Bad Form: Litigation Tactics for Challenging Recycled MDL Complaints

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A recent trend in products liability practice is the initiation of lawsuits using a recycled “master” or “form” complaint that has been taken from a recently concluded multi-district litigation (“MDL”).  Some plaintiffs add few, if any, case-specific facts to support their allegations in these complaints.  As a result, defense counsel is forced to spend substantial time—and thereby their client’s resources—responding to pleadings that were copied and filed in a fraction of that time.  This article discusses several arguments and tactics that defense counsel can utilize to efficiently and effectively challenge recycled form complaints.

By way of background, an MDL involves the consolidation of tens to thousands of similar cases into a single federal district court for the resolution of pretrial issues common to each case.  The MDL parties often utilize “master” pleadings as an administrative tool to capture all the claims and defenses that conceivably may be at issue in the MDL.  Individual plaintiffs then file case-specific—or “short-form”—complaints referencing the master complaint to make their case specific allegations.

A master complaint must be broad in scope to encompass the many individual cases in an MDL governed by the laws of many different jurisdictions.  Accordingly, a master complaint will likely reference multiple defendants, multiple products, and all manner of causes of action that may or may not actually be valid in the jurisdiction whose law applies in any given case.

Outside the context of an MDL, however, these same characteristics are grounds for defense counsel to challenge a pleading that borrows completely or substantially from a “master” complaint.  Potential arguments available to defense counsel include the following:

  • Challenging the pleading of multiple irrelevant products. While a master complaint may catalogue a variety of related products, only one or two of these will likely be in issue in an individual plaintiff’s lawsuit.  Accordingly, counsel can utilize Federal Rule of Civil Procedure 8, which requires pleading a “short and plain statement of the claim showing that the pleader is entitled to relief.”  R. Civ. P. 8.  Defense counsel can argue that there is nothing short or plain about a lengthy pleading that addresses a variety of irrelevant products and pleads limited facts about the product actually in issue.  Plaintiffs in some extreme examples may fail to even identify which product actually is in issue.  In such a situation, defense counsel should also move for dismissal under Rule 12(b)(6) and the plausibility standard articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
  • Challenging the collective pleading of “defendants.” Plaintiffs in an MDL use the collective pleading of “defendants” as a shorthand to address multiple companies and or parent/subsidiary relationships. Using this same shorthand outside of the MDL is not proper pleading because it fails to identify which conduct and causes of action apply to each defendant.  Thus, like the arguments above, plaintiffs are susceptible to challenges under Federal Rules 8 and 12.  Specific to a Rule 12 challenge, it is simply not plausible that separate companies or corporate entities acted collectively across every allegation of a multi-count complaint.
  • “Shotgun” pleading.  Some jurisdictions, particularly those within the 11th Circuit, have established strict rules against so-called “shotgun” pleadings, such as these form complaints.  For example, in Thornton v. AstraZeneca Pharma. L.P., No. 1:17-cv-653-SCJ, 2017 WL 2255776 (N.D. Ga. May 15, 2017), the district court found that  “of 154 paragraphs [in the complaint], fewer than 10 . . . are dedicated to the specific circumstances” of the plaintiff.  Id. at *4 (internal quotation omitted).  The court found “merit” to the defendants’ argument that the complaint “plainly qualifies as a shotgun pleading” and that, rather than being “personalized” to the plaintiff, it was a “one-size-fits-all-form complaint that Plaintiff’s counsel uses against AstraZeneca in other lawsuits.”  Id. at *3.  While the case law related to “shotgun” pleading in other jurisdictions may not be as well developed as the 11th Circuit, utilization of this term/concept continues to grow.  Therefore, defense counsel in other jurisdictions should consider citing to this persuasive authority.
  • Incorporation of additional facts. To the extent it is advantageous, another tactic is to incorporate additional facts if a case was dismissed without prejudice from an MDL and has been refiled in a different court.  For example, a court can take judicial notice of filings on another court’s public docket without converting the posture of a motion to dismiss to one for summary judgment.[1]   The same is true for public records.[2]  In the alternative, defense counsel may choose to convert a motion to dismiss into one for summary judgment by incorporating additional information from depositions, interrogatories, etc.  Regardless of its source, the purpose of bringing additional facts before the court is to support dispositive affirmative defenses, such as statutes of limitations and/or repose.  That said, counsel should be aware of any local rules that limit the number of dispositive motions that can be filed without leave of court.
  • Rule 11: Finally, in particularly egregious cases, hypothetically one where there are no case-specific facts, and the pleading is a “cut and paste job,” defense counsel may choose to seek relief under Federal Rule of Civil Procedure 11. Under this rule, sanctions are available for “frivolous” pleadings such as those that lack “evidentiary support.”  While a Rule 11 motion is a significant step, the rule exists precisely to deter persons from making baseless filings.

By aggressively employing one or several of the tactics discussed above, counsel may help ward off the filing of these “bad form” complaints in future litigation.


[1] “A court may take judicial notice of docket entries, pleadings, and papers in other cases without converting a motion to dismiss into a motion for summary judgment.”  Aldmyr Sys., Inc. v. Friedman, 215 F. Supp. 3d 440, 444 (D. Md. 2016), aff’d, 679 F. App’x 254 (4th Cir. 2017) (collecting cases).

[2]See, e.g., Griswold v. Driscoll, 625 F. Supp. 2d 49, 55 (D. Mass. 2009), aff’d on other grounds, 616 F.3d 53 (1st Cir. 2010) (“Ordinarily, a court will not consider documents outside of the pleadings in a motion to dismiss.  From this rule, the First Circuit makes a ‘narrow exception for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff’s claim; or for documents sufficiently referred to in the complaint.’”).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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