims being
lodged against it and the grounds upon which those claims rest—notwithstanding Plaintiffs’ pleading
conventions. Indeed, the balance of Daimler’s own motion . . . belies any such notion.”).
“unanswered,” (doc. 9 at 6), under the circumstances, the Army nevertheless
demonstrates sufficient understanding of the allegations to assert a good-faith denial

thereof, or simply state that it “lacks knowledge or information sufficient to form a
belief about the truth [thereof].” Fed. R. Civ. P. 8(b)(3), (5); see Williams v. Omainsky,
No. 15-0123-WS-N, 2015 U.S. Dist. LEXIS 86118, at *10–11 (S.D. Ala. July 1, 2015)
(“[Plaintiff’s] inclusion of multiple alleged FLSA violations in a single count in no way

renders the Complaint an inscrutable ‘shotgun pleading’ to which defendants cannot
reasonably form a response in good faith.”); Harper v. City of Murphysboro, No. 08-182-
GPM, 2008 U.S. Dist. LEXIS 54110, at *8 (S.D. Ill. July 15, 2008) (Based upon Rule
8(b)’s pleading standards, the defendants “[were] not disadvantaged by the composition

of the complaint nor [would] they be strained to prepare a responsive pleading” such
that they required a more definite statement pursuant to Rule 12(e).); 5C WRIGHT &
MILLER, supra, § 1376 (“[T]he pleading . . . cannot be so vague or ambiguous that the
opposing party cannot respond—even with a simple denial—in good faith, without

prejudice to himself.”); 5C WRIGHT & MILLER, supra, § 1377 (“[T]he generally accepted
current construction of Rule 12(e) . . . is that the movant’s ability to prepare a
responsive pleading is to be measured in terms of the minimal duty imposed on him by

the federal pleading rules and the possibility that he might be prejudiced by attempting
to answer the pleading in its existing vague or ambiguous form.”).
Moreover, to the extent the Army requires clarification of Hill’s causes of action
to prepare adequate defenses, it may seek the same via discovery. See ANZ Advanced
Techs., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2009 U.S. Dist. LEXIS 97246, at
*6 (S.D. Ala. Sept. 29, 2009) (“The discovery process will enable [the defendants] to

‘ferret out additional detail concerning plaintiffs’ legal theories in a timely and efficient
manner.”) (alteration omitted) (quoting Garrett v. Stanton, No. 08-0175-WS-M, 2008 U.S.
Dist. LEXIS 86249, *31 n.15 (S.D. Ala. Oct. 28, 2008)); Fanguy v. Eastover Country Club,
L.L.C., No. Civ.A. 01–3778, 2002 WL 1888901, at *4 (E.D. La. Aug. 16, 2002) (“While

the Defendants may need additional information to prepare a defense, this can be
obtained through discovery and other pretrial procedures.”); Faulk v. Home Oil Co., 173
F.R.D. 311, 313 (M.D. Ala. 1997) (“The lack of specificity in the Plaintiffs’ Complaint
can be adequately addressed through appropriate methods of discovery.”); 5A WRIGHT

& MILLER, supra, § 1324. (“[F]ederal courts have been properly insistent in the past in
refusing to allow a motion to state [causes of action] separately from becoming a
substitute for the discovery procedures.”). Thus, although Hill did not distill his claims
into enumerated paragraphs or separate counts pursuant to Rule 10(b), the Army fails

to establish it lacks adequate notice of the nature of his allegations to reasonably prepare
a responsive pleading.11

11 Although a pro se plaintiff’s complaint “must comply with the procedural rules governing the proper
form of pleadings,” the Army nevertheless fails to establish the need for a more definite statement
because, again, Hill’s Complaint places the Army on notice of the bases for his discrimination claims.
Amun-Ra Hotep Ankh Meduty v. Ga. Dep’t of Admin. Servs., 614 F. App’x 401, 402–03 (11th Cir. 2015).
Thus, because the Complaint does not require “the court and [the Army] to determine who exactly
wronged [Hill] and in what manner,” id., Hill’s failure to delineate his claims in separate counts does
not entitle the Army to a more definite statement. See 5A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1324 (“Rule 10(b) does not make it necessary to use
Finally, as for the Army’s contention it requires a more definite statement of
Hill’s Complaint because he did not specify “the identity and positions of the individuals

[he] claims were treated more favorably,” the court fails to discern how any such
deficiency prejudices the Army’s ability to reasonably frame a responsive pleading.
(Doc. 9 at 6). As referenced previously, a defendant may not latch upon Rule 12(e) to
extract additional details it may desire vis-à-vis a plaintiff’s allegations, as discovery

devices and other pretrial mechanisms represent the proper vehicles for such fact
finding efforts. See Williams v. Walmart Stores East, LP, No. 1:18-CV-874-WKW, 2019
U.S. Dist. LEXIS 105862, at *2 (M.D. Ala. June 25, 2019) (“The [Rule 12(e) motion is
intended to provide a remedy for an unintelligible pleading, rather than a vehicle for

obtaining greater detail.”) (quoting Faulk v. Home Oil Co., 173 F.R.D. 311, 313 (M.D.
Ala. 1997)); Burnetti v. Westchester Fire Ins. Co., No. 8:18-cv-482-T-23JSS, 2018 U.S. Dist.
LEXIS 228427, at *6 (M.D. Fla. May 24, 2018) (“[A] more definite statement will
generally only be ordered if a pleading is unintelligible and not simply lacking details.”);

Wilson v. Gov’t of the Dist. of Columbia, 269 F.R.D. 8, 12 (D.D.C. 2010) (“[T]o prevent
Rule 12(e) from becoming a substitute for discovery, courts should generally deny a
motion for a more definite statement where the information sought may be obtained

in discovery.”); Abrams v. CIBA Specialty Chemicals Corp., No. 08-0068-WS-B, 2008 U.S.
Dist. LEXIS 68897, at *4 (S.D. Ala. Sept. 10, 2008) (“If defendants wish to delve into

separate counts to state different theories of recovery or to seek relief under separate statutory
provisions, although the pleader may choose to do so for clarity or out of caution.”).
the nuances of the facts supporting each particular plaintiff’s claims, then the discovery
process (not the Rule 12(e) mechanism) is the appropriate vehicle for doing so.”); Cox,

122 F.R.D. at 116 (“Rule 12(e) motions are designed to strike at unintelligibility, rather
than at lack of detail in the complaint.”); 5C WRIGHT & MILLER, supra, § 1375 (“[T]he
Rule 12(e) motion was not designed to elicit evidentiary details.”).
The Army may avail itself of discovery and other pretrial devices to ascertain the

desired particulars of Hill’s disparate treatment claims, thus foreclosing any need for a
more definite statement to this end. See Oppenheimer v. Robison, No. 1:20-cv-152-TFM-
N, 2020 U.S. Dist. LEXIS 173560, at *9 (S.D. Ala. Sept. 22, 2020) (The court denied
the defendants’ Rule 12(e) motion because, notwithstanding their shortcomings, the

plaintiff’s claims remained “sufficiently clear for [the defendants] to address” and the
parties could resolve “[a]ny lingering issues . . . by normal discovery mechanisms.”); 5C
WRIGHT & MILLER, supra, § 1376 (“[A]n implausible claim may well be stated intelligibly
enough to enable the framing of a response.”). For the foregoing reasons, Hill’s

Complaint does not reasonably prejudice the Army’s ability to craft a responsive
pleading, and, concomitantly, the Army fails to demonstrate an entitlement to a more
definite statement pursuant to Rule 12(e).

CONCLUSION AND ORDER
Pursuant to the foregoing discussion, Hill failed to state a claim upon which
relief may be granted against Ray. The court therefore GRANTS the Motion to
Dismiss Brandy Ray as a Defendant and DISMISSES WITH PREJUDICE Hill’s
claims against her. The court further DENIES the Motion for a More Definite
Statement.
DONE this 2™ day of August, 2021.
N. fet JR.
UNITED STATES MAGISTRATE JUDGE

24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990464. Public record. Not legal advice.