Edith Beerdsen (Temple) has written some interesting stuff about how the discovery process is less about the FRCP and more about the culture of a legal community. The process moves according to a rough sense of how things ought to work in a gestalt manner rather than according to the rules.
It is an interesting idea. And it may explain the entire mechanism of civil litigation. Case in point is Sokolowski v. Digital Currency Group, from the Middle District of Pennsylvania.
This is a pro se action, apparently a dispute among a bunch of crypto bros. The original complaint was 66 pages/125 ¶s, with another 42 pages of exhibits. The amended complaint (filed as a matter of course) was 81 pages/163 ¶s with almost 200 pages of exhibits. Plaintiffs moved for leave to amend; the proposed second amended complaint was 946 pages (pleading and exhibits)/720 paragraphs (Carlson notes it rivals Gone With the Wind in length). It adds several new parties, talks at length about many non-parties, and adds a claim for RICO. Magistrate Martin Carlson’s R&R recommends that the district court grant the motion for leave to amend in part–do not allow the proposed SAC because it is obscenely long and contains a lot of improper stuff, but direct plaintiffs to offer a different proposed amended complaint that better complies with Rule 8(a)(2).
A few thoughts on broader issues:
1. There is a nice question of whether FRCP 8(a)(2)’s “short and plain statement” requirement establishes a floor or a ceiling. That is, whether 8(a)(2) requires a short-and-plain statement as a minimum to survive a 12(b)(6) but leaves the plaintiff free to provide more, if she chooses (subject to whatever risks that entails, such as pleading herself out of court). Or whether it establishes the maximum–when a plaintiff provides more than a short-and-plain statement, she violates the rules and the pleading becomes improper.
The magistrate in Sokolowski took the latter view–the proposed SAC violated Rule 8 in its prolixity and thus should not be allowed even if the plaintiffs should be given leave to amend. So did Judge Merryday in striking a typically bumptious Trump pleading; a pleading that includes dozens of pages of extraneous stuff1 “stands unmistakably and inexcusably athwart the requirements of Rule 8.”
Justice Jackson took the opposite view in her Berk concurrence in arguing that the state CoM requirement did not conflict with Rule 8. Rule 8 does not prohibit a plaintiff from submitting more than a short-and-plain statement, including a non-pleading document such as a CoM. That is, Rule 8 establishes a floor not a ceiling. Thus a state law requiring the plaintiff do something he could otherwise do did not conflict with that rule. The conflict arose with Rule 12–state law imposed the consequence of dismissal for lack of that non-pleading document, where FRCP 12(d) only allows dismissal based on the complaint.
2. What I wrote about Judge Merryday’s order in Trump applies to this R&R: The court conflates Rule 8 with Rules 12(e) and (f). This overly long and incomprehensible complaint is not defective for failing to offer a short-and-plain statement. It is defective because it contains “redundant, immaterial, impertinent, or scandalous matter,” warranting striking some or all of the pleading. Or the SAC’s prolixity renders it “so vague or ambiguous that the party cannot reasonably prepare a response,” warranting the court to order a more definite statement.
To be fair, prolixity does create a Rule 8 issue warranting dismissal, but not as the court describes it. The problem is not that the complaint is too long and thus fails to be short-and-plain, because Rule 8(a)(2) does not prohibit a pleading that is more than short-and plain. The problem is that the prolixity and extraneous stuff obscures any showing that the pleader is entitled to relief. That is, the magistrate cannot find a legally or factually sufficient claim in the mess and thus must dismiss. But that is not what magistrate said.
3. The ultimate order–grant leave to amend in part but deny leave to file the proposed pleading–is incoherent. Courts do not grant or deny leave to amend in the abstract; the decision must be pleading-specific–will the court permit the party to file this attached document. This is why every circuit trequires the movant to attach a copy of the proposed amended complaint to the motion–so the court can determine whether leave should be granted as to that pleading. And one reason for denying leave to amend is futility of amendment, which requires the court to evaluate a specific proposed pleading.
The correct approach would be to deny leave to amend as futile–the proposed amendment is obviously too vague, contains tons of strikeable stuff, and obscures any sufficient claim that might be in there.2 But tell the plaintiff he can, within some time period, file a new motion for leave with a specific new pleading that the court can evaluate. The R&R seems to recommend allowing plaintiff to offer a new pleading without having to file a new motion (since leave to amend has been granted and thus need not be sought anew).
As I said at the top, we reach the same–and proper–end point through a rough, if atextual, sense of how litigation should proceed. Plaintiffs cannot file this monstrosity for reasons but should be allowed another crack. And Carlson might be more forgiving of the pro se plaintiff who claims to be seeking counsel. That is the right result. But this presents a nice example of how things operate on a logic independent of the rules.
I thought about assigning this case as an essay–what did the court do right and wrong and how would the actual rules get the court to this ending.
- “As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective — not a protected platform to rage against an adversary. A complaint is not a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers’ Corner.” ↩︎
- Because it is never RICO. ↩︎