Judge Gerald Tjoflat, U.S. Court of Appeals for the Eleventh Circuit (Photo: John Disney/ALM) Judge Gerald Tjoflat, U.S. Court of Appeals for the Eleventh Circuit (Photo: John Disney/ALM)

After granting multiple extensions to an Alabama lawyer fighting a foreclosure, a federal appeals panel was decidedly unimpressed when he said in oral arguments that their concerns about his “shotgun” complaints may be “an issue in federal court,” but they “are not disfavored in Alabama courts.”

Federal rulings have defined shotgun complaints as containing multiple counts, each incorporating by reference the preceding allegation with no clear cause of action asserted. They often assert those claims against multiple defendants without specifying which is responsible for each claim.

During oral arguments at the U.S. Court of Appeals for the Eleventh Circuit, Kenneth Lay of Birmingham’s Hood & Lay apparently declined to even defend his filings. He told the panel of Judges Gerald Tjoflat, Julie Carnes and Southern District of Florida Judge Beth Bloom, sitting by designation, that “I understand [the court’s] problem with shotgun pleadings, and I’m not gonna argue about that.”

In a blistering opinion, Tjoflat chided Lay for filing a clearly deficient complaint as part of a scheme “engineered to delay or prevent execution of a foreclosure judgment on a residence and the consequent eviction of its occupants.”

Lay “effectuated this scheme by filing a multi-count, incomprehensible complaint that flouted the Federal Rules of Civil Procedure and this circuit’s well-established precedent,” Tjoflat wrote.

In addition to upholding the trial judge’s dismissal of the case, Tjoflat said the frivolous filings constituted an abuse of judicial process and ordered Lay to show cause why he should not be ordered to pay the defendants’ double their costs for defending the appeal.   

Lay did not respond to requests for comment.

The appellate defendants, Bank of New York Mellon, Specialized Loan Servicing and Mortgage Electronic Registration Systems, are represented by Birmingham lawyers Anna-Katherine Bowman and James Hill IV of Bradley Arant Boult Cummings and Matthew Mitchell and Ryan Hebson of Burr & Forman, who declined to comment.

As detailed in the appellate opinion and other filings, Lay represents Karun and Ursula Jackson of Daphne, Alabama, whose home was foreclosed in 2015 and sold to Mellon Bank in 2016.

That year Lay filed a 14-count complaint in Baldwin County Circuit Court asserting claims including wrongful foreclosure, fraud, negligence and violations of multiple federal lending laws. 

The defendants had the case removed to Alabama’s Southern District Court, where the defendants moved for a “more definite statement” according to the federal Rules of Civil Procedure. They argued that the complaint was a shotgun pleading that omitted “key facts such as relevant dates and the particular nature” of the alleged violations.

A hearing magistrate granted the Jacksons 21 days to file an amended complaint.

“The amended complaint was, like its predecessor, a shotgun pleading: It incorporated all of the factual allegations into each count without delineating which allegations pertained to each count,” Tjoflat wrote.

The defendants moved for dismissal, arguing that the complaint failed to state a claim for relief.

After again requesting and receiving an extension, Lay filed a response. Two months later, a magistrate judge recommended that the case be dismissed, and Senior Judge Callie Granade did so. 

The Jacksons appealed to the Eleventh Circuit and, from “that point on, Mr. Lay’s delay tactics continued,” wrote Tjoflat. “He moved the court to extend the deadline to file the Jackson’s opening brief six times,” asserting that he was “working diligently on the brief” but had been delayed by his own medical problems and those of a relative, and that “his ‘work load’ was ‘heavier than normal.’”

“We granted each of the extensions,” the opinion said.

The brief was finally filed more than three months after it was due, the opinion said.

After the defense filed their response, Lay sought four more extensions to reply, during which he “cited verbatim the same reasons as those listed” in prior requests.

“All told, Mr. Lay sought and obtained 10 extension requests from this court,” it said.

In upholding Granade’s dismissal, Tjoflat wrote that the amended complaint “patently violates Federal Rule of Civil Procedure 8, which requires a plaintiff to plead ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ At 28 pages and having incorporated all 123 paragraphs of allegations into all 16 counts, it is neither ‘short’ nor ‘plain.’”

“Put colloquially: garbage in, garbage out,” Tjoflat wrote.

“Tolerating such behavior constitutes toleration of obstruction of justice,” he said, and Lays’ argument that Alabama courts accept such pleadings were irrelevant.

“When he brought this lawsuit in Baldwin County Circuit Court, Mr. Lay knew that the case would be removed to federal district court because the complaint contained causes of action based on federal statutes,” Tjoflat said.

“This constitutes an abuse of judicial process. … The procedures of the federal courts were not designed for the purpose of accommodating Mr. Lay’s objective,” Tjoflat wrote.

In a special concurrence, Bloom wrote to “emphasize the crux of the majority’s holding” in the case.

“Perhaps the plaintiff’s attorney engineered a scheme, perhaps not,” she wrote. “It would be unfortunate, indeed outrageous, if Mr. Lay’s pleas for extensions, both at the district and appellate levels (due to travel, workload, repeated illness, hospitalization and death in the family) were not made in good faith and one large ruse. We may never know his true motivation.”

But those delays are not the reasons for the court’s ruling, she said.

“Rather, it is the plainly deficient pleading, refiled and appealed, that marshalled substantial unnecessary resources and that leads to the court’s finding today,” she wrote.   

The opinion gives Lay 21 days to show cause why he should not be required to pay double the defense’s costs for the appeal. It does not say whether he will be granted any extensions to respond.