Rule 12(e) Motions
For More Definite Statement
Charles B. Casper and Annemarie Bridy
The most important thing to know about the
Rule 12(e) motion is when you need it and
when you don’t.
Charles B. Casper
is a partner in the Litigation
Department and a member of
the management committee of
Montgomery, McCracken, Walker
& Rhoads, LLP, in Philadelphia. He
is chair of the firm’s Class Action
Defense Practice Group. He can be
reached at [email protected].
Annemarie Bridy,
formerly an associate in the Litigation
Department of Montgomery,
McCracken, Walker & Rhoads, LLP, is
an Associate Professor of Law at the
University of Idaho College of Law.
A commentator writing in The New York Law
Journal recently suggested that federal courts are creating a newly expanded role for the “near dormant” motion for a more definite statement under Fed. R. Civ.
P. 12(e). Edward M. Spiro, Rule 12(e)—New Life for the
Motion for a More-Definite Statement, N.Y.L.J. 3 (Dec. 8,
2005). The observation was based on some recently decided cases from the Southern District of New York, all
involving motions for relief under Rule 12(e). Two of
the cases were products liability class actions, one was
a breach of contract claim, and the last was a patent
infringement suit.
The prospect of a renaissance for the Rule 12(e)
motion is an intriguing one, but the rule may not be
as dormant as we think. A search of federal cases reveals many reported decisions at all judicial levels, dating from the 1940s to the present, touching upon the
uses and abuses of Rule 12(e). The great majority of
these cases are in the areas of civil rights and employment discrimination, and a large subset of those unsurprisingly involve pro se plaintiffs untrained in the art of
pleading.
To the extent that recent cases have raised Rule 12(e)
in areas beyond civil rights and employment discrimination, something new may be afoot. But now, as before,
it is the shape of the complaint and not the nature of
The Practical Litigator | 39
40 | The Practical Litigator the action that determines the likelihood of success
for a defendant moving under Rule 12(e). In new
and old cases alike, courts have been remarkably
consistent in their advice to counsel that recourse
to Rule 12(e) is proper and expected when a defendant is presented with a complaint so vague or incomprehensible that it is impossible to formulate a
response. See generally Byrne v. Nezhat, 261 F.3d 1075,
1128 (11th Cir. 2001). Although Rule 12(e) requires
a defendant to identify “the details desired,” courts
have historically rejected motions under Rule 12(e)
in cases where defendants appear to be using the
rule as a means to raise pleading standards above
the notice pleading requirements of Rule 8(a) or
force plaintiffs to “make their cases” before discovery.
Rule 12(e) In The Context Of Notice Pleading • The notice function is at
the heart of the pleading process under the federal
rules and represents a repudiation of antiquated
technical forms of pleading that elevated form
over substance. Phillips v. Girdich, 408 F.3d 124, 127
(2d Cir. 2005). To satisfy the liberal requirements
of Rule 8(a), a plaintiff need only provide “a short
and plain statement of the grounds upon which
the court’s jurisdiction depends,…a short and plain
statement of the claim showing that the pleader is
entitled to relief, and a demand for judgment for
the relief the pleader seeks.” Fed. R. Civ. P. 8(a). In
short, under Rule 8(a), the plaintiff is required to
give the defendant no more than fair notice of what
the claim is and the grounds upon which it rests.
What constitutes “fair notice” to the defendant
in light of the relaxed pleading standard articulated in Rule 8(a) is the nub of the inquiry in any case
involving a motion for a more definite statement
under Rule 12(e). For as plaintiffs are required to
provide nothing more than fair notice under the
rules, defendants are entitled to expect nothing less.
Courts presented with spare or unclear pleadings
thus find themselves caught between competing
September 2007
mandates: the mandate to construe all pleadings
liberally “as to do substantial justice” and the need
to dispose promptly of insubstantial claims. Fed. R.
Civ. P. 8(f). In cases in which the court may be hesitant to dismiss a poorly pled complaint under Rule
12(b) or Rule 10(b), Rule 12(e) provides defendants
with “an appropriate device to narrow issues, to
disclose the boundaries of claims, and to expedite
and simplify proceedings.” Scarbrough v. R-Way Furniture Co., 105 F.R.D. 90, 91 (E. D. Wis. 1985) (citing
Williams v. United Credit Plan of Chalmette, Inc., 526
F.2d 713, 714 (5th Cir. 1976)).
A Winning Motion
The winning Rule 12(e) motion seeks clarity in
the face of unintelligibility. Although courts have
declined to grant relief under Rule 12(e) where lack
of detail can be cured by discovery, they have articulated the value of the Rule 12(e) motion in cases
in which the plaintiff ’s complaint is, for any of a
number of reasons, simply not conducive to a responsive pleading. The source of the problem may
be a failure on the plaintiff ’s part to connect the
factual allegations to the legal claims in the complaint. Or, in cases involving multiple defendants,
it may be a failure to say which allegations apply
to which defendants. In either case, the defendant
is unable to respond without risk of prejudice, because it cannot ascertain the allegations and claims
that are being brought against it.
When Relief Is Appropriate:
Allegations Don’t Fit Claims
Relief under Rule 12(e) is appropriate when factual allegations do not correspond clearly to claims
for relief in a complaint. The Eleventh Circuit held
in Anderson v. District Board of Trustees of Central Florida
Community College, 77 F.3d 364 (11th Cir. 1996), that
Rule 12(e) relief would have been appropriate, and
should have been requested, in a retaliatory termination case in which it was “virtually impossible”
on the basis of the complaint for the defendant “to
Rule 12(e) | 41
know which allegations of fact [were] intended to
support which claim(s) for relief.” Id. at 366.
The plaintiff in Anderson filed a six-count
complaint against his former employer. Id. at 365.
In the complaint, 24 paragraphs of factual allegations were incorporated wholesale into each count,
and each count’s allegations were incorporated into
every successive count. Id. at 365-66. The “wherefore” clause of each count claimed federal and state
constitutional due process and equal protection violations, violations of 42 U.S.C. §1983, and violations of the defendant community college’s internal
operating procedures. Id. at 366. By incorporating
paragraph three of the complaint, each count also
charged the defendant with violations of the First,
Fourth, and Thirteenth Amendments to the United
States Constitution, violations of various Florida
statutes and administrative regulations, and violations of Florida contract law. Id. The court found
this a classic example of a shotgun pleading and a
perfect candidate for application of Rule 12(e). Id.
When Relief Is Appropriate:
Claims Do Not Correspond To Defendants
Relief under Rule 12(e) is appropriate when legal claims do not correspond clearly to individual
defendants in a complaint. Confronted with a similarly confused and unfocused complaint, the Ninth
Circuit in McHenry v. Renne, 84 F.3d 1172 (9th Cir.
1996), affirmed the district court’s decision granting the City of San Francisco’s motion for a more
definite statement under Rule 12(e) in a civil rights
case in which it was impossible to tell from the
complaint “which defendants were allegedly liable
for which wrongs.” Id. at1175. McHenry, whose
practice it was to distribute free food and political
literature in city parks, set forth his claims against
more than two dozen defendants “in a single sentence thirty lines long, alleging numerous and different violations of rights, without any specification
of which of the twenty named defendants or John
Does [was] liable for which of the wrongs.” Id. at
1174. This interminable sentence followed a rambling 37-page factual narrative of McHenry’s alleged activities and arrests. Id.
The court agreed with the defendants that the
complaint’s lack of connection between specific allegations and individual defendants made it difficult
for the defendants to formulate defenses and subjected the city and others to unnecessary discovery. Id. at
1175. Ultimately, the court concluded, “[s]omething
labeled a complaint but written more as a press release, prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs
are suing for what wrongs, fails to perform the essential functions of a complaint.” Id. at 1180. In such a
case, Rule 12(e) relief is warranted.
The Losing Motion
The losing Rule 12(e) motion seeks detail that
can be provided through discovery. Courts tend to
limit Rule 12(e) relief to complaints like those in
Anderson and McHenry that exhibit “unintelligibility rather than simple want of detail.” Scarbrough,
supra, 105 F.R.D. at 91. Defendants that have attempted to use Rule 12(e) as a mechanism to elicit
a more detailed, as opposed to a more coherent,
pleading usually fail. For example, in a pair of cases decided more than two decades apart, Chao v.
Rivendell Woods, Inc., 415 F.3d 342 (4th Cir. 2005),
and Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d
821 (4th Cir. 1973), the Fourth Circuit held that a
boilerplate complaint that the Secretary of Labor
routinely used in cases involving alleged violations
of the Fair Labor Standards Act was sufficient to
survive a Rule 12(e) motion.
Boilerplate Pleadings
Are Not Inadequate Per Se
In Hodgson, supra, the complaint alleged that
the defendant hospital had repeatedly violated the
Act by failing to pay all employees the minimum
wage, by paying wages that discriminated on the
basis of sex, by failing to pay overtime, by failing to