Are Pro Se Pleadings of Ex-Attorneys Construed Liberally? — Shotgun Complaint, in Which Each Count Incorporates All Prior Allegations without Clarity, Violates Rules 10(b) and 8 — RICO Fraud Subject to 9(b)

Joseph v. Bernstein, 2015 U.S. App. LEXIS 7777 (11th Cir. May 12, 2015):

Joel D. Joseph, proceeding pro se, appeals the district court's order dismissing his complaint filed pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962, 1964; the Florida Unfair Insurance Trade Practices Act (UITPA), Fla. Stat. § 626.9541; and the Florida Adult Protective Services Act (APSA), Fla. Stat. § 415.1111.1



A. Pleading Deficiencies

The district court recognized numerous independent grounds for dismissing Joseph's claims. Foremost among them was Joseph's failure to comply with requisite pleading standards, which the district court identified in its first order and which Joseph failed to rectify when permitted to amend his complaint. Although pro se pleadings are to be liberally construed and are held to a less stringent standard than pleadings drafted by attorneys, [*9]  a pro se litigant must still follow procedural rules.4 See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam). Here, although Joseph attempted to re-plead the UITPA and APSA claims raised in his initial complaint, he did so without curing the deficiencies the district court explicitly identified in its April 21 order and further repeated the same deficiencies with regard to the RICO claims added in the amended complaint.

4.  As an initial matter, we note that the district court treated Joseph as a typical pro se litigant and construed his pleadings liberally. Because we find that the district court is due to be affirmed even with a permissive reading of Joseph's pleadings, we do not reach the issue of whether Joseph's pleadings should in fact be held to the more stringent attorney standard due to Joseph's status as a former attorney who received formal legal training. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam) (noting that pro se litigants' pleadings receive more liberal construction than "pleadings drafted by attorneys"); see also Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App'x 274, 277 (11th Cir. 2008) (per curiam) (observing that, as a former attorney, [*10]  the appellant was not a "typical" pro se litigant).

First, Rule 10(b) requires that the averments of a claim be made in "numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). The requirements of Rule 10(b) are violated by the filing of a "shotgun complaint," which is a complaint containing "several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions." Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). Shotgun-style pleadings have been "explicitly condemned" by this court. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008), Here, Joseph's complaint fails to meet the requirements of Rule 10(b).

Initially, as noted by the district court, each count incorporated all of the preceding paragraphs of the complaint, including those contained in other counts, regardless of whether the factual allegations had any bearing on the claims. The amended complaint, rather than addressing this deficiency, instead failed to incorporate any specific factual allegations into his claims. Thus, the claims presumably all refer to the same general factual allegations, with no clear connection thereto or application thereof. This makes it "virtually impossible to know which allegations of fact are intended to support which claim(s) for relief." See Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).

Second, Rule 8 requires [*11]  "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). If the complaint indiscriminately groups the defendants together, it fails to comply with the minimum standard of Rule 8. Here, the amended complaint failed to satisfy Rule 8; Joseph's claims "indiscriminately lump[ed] all five Defendants together," without articulating the factual basis for each Defendant's liability. The complaint generally accuses all five Defendants of the acts complained of as bases for the causes of action.

Third, Joseph's claims of fraud, which, as relevant to this appeal, include the RICO claims, did not comply with the heightened pleading standard of Rule 9(b). See Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007) (noting that civil RICO claims "are essentially a certain breed of fraud claims" and thus must comply with Rule 9(b)). Joseph's allegations of fraud plainly failed to "plead the who, what, when, where, and how of the allegedly false statements." See Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008).

Joseph's general argument on appeal addressing these pleading deficiencies-that the district court failed to view his amended complaint in the light most favorable to him-is without merit. Joseph was required to comport with the procedural [*12]  rules, see Albra, 490 F.3d at 829, and furthermore, conclusory allegations and bare legal conclusions are insufficient to preclude dismissal, see Oxford Asset Mgmt., Ltd., 297 F.3d at 1188. Thus, the district court appropriately determined that Joseph failed to meet the requisite pleading standards in his complaint.

B. Additional Grounds for Affirmance

There are also additional, independent grounds for affirming the dismissal of Joseph's claims, notwithstanding the general pleading deficiencies identified that independently support dismissal.

By way of example, Joseph failed to allege a required element — predicate acts of racketeering activity — for his RICO claims. RICO provides for civil and criminal liability against any person who conducts the affairs of an enterprise through "a pattern of racketeering activity." See 18 U.S.C. §§ 1962(c), 1964. Establishing a "pattern of racketeering activity" requires at least two predicate acts of racketeering activity. See Williams v. Mohawk Indus. Inc., 465 F.3d 1277, 1283 (11th Cir. 2006) (per curiam). As relevant here, this list of predicate acts includes theft from an interstate shipment as defined in 18 U.S.C. § 659 and "fraud in the sale of securities." See 18 U.S.C. § 1961(1). However, pursuant to § 1964(c), a plaintiff may not rely upon "any conduct that would have been actionable as [*13]  fraud in the purchase or sale of securities" unless the alleged wrongdoer was criminally convicted in connection with the fraud.

Liberally construing the complaint, we find that Joseph alleged both theft and securities fraud as predicate acts. However, although theft from an interstate shipment, as defined in § 659, qualifies as a predicate act for RICO purposes, simple theft is not one of the listed offenses. See § 1961(1). Joseph did not claim that the alleged theft involved an interstate shipment. Similarly, Joseph cannot successfully allege securities fraud as a predicate act because § 1964(c) provides that a plaintiff may not rely upon securities fraud as a predicate act unless the defendant was criminally convicted in connection with the fraud. Thus, the district court did not err by dismissing Joseph's RICO claims because he failed to allege qualifying predicate acts of racketeering activity.5

5.  Joseph also fails to challenge on appeal an independent ground on which the district court relied in dismissing his claims—that Joseph did not allege proximate cause sufficient to state a RICO claim. A plaintiff in a civil RICO action must satisfy the requirements of 18 U.S.C. § 1964(c), meaning that the plaintiff must demonstrate injury to "business or property . . . by reason of the substantive RICO violation." Williams, 465 F.3d at 1283 (internal quotation marks omitted). The "by reason of" language requires a plaintiff to demonstrate that the defendant's substantive RICO violation proximately caused the plaintiff's injury. Id. at 1287. Because Joseph fails to address the district court's holding dismissing his RICO claim for lack of proximate cause, he is deemed to have abandoned any challenge on that ground, and affirmance is also appropriate for this additional reason. See Sapuppo, 739 F.3d at 680.

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