The Lawletter Vol 46 No 3
As most seasoned practitioners are all too aware, it is often more time- consuming and frustrating to litigate a case against an incompetent pro se party or opposing counsel than it is to oppose a good lawyer. A litigant who is sloppy, mentally unwell, or who has very little understanding of the law can simply invent fictions faster than a competent and ethical attorney can refute them. Luckily, such a litigant often reveals his or her incompetence immediately through his or her pleadings. The best way to limit wasted time is usually to attempt to dispose of as much of the case as possible “on the papers.” Dismissal is, of course, the ideal result, but even if dismissal is not possible, it is still better to force the opponent to proceed on “cleaned up” and comprehensible pleadings without irrelevant statements or unsupportable claims.
The Federal Rules of Civil Procedure specify requirements for the form and content of pleadings and motions, as well as mechanisms to force opposing counsel to adhere to those specifications or suffer penalties for failing to do so. Most states have some version of these procedural tools, and many have adopted rules close or identical to the Federal Rules.
The best first step after receiving a truly strange-looking legal document is usually to check it against these Rules to see if it complies with the applicable formal requirements. Federal Rules of Civil Procedure 8 and 10 govern the “general rules of pleading” and “form of pleadings,” respectively. Rule 9 contains additional requirements for pleading “special matters,” such as fraud and special damages. Rule 7 governs the “form of motions and other papers.” Common mistakes in poorly drafted pleadings and motions include
- in complaints, failing to make “a short and plain statement of the claim” or “simple, concise, and direct” allegations as required by Rule 8(a)(2) and (d)(1);
- in answers, failing to admit or deny each allegation as required by Rule 8(b)(1)(B) or “fairly respond to the substance” of the allegation as required by Rule 8(b)(2);
- in motions, failing to “state with particularity the grounds for seeking the order” as required by Rule 7(b)(1)(B), which usually requires the movant to cite to the rule, statute, or case that gives the court the authority to grant the motion; and
- in all documents, making frivolous and false representations without conducting an “inquiry reasonable under the circumstances” to determine whether they are plausible, in violation of Rule 11(b).
Where a document filed by an opponent fails to substantially comply with the relevant formal requirements, Rules 11 and 12 offer several options. Most attorneys are very familiar with Rule 12 motions to dismiss and Rule 11 sanctions. However, Rule 12 also offers several effective tools that are used less frequently: the Rule 12(f) motion to strike and Rule 12(e) motion for a more definite statement.
A Rule 12(f) motion to strike may be used to remove from a pleading “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Matters outside the scope of the pleading, such as portions of an answer that are not responsive to any allegations in the complaint, or irrelevant and prejudicial allegations about the opposing party, may be stricken, see Glob. View Ltd. Venture Capital v. Great Cent. Basin Expl., L.L.C., 288 F. Supp. 2d 473, 481 (S.D.N.Y. 2003); Martin v. Hunt, 28 F.R.D. 35 (D. Mass. 1961), along with duplicative claims, see N. Am. Catholic Educ. Programming Found., Inc. v. Womble, Carlyle, Sandridge & Rice, PLLC, 887 F. Supp. 2d 78, 84 (D.D.C. 2012), or allegations that are “confusing,” see Nextel of N.Y., Inc. v. City of Mount Vernon, 361 F. Supp. 2d 336, 339 (S.D.N.Y. 2005).
A Rule 12(e) motion for a more definite statement can be used where “a pleading to which a responsive pleading is allowed . . . is so vague or ambiguous that the party cannot reasonably prepare a response.” The Rule “is designed to strike at unintelligibility rather than want of detail.” RTC v. Dean, 854 F. Supp. 626, 649 (D. Ariz. 1994). Although motions for more definite statements are generally “disfavored” in light of the liberal discovery rules, “[a] pleading must be sufficient enough to enable the court to make out the potential viable legal theories upon which the complaint is based[,]” and the court may grant a Rule 12(e) motion when the pleading is “so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself.” Hicks v. Arthur, 843 F. Supp. 949, 959 (E.D. Pa. 1994) (citations and internal quotation marks omitted).
Courts are often reluctant to grant Rule 12(e) and (f) motions as to relatively petty violations by competent counsel and generally hold well-intentioned pro se litigants to less stringent standards than licensed attorneys. However, they are much more open to such motions where it is apparent that a litigant or attorney is going to conduct the case in a profoundly disorganized and inefficient way.