by Laura Dean, Cranfill Sumner & Hartzog, LLP
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” As the United States Supreme Court explained, the purpose of this requirement is to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). In recent years, defendants have been challenging the sufficiency of shotgun-type pleadings based on the United States Supreme Court’s decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 566 U.S. 662 (2009).
Shotgun complaints “fail to apprise the opposing party of the particular claims against it (and the potential extent of its liability) . . . [and] water down the rights of parties to have valid claims litigated efficiently and waste scarce judicial resources.” Jackson v. Waring, Civil No PJM 15-1233, 2016 WL 7228866 at *4 (D. Md. Dec. 13, 2016).
In a Section 1983 case, Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), the Eleventh Circuit sifted through more than sixty past opinions and outlined four broad categories of shotgun pleadings. Id. at *1322. The first, most common type, is “a complaint containing multiple counts where each count adopts the allegations of all preceding counts . . . .” Id. The second is “replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.” Id. The third does not separate into a different count each cause of action or claim for relief. Id. The fourth asserts multiple claims against multiple defendants without specifying which defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against. Id.
In asbestos litigation, many complaints arguably fall into the fourth category. Plaintiffs will often include only generic conclusory allegations against multiple defendants without tying any defendant to a particular product. For example, the complaint may include an allegation that plaintiff worked with and was exposed to asbestos and asbestos-containing materials, products or equipment mined, manufactured, processed, imported, converted, compounded, and/or sold by the defendants. However, plaintiff will not provide any additional details, including the particular product to which plaintiff was exposed, the nature of the exposure, or when the exposure occurred.
Some federal courts have expressed skepticism in response to these wide sweeping pleadings. For example, in Craver v. 3M Co., No. 1:16cv01397 (M.D.N.C. Aug. 17, 2017), the court recognized that asbestos litigation “is different from most other federal litigation.” However, the court explicitly stated that despite these difficulties asbestos litigation “is still litigation subject to the Federal Rules.” Id. In dismissing plaintiff’s complaint, the court explained that plaintiff made “only generic allegations against all Defendants as a group” and that the allegations were “too vague to apprise [defendant] of the basis of its alleged liability and to allow the Court to draw a reasonable inference that [defendant] is liable for the misconduct alleged in the Complaint.” Id.
Similarly, in Rhodes v. Mcic, Inc., No JKB-16-2459, 2017 WL 25375 (D. Md. Jan. 3, 2017), the court granted the defendants’ motions for judgment on the pleadings explaining that the complaint “lumped all Defendants together generally”, “made no effort to allege facts particular to any Defendant”, and did not “narrow the relevant time period as to each Defendant.” Id. at *3.
In Boggs v. Am. Optical Co., No. 4:14-CV-1434-CEJ, 2015 WL 300509 (E.D. Mo. Jan. 22, 2015), plaintiff alleged exposure to multiple asbestos-containing products without differentiating between the products or defendants. Id. at *1. In ruling on a motion to dismiss, the Boggs court explained:
A complaint which lumps all defendants together and does not sufficiently allege who did what to whom, fails to state a claim for relief because it does not provide fair notice of the grounds for the claims made against a particular defendant. A “shotgun pleading” or “kitchen sink pleading” in which a plaintiff asserts every possible cause of action against a host of defendants for actions over a prolonged period (here, twenty-seven years) but without facts specific enough that those defendants can respond to the allegations does not comport with even the most generous reading of Rule 8(a).
Based on the few facts alleged in the complaint, it is not plausible that all thirty-two defendants caused [plaintiff] to be exposed to asbestos from two dozen kinds of products over a twenty-seven year period and in five different geographical locations. Rule 8(a) requires more specificity than [plaintiff] has provided if his complaint is to be taken as anything more than speculation as to each defendant.
Id. at *2 (citations omitted).
In Bulanda v. A.W. Chesterton Co., No. 11 C 1682, 2011 WL 2214010, at *2-3 (N.D. Ill. Jun. 7, 2011), plaintiff’s claims were also dismissed without prejudice because, aside from the first paragraph in which defendants were listed by name, the complaint made only generic allegations as to the defendants collectively. Id. at *2. The complaint did not “identify the allegedly offending product that [the moving defendant] manufactured, sold, or distributed.” Id. at *2.
Other cases in which the court dismissed similar complaints include Rothchild v. Crane Co., No. 14-80271-CIV, 2014 WL 3805491 (S.D. Fla. Aug. 1, 2014); Baldonado v. Arvinmeritor, Inc., No. 13-833-SLR-CJB, 2014 WL 2116112 (D. Del. May 20, 2014) report and recommendation adopted Civ. No. 13-833-SLR/CJB, 2014 WL 2621119 (D. Del. Jun. 10, 2014); Aguirre v. Amchem Prods., No. CV 11–01907–PHX–FJM, 2012 WL 760627 (D. Ariz. Mar. 7, 2012).
Despite this recent trend, some “kitchen sink” complaints continue to survive motions to dismiss. In Miller v. 3M Co, No. 5:12-CV-00620-BR, 2013 WL 1338694 (E.D.N.C. Apr. 1, 2013), plaintiffs alleged that occupational exposure to asbestos-containing products caused Mr. Miller to contract mesothelioma, which resulted in his death. One defendant moved to dismiss the complaint. In denying the defendant’s motion to dismiss, the court heavily relied on an attachment to the complaint in which plaintiff asserted “factual information about Mr. Miller’s work experience and provide[d] dates, occupations, employers and worksite locations, as well as a list of products containing asbestos to which he was allegedly exposed” and found that these allegations “sufficiently [met] the applicable legal standard.” Id. at *2.
In Lineberger v. CBS Corp., 1:16cv390, 2017 WL 3883711, at *2 (W.D.N.C., Aug 14, 2017), the court, relying on Miller, also declined to dismiss plaintiff’s shotgun complaint. Although the individual defendants were only listed in an attachment to the complaint, the court found that the complaint gave a history of employment during which time plaintiff alleged he was exposed to asbestos and found that these allegations were sufficient to survive the motion to dismiss. Id. at *1.
Other cases in which the court has declined to dismiss shot gun complaints include Hicks v. Boeing Co., No. 13-393-SLR-SRF, 2014 WL 1284904 (D. Del., Mar. 21, 2014); Soucy v. Briggs & Stratton Corp., No. 1:13-cv-00068-NT, 2014 WL 794570 (D. Me. Feb. 27, 2014).
The above decisions are difficult to reconcile and the Fourth Circuit has not yet addressed the issue of shotgun-style pleadings in the asbestos context. However, defendants should continue to challenge these pleadings. While motions to dismiss, when granted, are without prejudice, these efforts may put pressure on plaintiffs’ attorneys to better evaluate the strength of their claims against individual defendants before filing.