Hi TCPAWorld! I have quick lesson in “shotgun pleadings” today for you, curtesy of the Honorable Judge Wendy W. Berger. Sharfman, v. Precision Imagin St. Augustine LLC & Halo DX, Inc., No. 6:22-CV-642-WWB-DCI, 2024 WL 807979 (M.D. Fla. Feb. 20, 2024).

Judge Berger granted the defendants’ motion to dismiss on the basis of the following paragraph rendering the complaint a “shotgun pleading”:

So what is a “shotgun pleading”? The Eleventh Circuit has categorized “shotgun pleadings” into four distinct types (which I will now make up very unoriginal names for):

1. Recycled: The most common variant, where the pleading recycles the same allegations across multiple counts.
2. Vague/Conclusory: This type of pleading is characterized by its reliance on vague and conclusory statements that don’t connect directly to specific legal claims.
3. Lumped: These pleadings fails to separate into different counts different claims for relief or causes of action.
4. Blended: The rarest form, where multiple claims are made against multiple defendants without clarifying who is responsible for what.

This class action TCPA lawsuit is based upon allegations that Precision Imaging St. Augustine, LLC (“Precision”), in joint venture with Halo DX, Inc. (“Halo”), sent unsolicited fax advertisements to Plaintiff Marc Irwin Sharfman.

Previously, Plaintiff’s first amended complaint was dismissed for being a “shotgun pleading” because “Plaintiff had inappropriately grouped Defendants together throughout the pleading without identifying which was responsible for what alleged wrongdoing.” So in other words, it was a shotgun pleading under the “blended” category.

Now comes the second amended complaint, and it seems history has repeated itself. Despite efforts to rectify past pleading sins, the court once again identified the complaint as a “shotgun pleading.”

Once again, the court found that this was a “shotgun pleading.” This time, however, it falls under the vague/conclusory category because it alleged that “Precision and Halo, acting ‘both collectively and individually’ sent other fax advertisements.” The court reasoned:

“Indeed, Plaintiff does not explain whether the Defendants sent these additional faxes individually or through the Joint Venture; does not identify the recipients or contents thereof; and does not approximate when these faxes were sent. Further, the sole count in the SAC relies on the theory that both Defendants are joint senders of the Faxes by virtue of the Joint Venture. But paragraph 53 suggests that Precision may be liable for conduct independent of Halo, and vice versa. That possibility would require additional, separate counts alleging each Defendant’s liability independent of the other and therefore, the SAC would fail to ‘separate[e] into a different count each cause of action or claim for relief.’”

Now the defendants’ other arguments the court rejected are also noteworthy.

The court rejected the argument that the complaint’s description of the putative class created a shotgun pleading issue because it potentially encompassed faxes sent both within and outside of the Joint Venture. The court reasoned that this concern pertains more to commonality issues for class certification rather than the sufficiency of the complaint’s allegations at the dismissal stage.

The court also dismissed the defendants’ claim that the second amended complaint failed to address previous pleading defects—specifically the issue of blending defendants without distinguishing their actions. The court found the argument unpersuasive explaining that the complaint detailed the business relationship between Precision and Halo including their joint venture and Halo’s marketing investments. This information, she reasoned, adequately identified both entities as “senders” of the faxes under the TCPA, effectively resolving the “blended” pleading concern.

The third amended complaint was filed on 2/23/24. We will see if this one makes it past the pleading stage.