“What had happened was . . . .” As parents we know that this phrase is the beginning of a muddled story. Kids have no business using the past perfect tense, but they cling to it every time they have to explain themselves and don’t know what to say. They stumble along with an almost endless stream of hard-to-follow, unrelated events. The more, the better. Pile ‘em up. Then they refer back to those unrelated events, en masse, expecting us to have understood them in the first place and now be able to sensibly fit them into a story. Along the way, they load the story up with unattributed pronouns like “he,” “she” or “they,” to ensure that we not only don’t understand what things were done but who did them. When all of this is done, they stare at us, incredulous that we are somehow confused.
We sometimes feel the same way when we read complaints. We’re left wondering what our clients did and, more important, what they did wrong. In the law, however, as opposed to parenting, that sometimes can be good. It can mean that we have a motion to dismiss under FRCP 8 and TwIqbal. The defense sure did in Marsar v. Smith& Nephew, Inc., No. 8:13-CV-1244-T-27TGW, 2013 U.S. Dist. LEXIS 114745 (M.D. Fl. Aug. 14, 2013). There, plaintiff attempted to assert product liability claims as to allegedly defective alcohol pads against a number of defendants. While her amended complaint sad a lot, not a lot of it was necessary. And a lot was either vague or missing.
Like a hard-to-follow story, the amended complaint begins with paragraph after paragraph of factual allegations that are never connected to the story or a cause of action. Instead, when it gets around to alleging its causes of actions, it simply refers back to these preliminary allegations en masse, leaving the defendants to figure it out which allegations matter and how they fit:
[B]y incorporating the 122 paragraphs of preliminary allegations into each claim, it remains virtually impossible to know which allegations of fact are intended to support which claims for relief. Neither the Court, nor the Defendant, should be required to sift through the facts presented and decide for itself which are material to the particular cause of action asserted.
Id. at * 4.
This is not to say that the amended complaint fails to allege facts. It alleges lots of them. It’s just never clear why most of them are made:
Plaintiff has . . . included numerous repetitive and unnecessary factual allegations and legal conclusions, including detailed citations to the Code of Federal Regulations and quotations from various reports and other documents . . . . More specifically, Plaintiff includes unnecessary “Definitions” and “Joint Venture/Enterprise” sections, argumentative legal contentions, summarizes FDA investigations, includes lengthy single spaced responses to FDA observations, references various CFRs, and quotes from lengthy FDA inspection observations.
Many of us have seen complaints just like this (and Dr. Parisian reports). Like a rambling story, they never connect allegations to actual causes of action. All bluster, no claim. And, here, despite its 122 preliminary paragraphs, plaintiff’s complaint offered no facts to support key elements of its negligence and design defect claims:
Id. at *6-8.
There is even more confusion. Like a story with too many unattributed pronouns, the amended complaint never meaningfully distinguishes between the defendants. It commingles their names or uses terms to group them. For instance:
[T]he same six claims are asserted against the same eight Defendants, five of which commingle one or more Defendants without distinguishing among them.
[The amended complaint] lumps Sterling in with the TRIAD Defendants without distinguishing among them, merely referring to them as “these Defendants.” No facts unique to Sterling are alleged. The legal elements are pleaded, with bare conclusions, contrary to the pleading standard of Ashcroft v. Iqbal, supra.
Id. at *8.
The court dismissed the amended complaint. But plaintiff may get one more chance, as the court gave her the option of filing a motion to file a second amended complaint. But, given that the court dismissed the initial complaint sua sponte and that plaintiff never responded to the defendant’s motion to dismiss the amended complaint, there’s a good chance that this story, long as it was, is over.