Judge Criticizes “Behemoth Pleadings”

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Here are some words & phrases that you really don't want a judge to apply to anything you file:

  • sprawling
  • behemoth
  • surplusage
  • larded with
  • brims with
  • masquerading as
  • voluminous
  • breathtaking
  • madness
  • chokes the docket
  • intended to overwhelm
  • labyrinthian prolixity of unrelated and vituperative charges that defy comprehension
  • sanctions

U.S. District Judge William Pauley used all of those on March 24 in this order, although that list combines objections he directed at both parties. Saying the case exemplified a "troubling trend toward prolixity in pleading," he did rule on the motion to dismiss that was before him but made it clear he wasn't putting up with any more of this.

According to the judge, the plaintiff "launched its relatively straightforward claims with a sprawling 175-paragraph complaint, larded with more than 1,400 pages of exhibits." That's a lot, although not compared to the 645-paragraph complaint I dealt with last month (number of paragraphs dismissed by court: 645). That one wasn't larded with anything but paragraphs, though.

Judge Pauley speculated that this behemoth may have been intended to overwhelm the defendants, but if so, it didn't work: "They retaliated with a 210-page, 1,020-paragraph answer asserting twelve counterclaims and attaching voluminous exhibits." In other words, the defendants basically said "we'll see your 175 paragraphs and raise you another 845."

At this point the judge intervened, expressing "concern" about the length of the pleadings at a conference. The lawyers took this to heart and immediately came to their senses.

No they didn't. The plaintiff's lawyers blamed their client's previous set of lawyers, "yet never offered to prune the complaint" themselves. And the defendants returned several weeks later with an amended answer that was even bigger: they "enlarged it to a breathtaking 1,263 paragraphs, spanning 303 pages." The judge then convened another conference that he described as "an effort to end the madness," but to no avail. "And so, more than a year after this action was filed, the parties continue to spar over their behemoth pleadings."

The court was clearly tempted to sanction everybody at this point, but did not. He did remind them all that Federal Rule 8 requires pleadings to be "short and plain statements" (it really does), and also mentioned an appropriate historical punishment for this offense:

[I]n the reign of the Stuarts there was one counsel who had offended the court by preparing a needlessly long and prolix pleading on parchment. He was ordered to have his pleadings taken, a large hole to be cut in the middle, he was to have his head pushed through it, and he was to attend the first day of the term of every court with his head through the pleadings.

Order at 4 (citing Brooklyn Downtown Hotel, LLC v. New York Hotel & Motel Trades Council, 2015 WL 779441, at *3 (E.D.N.Y. Feb. 25, 2015) (quoting Lord Buckmaster, The Romance of the Law, 11 A.B.A.J. 579, 581 (Sept. 1925)).

I'm a huge fan of that, as you might expect, and have said before that we need to bring it back. See "Such an Abuse [of the Page Limitations] Is Not in Any Sort to be Tolerated," Lowering the Bar (Aug. 6, 2013). Although the story sounds apocryphal, and it could be, the source cited there actually names the case, gives a date and a citation, and identifies the unfortunate man who confessed to drafting the "malicious" and "impertinent" pleading. Granted, it was still written 350 years after the event.

If it happened it was probably during the reign of the Tudors, not the Stuarts, but I'm not going to quibble. The important thing is that there's a precedent.