              Case: 19-13527     Date Filed: 03/18/2020    Page: 1 of 12



                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-13527
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 3:17-cv-01215-BJD-JBT


AARON HIRSCH,
individually and on behalf of all others similarly situated,

                                                                  Plaintiff-Appellant,

                                        versus

ENSURETY VENTURES, LLC,
d.b.a. Omega Autocare,
LYNDON SOUTHERN INSURANCE COMPANY, et al.,

                                                               Defendants-Appellees.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (March 18, 2020)

Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.

PER CURIAM:
              Case: 19-13527     Date Filed: 03/18/2020   Page: 2 of 12



      Plaintiff Aaron Hirsch (“Hirsch”) appeals the dismissal with prejudice of his

Revised Second Amended Complaint (“RSAC”). The District Court dismissed the

RSAC as an impermissible shotgun pleading that fails to comply with the

requirements of Federal Rule of Civil Procedure 8(a). We affirm the District

Court’s order.

                                          I.

      Before we can discuss the pleading at issue, we first must recount the history

of this litigation. On October 30, 2017, Hirsch filed his first Complaint against

Ensurety Ventures, LLC (“Ensurety”) and Fortegra Financing Corporation

(“Fortegra”), alleging violations of the Telephone Consumer Protection Act

(“TCPA”), 47 U.S.C. § 227 et seq. The gist of his allegations was, and is, that

Ensurety, under the trade name Omega Autocare (“Omega”), and Fortegra, which

provides underwriting services to Omega, have been responsible for unlawful

telemarketing calls that Hirsch has received which advertise Omega Autocare

automobile warranty policies. Specifically, Hirsch alleged that the defendants

made “unsolicited and unauthorized calls using an [automated telephone dialing

system] or pre-recorded/artificial voice” to residential and cellular telephones “for

the purpose of marketing [their] products and/or services.” The Complaint

contained six counts: Counts I and II allege violations by the defendants of 47

U.S.C. § 227(b)(1)(A), Counts III and IV allege violations by the defendants of §


                                          2
                Case: 19-13527       Date Filed: 03/18/2020       Page: 3 of 12



227(b)(1)(B), and Counts V and VI allege violations by the defendants of §

227(c).1 Hirsch requested that his Complaint be certified as a class action, and

sought an injunction requiring the defendants to cease all telemarketing calls, as

well as an award of statutory damages under the TCPA for members of the class.

       The District Court struck the Complaint sua sponte, finding that it

constituted an impermissible shotgun pleading because all six counts of the

Complaint incorporated the allegations of each of the previous counts by reference.

Hirsch then filed an Amended Complaint containing the same six counts and

theories of liability, asserted against the same two defendants. Both defendants

independently moved to dismiss the Amended Complaint, and the motion was

referred to a Magistrate Judge to prepare a Report and Recommendation (“R&R”).

In evaluating Omega’s motion to dismiss, the Magistrate Judge concluded that the

Amended Complaint failed to state a claim under Counts I and II because Hirsch

did not allege that his voice-over-Internet protocol (“VoIP”) telephone service was

“a service for which the called party is charged for the call,” as required by §

227(b)(1)(A). Additionally, the Magistrate Judge recommended that Fortegra’s

motion to dismiss be granted because, while the Amended Complaint indicated

that the telemarketing calls were advertising Omega automobile warranty policies,



       1
       Counts II, IV, and VI allege that the violations alleged in Counts I, III, and V were
knowing and/or willful, as a basis for treble damages under the TCPA.
                                                3
                Case: 19-13527        Date Filed: 03/18/2020       Page: 4 of 12



it did not sufficiently allege a relationship between Fortegra and Omega and did

not indicate “which defendant is responsible for which actions.”2 The Magistrate

Judge indicated that he was “persua[ded]” by the reasoning of TCPA cases that

“required repleader . . . where, because multiple defendants are lumped together, it

is unclear what theory of liability Plaintiff is pursuing.” Thus, the R&R

recommended that the Amended Complaint be dismissed in its entirety without

prejudice, and the recommendation was adopted by the District Court.

       Hirsch then filed a Second Amended Complaint and a Corrected Second

Amended Complaint, which were both stricken by the District Court without

prejudice because they sought to add new defendants without receiving leave of

Court.3 Hirsch then filed a Revised Second Amended Complaint (“RSAC”)

naming seven defendants: Lyndon Southern Insurance Company, Insurance

Company of the South, LOTSolutions, Inc., Auto Knight Motor Club, Inc., EGV

Companies, Inc., Ensurety, Inc., and Ensurety Ventures, LLC, d/b/a Omega

Autocare.4 The RSAC contains various general factual allegations regarding the

interrelationship between each of the defendant parties, alleging that certain of the


       2
          Hirsch did not allege that either Fortegra or Omega had made any of the subject calls, as
each allegation simply “lumped” the multiple defendants together by indicating that the conduct
was undertaken by “Defendants, either directly or through their agents,” or “by or on behalf of
Defendants.”
        3
          Hirsch was instructed to file a new motion to amend, and a new proposed amended
complaint, after fully conferring with defendants as required by the local rules.
        4
          The RSAC, unlike Hirsch’s previous complaints, did not name Fortegra as a defendant,
but three of the named defendants in the RSAC are allegedly “subsidiar[ies] of Fortegra.”
                                                4
                 Case: 19-13527       Date Filed: 03/18/2020      Page: 5 of 12



defendants “directly or indirectly market[]” automotive policies on behalf of

Omega, and that some insure Omega’s vehicle warranty contracts or assist in the

process of doing so. Three of the defendants, Hirsch alleges, are “alter-egos of one

another” and collectively form the Omega Autocare business. According to

Hirsch, while the defendants themselves do not make the unlawful telemarketing

robocalls, they find and hire non-party call centers, and instruct those entities to

make the calls to consumers. Hirsch alleges that all of the defendants play a role in

enlisting the services of call centers to send unlawful calls, and that all defendants

“are vicariously liable for the illegal telemarketing practices.”

      The RSAC contains nine counts, with the first six counts being identical to

those alleged in the Amended Complaint, and the final three counts alleging

violations of identical provisions of Maryland law. 5 Md. Code Ann., Com. Law §

14-3201(2). Like the Amended Complaint, the RSAC alleges under each count

that all “Defendants, either directly or through their agents,” made the

unauthorized calls that violated three different provisions of the TCPA, and that the

defendants’ violations were “knowing and/or willful.” All defendants moved to

dismiss the RSAC, making similar arguments that it “fails to improve on the

pleading deficiencies” leading to dismissal of the first Amended Complaint by




      5
          Hirsch alleges violations of Maryland law because he is a resident of Maryland.
                                                5
              Case: 19-13527     Date Filed: 03/18/2020    Page: 6 of 12



“continu[ing] to improperly lump various Defendants together,” particularly

because the RSAC now names seven defendants instead of two.

      The Magistrate Judge entered a Report and Recommendation (“R&R”) on

the defendants’ motions to dismiss the RSAC. Similar to the first R&R, the

Magistrate Judge concluded that Hirsch had not cured the defects in his pleading,

and that dismissal continues to be appropriate. The R&R found that the RSAC is

still “a shotgun pleading” that makes it “unclear what theory of liability Plaintiff is

pursuing and/or which Defendants or non-parties are responsible for which

actions.” Similarly, the Magistrate Judge found that the RSAC does not qualify as

a “short and plain statement” as required by Fed. R. Civ. P. 8, because it: (1) spans

25 pages, only 3 of which address the phone calls that are the subject of the action;

(2) includes two separate sections entitled “Legal Basis for [the] Claims” that

includes only unnecessary, boilerplate legal information and “improper citations to

legal authority regarding the TCPA;” and (3) “contains only sparse, largely

conclusory allegations” supported only by Hirsch’s “wholesale incorporation of the

80 introductory paragraphs into each count.” In sum, the R&R recommended that

the RSAC be dismissed but also recommended that Hirsch be “provided with one

final opportunity to replead,” though it recognized that “the Court could arguably

dismiss the [RSAC] with prejudice for failing to cure the subject defects.” The

District Court overruled Hirsch’s objections to the R&R and adopted it, agreeing


                                           6
              Case: 19-13527     Date Filed: 03/18/2020    Page: 7 of 12



that it was an impermissible shotgun pleading, but chose not to give Hirsch another

opportunity to replead, instead dismissing the RSAC with prejudice. Hirsch

appealed from the District Court’s order.

                                          II.

                                          A.

      Hirsch contends that his RSAC was not a shotgun pleading and that

dismissal was improper. In this Circuit, we describe a shotgun pleading as a

complaint that has several counts where each count incorporates the allegations of

all the previous counts. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d

1313, 1321 (11th Cir. 2015). In a shotgun pleading, we are essentially left with

one count that “amounts to an amalgamation of all counts of the complaint.” PVC

Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 806 (11th Cir.

2010). This Court has gone to great lengths to explain the problems that shotgun

pleadings cause:

      Shotgun pleadings, whether filed by plaintiffs or defendants, exact an
      intolerable toll on the trial court’s docket, lead to unnecessary and
      unchannelled discovery, and impose unwarranted expense on the
      litigants, the court and the court’s parajudicial personnel and resources.
      Moreover, justice is delayed for the litigants who are standing in line,
      waiting for their cases to be heard. The courts of appeals and the
      litigants appearing before them suffer as well.

Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997). We have instructed that

a district court “must intervene . . . and order a replead[ing]” of a shotgun


                                            7
                 Case: 19-13527      Date Filed: 03/18/2020   Page: 8 of 12



complaint, even if the defendant does not move for a more definite statement.

Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001) (emphasis added). And lest

it need still be said, shotgun pleadings do not comport with the pleading

requirements of Rule 8 of the Federal Rules of Civil Procedure and the Supreme

Court’s instructions laid out in Bell Atlantic Corp. v. Twombly 6 and Ashcroft v.

Iqbal. 7 A shotgun pleading is not “a short and plain statement of the claim,” Fed.

R. Civ. P. 8(a)(2), and does not “allow[] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678,

129 S. Ct. at 1949; see also id. (noting that a complaint is insufficient when its

claims are “supported by mere conclusory statements”).

      Hirsch’s RSAC is a shotgun pleading. Each of the nine counts “re-alleges

and incorporates” the allegations of the entire rest of the complaint and all previous

counts. Like in Hirsch’s Complaint and Amended Complaint, each count alleges

that the TCPA was violated by “Defendants, either directly or through their

agents,” without explaining which defendant was responsible for the calls.

Similarly, without any clarification provided, Hirsch alleges that “the foregoing

acts and omissions of Defendants constitute numerous and multiple violations of

the TCPA,” but in no count or claim does he state which act or omission was



      6
          550 U.S. 544, 127 S. Ct. 1955 (2007).
      7
          556 U.S. 662, 129 S. Ct. 1937 (2009).
                                                  8
                Case: 19-13527        Date Filed: 03/18/2020       Page: 9 of 12



committed by which defendant. Hirsch’s complaint tasks the reader with parsing

the slew of general factual allegations about the business structure of the

defendants, and their relationships with non-party call centers, in order to decipher

which defendant’s conduct applies to each count of the RSAC. This is not an

appropriate task for the district courts. See Jackson v. Bank of Am., 898 F.3d 1348,

1357 (11th Cir. 2018) (stating that we do not place district judges “in the position

of serving as the [plaintiff’s] lawyer in rewriting the complaint”).

       Hirsch’s RSAC is a shotgun pleading under our precedent and is not a “short

and plain statement of the claim showing that [Hirsch] is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). Thus, the District Court did not err in granting the defendants’

motion to dismiss.8

                                                B.




       8
          Hirsch contends that dismissal of Counts III and IV as to the Omega defendants is
improper because the “law of the case” doctrine precludes it. Specifically, Hirsch argues that the
Magistrate Judge’s first R&R concluded Hirsch had sufficiently pled, as required by these two
counts, that the telemarketing calls had been made using a prerecorded voice, and he further
argues that because District Court adopted the first R&R in its entirety, these two counts were
actually “sustained” and “not dismissed.” The Magistrate Judge’s R&R, however, explicitly
states that it is recommending that “the Amended Complaint be dismissed in its entirety without
prejudice” because it is “unclear . . . which defendant is responsible for which actions.” The fact
that the Magistrate Judge rejected Omega’s argument, in its motion to dismiss, that Hirsch had
not pled a prima facie violation of the TCPA in Counts III and IV does not change the fact that
the R&R found an independent basis, stemming from the other defendant’s motion to dismiss, to
recommend dismissal of the entire Amended Complaint. Thus, Hirsch’s argument on appeal
about the “law of the case” doctrine is unpersuasive because it relies on the presumption that the
entire Amended Complaint was not dismissed, which is not true.
                                                 9
             Case: 19-13527     Date Filed: 03/18/2020    Page: 10 of 12



      We now turn to Hirsch’s argument that it was inappropriate for the District

Court to dismiss the RSAC with prejudice. We review a dismissal with prejudice

on Rule 8 shotgun pleading grounds for an abuse of discretion. Vibe Micro, Inc. v.

Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018). A dismissal with prejudice is

appropriate where “(1) a party engages in a clear pattern of delay or willful

contempt (contumacious conduct); and (2) the district court specifically finds that

lesser sanctions would not suffice.” Betty K Agencies, Ltd. v. M/V Monada, 432

F.3d 1333, 1338 (11th Cir. 2005) (internal quotations omitted).

      As a basis for its dismissal with prejudice, the District Court relied on our

opinion in Jackson v. Bank of Am., 898 F.3d 1348 (11th Cir. 2018). In that case,

we affirmed the District Court’s dismissal of an amended complaint with prejudice

because it was an impermissible shotgun pleading that was incomprehensible as

pled, which in this Circuit we do not allow. Id. at 1360. We noted that toleration

of these types of pleadings, for all the reasons noted supra, constitutes “toleration

of obstruction of justice.” Id. at 1357. We explained that a district court must give

a party “one chance to remedy such deficiencies,” with a “fair notice of the defects

and a meaningful chance to fix them” – but assuming that this chance is given,

continued impermissible pleadings warrant dismissal with prejudice. Id. at 1358

(internal quotations omitted). Here, where Hirsch has had two years to put

together a viable complaint, including ample opportunity for discovery, he still is


                                          10
             Case: 19-13527     Date Filed: 03/18/2020    Page: 11 of 12



not able to produce anything better than a pleading that requires the District Court

to guess who is responsible for his claims. In this Circuit, we do not task district

courts with such guesswork.

      Hirsch first argues that dismissal of the RSAC with prejudice was

inappropriate because it was not a shotgun pleading, which, as discussed supra, is

not a persuasive argument. Next, Hirsch contends that dismissal with prejudice

was inappropriate because the RSAC added additional defendants that were not

present in the first Amended Complaint, and that, as a result, he had not received

“prior warning” about the deficiency of his allegations as pertains to the newly-

added defendants. However, Hirsch cannot get around a dismissal with prejudice

by merely adding new defendants without altering his impermissible style of

pleading. The fact remains that Hirsch’s RSAC is still an impermissible shotgun

pleading, whether against two defendants or seven, and Hirsch had already been

put on notice by the District Court that his pleadings were insufficient. And as the

District Court lamented, Hirsch “compounded the difficulty associated with

reviewing the [RSAC] where the number of defendants grew from 2 to 7.” The

District Court did not abuse its discretion in dismissing the RSAC with prejudice




                                          11
               Case: 19-13527       Date Filed: 03/18/2020      Page: 12 of 12



because the Court provided Hirsch with multiple warnings that his pleadings were

inadequate, inappropriate shotgun pleadings, and those warnings went unheeded. 9

       AFFIRMED.




       9
          As an alternative basis for denying Hirsch the opportunity to file another amended
complaint, the District Court noted that Hirsch had not properly requested leave to amend.
Hirsch does not challenge this conclusion on appeal, so he has waived any argument that it was
error for the District Court to deny him leave to amend. See Access Now v. Sw. Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004).
                                              12
