The Middle District of Florida just issued a sternly worded warning to TCPA plaintiffs and their counsel, stating that pre-suit investigations are a necessary pre-requisite to filing their claims – otherwise sanctions may be warranted.
In Tormenia v. Lvnv Funding, 2019 U.S. Dist. LEXIS 12662 (M.D. Fl. July 30, 2019), the court issued an order to plaintiff’s counsel demanding that they “show cause” as to why Rule 11 sanctions should not be imposed for their failure to conduct a “pre-suit ‘inquiry reasonable under the circumstances.’” Drawing the court’s ire was counsel’s repeated requests to amend the complaint’s generic allegations, in an apparent effort to avoid arbitration of the plaintiff’s TCPA claims, and counsel’s practice of “stepped” pleading (a term the court noted was coined by plaintiff’s counsel, as the court found no references to such term in its own research). For example, counsel’s “stepped” pleading alleged that a certain phone number was called 75 times, and in a later allegation the plaintiff alleged the same phone number was called 150 times, and so on, in an attempt to garner admissions as a form of pleading-stage “discovery.” Plaintiff and her counsel argued to the court that such a pleading practice “facilitates ‘obtaining useful information very early in the case.’”
However, the court was unimpressed. Based on its own research, the court found that Plaintiff’s counsel had “indiscriminat[ly] parrot[ed] . . . the same allegations from action to action and from defendant to defendant[,] [which] creates skeptism about the adequacy of the attorneys’ pre-suit investigation.” After “a careful review” of the record, the court determined that monetary sanctions were not warranted as a result of counsel’s recycled, generic allegations, but only because the court determined that counsel “possessed some factual basis for filing the complaint” and “were not acting in bad faith.”
But the court took Plaintiff’s counsel to task on their practice of “stepped” pleading. The court noted that such a practice, which resulted in over twenty-five alternative allegations, “strain[ed]” Rule 8’s authorization to plead in the alternative as the practice “elongates severely the complaint and obfuscates the facts that support the plaintiff’s entitlement to relief.” And, the court noted, the resulting confusion only “compounds as the case progresses.”
The court also took issue with this “stepped” pleading practice as impermissibly engaging in discovery at the pleadings stage. To the court, “[a] complaint . . . is neither an interrogatory nor a discovery tool, both of which are regulated carefully by the Federal Rules of Civil Procedure.” Rather, “[a] complaint functions to inform a defendant of the claim asserted. . . . [And] ‘[s]tepped’ pleading is unnecessary to inform a defendant of the claim.” In fact, the court reviewed answers to Plaintiff’s “stepped” pleading practice, which was “parroted” in numerous other cases, to find that “the tactic achieves rarely, if ever, the intended goal of generating ‘useful’ admissions.”
The court concluded by noting that both Rule 11 and the ethical rules of the Florida Bar require attorneys to fairly vet their client’s claims, attempt to root out and resolve complicated facts prior to filing a pleading, and to show “candor” and avoid “needless acrimony” when dealing with other parties and the court.
Thus, Tormenia indicates that courts are taking note of serial TCPA litigators who, frequently, recycle the same complaints and allegations from case to case, defendant to defendant, and court to court. Further, courts may be taking a more proactive stance in vetting the complaints and underlying pre-suit investigative steps taken by those same plaintiffs and their counsel.
Is this a one-off decision by a single court to manage and control its docket, or is this opinion indicative of a more proactive bench seeking to reign-in unorthodox practices that abuse the litigation process? Only time will tell. In the meantime, it is safe to say that “stepped” pleading will not be favorably looked upon by the federal courts, and the practice of merely recycling the allegations of prior complaints may pique the court’s curiosity regarding whether the pleading is supported by the filing attorney’s ethical obligation to investigate and tailor a case to a specific client’s claims.
By M. Brandon Howard