In a blistering Order issued August 3, 2018, the 11th Circuit Court of Appeals has given attorney, Mr. Kenneth Lay, 21 days to “show cause why we should not order him to pay the Appellees double costs and their expenses, including attorney's fees they incurred in defending these appeals”.
The case, Jackson v. Bank of America, was filed January 12, 2016, in the District Court for the Southern District of Alabama alleging 14 separate allegations of wrongdoing related to the borrowers' mortgage loan and subsequent foreclosure. The borrowers agreed to file an amended complaint which was initially due March 29, 2016. The amended complaint wasn't filed until April 12, 2016. The amended complaint was “like its predecessor, a shotgun pleading: it incorporated all of the factual allegations into each count without delineating which allegations pertained to each count.” Ultimately, on September 15th, the District Court dismissed the case with prejudice for failure to state a claim. On October 16th, the borrowers appealed. Mr. Lay moved the 11th Circuit to extend the deadline to file the borrowers' opening brief six times. The brief was not filed until March 22, 2017, more than three months after its original due date. The defendants filed their brief in response. Afterwards, Mr. Lay asked for four extensions of the deadline to file the borrowers' reply brief, many times citing verbatim the same reason for needing an extension. All told, Mr. Lay sought and obtained ten extension requests from the 11th Circuit.
In its opening paragraph, the 11th Circuit characterized the appeal as “an abuse of process engineered to delay or prevent execution of a foreclosure judgment on a residence and the consequent eviction of its occupants. The homeowners' counsel effectuated this scheme by filing a multi-count, incomprehensible complaint that flouted the Federal Rules of Civil Procedure and this Circuit's well-established precedent.” The Court continued “[t]he prosecution of an incomprehensible amended complaint with repeated requests for extensions in the District Court and the prosecution of a frivolous appeal with repeated requests for extensions in this Court, taken together, reveal Mr. Lay's motive in filing this lawsuit. His motive was, and is, to delay or prevent the completion of foreclosure. This constitutes an abuse of judicial process.”
The concurring opinion, which appears to be written to provide guidance to the district courts when faced with a shotgun pleading, summed it up by stating “There is simply a point in litigation when a defendant is entitled to be relieved from the time, energy, and expense of defending itself against seemingly vexatious claims, and the district court relieved of the unnecessary burden of combing through them.”