24 Fla. L. Weekly Fed. C1199a
Employer-employee relations — Family Medical Leave Act —
Waiver or release of claims — No error in granting summary judgment in favor of
former employer on claims of interference and retaliation under Family Medical
Leave Act where plaintiff signed severance agreement with employer ostensibly
waiving FMLA claims — Although employee may not waive “prospective” rights
under FMLA, an employee can release FMLA claims that concern past employer
behavior — “Prospective rights” are those allowing an employee to invoke FMLA
protections at some unspecified time in the future — Severance agreement which
settled claims based on past employer conduct was valid — Knowing and voluntary
waiver — District court did not err in concluding that plaintiff executed
severance agreement knowingly and voluntarily — Contention that waiver was
contrary to public policy may not be raised for first time on appeal
Waiver or release of claims — No error in granting summary judgment in favor of
former employer on claims of interference and retaliation under Family Medical
Leave Act where plaintiff signed severance agreement with employer ostensibly
waiving FMLA claims — Although employee may not waive “prospective” rights
under FMLA, an employee can release FMLA claims that concern past employer
behavior — “Prospective rights” are those allowing an employee to invoke FMLA
protections at some unspecified time in the future — Severance agreement which
settled claims based on past employer conduct was valid — Knowing and voluntary
waiver — District court did not err in concluding that plaintiff executed
severance agreement knowingly and voluntarily — Contention that waiver was
contrary to public policy may not be raised for first time on appeal
BLANCHE PAYLOR, Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY,
Defendant-Appellee. 11th Circuit. Case No. 13-12696. April 8, 2014. Appeal from
the U.S. District Court for the Middle District of Florida (No.
6:11-cv-00059-PCF-TBS).
Defendant-Appellee. 11th Circuit. Case No. 13-12696. April 8, 2014. Appeal from
the U.S. District Court for the Middle District of Florida (No.
6:11-cv-00059-PCF-TBS).
(Before TJOFLAT, COX, and ALARCÓN,* Circuit Judges.)
(TJOFLAT, Circuit Judge.) Blanche Paylor appeals the District Court’s grant
of summary judgment for her former employer, Hartford Fire Insurance Company
(“Hartford”), on her claims of interference and retaliation under the Family
Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et. seq. (“FMLA”). Although
Paylor signed a Severance Agreement with Hartford ostensibly waiving her FMLA
claims, she argues that those claims were “prospective” and therefore not
waivable under Department of Labor (“DOL”) regulations. See 29 C.F.R. §
825.220(d) (2009). In the alternative, Paylor argues that her signing of the
Severance Agreement was not knowing and voluntary, and that the Severance
Agreement is void as contrary to public policy. Having entertained oral
argument, we find no merit in Paylor’s arguments and therefore affirm.
of summary judgment for her former employer, Hartford Fire Insurance Company
(“Hartford”), on her claims of interference and retaliation under the Family
Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et. seq. (“FMLA”). Although
Paylor signed a Severance Agreement with Hartford ostensibly waiving her FMLA
claims, she argues that those claims were “prospective” and therefore not
waivable under Department of Labor (“DOL”) regulations. See 29 C.F.R. §
825.220(d) (2009). In the alternative, Paylor argues that her signing of the
Severance Agreement was not knowing and voluntary, and that the Severance
Agreement is void as contrary to public policy. Having entertained oral
argument, we find no merit in Paylor’s arguments and therefore affirm.
I.
We first describe the events leading up to Paylor’s lawsuit and then recount
the course of this litigation.
the course of this litigation.
A.
Hartford sells insurance and investment products. Hartford employed Paylor in
a job the company calls a Long Term Disability Analyst III (or “LTD III
Analyst”), the exact duties of which are both “hotly disputed by the parties”
and irrelevant for purposes of this appeal. See Hollinger v. Hartford Fire
Insurance Group, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 9 (S.D. Fla. Dec.
12, 2012). Everyone agrees that, while working at Hartford between January 2008
and September 2009, Paylor requested (and received) 390 hours of FMLA leave.
Unfortunately, that is about all the parties agree on. Despite wide-ranging
discovery, Paylor and Hartford cannot converge on a precise timeline of events
preceding this litigation. What follows is a rough chronology.
a job the company calls a Long Term Disability Analyst III (or “LTD III
Analyst”), the exact duties of which are both “hotly disputed by the parties”
and irrelevant for purposes of this appeal. See Hollinger v. Hartford Fire
Insurance Group, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 9 (S.D. Fla. Dec.
12, 2012). Everyone agrees that, while working at Hartford between January 2008
and September 2009, Paylor requested (and received) 390 hours of FMLA leave.
Unfortunately, that is about all the parties agree on. Despite wide-ranging
discovery, Paylor and Hartford cannot converge on a precise timeline of events
preceding this litigation. What follows is a rough chronology.
Sometime in late August or early September, 2009, Paylor submitted a request
for additional FMLA leave. A September 4, 2009, e-mail to Paylor from Hartford
apparently acknowledged this request because it included, in attachments,
various administrative forms for Paylor to complete as part of her FMLA request.
Hartford contends that this e-mail constituted approval of Paylor’s
leave, pointing to Paylor’s deposition testimony that “I was first approved for
Family Medical Leave” in a letter (not an e-mail) dated September 4. Paylor now
says that she misspoke in her deposition: she claims that the body of the
September 4 e-mail was blank, and so could not have communicated FMLA
approval, while the September 4 letter similarly communicated only
acknowledgment, not approval.
for additional FMLA leave. A September 4, 2009, e-mail to Paylor from Hartford
apparently acknowledged this request because it included, in attachments,
various administrative forms for Paylor to complete as part of her FMLA request.
Hartford contends that this e-mail constituted approval of Paylor’s
leave, pointing to Paylor’s deposition testimony that “I was first approved for
Family Medical Leave” in a letter (not an e-mail) dated September 4. Paylor now
says that she misspoke in her deposition: she claims that the body of the
September 4 e-mail was blank, and so could not have communicated FMLA
approval, while the September 4 letter similarly communicated only
acknowledgment, not approval.
Paylor’s last performance review was apparently on September 11, 2009. A
document signed on that day by Paylor’s supervisor included a performance
warning, criticized the quality of her work, and explained what she would have
to do to keep her job. Several days later, on September 16, Paylor’s supervisors
initiated a meeting and gave her a choice: she could accept a one-time offer of
13 weeks of severance benefits in exchange for signing a Severance Agreement,
under which Paylor waived any claims she might have had under the FMLA, or she
could agree to a performance-improvement plan (“PIP”), requiring her to meet
various performance benchmarks or face termination.
document signed on that day by Paylor’s supervisor included a performance
warning, criticized the quality of her work, and explained what she would have
to do to keep her job. Several days later, on September 16, Paylor’s supervisors
initiated a meeting and gave her a choice: she could accept a one-time offer of
13 weeks of severance benefits in exchange for signing a Severance Agreement,
under which Paylor waived any claims she might have had under the FMLA, or she
could agree to a performance-improvement plan (“PIP”), requiring her to meet
various performance benchmarks or face termination.
Paylor signed the Severance Agreement on September 17. Paylor now says that
she only signed the agreement because her stress level had become unmanageable:
she had requested FMLA leave in the first place to care for her ailing mother,
and between her mother’s deteriorating health and the pressures she experienced
at work, she “just wanted out.”
she only signed the agreement because her stress level had become unmanageable:
she had requested FMLA leave in the first place to care for her ailing mother,
and between her mother’s deteriorating health and the pressures she experienced
at work, she “just wanted out.”
B.
Paylor joined two other named plaintiffs in filing a complaint against
Hartford for violations of the FMLA, along with other claims not relevant to
this appeal. The complaint alleged, without elaborating, that Hartford
interfered with Paylor’s FMLA rights and retaliated against her for exercising
her rights. Hartford filed an answer denying the allegations in the complaint
and asserting that Paylor’s FMLA claim was barred by her execution of the
Severance Agreement.
Hartford for violations of the FMLA, along with other claims not relevant to
this appeal. The complaint alleged, without elaborating, that Hartford
interfered with Paylor’s FMLA rights and retaliated against her for exercising
her rights. Hartford filed an answer denying the allegations in the complaint
and asserting that Paylor’s FMLA claim was barred by her execution of the
Severance Agreement.
After protracted discovery, Hartford filed a motion for summary judgment,
arguing that Paylor waived all FMLA claims when she signed the Severance
Agreement. In particular, Hartford argued that Paylor signed the release
knowingly and voluntarily and that Paylor signed the release after the events
allegedly giving rise to her FMLA claims.
arguing that Paylor waived all FMLA claims when she signed the Severance
Agreement. In particular, Hartford argued that Paylor signed the release
knowingly and voluntarily and that Paylor signed the release after the events
allegedly giving rise to her FMLA claims.
Paylor argued, in her opposition to Hartford’s motion for summary judgment,
that she did not waive her FMLA rights by signing the Severance Agreement.
Pointing to 29 C.F.R. § 825.220(d), which states that employees cannot waive
“prospective” rights under the FMLA, Paylor argued that because she had an
outstanding request for FMLA leave at the time she signed the Severance
Agreement, she had “prospective” FMLA rights that the Severance Agreement could
not lawfully abrogate.
that she did not waive her FMLA rights by signing the Severance Agreement.
Pointing to 29 C.F.R. § 825.220(d), which states that employees cannot waive
“prospective” rights under the FMLA, Paylor argued that because she had an
outstanding request for FMLA leave at the time she signed the Severance
Agreement, she had “prospective” FMLA rights that the Severance Agreement could
not lawfully abrogate.
The District Court sided with Hartford, writing “[a]lthough the Eleventh
Circuit Court of Appeals has not directly addressed the legality of a release of
FMLA claims based on past employer conduct, the [District] Court is confident
that such a release would be held enforceable pursuant to Regulation §
825.220(d).” Hollinger, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 20-21.
The District Court reasoned that Paylor’s FMLA rights were not “prospective”
because the conduct she claimed was unlawful — i.e., presenting her with the
choice of a PIP or the Severance Agreement — all happened before she signed the
Severance Agreement. The District Court accordingly granted summary judgment for
Hartford on Paylor’s FMLA claim. This appeal followed.
Circuit Court of Appeals has not directly addressed the legality of a release of
FMLA claims based on past employer conduct, the [District] Court is confident
that such a release would be held enforceable pursuant to Regulation §
825.220(d).” Hollinger, No. 6:11-cv-59-Orl-19TBS, ECF Doc. 57, at 20-21.
The District Court reasoned that Paylor’s FMLA rights were not “prospective”
because the conduct she claimed was unlawful — i.e., presenting her with the
choice of a PIP or the Severance Agreement — all happened before she signed the
Severance Agreement. The District Court accordingly granted summary judgment for
Hartford on Paylor’s FMLA claim. This appeal followed.
II.
Congress enacted the FMLA to “balance the demands of the workplace with the
needs of families.” 29 U.S.C. § 2601(b)(1). The FMLA provides that “an eligible
employee shall be entitled to a total of 12 workweeks of leave during any
12-month period for one or more of the following:” (1) “a serious health
condition that makes the employee unable to perform the functions of the
position of such employee” or (2) “to care for the spouse, or a son, daughter,
or parent, of the employee, if such spouse, son, daughter, or parent has a
serious health condition.” 29 U.S.C. § 2612(a)(1). An employee on FMLA leave
must be reinstated to the position she held before they took FMLA leave. 29
U.S.C. § 2614(a). The FMLA prohibits employers from retaliating against
employees who exercise or attempt to exercise their rights under the FMLA, 29
U.S.C. § 2615(a), and employers who violate the FMLA are subject to damages and
equitable relief, 29 U.S.C. § 2617 (a)(1)(A)-(B).
needs of families.” 29 U.S.C. § 2601(b)(1). The FMLA provides that “an eligible
employee shall be entitled to a total of 12 workweeks of leave during any
12-month period for one or more of the following:” (1) “a serious health
condition that makes the employee unable to perform the functions of the
position of such employee” or (2) “to care for the spouse, or a son, daughter,
or parent, of the employee, if such spouse, son, daughter, or parent has a
serious health condition.” 29 U.S.C. § 2612(a)(1). An employee on FMLA leave
must be reinstated to the position she held before they took FMLA leave. 29
U.S.C. § 2614(a). The FMLA prohibits employers from retaliating against
employees who exercise or attempt to exercise their rights under the FMLA, 29
U.S.C. § 2615(a), and employers who violate the FMLA are subject to damages and
equitable relief, 29 U.S.C. § 2617 (a)(1)(A)-(B).
There is no dispute in this case that the FMLA applies to Hartford, that
Paylor was an “eligible employee” as defined by the statute, or that Paylor was
entitled to FMLA leave at the time she requested it. Nor is the question whether
Hartford in fact interfered with or retaliated against Paylor’s assertion of her
FMLA rights. The question before us concerns only the validity of the Severance
Agreement that Paylor signed on September 17, 2009. If the agreement is valid,
then the District Court was correct in concluding that Paylor waived her FMLA
claims and that Hartford was entitled to judgment as a matter of law.
Paylor was an “eligible employee” as defined by the statute, or that Paylor was
entitled to FMLA leave at the time she requested it. Nor is the question whether
Hartford in fact interfered with or retaliated against Paylor’s assertion of her
FMLA rights. The question before us concerns only the validity of the Severance
Agreement that Paylor signed on September 17, 2009. If the agreement is valid,
then the District Court was correct in concluding that Paylor waived her FMLA
claims and that Hartford was entitled to judgment as a matter of law.
Because the District Court disposed of Paylor’s FMLA claims on summary
judgment, we exercise de novo review. Brooks
v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th
Cir. 2006) [19 Fla. L. Weekly Fed. C461a]. We consider all the evidence in the
record, and make all reasonable factual inferences, in the light most favorable
to the non-moving party. See Crawford v. Carroll, 529 F.3d 961, 964 (11th
Cir. 2008). Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Brooks, 446 F.3d at 1162. At the outset, the moving party has the burden
of demonstrating that there are no genuine issues of material fact, but once
that burden is met the burden shifts to the nonmoving party to bring the court’s
attention to evidence demonstrating a genuine issue for trial. Allen v. Tyson
Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). Overcoming that burden
requires more than speculation or a mere scintilla of evidence. Shiver
v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) [21 Fla. L. Weekly
Fed. C1268a]. With these standards in mind, we consider whether the District
Court erred in concluding that Hartford was entitled to summary judgment on
Paylor’s FMLA claims.
judgment, we exercise de novo review. Brooks
v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th
Cir. 2006) [19 Fla. L. Weekly Fed. C461a]. We consider all the evidence in the
record, and make all reasonable factual inferences, in the light most favorable
to the non-moving party. See Crawford v. Carroll, 529 F.3d 961, 964 (11th
Cir. 2008). Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Brooks, 446 F.3d at 1162. At the outset, the moving party has the burden
of demonstrating that there are no genuine issues of material fact, but once
that burden is met the burden shifts to the nonmoving party to bring the court’s
attention to evidence demonstrating a genuine issue for trial. Allen v. Tyson
Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). Overcoming that burden
requires more than speculation or a mere scintilla of evidence. Shiver
v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) [21 Fla. L. Weekly
Fed. C1268a]. With these standards in mind, we consider whether the District
Court erred in concluding that Hartford was entitled to summary judgment on
Paylor’s FMLA claims.
III.
Paylor raises three arguments on appeal. First, she argues that the Severance
Agreement is invalid under DOL regulations insofar as it purports to release
Paylor’s “prospective” FMLA rights. Second, Paylor argues that she did not sign
the Severance Agreement knowingly and voluntarily. And third, she argues that
the Severance Agreement should be held invalid because it is contrary to the
public policy manifested by the FMLA.
Agreement is invalid under DOL regulations insofar as it purports to release
Paylor’s “prospective” FMLA rights. Second, Paylor argues that she did not sign
the Severance Agreement knowingly and voluntarily. And third, she argues that
the Severance Agreement should be held invalid because it is contrary to the
public policy manifested by the FMLA.
A.
Paylor’s principal argument is that the District Court erred in concluding
that she waived her FMLA claims when she signed the Severance Agreement. Paylor
says this waiver cannot be enforceable against her because the FMLA does not
permit employees to waive “prospective rights” without DOL or court approval,
and her rights in this case were “prospective” in the sense that she had — at
the time she signed the agreement — an outstanding request for FMLA leave.
According to Paylor, then, the District Court ought to have found the waiver
invalid and allowed her to proceed on her FMLA claim.
that she waived her FMLA claims when she signed the Severance Agreement. Paylor
says this waiver cannot be enforceable against her because the FMLA does not
permit employees to waive “prospective rights” without DOL or court approval,
and her rights in this case were “prospective” in the sense that she had — at
the time she signed the agreement — an outstanding request for FMLA leave.
According to Paylor, then, the District Court ought to have found the waiver
invalid and allowed her to proceed on her FMLA claim.
1.
Evaluating this argument requires a brief detour to discuss the history of
the DOL regulation at issue. Before 2009, § 825.220(d) did not include the word
“prospective” in its discussion of an employee’s FMLA rights. The regulation
said, simply, “[e]mployees cannot waive, nor may employers induce employees to
waive, their rights under FMLA.” 29 C.F.R. § 825.220(d) (2008). There was, for a
time, a circuit split over the meaning of this language. The Fifth Circuit,
noting that the “examples of nonwaivability [contained in the regulation]
concern prohibitions on the prospective waiver of rights under FMLA,”
held that “[a] plain reading of the regulation is that it prohibits
prospective waiver of rights, not the post-dispute settlement of claims.”
Farris v. Williams WCP-I, Inc., 332 F.3d 316, 321 (5th Cir. 2003)
(emphasis added).
the DOL regulation at issue. Before 2009, § 825.220(d) did not include the word
“prospective” in its discussion of an employee’s FMLA rights. The regulation
said, simply, “[e]mployees cannot waive, nor may employers induce employees to
waive, their rights under FMLA.” 29 C.F.R. § 825.220(d) (2008). There was, for a
time, a circuit split over the meaning of this language. The Fifth Circuit,
noting that the “examples of nonwaivability [contained in the regulation]
concern prohibitions on the prospective waiver of rights under FMLA,”
held that “[a] plain reading of the regulation is that it prohibits
prospective waiver of rights, not the post-dispute settlement of claims.”
Farris v. Williams WCP-I, Inc., 332 F.3d 316, 321 (5th Cir. 2003)
(emphasis added).
The Fourth Circuit reached a different conclusion, and disagreed explicitly
with Farris, in holding that “[t]he regulation’s plain language prohibits
both the retrospective and prospective waiver or release of an employee’s FMLA
rights.” Taylor v. Progress Energy, Inc., 415 F.3d 364, 368 (4th Cir.
2005), vacated, No. 04-1525, 2006 U.S. App. LEXIS 15744 (4th Cir. June
14, 2006) (“Taylor I”). The defendant in Taylor I filed a petition
for rehearing en banc, and the DOL filed an amicus brief supporting that
petition. On rehearing before the panel that wrote Taylor I, the DOL
argued that § 825.220(d) prohibited the waiver of prospective, but not
retrospective, FMLA rights. The panel again disagreed, holding that “the plain
language of section 220(d) precludes both the prospective and retrospective
waiver of all FMLA rights.” Taylor v. Progress Energy, Inc., 493 F.3d
454, 456 (4th Cir. 2007) (“Taylor II”). The Fourth Circuit panel
therefore reinstated its original opinion. Id. at 457.
with Farris, in holding that “[t]he regulation’s plain language prohibits
both the retrospective and prospective waiver or release of an employee’s FMLA
rights.” Taylor v. Progress Energy, Inc., 415 F.3d 364, 368 (4th Cir.
2005), vacated, No. 04-1525, 2006 U.S. App. LEXIS 15744 (4th Cir. June
14, 2006) (“Taylor I”). The defendant in Taylor I filed a petition
for rehearing en banc, and the DOL filed an amicus brief supporting that
petition. On rehearing before the panel that wrote Taylor I, the DOL
argued that § 825.220(d) prohibited the waiver of prospective, but not
retrospective, FMLA rights. The panel again disagreed, holding that “the plain
language of section 220(d) precludes both the prospective and retrospective
waiver of all FMLA rights.” Taylor v. Progress Energy, Inc., 493 F.3d
454, 456 (4th Cir. 2007) (“Taylor II”). The Fourth Circuit panel
therefore reinstated its original opinion. Id. at 457.
In January, 2009, the Department of Labor amended the regulation to include
the word “prospective,” thereby endorsing the Fifth Circuit’s interpretation.
The current version of the regulation reads:
the word “prospective,” thereby endorsing the Fifth Circuit’s interpretation.
The current version of the regulation reads:
Employees cannot waive, nor may employers induce employees to waive,
their prospective rights under FMLA. For example, employees (or their
collective bargaining representative) cannot “trade off” the right to take FMLA
leave against some other benefit offered by the employer. This does not
prevent the settlement or release of FMLA claims by employees based on past
employer conduct without the approval of the [DOL] or a court.
29 C.F.R. § 825.220(d) (emphasis added). The Fourth Circuit acknowledged as
much, rejecting an argument in a post-amendment case that the circuit should
continue to follow Taylor II. See Whiting v. Johns Hopkins Hosp., 416
Fed. App’x 312, 316 (4th Cir. 2011) (“After all, it is the DOL, not this court,
that is charged with the authority to promulgate FMLA regulations.”).
much, rejecting an argument in a post-amendment case that the circuit should
continue to follow Taylor II. See Whiting v. Johns Hopkins Hosp., 416
Fed. App’x 312, 316 (4th Cir. 2011) (“After all, it is the DOL, not this court,
that is charged with the authority to promulgate FMLA regulations.”).
It is now, therefore, well-settled that an employee may not waive
“prospective” rights under the FMLA, but an employee can release FMLA
claims that concern past employer behavior. The only remaining issue is the
meaning of the word “prospective” as it concerns FMLA rights, which is a
question of first impression in our circuit.
“prospective” rights under the FMLA, but an employee can release FMLA
claims that concern past employer behavior. The only remaining issue is the
meaning of the word “prospective” as it concerns FMLA rights, which is a
question of first impression in our circuit.
2.
Paylor interprets “prospective rights” under the FMLA to mean “the
unexercised rights of a current eligible employee to take FMLA leave and to be
restored to the same or an equivalent position after the leave.” Appellant’s Br.
at 15. The problem with this interpretation is obvious: it proves too much.
All eligible employees possess an “unexercised” right, in the abstract,
to FMLA leave. If by “prospective” rights the DOL regulation really meant
“unexercised” rights, the FMLA would make it unlawful to fire any
eligible employee, or at least any eligible employee with an outstanding
request for FMLA leave. That is not the law: substantive FMLA rights are not
absolute. For example, an employer is not liable for interference if the
employer can show that it refused to restore an employee to his position of
employment for a reason unrelated to his FMLA leave. See Spakes
v. Broward Cnty. Sheriff’s Office, 631 F.3d 1307, 1310 (11th Cir. 2011)
[22 Fla. L. Weekly Fed. C1716a]; Strickland v. Water Works & Sewer Bd. of
City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001) (“An employer can
deny the right to reinstatement . . . if it can demonstrate that it would have
discharged the employee had he not been on FMLA leave.”). Paylor’s
interpretation of “prospective rights” is thus too expansive.
unexercised rights of a current eligible employee to take FMLA leave and to be
restored to the same or an equivalent position after the leave.” Appellant’s Br.
at 15. The problem with this interpretation is obvious: it proves too much.
All eligible employees possess an “unexercised” right, in the abstract,
to FMLA leave. If by “prospective” rights the DOL regulation really meant
“unexercised” rights, the FMLA would make it unlawful to fire any
eligible employee, or at least any eligible employee with an outstanding
request for FMLA leave. That is not the law: substantive FMLA rights are not
absolute. For example, an employer is not liable for interference if the
employer can show that it refused to restore an employee to his position of
employment for a reason unrelated to his FMLA leave. See Spakes
v. Broward Cnty. Sheriff’s Office, 631 F.3d 1307, 1310 (11th Cir. 2011)
[22 Fla. L. Weekly Fed. C1716a]; Strickland v. Water Works & Sewer Bd. of
City of Birmingham, 239 F.3d 1199, 1208 (11th Cir. 2001) (“An employer can
deny the right to reinstatement . . . if it can demonstrate that it would have
discharged the employee had he not been on FMLA leave.”). Paylor’s
interpretation of “prospective rights” is thus too expansive.
The better interpretation of “prospective rights,” and the one that emerges
quite clearly from the plain language of § 825.220(d), is that “prospective
rights” under the FMLA are those allowing an employee to invoke FMLA protections
at some unspecified time in the future. Prospective waiver is “[a] waiver of
something that has not yet occurred, such as a contractual waiver of
future claims for discrimination upon settlement of a lawsuit.” Black’s Law
Dictionary 1718 (9th ed. 2009) (emphasis added). An employer could not, for
example, offer all new employees a one-time cash payment in exchange for a
waiver of any future FMLA claims. That waiver would be “prospective,” and
therefore invalid under the FMLA, because it would allow employers to negotiate
a freestanding exception to the law with individual employees.
quite clearly from the plain language of § 825.220(d), is that “prospective
rights” under the FMLA are those allowing an employee to invoke FMLA protections
at some unspecified time in the future. Prospective waiver is “[a] waiver of
something that has not yet occurred, such as a contractual waiver of
future claims for discrimination upon settlement of a lawsuit.” Black’s Law
Dictionary 1718 (9th ed. 2009) (emphasis added). An employer could not, for
example, offer all new employees a one-time cash payment in exchange for a
waiver of any future FMLA claims. That waiver would be “prospective,” and
therefore invalid under the FMLA, because it would allow employers to negotiate
a freestanding exception to the law with individual employees.
Paylor’s circumstances are different. The Severance Agreement she signed did
not ask Paylor to assent to a general exception to the FMLA, but rather to a
release of the specific claims she might have based on past interference or
retaliation. Section 825.220(d) makes clear that the FMLA’s private right of
action attaches to the employer’s conduct — i.e., to the alleged act of
interference or retaliation — and not to some free-floating set of
“unexercised” FMLA rights. And the text of the regulation explicitly
contemplates the possibility that an employee can settle claims “based on past
employer conduct.” § 825.220(d). We therefore reject Paylor’s interpretation of
“prospective” FMLA rights; § 825.220(d)’s prohibition of “prospective” waiver
means only that an employee may not waive FMLA rights, in advance, for
violations of the statute that have yet to occur.
not ask Paylor to assent to a general exception to the FMLA, but rather to a
release of the specific claims she might have based on past interference or
retaliation. Section 825.220(d) makes clear that the FMLA’s private right of
action attaches to the employer’s conduct — i.e., to the alleged act of
interference or retaliation — and not to some free-floating set of
“unexercised” FMLA rights. And the text of the regulation explicitly
contemplates the possibility that an employee can settle claims “based on past
employer conduct.” § 825.220(d). We therefore reject Paylor’s interpretation of
“prospective” FMLA rights; § 825.220(d)’s prohibition of “prospective” waiver
means only that an employee may not waive FMLA rights, in advance, for
violations of the statute that have yet to occur.
3.
Having answered the interpretive question, all that remains is the
application of § 825.220(d) to the facts of Paylor’s case. Here, the conduct
Paylor complains about all happened before she signed the Severance
Agreement. Paylor argues, specifically, that Hartford both interfered with and
retaliated against her FMLA request when the company asked her to choose between
the PIP and the Severance Agreement. That allegedly unlawful conduct all
occurred, at the latest, on September 16, 2009. But Paylor signed the Severance
Agreement on September 17, 2009, thereby wiping out any backward-looking claims
she might have had against her employer. In signing the agreement and accepting
her severance benefits, Paylor settled claims “based on past employer conduct,”
§ 825.220(d), and so the District Court did not err in concluding that the
agreement was valid and that it entitled Hartford to judgment as a matter of
law.
application of § 825.220(d) to the facts of Paylor’s case. Here, the conduct
Paylor complains about all happened before she signed the Severance
Agreement. Paylor argues, specifically, that Hartford both interfered with and
retaliated against her FMLA request when the company asked her to choose between
the PIP and the Severance Agreement. That allegedly unlawful conduct all
occurred, at the latest, on September 16, 2009. But Paylor signed the Severance
Agreement on September 17, 2009, thereby wiping out any backward-looking claims
she might have had against her employer. In signing the agreement and accepting
her severance benefits, Paylor settled claims “based on past employer conduct,”
§ 825.220(d), and so the District Court did not err in concluding that the
agreement was valid and that it entitled Hartford to judgment as a matter of
law.
B.
Paylor’s second argument is that her waiver was not “knowing and voluntary.”
We have said that employees can waive employment claims when their waiver is
“voluntary and knowing based on the totality of the circumstances.” Myricks
v. Fed. Reserve Bank of Atlanta, 480 F.3d 1036, 1040 (11th Cir. 2007)
[20 Fla. L. Weekly Fed. C376a].1
Specifically, we consider (1) the education and business experience of the
employee; (2) the time the employee spent considering the agreement before
signing it; (3) the clarity of the language in the agreement; (4) the employee’s
opportunity to consult with an attorney; (5) whether the employer encouraged or
discouraged consultation with an attorney; and (6) the consideration given in
exchange for the release compared to the benefits the employee was already
entitled to receive. Id.
We have said that employees can waive employment claims when their waiver is
“voluntary and knowing based on the totality of the circumstances.” Myricks
v. Fed. Reserve Bank of Atlanta, 480 F.3d 1036, 1040 (11th Cir. 2007)
[20 Fla. L. Weekly Fed. C376a].1
Specifically, we consider (1) the education and business experience of the
employee; (2) the time the employee spent considering the agreement before
signing it; (3) the clarity of the language in the agreement; (4) the employee’s
opportunity to consult with an attorney; (5) whether the employer encouraged or
discouraged consultation with an attorney; and (6) the consideration given in
exchange for the release compared to the benefits the employee was already
entitled to receive. Id.
The District Court did not err in concluding that Paylor executed the
Severance Agreement knowingly and voluntarily. Paylor was 56 years old at the
time she signed the agreement, and had worked in the insurance industry for more
than 20 years. Though she did not graduate from high school or college, Paylor
had attended college classes and taken additional courses relating to the
insurance industry. Paylor took only one day to consider the Severance
Agreement, but said in her deposition that she did not know how long she had to
review it because she did not read it thoroughly. The agreement expressly stated
that she had 21 days to review it. The agreement was clearly worded, and Paylor
said in her deposition that she understood the waiver language. Paylor
acknowledged that the agreement recommended that she consult an attorney.
Finally, Paylor received severance pay to which she was not otherwise entitled
in exchange for signing the agreement. Considering the totality of the
circumstances, there is not genuine issue of material fact as to whether
Paylor’s waiver was knowing and voluntary, and so the District Court did not err
in entering summary judgment for Hartford on this claim.
Severance Agreement knowingly and voluntarily. Paylor was 56 years old at the
time she signed the agreement, and had worked in the insurance industry for more
than 20 years. Though she did not graduate from high school or college, Paylor
had attended college classes and taken additional courses relating to the
insurance industry. Paylor took only one day to consider the Severance
Agreement, but said in her deposition that she did not know how long she had to
review it because she did not read it thoroughly. The agreement expressly stated
that she had 21 days to review it. The agreement was clearly worded, and Paylor
said in her deposition that she understood the waiver language. Paylor
acknowledged that the agreement recommended that she consult an attorney.
Finally, Paylor received severance pay to which she was not otherwise entitled
in exchange for signing the agreement. Considering the totality of the
circumstances, there is not genuine issue of material fact as to whether
Paylor’s waiver was knowing and voluntary, and so the District Court did not err
in entering summary judgment for Hartford on this claim.
C.
Paylor’s final argument is that the waiver she signed is contrary to public
policy. She argues, in brief, that the FMLA was passed “so employees would not
have to choose between their jobs and their families.” Appellant’s Reply Br. at
7. Because Hartford presented Paylor with the Severance Agreement before
definitively informing her that her most recent FMLA request had been approved,
Paylor says she was “forced into an uninformed choice,” and that “violates the
very tenants of the FMLA and undermines the purposes for which Congress enacted
the FMLA.” Id.
policy. She argues, in brief, that the FMLA was passed “so employees would not
have to choose between their jobs and their families.” Appellant’s Reply Br. at
7. Because Hartford presented Paylor with the Severance Agreement before
definitively informing her that her most recent FMLA request had been approved,
Paylor says she was “forced into an uninformed choice,” and that “violates the
very tenants of the FMLA and undermines the purposes for which Congress enacted
the FMLA.” Id.
We need not address Paylor’s public-policy argument because she did not raise
the issue before the District Court. We have said repeatedly that we will not
consider an issue raised for the first time on appeal. See, e.g., Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) [17
Fla. L. Weekly Fed. C1064a] (“The reason for this prohibition is plain: as a
court of appeals, we review claims of judicial error in the trial
courts.”) (emphasis added). Because Paylor did not make her public-policy
argument in the District Court, we will not consider the argument for the first
time in this court.
the issue before the District Court. We have said repeatedly that we will not
consider an issue raised for the first time on appeal. See, e.g., Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) [17
Fla. L. Weekly Fed. C1064a] (“The reason for this prohibition is plain: as a
court of appeals, we review claims of judicial error in the trial
courts.”) (emphasis added). Because Paylor did not make her public-policy
argument in the District Court, we will not consider the argument for the first
time in this court.
IV.
We add, as a final note, that the attorneys in this case could have saved
themselves, their clients, and the courts considerable time, expense, and
heartache had they only paused to better identify the issues before diving into
discovery. The dispute in this case was really very narrow: Paylor requested
FMLA leave on one day, and a short time later her employer asked her to choose
between a PIP and the Severance Agreement. The parties agreed at oral argument
— but only at oral argument — that the entire dispute boils down to the
temporal proximity between Paylor’s FMLA request and Hartford’s offering the
Severance Agreement. That’s the whole case.
themselves, their clients, and the courts considerable time, expense, and
heartache had they only paused to better identify the issues before diving into
discovery. The dispute in this case was really very narrow: Paylor requested
FMLA leave on one day, and a short time later her employer asked her to choose
between a PIP and the Severance Agreement. The parties agreed at oral argument
— but only at oral argument — that the entire dispute boils down to the
temporal proximity between Paylor’s FMLA request and Hartford’s offering the
Severance Agreement. That’s the whole case.
That such a straightforward dispute metastasized into the years-long
discovery sinkhole before us on appeal is just the latest instantiation of the
“shotgun pleading” problem. See Davis
v. Coca-Cola Bottling Co., 516 F.3d 955, 979 (11th Cir. 2008) [21 Fla.
L. Weekly Fed. C384a] (“[T]his court has been roundly, repeatedly, and
consistently condemning [shotgun pleadings] for years, long before this lawsuit
was filed.”).2 The story is, by now, a
familiar one: the plaintiff kicks things off with a shotgun pleading, where
“each count . . . adopts the allegations of all preceding counts. Consequently,
allegations of fact that may be material to a determination of count one, but
not count four, are nonetheless made a part of count four . . . . [I]t is
virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Florida
Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).
discovery sinkhole before us on appeal is just the latest instantiation of the
“shotgun pleading” problem. See Davis
v. Coca-Cola Bottling Co., 516 F.3d 955, 979 (11th Cir. 2008) [21 Fla.
L. Weekly Fed. C384a] (“[T]his court has been roundly, repeatedly, and
consistently condemning [shotgun pleadings] for years, long before this lawsuit
was filed.”).2 The story is, by now, a
familiar one: the plaintiff kicks things off with a shotgun pleading, where
“each count . . . adopts the allegations of all preceding counts. Consequently,
allegations of fact that may be material to a determination of count one, but
not count four, are nonetheless made a part of count four . . . . [I]t is
virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of Cent. Florida
Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).
In this case, Paylor’s counsel conceded outright at oral argument that
Paylor’s complaint “doesn’t meet the [Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007) [20 Fla. L. Weekly Fed. S267a]] standard.” And indeed, both the complaint
and the amended complaint are almost totally useless. The reader learns that
there is a statute called the Family Medical Leave Act, and hears in Counts II
and III the allegation that “[Hartford] violated the Family Medical Leave Act by
interfering with and/or denying [Paylor’s] leave under the act and by ultimately
terminating [Paylor],” and that “[Hartford] has violated the FMLA by retaliating
against [Paylor] for [Paylor’s] exercising and/or attempting to exercise [her]
rights under the Family Medical Leave Act,” but that is all the reader
learns. No specific factual allegation informs the reader how, precisely, the
defendant interfered with or retaliated against the plaintiff.
Paylor’s complaint “doesn’t meet the [Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007) [20 Fla. L. Weekly Fed. S267a]] standard.” And indeed, both the complaint
and the amended complaint are almost totally useless. The reader learns that
there is a statute called the Family Medical Leave Act, and hears in Counts II
and III the allegation that “[Hartford] violated the Family Medical Leave Act by
interfering with and/or denying [Paylor’s] leave under the act and by ultimately
terminating [Paylor],” and that “[Hartford] has violated the FMLA by retaliating
against [Paylor] for [Paylor’s] exercising and/or attempting to exercise [her]
rights under the Family Medical Leave Act,” but that is all the reader
learns. No specific factual allegation informs the reader how, precisely, the
defendant interfered with or retaliated against the plaintiff.
Defense attorneys, of course, are not helpless in the face of shotgun
pleadings — even though, inexplicably, they often behave as though they are. A
defendant served with a shotgun complaint should move the district court to
dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule
12(e)4 on the ground that the complaint
provides it with insufficient notice to enable it to file an answer.
pleadings — even though, inexplicably, they often behave as though they are. A
defendant served with a shotgun complaint should move the district court to
dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule
12(e)4 on the ground that the complaint
provides it with insufficient notice to enable it to file an answer.
Rather than availing itself of the protective tools in the Federal Rules of
Civil Procedure, Hartford responded to Paylor’s shotgun pleading with a shotgun
answer: 19 one-line affirmative defenses, none of which refers to a particular
count, and none of which indicates that Hartford was even aware of when the
retaliation and interference allegedly occurred. At oral argument, Hartford’s
counsel acknowledged that the complaint was totally lacking in specifics, but
maintained — in essence — that all’s well that ends well: after all, the
parties were able to sort things out through discovery. Even if that were true
— and it isn’t, as evidenced by the parties’ ongoing bickering over even the
most picayune facts in the case — why should parties wait until discovery to
identify, with precision, the subject of the litigation? That is exactly
backward. Civil pleadings are supposed to mark the boundaries for discovery;
discovery is not supposed to substitute for definite pleading.
Civil Procedure, Hartford responded to Paylor’s shotgun pleading with a shotgun
answer: 19 one-line affirmative defenses, none of which refers to a particular
count, and none of which indicates that Hartford was even aware of when the
retaliation and interference allegedly occurred. At oral argument, Hartford’s
counsel acknowledged that the complaint was totally lacking in specifics, but
maintained — in essence — that all’s well that ends well: after all, the
parties were able to sort things out through discovery. Even if that were true
— and it isn’t, as evidenced by the parties’ ongoing bickering over even the
most picayune facts in the case — why should parties wait until discovery to
identify, with precision, the subject of the litigation? That is exactly
backward. Civil pleadings are supposed to mark the boundaries for discovery;
discovery is not supposed to substitute for definite pleading.
In any case, the parties delivered this mess to the District Court. Instead
of demanding a repleader, see Davis, 516 F.3d at 984 (“In light of
defense counsel’s failure to request a repleader, the court, acting sua
sponte, should have struck the plaintiff’s complaint, and the defendants’
answer, and instructed plaintiff’s counsel to file a more definite statement.
The necessity for doing so should have become starkly apparent on reading the
complaint.”), the District Court tossed the case overboard to a Magistrate Judge
for discovery.
of demanding a repleader, see Davis, 516 F.3d at 984 (“In light of
defense counsel’s failure to request a repleader, the court, acting sua
sponte, should have struck the plaintiff’s complaint, and the defendants’
answer, and instructed plaintiff’s counsel to file a more definite statement.
The necessity for doing so should have become starkly apparent on reading the
complaint.”), the District Court tossed the case overboard to a Magistrate Judge
for discovery.
At that point it was too late: the discovery goat rodeo had begun. Because a
Magistrate Judge has no authority to narrow the scope of discovery (because that
would constitute a dispositive ruling, a power forbidden to Magistrate Judges,
see 28 U.S.C. § 636(b)(A)), the parties had a free hand to take
depositions and collect affidavits, business records, and interrogatories —
most of which bear no obvious connection to the crux of the dispute. By the time
the case wheezed its way back to the District Judge, she unhappily discovered
that the record had become “voluminous,” consisting of “hundreds of pages of
deposition testimony, witness affidavits, correspondence, various business
records, and discovery responses.” Hollinger, No. 6:11-cv-59-Orl-19TBS,
ECF Doc. 57, at 7.
Magistrate Judge has no authority to narrow the scope of discovery (because that
would constitute a dispositive ruling, a power forbidden to Magistrate Judges,
see 28 U.S.C. § 636(b)(A)), the parties had a free hand to take
depositions and collect affidavits, business records, and interrogatories —
most of which bear no obvious connection to the crux of the dispute. By the time
the case wheezed its way back to the District Judge, she unhappily discovered
that the record had become “voluminous,” consisting of “hundreds of pages of
deposition testimony, witness affidavits, correspondence, various business
records, and discovery responses.” Hollinger, No. 6:11-cv-59-Orl-19TBS,
ECF Doc. 57, at 7.
The persistence of the shotgun pleading problem is particularly frustrating
because the relevant actors all have it within their power to avoid it. Nothing
is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly
nothing is stopping defense lawyers from asking for a more definite statement;
indeed, their clients would be well-served by efforts to resolve, upfront, the
specific contours of the dispute, thereby lessening or even eliminating the need
for costly discovery. And nothing should stop District Courts from demanding, on
their own initiative, that the parties replead the case. Indeed,
because the relevant actors all have it within their power to avoid it. Nothing
is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly
nothing is stopping defense lawyers from asking for a more definite statement;
indeed, their clients would be well-served by efforts to resolve, upfront, the
specific contours of the dispute, thereby lessening or even eliminating the need
for costly discovery. And nothing should stop District Courts from demanding, on
their own initiative, that the parties replead the case. Indeed,
[i]f the trial judge does not quickly demand repleader, all is lost
— extended and largely aimless discovery will commence, and the trial court
will soon be drowned in an uncharted sea of depositions, interrogatories, and
affidavits. Given the massive record and loose pleadings before it, the trial
court, whose time is constrained by the press of other business, is unable to
squeeze the case down to its essentials; the case therefore proceeds to trial
without proper delineation of issues, as happen[s] [frequently]. An appeal
ensues, and the court of appeals assumes the trial court’s responsibility of
sorting things out. The result is a massive waste of judicial and private
resources; moreover, the litigants suffer, and society loses confidence in the
court[s’] ability to administer justice.
Johnson Enter. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d
1290, 1333 (11th Cir. 1998) (internal citations and quotations omitted). That is
what happened here.
1290, 1333 (11th Cir. 1998) (internal citations and quotations omitted). That is
what happened here.
* * *
Because Paylor waived her claims against Hartford by signing the Severance
Agreement, the District Court correctly entered summary judgment on behalf of
the defendant on Paylor’s FMLA claims. The judgment of the District Court is,
accordingly,
Agreement, the District Court correctly entered summary judgment on behalf of
the defendant on Paylor’s FMLA claims. The judgment of the District Court is,
accordingly,
AFFIRMED.
__________________
*Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
Circuit, sitting by designation.
1Paylor invites us to apply the
seven-factor test applied to claims under the Older Workers Benefit Protection
Act, 29 U.S.C. § 621 et. seq. (“OBWPA”), because she “was over the age of
forty (40) at the time the [Severance Agreement] was signed.” Appellant’s Br. at
27. We decline the invitation. We see no reason to jettison the tried-and-true
“totality of the circumstances” test, see Myricks
v. Fed. Reserve Bank of Atlanta, 480 F.3d 1036, 1040 (11th Cir. 2007)
[20 Fla. L. Weekly Fed. C376a], simply because of the plaintiff’s age.
seven-factor test applied to claims under the Older Workers Benefit Protection
Act, 29 U.S.C. § 621 et. seq. (“OBWPA”), because she “was over the age of
forty (40) at the time the [Severance Agreement] was signed.” Appellant’s Br. at
27. We decline the invitation. We see no reason to jettison the tried-and-true
“totality of the circumstances” test, see Myricks
v. Fed. Reserve Bank of Atlanta, 480 F.3d 1036, 1040 (11th Cir. 2007)
[20 Fla. L. Weekly Fed. C376a], simply because of the plaintiff’s age.
2See also Starship
Enter. of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243 (11th Cir.
2013) [24 Fla. L. Weekly Fed. C8a]; PVC
Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802 (11th Cir.
2010) [22 Fla. L. Weekly Fed. C589a]; Cook
v. Randolph Cnty., Ga., 573 F.3d 1143 (11th Cir. 2009) [21 Fla. L.
Weekly Fed. C2006a]; Wagner
v. First Horizon Pharm. Corp., 464 F.3d 1273 (11th Cir. 2006) [19 Fla.
L. Weekly Fed. C1065a]; Ambrosia
Coal & Const. Co. v. Pages Morales, 368 F.3d 1320 (11th Cir. 2004)
[17 Fla. L. Weekly Fed. C512a]; Strategic
Income Fund, LLC v. Spear, Leeds, and Kellogg Corp., 305 F.3d 1293 (11th
Cir. 2002) [15 Fla. L. Weekly Fed. C1074a]; Byrne
v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) [14 Fla. L. Weekly Fed.
C1100a]; Magluta
v. Samples, 256 F.3d 1282 (11th Cir. 2001) [14 Fla. L. Weekly Fed.
C931a]; Johnson Enters. of Jacksonville, Inc., v. FPL Group, Inc., 162
F.3d 1290 (11th Cir. 1998); BMC Indus., Inc. v. Barth Indus., Inc., 160
F.3d 1322 (11th Cir. 1998); GJR Inves., Inc. v. Cnty. of Escambia, Fla.,
132 F.3d 1359 (11th Cir. 1998); Cramer v. State of Florida, 117 F.3d
1258 (11th Cir. 1997); Ebrahimi v. City of Huntsville Bd. of Educ., 114
F.3d 162 (11th Cir. 1997); Cesnik v. Edgewood Baptist Church, 88 F.3d 902
(11th Cir. 1996); Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir. 1996);
Boatman v. Town of Oakland, Fla., 76 F.3d 341 (11th Cir. 1996);
Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364
(11th Cir. 1996); Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d
1554 (11th Cir. 1995); Oladeinde v. City of Birmingham, 963 F.2d 1481
(11th Cir. 1992); Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991);
Fullman v. Graddick, 739 F.2d 553 (11th Cir. 1984).
Enter. of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243 (11th Cir.
2013) [24 Fla. L. Weekly Fed. C8a]; PVC
Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802 (11th Cir.
2010) [22 Fla. L. Weekly Fed. C589a]; Cook
v. Randolph Cnty., Ga., 573 F.3d 1143 (11th Cir. 2009) [21 Fla. L.
Weekly Fed. C2006a]; Wagner
v. First Horizon Pharm. Corp., 464 F.3d 1273 (11th Cir. 2006) [19 Fla.
L. Weekly Fed. C1065a]; Ambrosia
Coal & Const. Co. v. Pages Morales, 368 F.3d 1320 (11th Cir. 2004)
[17 Fla. L. Weekly Fed. C512a]; Strategic
Income Fund, LLC v. Spear, Leeds, and Kellogg Corp., 305 F.3d 1293 (11th
Cir. 2002) [15 Fla. L. Weekly Fed. C1074a]; Byrne
v. Nezhat, 261 F.3d 1075 (11th Cir. 2001) [14 Fla. L. Weekly Fed.
C1100a]; Magluta
v. Samples, 256 F.3d 1282 (11th Cir. 2001) [14 Fla. L. Weekly Fed.
C931a]; Johnson Enters. of Jacksonville, Inc., v. FPL Group, Inc., 162
F.3d 1290 (11th Cir. 1998); BMC Indus., Inc. v. Barth Indus., Inc., 160
F.3d 1322 (11th Cir. 1998); GJR Inves., Inc. v. Cnty. of Escambia, Fla.,
132 F.3d 1359 (11th Cir. 1998); Cramer v. State of Florida, 117 F.3d
1258 (11th Cir. 1997); Ebrahimi v. City of Huntsville Bd. of Educ., 114
F.3d 162 (11th Cir. 1997); Cesnik v. Edgewood Baptist Church, 88 F.3d 902
(11th Cir. 1996); Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir. 1996);
Boatman v. Town of Oakland, Fla., 76 F.3d 341 (11th Cir. 1996);
Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364
(11th Cir. 1996); Beckwith v. City of Daytona Beach Shores, Fla., 58 F.3d
1554 (11th Cir. 1995); Oladeinde v. City of Birmingham, 963 F.2d 1481
(11th Cir. 1992); Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991);
Fullman v. Graddick, 739 F.2d 553 (11th Cir. 1984).
Each of these cases was decided by a unanimous court. All of the judges of
this court, active and senior, have either authored or concurred in an opinion
condemning shotgun pleadings.
this court, active and senior, have either authored or concurred in an opinion
condemning shotgun pleadings.
3Rule 12(b)(6) provides that, in
responding to a complaint, a defendant — prior to answering the complaint —
may move the district court to dismiss the complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
responding to a complaint, a defendant — prior to answering the complaint —
may move the district court to dismiss the complaint for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
4Rule 12(e), titled “Motion for a More
Definite Statement,” states:
Definite Statement,” states:
A party may move for a more definite statement of a pleading to
which a responsive pleading is allowed but which is so vague or ambiguous that
the party cannot reasonably prepare a response. The motion must be made before
filing a responsive pleading and must point out the defects complained of and
the details desired. If the court orders a more definite statement and the order
is not obeyed within 14 days after notice of the order or within the time the
court sets, the court may strike the pleading or issue any other appropriate
order.
Fed. R. Civ. P. 12(e). In Mitchell v. E-Z Way Towers, Inc., 269 F.2d
126 (5th Cir. 1959), we explained that
126 (5th Cir. 1959), we explained that
[u]nder 12(e) the Court must determine whether the complaint is such
that a party cannot reasonably be required to frame a responsive pleading. But
the fact that a careful Judge, in the exercise of that wise discretion
controlled by the prescribed principles of that rule, might so conclude does not
permit him to dismiss the complaint for failure to state a claim. It may well be
that petitioner’s complaint as now drawn is too vague, but that is no ground for
dismissing his action.
Id. at 130 (internal quotations omitted); see Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (noting that this
circuit adopted as binding all decisions of the former Fifth Circuit handed down
prior to October 1, 1981). “The remedy for an allegation lacking sufficient
specificity to provide adequate notice is, of course, a Rule 12(e) motion for a
more definite statement.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
590 n. 9, 127 S.Ct. 1955, 1985, 167 L. Ed. 2d 929 (2007) (Stevens, J.,
dissenting) (internal quotations omitted).
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (noting that this
circuit adopted as binding all decisions of the former Fifth Circuit handed down
prior to October 1, 1981). “The remedy for an allegation lacking sufficient
specificity to provide adequate notice is, of course, a Rule 12(e) motion for a
more definite statement.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
590 n. 9, 127 S.Ct. 1955, 1985, 167 L. Ed. 2d 929 (2007) (Stevens, J.,
dissenting) (internal quotations omitted).
* * *