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Date: 01-21-2018

Case Style:

Vibe Micro, Inc. v. Igor Shabanets, et al.

Southern District of Florida Courthouse - Miami, Florida

Case Number: 16-15276

Judge: Wilson

Court: United States Court of Appeals for the Eleventh Circuit on appeal from the Southern District of Florida (Miami-Dade County)

Plaintiff's Attorney: Geoffrey Ittleman and Dan Zaffuto

Defendant's Attorney: Stephen Austin Carr, Kai Eric Jacobs, Edward Shkolnikov, Marcus John Susen

Description: This appeal concerns the discretion of a district court to dismiss a complaint
on shotgun pleading grounds. Plaintiff Edward Mandel1 appeals the district court’s
dismissal with prejudice of his Second Amended Complaint (SAC). The district
court, lamenting the shotgun pleading nature of the First Amended Complaint
(FAC), had given Mandel—represented by counsel that failed to request leave to
amend—an opportunity to replead and a thorough set of directions on how to
remedy the errors in the FAC. When Mandel failed to do so in the SAC, and
perhaps even exacerbated the pleading issues, the district court dismissed the SAC
with prejudice on Rule 8 grounds. Mandel now argues that the district court was
powerless to do so, and that he deserves at least one more chance to replead. After
* Honorable Roger W. Titus, United States District Judge for the District of Maryland, sitting by
1 Mandel controls Vibe Micro, Inc., another plaintiff. Mandel also purported to sue in a
derivative manner on behalf of 8 Speed 8, Inc. All three entities are appellants in this matter.
For simplicity, we refer to the plaintiffs collectively as Mandel.
Case: 16-15276 Date Filed: 01/03/2018 Page: 2 of 10
reviewing the record and briefs, and with the benefit of oral argument, we affirm
on most issues, but remand in a limited manner with respect to the state law claims.
After allegedly being the victim of a scheme to force him off the board of a
bill payment terminal company, Edward Mandel sued numerous defendants in the
Southern District of Florida. Represented by counsel, he filed a six-count original
complaint (OC), alleging breach of fiduciary duty, civil conspiracy, and violations
of the RICO statute. The OC spanned 49 pages, with 109 pages of exhibits.2
Amending once as of right, Mandel, still represented by counsel, filed the FAC,
which had grown to 56 pages and 168 pages of exhibits.
The FAC was “a mostly incoherent document” containing “duplicative,”
“inconsistent,” and “wholly conclusory” allegations in paragraphs that spanned
multiple pages. Vibe Micro v. Shabanets, No. 15-cv-80999, 2015 WL 11438937,
at *4 (S.D. Fla. Dec. 4, 2015), ECF No. 97. Its allegations were “oftentimes not
connected to a particular Defendant or set of Defendants, making it impossible to
understand who did what.” Id. In light of these deficiencies, several defendants
filed motions to dismiss. Mandel never requested leave to amend the FAC, either
in his responses to the motions to dismiss or anywhere else.
2 Our detailing of the length of Mandel’s complaints should not be construed as an indictment
against all long complaints. Rather, the recitation here serves as one illustration of the shotgun
nature of the pleadings in this case. Mandel admits on appeal that the final complaint remained a
shotgun pleading.
Case: 16-15276 Date Filed: 01/03/2018 Page: 3 of 10
The district court dismissed the FAC without prejudice for violating Rule 8.3
Making an “attempt[] to understand the alleged facts, to the extent possible,”
however, the district court enumerated several deficiencies in the FAC, and stated
that Mandel “must cure” them in a SAC if he wished for the case to continue. Id.
This 15 page order dismissing the FAC thoroughly explained how to improve the
pleadings through a SAC, and the district court sua sponte allowed Mandel to file a
SAC within 10 days.
Unfortunately, the SAC did not improve. It ballooned to 70 pages, with 160
pages of exhibits. The “allegations remain[ed] duplicative,” it “continue[d] to
contain labeling and numerical inconsistencies,” and it “continue[d] to fail to
provide even minimal notice to the individual Defendants as to what conduct they
are alleged to have participated in.” Vibe Micro, Inc. v. Shabanets, No. 15-cv-
80999, 2016 WL 4256915, at *1–2 (S.D. Fla. July 19, 2016), ECF No. 146. Once
again, several defendants filed motions to dismiss, and, once again, Mandel—still
represented by counsel—did not request leave to amend his pleading.4
The district court found that the SAC was “a ‘shot gun’ pleading of the sort
the Eleventh Circuit ‘has been roundly, repeatedly, and consistently condemning
3 See Fed. R. Civ. P. 8(a)(2) (requiring “a short and plain statement of the claim showing that the
pleader is entitled to relief”).
4 Mandel argues that his request for “further relief . . . that the Court deems fair, just and
equitable” in his response to a motion to dismiss somehow was tantamount to a request for leave
to amend. We reject this argument.
Case: 16-15276 Date Filed: 01/03/2018 Page: 4 of 10
for years,’” and that its “[m]aterial allegations, if there are any, [were] ‘buried
beneath innumerable pages of rambling irrelevancies,’ making no distinction
between the defendants engaged in the various alleged acts.” Id. at *2 (citations
omitted). Finding that it violated Rule 8, the district court dismissed the SAC with
prejudice. After this order dismissing the SAC, Mandel did not file any motions
and did not make any requests for leave to amend. Rather, he simply appealed the
On appeal, Mandel admits that the SAC “had not fixed all of the shot-gun
pleading problems that resulted in the dismissal of the FAC,” but argues that he
deserves “at least one additional opportunity to fix the pleading problems.” The
thrust of his argument is that a district court can never dismiss a pleading with
prejudice on Rule 8 shotgun pleading grounds unless it finds evidence of bad faith.
We disagree.
We review a dismissal on Rule 8 shotgun pleading grounds for an abuse of
discretion. Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1320
(11th Cir. 2015). Shotgun pleadings violate Rule 8, which requires “a short and
plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.
Civ. P. 8(a)(2), by “fail[ing] to one degree or another . . . to give the defendants
adequate notice of the claims against them and the grounds upon which each claim
Case: 16-15276 Date Filed: 01/03/2018 Page: 5 of 10
rests.” Weiland, 792 F.3d at 1323 (defining the four types of shotgun pleadings).
Courts in the Eleventh Circuit have little tolerance for shotgun pleadings. See
generally Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979–80 & n.54
(11th Cir. 2008) (collecting numerous cases), abrogated on other grounds by Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). They waste scarce
judicial resources, “inexorably broaden[] the scope of discovery,” “wreak havoc on
appellate court dockets,” and “undermine[] the public’s respect for the courts.” Id.
at 981–83 (detailing the “unacceptable consequences of shotgun pleading”).
A district court has the “inherent authority to control its docket and ensure
the prompt resolution of lawsuits,” which includes the ability to dismiss a
complaint on shotgun pleading grounds. Weiland, 792 F.3d at 1320. In the special
circumstance of non-merits dismissals on shotgun pleading grounds, we have
required district courts to sua sponte allow a litigant one chance to remedy such
deficiencies. See, e.g., Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273,
1280 (11th Cir. 2006); Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001),
abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S.
639, 128 S. Ct. 2131 (2008); Magluta v. Samples, 256 F.3d 1282, 1284–85 (11th
Cir. 2001) (per curiam). In these cases, even if the parties do not request it, the
district court “should strike the complaint and instruct counsel to replead the
case—if counsel could in good faith make the representations required by Fed. R.
Case: 16-15276 Date Filed: 01/03/2018 Page: 6 of 10
Civ. P. 11(b).” Byrne, 261 F.3d at 1133 n.113 (alterations adopted) (quoting
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997)). This initial repleading
order comes with an implicit “notion that if the plaintiff fails to comply with the
court’s order—by filing a repleader with the same deficiency—the court should
strike his pleading or, depending on the circumstances, dismiss his case and
consider the imposition of monetary sanctions.” Id. at 1133.
However, this rule does not extend indefinitely. We have held that a
“district court is not required to grant a plaintiff leave to amend his complaint sua
sponte when the plaintiff, who is represented by counsel, never filed a motion to
amend nor requested leave to amend before the district court.” Wagner v. Daewoo
Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). We
specifically adopted this rule in Daewoo’s Rule 12(b)(6) context to prevent
litigants from getting “two bites at the apple” when appealing final orders of the
district court. Id. at 543. Under our pre-Daewoo rule,5 the appellant achieved
success on a Rule 12(b)(6) appeal whether we reversed or affirmed: if we
reversed, the appellant won on the merits of his appeal; if we affirmed, the
appellant received another chance to replead without ever having to ask the district
court for one. Id. Interpreting Daewoo in a shotgun pleading context, we have
5 See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam) (“Where a more carefully
drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the
complaint before the district court dismisses the action with prejudice.”), overruled by Daewoo,
314 F.3d at 541.
Case: 16-15276 Date Filed: 01/03/2018 Page: 7 of 10
noted that the case “recognizes the potential for abuse that follows allowing
plaintiffs to appeal dismissed complaints as long as the district court freely permits
amendment.” First Horizon, 464 F.3d at 1280 n.7.
Reading these cases together, we hold the following: When a litigant files a
shotgun pleading, is represented by counsel, and fails to request leave to amend, a
district court must sua sponte give him one chance to replead before dismissing his
case with prejudice on non-merits shotgun pleading grounds.6 In the repleading
order, the district court should explain how the offending pleading violates the
shotgun pleading rule so that the party may properly avoid future shotgun
pleadings. Although the Byrne line of cases requires one sua sponte chance to
amend a shotgun pleading, Daewoo operates in the background. After that one
Byrne opportunity to replead comes and goes, Daewoo’s rule operates to allow the
district court to dismiss with prejudice if the party has still neither filed a compliant
pleading nor asked for leave to amend. See First Horizon, 464 F.3d at 1280 n.7
(construing Daewoo in a shotgun pleading context). This holding “ensures that the
issues get defined at the earliest stages of litigation,” Byrne, 261 F.3d at 1133
n.113, while also weighing the important concerns upon which Daewoo rested,
including judicial efficiency, finality, and limiting lengthy delays or abuse of the
courts. See Daewoo, 314 F.3d at 542–44.
6 Here, as in Daewoo, we “decide and intimate nothing about a party proceeding pro se.”
Daewoo, 314 F.3d at 542 n.1.
Case: 16-15276 Date Filed: 01/03/2018 Page: 8 of 10
In this case, the district court sua sponte gave Mandel a chance to replead
and remedy his shotgun pleading issues, and provided him with a veritable
instruction manual on how to do so. Mandel did not fix the problem. Since he
admits on appeal that the complaint at issue remained a shotgun pleading, the
district court could not have abused its discretion in dismissing it on shotgun
pleading grounds. Further, he did not ask the district court for leave to amend, and
the district court was not required to sua sponte give him any additional chances to
remedy the Rule 8 violations. Therefore, we affirm the district court’s dismissal
with prejudice of the federal claims in the SAC.
When all federal claims are dismissed before trial, a district court should
typically dismiss the pendant state claims as well. See United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139 (1966); see also Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7, 108 S. Ct. 614, 619 & n.7 (1988)
(“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendant jurisdiction doctrine—
judicial economy, convenience, fairness, and comity—will point toward declining
to exercise jurisdiction over the remaining state-law claims.”). Although it is
possible for the district court to continue to exercise supplemental jurisdiction over
these pendant claims, Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342,
Case: 16-15276 Date Filed: 01/03/2018 Page: 9 of 10
1352 (11th Cir. 1997), if the district court instead chooses to dismiss the state law
claims, it usually should do so without prejudice as to refiling in state court.
Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999).
We find that to be particularly the case where, as here, the dismissal occurs
without any analysis of the merits of the state claims. The district court dismissed
the entire SAC with prejudice on non-merits Rule 8 grounds. However, to
whatever extent that the SAC includes state law claims, the dismissal should have
been without prejudice as to refiling in state court. Therefore, we remand for the
limited purpose of clarifying the order in this respect.

Outcome: Mandel is not entitled to another chance to replead. The district court sua
sponte gave him an opportunity to correct the shotgun pleading issues in his
complaint, and provided him with specific instructions on how to properly do so.
He did not fix it. We will not adopt a rule requiring district courts to endure
endless shotgun pleadings. Therefore, although we remand for the limited purpose
of clarifying that the dismissal of the state law claims is without prejudice as to
refiling in state court, we affirm on all other issues.

Plaintiff's Experts:

Defendant's Experts:


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