In Gibson v. City of Portland, No. 24-1663 (9th Cir. Jan. 29, 2025), a split panel addresses when it may be appropriate for a district court to strike what it calls a “shotgun pleading,” i.e., one that fails to specify claims against each named defendant, but instead indiscriminately incorporates allegations from one count to the next against all defendants.
“Plaintiffs-Appellants, Joseph Gibson and Russell Schultz, appeal the district court’s dismissal of their complaint for damages for alleged violations of their civil rights under 42 U.S.C. §§ 1983, 1985, and 1986, and Oregon tort law. They allege that Defendants-Appellees— Multnomah County, the City of Portland, the Multnomah County District Attorney’s Office (MCDA), two former district attorneys, two deputy district attorneys, and a Portland police detective—conspired to arrest and prosecute them without probable cause to silence their disfavored right-wing political expression. The district court dismissed Plaintiffs’ claims—with prejudice against some Defendants—on procedural and, alternatively, substantive grounds.”
“This case presents complex questions of fact and law. Those questions are made all the more complicated by Plaintiffs’ shotgun pleading. Although the complaint set forth detailed facts in 252 numbered paragraphs, in its causes of action, the complaint merely alleged the ‘defendants’ deprived them of various constitutional and statutory rights, leaving to Defendants, the district court, and us to decipher the details.”
While addressing the merits of plaintiffs’ civil rights appeal (it ultimately remands some of the claims), the panel majority sua sponte reviews the plaintiffs’ complaint for compliance with (1) the “short and plain” standard of Fed. R. Civ. P. 8(a)(2), and (2) the requirement that a plaintiff “state its claims” as separate counts in Fed. R. Civ. P. 10(b).
The panel majority labels the complaint a shotgun pleading. “A shotgun pleading is one where ‘a party indiscriminately incorporates assertions from one count to another, for example, by incorporating all facts or defenses from all previous counts into each successive count . . . prevent[ing] the opposing party from reasonably being able to prepare a response or simply mak[ing] the burden of doing so more difficult’ [quoting 5A Wright & Miller’s Federal Practice and Procedure § 1326] . . . . [T]he problem with shotgun pleadings is that they make it difficult, if not impossible, for the opposing party to formulate a response.”
The panel majority holds that “district courts do not have to accept such shotgun pleadings. It is not the job of the district courts to make sense of the pleading, to supply facts to support the claim, or to imagine the claims that might fit the facts.”
Thus, in the panel majority’s formulation, “when district courts identify shotgun pleadings, they should not hesitate to afford such parties one last opportunity to make themselves understood. In other words, we clarify today that Rule 8 provides district courts with an additional tool that they may use to dismiss shotgun pleadings when identified—not a rule necessarily requiring district courts to do so, however prudent it may be.”
The panel majority remands this case, inter alia, “to permit Plaintiffs to replead” the claims in compliance with these standards.
Judge Danielle J. Forrest, dissenting in part, pushes back both on the advisability of reaching the “shotgun pleading” issue and on the majority’s resolution of the issue.
The dissenting judge notes that because the parties did not themselves contest the sufficiency of the pleading under Rule 8, under the party-presentation principle the majority should not have reached it sua sponte.
“[E]ven if one were inclined to stretch the adversarial principles that animate the party-presentation principle to decide an unaddressed issue of law, there are important reasons not to do so here. Sua sponte development of law is inherently problematic because anytime a court ventures beyond the issues presented by the parties there is a risk of unfairness . . . . For example, Plaintiffs may have worthy counterarguments to the propriety of the shotgun-pleading rule that, if presented, could aid the court in making a fully informed decision. But Plaintiffs had no reason to raise those arguments where none of the Defendants advocated for the shotgun-pleading rule.”
The dissenting judge also concludes that the Federal Rules already provide sufficient protection for defendants against confusing pleadings, without troweling on a new, judicially-created “shotgun pleading” standard.
“I do not dispute that nebulous pleading can thwart orderly and efficient litigation. But there is no need to ‘fix’ this problem by establishing a new pleading rule. The existing rules do the necessary work while also giving fidelity to our adversarial system. Consider Rule 12(e). The relief it affords—requiring the pleading party to provide more specificity and clarity—must be party driven . . . . Unlike other motions provided for in the Rules, there is no provision for a court to sua sponte direct a more definite pleading.”
“The majority’s application of the shotgun-pleading rule is not faithful to basic adversarial principles. And its concern about responding parties being able to defend themselves falls flat here. Each Defendant moved to dismiss the claims asserted against it after identifying specific deficiencies in the Plaintiffs’ allegations. None of the defendants thought it necessary to request a more definite statement of the allegations against them . . . . We should have respected their litigation choices and simply resolved the grounds for dismissal that they advanced.”
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