Gordon v. Green

Decision Date18 September 1979
Docket NumberNo. 77-1188,77-1188
Citation602 F.2d 743
PartiesEdwin F. GORDON, Plaintiff-Appellant, Cross-Appellee, v. E. G. GREEN et al., Defendants-Appellees, Gustave T. Broberg, Jr., Defendant-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Rehearing Granted in Part and Denied in Part Nov. 19, 1979.

Di Giulian, Spellacy & Bernstein, Sidney T. Bernstein, Fort Lauderdale, Fla., W. E. Quisenberry, for appellant Gordon.

Fowler, White, Burnett, Hurley, Banick & Knight, Michael J. Cappucio, Miami, Fla., for appellee Barley.

Lowndes, Peirsol, Drosdick & Doster, Ernest J. Rice, James M. Spoonhour, Orlando, Fla., for appellees Overstreets.

Bedell, Bedell, Dittmar & Zehmer, Chester Bedell, Peter D. Webster, Jacksonville, Fla., for appellee-cross-appellant Gustave T. Broberg, Jr.

Fowler, White, Gillen, Boggs, Villareal & Banker, Wm. A. Gillen, Tampa, Fla., for appellee-cross-appellant Broberg.

Jones, Paine & Foster, Sidney A. Stubbs, Jr., Margaret L. Cooper, West Palm Beach, Fla., for appellee E. G. Green.

Smathers & Thompson, Earl D. Waldin, Jr., Miami, Fla., for appellees Heftler, Rhoades, Heye, Sherrill, Coleman, William & Henry Rudkin and Samuel & Dudley Sutphin.

Barwick, Bentley, Hayes & Karesh, M. Cook Barwick, Julian D. Halliburton, Atlanta, Ga., for appellant Gordon.

Robert W. Hayes, Gary L. Seacrest, Atlanta, Ga., for appellant Gordon.

Appeals from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.

JOHN R. BROWN, Chief Judge:

As we see it, the only issue currently before the Court in these five consolidated cases 1 is whether verbose, confusing, scandalous and repetitious pleadings totaling into the thousands of pages comply with the requirement of "a short and plain statement" set forth in F.R.Civ.P. 8. We think that the mere description of the issue provides the answer: 2 we direct the District Court to dismiss the complaints with leave to amend because of appellant's failure to comply with F.R.Civ.P. 8(a) and (e).

The Pleadings: Gobbledygook

The appellant, Edwin F. Gordon, invested several million dollars in a series of Florida real estate syndications. When the promises of substantial profits failed to materialize, appellant filed suit against the sellers and promoters of the syndications, claiming various violations of the federal securities laws. 3

Under F.R.Civ.P. 8, a party seeking relief must submit a pleading containing "a short and plain statement of the grounds upon which the court's jurisdiction depends," F.R.Civ.P. 8(a)(1), and "a short and plain statement of the claim showing that the pleader is entitled to relief." F.R.Civ.P. 8(a) (2). In addition, F.R.Civ.P. 8(e)(1) states that "[e]ach averment of a pleading shall be simple, concise, and direct." As the following factual account demonstrates, nothing was further from the minds of appellant and his lawyer than the clear directions contained in F.R.Civ.P. 8(a) and (e).

These five consolidated cases were originally brought in the Southern District of New York in March and April of 1976. At this initial stage, appellant filed five separate long, verbose, and confusing verified complaints containing a total of 165 typewritten pages and an additional 413 pages of exhibits. In one of the five cases, appellant filed an amendment to the verified complaint (8 pages plus 39 pages of exhibits).

By stipulation, the cases were transferred to the Southern District of Florida. The Florida Court proposed to dismiss appellant's complaints for violation of Rule 8, but did not actually do so when appellant introduced a single complaint and filed a motion to consolidate. The motion to consolidate was eventually denied.

In September 1976, the Trial Court ordered a hearing on various motions, primarily motions to dismiss under Rule 12(b). One week prior to the hearing and without seeking leave to amend appellant filed an "Amendment to Verified Complaint" for each of the actions. Each "Amendment to Verified Complaint" was 19 pages. On September 30, 1976, the Trial Court dismissed the action, but Not for failure to comply with Rule 8. Rather, after combing through the mountain of pages before him, the Trial Judge concluded that appellant failed to establish federal court jurisdiction. 4 Subsequently, appellant topped his mountain of legal papers with a fourth set of complaints and a motion for leave to amend. The motion was summarily denied.

"Let Thy Speech Be Short, Comprehending Much In Few Words"

5

The various complaints, amendments, amended amendments, amendments to amended amendments, and other related papers are anything but short, totaling over 4,000 pages, occupying 18 volumes, and requiring a hand truck or cart to move. 6 They are not plain, either. The Trial Court described the pleadings as being "extremely long and combin(ing) into single counts detailed recitation of evidence and legal arguments complete with extensive citations of authority." The Court also observed that a paragraph from one typical complaint was single spaced, "extend(ed) the full length of a legal page and constitute(d) a single sentence." Much of the pleadings are scandalous as well. 7 Moreover, we cannot tell whether complaints filed earlier in time are to be read in conjunction with those filed later or whether the amended versions supersede previous pleadings. 8

One option before us is to struggle through the thousands of pages of pleadings in an effort to determine (assuming we possibly could) whether the Trial Court correctly dismissed for lack of jurisdiction. However, such a course of action would be unwise from the standpoint of sound judicial administration. All would know that there is no longer any necessity for paying the least bit of heed to F.R.Civ.P. 8(a) in its demand for "a short and plain statement" reiterated by the 8(e) requirement that each averment "be simple, concise, and direct." Lawyers would see that in the face of even gross violations of Rule 8, we would undertake the burden of trying to parse out 18 volumes of words, disorganized and sometimes conflicting, with a mish-mash of so-called evidentiary materials, citations of authority, and other things that a pleader, aware of and faithful to the command of the Federal Rules of Civil Procedure, knows to be completely extraneous. And the District Courts who come on the firing line are the first victims of this paper mill. We think that the Trial Court should have dismissed the complaints with leave to amend. While a Trial Court is and should be given great leeway in determining whether a party has complied with Rule 8, we think that as a matter of law, verbose and scandalous pleadings of over 4,000 pages violate Rule 8.

In finding a violation of Rule 8, we do not recede even one inch from the position expressed by this Court in Blue Cat, 9 Plimsoll Club, 10 and a host of other cases 11 sounding an approach of liberality under F.R.Civ.P. 12 in reading a pleading as an adequate statement or claim. Appellant asks not that we adopt a liberal approach, but that we stand liberality on its head by accepting 4,000 pages of chaotic legal jargon in lieu of a short and plain statement. We would be hindering, not promoting, the underlying purpose of Rule 8, which is "to Eliminate prolixity in pleading and to achieve brevity, simplicity, and clarity." Knox v. First Security Bank of Utah, 10 Cir., 1952, 196 F.2d 112, 117 (emphasis added). We fully agree with the observation of the District Court for the Eastern District of Michigan that "the law does not require, nor does justice demand, that a judge must grope through (thousands of) pages of irrational, prolix and redundant pleadings." Passic v. State, E.D.Mich., 1951, 98 F.Supp. 1015, 1016.

Our view that flagrant violations of Rule 8 should not be tolerated is shared by Courts throughout the country. There are numerous cases in which complaints have been dismissed as being contrary to the letter and spirit of the Rule. In Carrigan v. California State Legislature, 9 Cir., 1959, 263 F.2d 560, Cert. denied, 1959, 359 U.S. 980, 79 S.Ct. 901, 3 L.Ed.2d 929, the Ninth Circuit upheld the Trial Court's dismissal without prejudice of a complaint totaling 186 pages filled with hearsay statements, medical reports, and other extraneous material. In Brown v. Knoxville News-Sentinel, E.D.Tenn., 1966, 41 F.R.D. 283, the District Court for the Eastern District of Tennessee dismissed without prejudice a complaint of 117 pages, indicating that "the Court is unable to separate the various charges." For other interesting cases, see, e.g., Silver v. Queen's Hospital, D.Hawaii, 1971, 53 F.R.D. 223 (ordering plaintiff to file new complaint, describing existing one as "voluminous" and containing "clearly extraneous allegations"); Johnson v. Hunger, S.D.N.Y., 1967, 266 F.Supp. 590 (dismissing plaintiff's complaint without prejudice and describing complaint as "a confusing and foggy mixture of evidentiary statements, arguments and conclusory matters"); Benner v. Philadelphia Musical Society, Local 77, of the American Federation of Musicians, E.D.Penn., 1963, 32 F.R.D. 197 (dismissing without prejudice 26 page complaint filled with "prolix, argumentative and conclusionary paragraphs"); Martin v. Hunt, D.Mass., 1961, 29 F.R.D. 14 (dismissing complaint with 57 paragraphs containing "scandalous and vituperative" material).

As previously stated, in ordering the suits dismissed we do so with leave to amend. Appellant may file a Short and plain Statement in lieu of the 18 volumes of papers currently before us. We hold that under F.R.Civ.P. 15(c), the filing of a proper, decent, acceptable amendment will relate back to the original filing, thus eliminating any question concerning the statute of limitations. See, e. g., Travelers Ins. Co. v. Brown, 5 Cir., 1964, 338 F.2d 229 (applying the "relation back" doctrine). We explicitly declare our "relation back" ruling to be the "law...

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