Motions: Jones M2 Strike B — Daniel E. Holloway, Attorney

Plaintiffs’ Complaint complies with the Civil Practice Act’s pleading requirements. The Complaint gives the Defendants fair notice of the claims against them. Neither the Civil Practice Act nor Georgia caselaw provide a basis for striking a complaint merely for being long and detailed, where the complaint does give fair notice of the claims. Here, the Defendants do not even assert a lack of fair notice.

The Complaint is unusual, however, and anything unusual is apt to seem fishy. But the unusual aspects of the Complaint are purposeful attempts to address problems that usually arise in medical malpractice cases — unnecessary years-long delays; shifting positions on basic fact questions; and surprise disputes at trial. In an attempt to solve, or at least minimize, those problems, we have taken an admittedly unusual approach. Instead of the usual approach of vague allegations, shifting positions, and hiding the ball, we have worked the case up extensively in advance of filing and have adopted a policy of full (or at least nearly full) disclosure. That will benefit the Plaintiff by helping the case to move quickly. And while our motivation is not to help the Defense, this approach will also help the Defense: They know our theory of the case immediately, and can develop their defenses more quickly, easily, and cheaply.

More specifically, the Complaint is unusual in two main respects. First, the Complaint lays out the relevant facts in unusual detail. Together with Answers given in good faith, the detailed allegations will pin down important undisputed facts at the outset of the case, through judicial admissions. As to those facts, there will be no need for the delay and expense of depositions. Second, the Complaint is unusual in pointing the Defense to the evidence supporting factual allegations — with pinpoint citations and screenshots. The purpose is to make it easier for the Defense to respond to the allegations.

In these two unusual aspects, the Complaint goes unusually far toward serving the first purpose of the Civil Practice Act — “to secure the just, speedy, and inexpensive determination of every action.” The Complaint seeks to narrow the dispute, to simplify discovery, and to reduce the potential for surprise at trial.

For their part, the Defendants do not cite the main statute that governs a motion to strike a pleading, OCGA 9-11-12(f). The Defendants do not discuss the four criteria for which allegations in a pleading can be stricken. The Defendants do not — because they cannot — say that any allegation in the Complaint meets one of those criteria for striking an allegation.

At bottom, the Defense is left with an implicit assertion that the Complaint is unusual, and anything unusual must be wrong. But that’s a feeling, not an argument — and not a basis to strike a complaint. Despite the joint resources of five law firms, the Defense does not cite a single Georgia case in which any judge has ever struck a complaint merely on the ground that it was too long and detailed, where the complaint gave fair notice of the claims.

Plaintiffs ask the Court to deny the Defense motions.

ARGUMENT

The Court has broad discretion to control its docket, and so we hesitate ever to tell any court that it lacks the power to do this or that. Nevertheless, on a careful reading of the Civil Practice Act and Georgia caselaw, we believe that the law does not endow the courts with authority to strike a complaint merely for being long and detailed, where the complaint gives fair notice of the claims. But maybe we’re wrong about that. If courts do have such discretion, then we ask the Court to exercise its discretion to allow this Complaint.

There are three sources of law to review here: (i) the general pleading requirements of OCGA 9-11-8, (ii) the criteria for striking parts of a pleading (in Section 8(a)(3) and Section 12(f)), and (iii) the relevant caselaw. Under those authorities, the Complaint in this case meets the requirements of the CPA, and there is no grant of authority to strike the Complaint.

1.1. The Complaint meets the pleading requirements of OCGA 9-11-8.

The Civil Practice Act makes two general requirements of complaints: (i) that a complaint “contain” a short, plain statement of the claims, and (ii) that the individual averments in the complaint be simple, concise, and direct. The Act requires nothing more. OCGA 9-11-8(a)(2)(A), (e)(1).

Jeremy and Beth Jones’ Complaint does contain a short, plain statement of the claims. The “causes of action” section breaks out nine specific tasks on which the Defendants committed negligence. In plain language, the Complaint says what the Defendants were required to do, how they violated the requirements, and how the violations caused harm.

Jeremy and Beth Jones’ Complaint also states each separate averment in numbered paragraphs and states each averment simply, concisely, and directly.

The Complaint thus meets the pleading requirements of the Civil Practice Act. The Defense criticism is not that the Complaint fails to meet those requirements. Instead, the Defense says the Complaint includes more than a short, plain statement of the claims. The Defense says the Complaint contains too many simple, concise, direct averments. But the Civil Practice Act does not forbid anything that goes beyond a short, plain statement or cap the number of averments.

1.2. OCGA 9-11-8 does not forbid additional content beyond a short, plain statement.

The Civil Practice Act does not forbid additional content beyond a short, plain statement. The Act does not say a complaint must “contain only” a short, plain statement. The Act does not say “anything beyond a short, plain statement is forbidden.” OCGA 9-11-8(a)(2)(A).

The lack of such language is meaningful. One of the guiding principles of statutory interpretation is that the legislature is composed of intelligent people who know what words mean — who know, for example, the difference between “shall contain” and “shall contain only.” In reading the statute’s “shall contain” as if it meant “shall contain only,” the Defense not only impugns the intelligence of the Georgia legislature but raises some question as to the Defense’s own carefulness in reading the statute.

The length and detail of the Complaint do not violate the pleading requirements of OCGA 9-11-8, and thus cannot serve as a basis for striking any part of the Complaint.

1.3. The CPA’s provisions for striking parts of pleadings do not authorize striking a complaint merely for being long and detailed.

The Civil Practice Act provides no authority for striking a complaint just because it is long and detailed. Two sections of the CPA provide authority to strike parts of pleadings. Neither section applies here.

OCGA 9-11-8(a)(3)

First, Section 8(a)(3) provides authority for striking language from the demand in a complaint, if the demand violates the requirements of Section 8(a)(2)(B). This provision does not apply to the Complaint. However, this specific grant of authority is important, because it conspicuously omits any grant of authority for striking a pleading for violating the “short, plain statement” requirement. Here’s the relevant text of the statute:

(2) Form of complaint, generally; action for malpractice. An original complaint . . . shall contain:

(A) A short and plain statement of the claims showing that the pleader is entitled to relief; and

(B) A demand for judgment for the relief to which the pleader deems himself entitled; provided, however, that . . . in actions for medical malpractice in which a claim for unliquidated damages is made for a sum exceeding $10,000.00, the demand for judgment shall state that the pleader “demands judgment in excess of $10,000.00,” and no further monetary amount shall be stated.

. . .

(3) Sanctions.

If the provisions of subparagraph (B) of paragraph (2) of this subsection are violated, the court in which the action is pending shall, upon a proper motion, strike the improper portion of the demandfor judgment and may impose such other sanctions, including disciplinary action against the attorney, found in Code Section 9-11-37 as are appropriate.

In the same sub-section that contains the “short, plain statement” requirement, the statute grants authority to strike an improper demand, but says nothing about striking language that goes beyond a “short, plain statement.”

OCGA 9-11-12(f)

OCGA 9-11-12(f) grants authority to strike parts of a pleading on four grounds: “the court may order stricken from any pleading any … redundant, immaterial, impertinent, or scandalous matter.” The Defendants do not — because they cannot — identify a single allegation in the Complaint that is redundant, or immaterial, or impertinent, or scandalous. The Defendants do not even say any part of the Complaint meets these criteria. The Defense ignores the statutory criteria altogether.

“Too long, too detailed” is not a basis for striking a pleading under the Civil Practice Act, either under Section 8(a) or under Section 12(f).

1.4. Georgia caselaw does not authorize striking a complaint merely for being long & detailed.

With the joint resources of five law firms, the Defense does not cite a single Georgia case in which any judge has stricken a complaint merely on the ground that it was too long and detailed. The Defense reaches back to cases as old as 1968, but comes up empty. The closest the Defense firms come is dicta from a 1971 Court of Appeals case, Bullock, in which the panel was divided (and thus the decision was physical precedent only). In Bullock, the trial court did not strike the complaint; nor did the Court of Appeals. However, in connection with dicta saying the trial court could have struck the complaint, the Bullock court attached a federal decision (Surrency). So the Defense quotes extensively from, and relies heavily on, Surrency, a 50-year-old federal case.

The only modern Georgia case the Defense cites — Bush v. Bank of New York (Ga App 2011) — undermines any suggestion that a court may strike a complaint merely for being too long and detailed. In Bush, the Court of Appeals held that where a complaint is too unclear to provide fair notice of the claims, the trial court should order the plaintiff to make a more definite statement. Nowhere does the Bush court authorize a trial court to strike any part of a complaint that doesprovide fair notice of the claims asserted. The Defense here does not assert that the Complaint fails to provide fair notice of the claims.

Georgia caselaw does not support the Defense motion to strike this Complaint.

1.5. Even federal law does not authorize striking a complaint merely for being long & detailed.

The Defense’s resort to federal law is unavailing, and not just because federal law is non-binding. First, in Surrency — the 50-year old federal case the Defense relies on — the concern driving the decision seems to have been that pleadings go back to the jury room with the jury. That’s not a concern here. Georgia courts do not generally send pleadings to the jury.

More importantly, modern federal caselaw does not authorize striking a complaint merely because it is long and detailed. In federal caselaw as in Georgia caselaw, the issue is not length but clarity — whether a complaint gives fair notice of the claims. In a 2015 decision written by then-Chief Judge Carnes of the Eleventh Circuit, the court surveyed 30 years of its own caselaw on the subject of unclear complaints — or “shotgun pleadings.” The court reviewed more than 60 published decisions. The Court identified four types of shotgun pleadings and concluded that in each type, the issue is clarity — fair notice of the claims:

The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.[1]

Other federal courts emphasize the same point: It’s not about length and detail; it’s about clarity and fair notice of the claims. Thus:

· Bhatt v. Hoffman, 716 F. App'x 124, 128 (3d Cir. 2017): “As other courts have recognized, verbosity or length is not by itself a basis for dismissing a complaint based on Rule 8(a). To the contrary, Rule 8(a)(2) speaks of a short and plain statement of each claim, not a short and plain pleading. Hence, in the context of a multiparty, multiclaim complaint each claim should be stated as succinctly and plainly as possible even though the entire pleading may prove to be long and complicated by virtue of the number of parties and claims. Bhatt's amended complaint, though long and complex, is clear enough to provide notice of her claims. Thus, the District Court should not have dismissed it under Rule 8.”

· Freebird v. Roberts, 2021 U.S. App. LEXIS 29288, at *7 (10th Cir. Sep. 28, 2021): “While the length of a complaint can be problematic, length alone does not support dismissing a complaint with prejudice under Rule 8. . . . A district court is not authorized to dismiss a complaint merely because it contains repetitious and irrelevant matter, a disposable husk around a core of proper pleading.”

· Hearns v. San Bernardino, 530 F.3d 1124, 1131 (9th Cir. 2008): “[A] dismissal for a violation under Rule 8(a)(2) is usually confined to instances in which the complaint is so verbose, confused and redundant that its true substance, if any, is well disguised. . . . Decisions from other circuits are also consistent with the view that verbosity or length is not by itself a basis for dismissing a complaint based on Rule 8(a).”

· In re New Century, 588 F. Supp. 2d 1206, 1218-19 (CD Cal. 2008): “Yet a long and detailed complaint is not a work of "puzzle pleading" as a matter of law. . . . Is the pleading still long? Yes. Is it still extremely detailed and complex? Yes. Is this by itself a reason to dismiss the complaint? No.”

Federal caselaw, like Georgia caselaw, focuses on clarity and fair notice of claims, not length and detail.

—————

Length and detail alone are not grounds for striking or dismissing a complaint. And again, the Defendants here do not claim lack of fair notice of the claims against them. They complain only that the case against them is laid out in too much detail. The law does not authorize striking this Complaint.

In its first section, the Civil Practice Act instructs that the Act “is to be construed” to secure “the just, speedy, and inexpensive determination of every action.” OCGA 9-11-1. If that statutory language means anything, then the Complaint should not be struck. Striking the Complaint will slow the case down with unnecessary delays. Striking the Complaint may force us to use expensive discovery devices to establish facts that are undisputed and which the Defendants likely can admit right now.

The Complaint serves the first purpose of the Civil Practice Act. Striking the Complaint would undermine that purpose.

CONCLUSION

The Complaint is proper, it serves the purposes of the Civil Practice Act, and the law provides no authority to strike it. The Defense (a) ignores the statutory basis for striking a complaint, (b) does not even say this Complaint meets any of the four criteria for striking matter from a pleading, (c) offers no Georgia (or even federal) caselaw that grants authority to strike a complaint merely because it is long and detailed, and (d) claims no lack of fair notice of the claims against them.

So far as the Defense’s research shows (and ours, too), the Defense is inviting this Court to be the first Georgia judge in history to strike a complaint for providing a clear, detailed statement of the case against the defendants — and to do so without any grant of authority from the Civil Practice Act. Accordingly, Plaintiffs ask the Court to deny the Defense motions.

October 25, 2021

Respectfully submitted,

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

(404) 249-6764 (fax)

bell@BellLawFirm.com

Attorneys for Plaintiffs

In The State Court of Muscogee County

State of Georgia

JEREMY JONES

BETH JONES,

Plaintiffs,

— versus —

THE MEDICAL CENTER, INC.

PIEDMONT HEALTHCARE, INC.

VINCENT M. NICOLAIS, MD

SAMUEL OSEI-BONSU, MD

RADIOLOGY PARTNERS, INC.

COLUMBUS DIAGNOSTIC CENTER, INC.

JOSHUA KOERNER, DO

NOLEN MEDICAL CONSULTING LLC

CHERYL STEPHENS, MD

MANASA VALLURI, MD

TABITHA MILLER, RN

CHRISTINA ORR, RN

JOHN/JANE DOE 1-10,

Defendants

CIVIL ACTION

FILE NO. SC-2021-CV-001143

Hon. Andrew Prather

Certificate of Service

The undersigned has served PLAINTIFFS’ RESPONSE TO DEFENDANTS’ JOINT MOTION TO STRIKE PLAINTIFFS’ COMPLAINT AND REQUEST TO STAY DEADLINES FOR ANSWERING PLAINTIFFS’ COMPLAINT on all counsel of record, by filing the document with the Court’s efiling system, and by email to all counsel included on the Defense’s courtesy-copy email to the Court.

October 25, 2021

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

[1] Weiland v. Palm Beach, 792 F.3d 1313 (11th Cir. 2015).

All quotations are cleaned up, by omitting internal citations and editorial marks.

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