Aaron Hirsch v. Ensurety Ventures, LLC

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13527
Non-Argument Calendar
________________________
D.C. Docket No. 3:17-cv-01215-BJD-JBT
AARON HIRSCH,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
versus
ENSURETY VENTURES, LLC,
d.b.a. Omega Autocare,
LYNDON SOUTHERN INSURANCE COMPANY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 18, 2020)
Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Plaintiff Aaron Hirsch (“Hirsch”) appeals the dismissal with prejudice of his
Revised Second Amended Complaint (“RSAC”). The District Court dismissed the
RSAC as an impermissible shotgun pleading that fails to comply with the
requirements of Federal Rule of Civil Procedure 8(a). We affirm the District
Court’s order.
I.
Before we can discuss the pleading at issue, we first must recount the history
of this litigation. On October 30, 2017, Hirsch filed his first Complaint against
Ensurety Ventures, LLC (“Ensurety”) and Fortegra Financing Corporation
(“Fortegra”), alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 et seq. The gist of his allegations was, and is, that
Ensurety, under the trade name Omega Autocare (“Omega”), and Fortegra, which
provides underwriting services to Omega, have been responsible for unlawful
telemarketing calls that Hirsch has received which advertise Omega Autocare
automobile warranty policies. Specifically, Hirsch alleged that the defendants
made “unsolicited and unauthorized calls using an [automated telephone dialing
system] or pre-recorded/artificial voice” to residential and cellular telephones “for
the purpose of marketing [their] products and/or services.” The Complaint
contained six counts: Counts I and II allege violations by the defendants of 47
U.S.C. § 227(b)(1)(A), Counts III and IV allege violations by the defendants of §
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227(b)(1)(B), and Counts V and VI allege violations by the defendants of §
227(c).1 Hirsch requested that his Complaint be certified as a class action, and
sought an injunction requiring the defendants to cease all telemarketing calls, as
well as an award of statutory damages under the TCPA for members of the class.
The District Court struck the Complaint sua sponte, finding that it
constituted an impermissible shotgun pleading because all six counts of the
Complaint incorporated the allegations of each of the previous counts by reference.
Hirsch then filed an Amended Complaint containing the same six counts and
theories of liability, asserted against the same two defendants. Both defendants
independently moved to dismiss the Amended Complaint, and the motion was
referred to a Magistrate Judge to prepare a Report and Recommendation (“R&R”).
In evaluating Omega’s motion to dismiss, the Magistrate Judge concluded that the
Amended Complaint failed to state a claim under Counts I and II because Hirsch
did not allege that his voice-over-Internet protocol (“VoIP”) telephone service was
“a service for which the called party is charged for the call,” as required by §
227(b)(1)(A). Additionally, the Magistrate Judge recommended that Fortegra’s
motion to dismiss be granted because, while the Amended Complaint indicated
that the telemarketing calls were advertising Omega automobile warranty policies,
1
Counts II, IV, and VI allege that the violations alleged in Counts I, III, and V were
knowing and/or willful, as a basis for treble damages under the TCPA.
3
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it did not sufficiently allege a relationship between Fortegra and Omega and did
not indicate “which defendant is responsible for which actions.”2 The Magistrate
Judge indicated that he was “persua[ded]” by the reasoning of TCPA cases that
“required repleader . . . where, because multiple defendants are lumped together, it
is unclear what theory of liability Plaintiff is pursuing.” Thus, the R&R
recommended that the Amended Complaint be dismissed in its entirety without
prejudice, and the recommendation was adopted by the District Court.
Hirsch then filed a Second Amended Complaint and a Corrected Second
Amended Complaint, which were both stricken by the District Court without
prejudice because they sought to add new defendants without receiving leave of
Court.3 Hirsch then filed a Revised Second Amended Complaint (“RSAC”)
naming seven defendants: Lyndon Southern Insurance Company, Insurance
Company of the South, LOTSolutions, Inc., Auto Knight Motor Club, Inc., EGV
Companies, Inc., Ensurety, Inc., and Ensurety Ventures, LLC, d/b/a Omega
Autocare.4 The RSAC contains various general factual allegations regarding the
interrelationship between each of the defendant parties, alleging that certain of the
2
Hirsch did not allege that either Fortegra or Omega had made any of the subject calls, as
each allegation simply “lumped” the multiple defendants together by indicating that the conduct
was undertaken by “Defendants, either directly or through their agents,” or “by or on behalf of
Defendants.”
3
Hirsch was instructed to file a new motion to amend, and a new proposed amended
complaint, after fully conferring with defendants as required by the local rules.
4
The RSAC, unlike Hirsch’s previous complaints, did not name Fortegra as a defendant,
but three of the named defendants in the RSAC are allegedly “subsidiar[ies] of Fortegra.”
4
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defendants “directly or indirectly market[]” automotive policies on behalf of
Omega, and that some insure Omega’s vehicle warranty contracts or assist in the
process of doing so. Three of the defendants, Hirsch alleges, are “alter-egos of one
another” and collectively form the Omega Autocare business. According to
Hirsch, while the defendants themselves do not make the unlawful telemarketing
robocalls, they find and hire non-party call centers, and instruct those entities to
make the calls to consumers. Hirsch alleges that all of the defendants play a role in
enlisting the services of call centers to send unlawful calls, and that all defendants
“are vicariously liable for the illegal telemarketing practices.”
The RSAC contains nine counts, with the first six counts being identical to
those alleged in the Amended Complaint, and the final three counts alleging
violations of identical provisions of Maryland law. 5 Md. Code Ann., Com. Law §
14-3201(2). Like the Amended Complaint, the RSAC alleges under each count
that all “Defendants, either directly or through their agents,” made the
unauthorized calls that violated three different provisions of the TCPA, and that the
defendants’ violations were “knowing and/or willful.” All defendants moved to
dismiss the RSAC, making similar arguments that it “fails to improve on the
pleading deficiencies” leading to dismissal of the first Amended Complaint by
5
Hirsch alleges violations of Maryland law because he is a resident of Maryland.
5
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“continu[ing] to improperly lump various Defendants together,” particularly
because the RSAC now names seven defendants instead of two.
The Magistrate Judge entered a Report and Recommendation (“R&R”) on
the defendants’ motions to dismiss the RSAC. Similar to the first R&R, the
Magistrate Judge concluded that Hirsch had not cured the defects in his pleading,
and that dismissal continues to be appropriate. The R&R found that the RSAC is
still “a shotgun pleading” that makes it “unclear what theory of liability Plaintiff is
pursuing and/or which Defendants or non-parties are responsible for which
actions.” Similarly, the Magistrate Judge found that the RSAC does not qualify as
a “short and plain statement” as required by Fed. R. Civ. P. 8, because it: (1) spans
25 pages, only 3 of which address the phone calls that are the subject of the action;
(2) includes two separate sections entitled “Legal Basis for [the] Claims” that
includes only unnecessary, boilerplate legal information and “improper citations to
legal authority regarding the TCPA;” and (3) “contains only sparse, largely
conclusory allegations” supported only by Hirsch’s “wholesale incorporation of the
80 introductory paragraphs into each count.” In sum, the R&R recommended that
the RSAC be dismissed but also recommended that Hirsch be “provided with one
final opportunity to replead,” though it recognized that “the Court could arguably
dismiss the [RSAC] with prejudice for failing to cure the subject defects.” The
District Court overruled Hirsch’s objections to the R&R and adopted it, agreeing
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that it was an impermissible shotgun pleading, but chose not to give Hirsch another
opportunity to replead, instead dismissing the RSAC with prejudice. Hirsch
appealed from the District Court’s order.
II.
A.
Hirsch contends that his RSAC was not a shotgun pleading and that
dismissal was improper. In this Circuit, we describe a shotgun pleading as a
complaint that has several counts where each count incorporates the allegations of
all the previous counts. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d
1313, 1321 (11th Cir. 2015). In a shotgun pleading, we are essentially left with
one count that “amounts to an amalgamation of all counts of the complaint.” PVC
Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 806 (11th Cir.
2010). This Court has gone to great lengths to explain the problems that shotgun
pleadings cause:
Shotgun pleadings, whether filed by plaintiffs or defendants, exact an
intolerable toll on the trial court’s docket, lead to unnecessary and
unchannelled discovery, and impose unwarranted expense on the
litigants, the court and the court’s parajudicial personnel and resources.
Moreover, justice is delayed for the litigants who are standing in line,
waiting for their cases to be heard. The courts of appeals and the
litigants appearing before them suffer as well.
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997). We have instructed that
a district court “must intervene . . . and order a replead[ing]” of a shotgun
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complaint, even if the defendant does not move for a more definite statement.
Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001) (emphasis added). And lest
it need still be said, shotgun pleadings do not comport with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and the Supreme
Court’s instructions laid out in Bell Atlantic Corp. v. Twombly 6 and Ashcroft v.
Iqbal. 7 A shotgun pleading is not “a short and plain statement of the claim,” Fed.
R. Civ. P. 8(a)(2), and does not “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678,
129 S. Ct. at 1949; see also id. (noting that a complaint is insufficient when its
claims are “supported by mere conclusory statements”).
Hirsch’s RSAC is a shotgun pleading. Each of the nine counts “re-alleges
and incorporates” the allegations of the entire rest of the complaint and all previous
counts. Like in Hirsch’s Complaint and Amended Complaint, each count alleges
that the TCPA was violated by “Defendants, either directly or through their
agents,” without explaining which defendant was responsible for the calls.
Similarly, without any clarification provided, Hirsch alleges that “the foregoing
acts and omissions of Defendants constitute numerous and multiple violations of
the TCPA,” but in no count or claim does he state which act or omission was
6
550 U.S. 544, 127 S. Ct. 1955 (2007).
7
556 U.S. 662, 129 S. Ct. 1937 (2009).
8
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committed by which defendant. Hirsch’s complaint tasks the reader with parsing
the slew of general factual allegations about the business structure of the
defendants, and their relationships with non-party call centers, in order to decipher
which defendant’s conduct applies to each count of the RSAC. This is not an
appropriate task for the district courts. See Jackson v. Bank of Am., 898 F.3d 1348,
1357 (11th Cir. 2018) (stating that we do not place district judges “in the position
of serving as the [plaintiff’s] lawyer in rewriting the complaint”).
Hirsch’s RSAC is a shotgun pleading under our precedent and is not a “short
and plain statement of the claim showing that [Hirsch] is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Thus, the District Court did not err in granting the defendants’
motion to dismiss.8
B.
8
Hirsch contends that dismissal of Counts III and IV as to the Omega defendants is
improper because the “law of the case” doctrine precludes it. Specifically, Hirsch argues that the
Magistrate Judge’s first R&R concluded Hirsch had sufficiently pled, as required by these two
counts, that the telemarketing calls had been made using a prerecorded voice, and he further
argues that because District Court adopted the first R&R in its entirety, these two counts were
actually “sustained” and “not dismissed.” The Magistrate Judge’s R&R, however, explicitly
states that it is recommending that “the Amended Complaint be dismissed in its entirety without
prejudice” because it is “unclear . . . which defendant is responsible for which actions.” The fact
that the Magistrate Judge rejected Omega’s argument, in its motion to dismiss, that Hirsch had
not pled a prima facie violation of the TCPA in Counts III and IV does not change the fact that
the R&R found an independent basis, stemming from the other defendant’s motion to dismiss, to
recommend dismissal of the entire Amended Complaint. Thus, Hirsch’s argument on appeal
about the “law of the case” doctrine is unpersuasive because it relies on the presumption that the
entire Amended Complaint was not dismissed, which is not true.
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We now turn to Hirsch’s argument that it was inappropriate for the District
Court to dismiss the RSAC with prejudice. We review a dismissal with prejudice
on Rule 8 shotgun pleading grounds for an abuse of discretion. Vibe Micro, Inc. v.
Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018). A dismissal with prejudice is
appropriate where “(1) a party engages in a clear pattern of delay or willful
contempt (contumacious conduct); and (2) the district court specifically finds that
lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V Monada, 432
F.3d 1333, 1338 (11th Cir. 2005) (internal quotations omitted).
As a basis for its dismissal with prejudice, the District Court relied on our
opinion in Jackson v. Bank of Am., 898 F.3d 1348 (11th Cir. 2018). In that case,
we affirmed the District Court’s dismissal of an amended complaint with prejudice
because it was an impermissible shotgun pleading that was incomprehensible as
pled, which in this Circuit we do not allow. Id. at 1360. We noted that toleration
of these types of pleadings, for all the reasons noted supra, constitutes “toleration
of obstruction of justice.” Id. at 1357. We explained that a district court must give
a party “one chance to remedy such deficiencies,” with a “fair notice of the defects
and a meaningful chance to fix them” – but assuming that this chance is given,
continued impermissible pleadings warrant dismissal with prejudice. Id. at 1358
(internal quotations omitted). Here, where Hirsch has had two years to put
together a viable complaint, including ample opportunity for discovery, he still is
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not able to produce anything better than a pleading that requires the District Court
to guess who is responsible for his claims. In this Circuit, we do not task district
courts with such guesswork.
Hirsch first argues that dismissal of the RSAC with prejudice was
inappropriate because it was not a shotgun pleading, which, as discussed supra, is
not a persuasive argument. Next, Hirsch contends that dismissal with prejudice
was inappropriate because the RSAC added additional defendants that were not
present in the first Amended Complaint, and that, as a result, he had not received
“prior warning” about the deficiency of his allegations as pertains to the newly-
added defendants. However, Hirsch cannot get around a dismissal with prejudice
by merely adding new defendants without altering his impermissible style of
pleading. The fact remains that Hirsch’s RSAC is still an impermissible shotgun
pleading, whether against two defendants or seven, and Hirsch had already been
put on notice by the District Court that his pleadings were insufficient. And as the
District Court lamented, Hirsch “compounded the difficulty associated with
reviewing the [RSAC] where the number of defendants grew from 2 to 7.” The
District Court did not abuse its discretion in dismissing the RSAC with prejudice
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because the Court provided Hirsch with multiple warnings that his pleadings were
inadequate, inappropriate shotgun pleadings, and those warnings went unheeded. 9
AFFIRMED.
9
As an alternative basis for denying Hirsch the opportunity to file another amended
complaint, the District Court noted that Hirsch had not properly requested leave to amend.
Hirsch does not challenge this conclusion on appeal, so he has waived any argument that it was
error for the District Court to deny him leave to amend. See Access Now v. Sw. Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004).
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