Eight days.
That’s how long it took the Eleventh Circuit to dropkick Donald Trump’s bid to resuscitate his RICO trollsuit against Hillary Clinton, the Democratic National Committee, James Comey, and some two dozen other defendants. After oral argument on November 18th, the appeals court needed just over a week to announce their holding: YOUR SUIT IS GARBAGE AND YOUR LAWYERS SHOULD FEEL BAD.
The average time between oral argument and a written decision is 76 days across all federal circuits and a whopping 129 days in the Eleventh. An opinion rendered in a mere eight days is a loud signal that the federal courts in Florida will not be fertile ground for Trump’s campaign of extortionate lawfare. It’s also a message to his lawyers that hundreds of pages of screaming invective which ignores the circuit’s procedural pleading requirements will be swiftly booted.
The Trump Gold Card: A New $1 Million Pathway To A U.S. Green Card
A new proposal would let wealthy foreign nationals secure an opportunity for a U.S. green card with a $1 million 'gift' to the government, sparking legal and ethical debate.
How it started …
This misadventure began back in March of 2022 when Trump’s lawyers Alina Habba and Peter Ticktin filed a 108-page complaint alleging civil RICO by long list of Trump’s enemies.
Alina Habba (who needs no introduction) needed local counsel, and she turned to Ticktin, a guy whose claim to fame is that he roomed with a teenage Donald Trump at boarding school some six decades ago. Ticktin authored the book “What Makes Trump Tick: My Years with Donald Trump from New York Military Academy to the Present” as well as some truly bizarre poetry. But he does have a Florida bar card!
Stand With Survivors: Legal Tools To Make A Real Difference This DVAM
Enhance your legal skills to advocate for survivors of intimate partner violence.
The case they cooked up was a manic stringboard, alleging a racketeering conspiracy between the Clinton campaign, the Democratic National Committee, and the “Deep State” FBI. They were all in on a dastardly plot to publicize the Steele dossier, gin up the Russia investigation, and ruin Trump.
Aside from being batshit crazy, the complaint was defective in every respect.
As the predicate crime for civil RICO, it alleged “theft of trade secrets,” by which Habba and Ticktin meant recording internet traffic from servers in Trump Tower — something which is neither trade, nor a secret. Trump purported to sue government officials in their individual capacities for actions taken on the job, later adding his own deputy attorney general Rod Rosenstein as a defendant. His lawyers shrugged off the statute of limitations by claiming that Trump was entitled to an extension because he worked harder than any other president and didn’t have time to sue for two full years after leaving office. They falsely asserted that one of the defendants, Charles Dolan, was a former chairman of the DNC. And they left-justified the subheadings!
Over 508 paragraphs, they spewed claims of perfidy, gesturing vaguely towards the varied cast of defendants and insisting that they were all in on it. This would have been ill-advised in any federal court, but it was positively suicidal in the Eleventh Circuit.
All federal circuits require complaints to provide “a short and plain statement of the claim showing that the pleader is entitled to relief” under Federal Rule of Civil Procedure 8. But the Eleventh Circuit is extremely hostile to what are colloquially known as shotgun pleadings. A shotgun pleading lays out a whole pile of factual claims, and then when it comes to the actual injuries says, in essence, “see above.” The hallmark of a shotgun pleading is an overly long complaint with hundreds of disconnected, often salacious, allegations.
The reason shotgun pleadings are prohibited is that a defendant can’t properly respond to a complaint where there’s no bright line connecting specific facts and the corresponding harms alleged. And that’s especially true when, as here, there are multiple defendants and a wildly complicated (not to say fantastical) set of factual allegations. Saying over and over, “The Plaintiff avers the allegations contained in the preceding paragraphs and incorporates them in this count, as if set forth at length herein,” will not cut it. And filing an amended complaint that clocked in at a whopping 819 paragraphs, spread over 193 pages did not help.
That monstrosity landed on the docket of Judge Donald Middlebrooks, a no-nonsense Clinton appointee, who yeeted it into the sun with extreme prejudice.
“Plaintiff’s Amended Complaint is neither short nor plain, and it certainly does not establish that Plaintiff is entitled to any relief,” he wrote, adding that “What the Amended Complaint lacks in substance and legal support it seeks to substitute with length, hyperbole, and the settling of scores and grievances.”
The judge described it as ”a quintessential shotgun pleading,” expressed “serious doubts” as to whether Habba and Ticktin had lived up to their professional obligations, and ended with the ominous sentence “I reserve jurisdiction to adjudicate issues pertaining to sanctions.”
That was an invitation heard loud and clear by the defendants, who moved for and got roughly $1 million in attorneys fees.
“This case should never have been brought,” Judge Middlebrooks wrote in the sanctions order. “Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it.”
The order called out “A continuing pattern of misuse of the courts by Mr. Trump and his lawyers,” including “Provocative and boastful rhetoric; A political narrative carried over from rallies; Attacks on political opponents and the news media; Disregard for legal principles and precedent; and Fundraising and payments to lawyers from political action committees. And when a ruling is adverse, accusations of bias on the part of judges—often while the litigation is ongoing.”
How it’s going …
Trump appealed both the dismissal and the sanctions order to the Eleventh Circuit, and the consolidated appeals were argued two weeks ago. The hearing did not go well for Trump’s lawyers.
“I can read this complaint,” snapped Chief Judge William Pryor, Jr. a George W. Bush appointee. “It seems a classic shotgun complaint. It incorporates, by reference, hundreds of paragraphs into succeeding counts.”
Judge Andrew Brasher, a Trump appointee, and Judge Embry Kidd, who was nominated by Biden, were similarly unreceptive. Back in chambers, they had no difficulty reaching a decision.
“Many of Trump’s and Habba’s legal arguments were indeed frivolous,” they wrote last week, adding that the plaintiff forfeited several arguments by failing to make them in timely fashion.
“Trump and Habba abandoned this argument by not raising it in the district court, despite having the opportunity to do so,” they explained. Indeed, there was more than a little judicial side-eye for the president’s lawyers:
For example, Trump incorporates each of the preceding 633 paragraphs in his third count, injurious falsehood. Nothing prevented him from specifying the statements he contends are injurious falsehoods under this count. Although he identified some examples in this section of his complaint, the previous paragraphs contain dozens of candidate statements that Trump obliged the district court to evaluate for itself. We consider that abuse of judicial resources sanctionable.
That’s a very bad sign for those lawyers and their client.
Danger, Will Robinson!
As Judge Middlebrooks noted, Donald Trump files a lot of lawsuits. He’s currently suing: the New York Times for reporting on his family’s business practices; the Wall Street Journal for saying he drew boobs for Jeffrey Epstein; and the Pulitzer Prize Board for defamatory refusal to retract a prize for reporting on the Russia investigation — all in Florida. Trump is threatening to sue the BBC in federal court in Florida. His media company is currently suing the Washington Post over reporting on its corporate finances, and recently lost a similar claim against The Guardian. And he lost another appeal on November 15 in an effort to get the Eleventh Circuit to revive a defamation suit against CNN for using the phrase “Big Lie.”
In short, Trump is waging a campaign of garbage litigation in Florida courts.
The chief architect of this campaign is a Coral Gables litigator named Alejandro Brito, who filed most of the above complaints. Brito’s filings are no more cogent than Habba and Ticktins. In September, Judge Stephen Merryday immediately struck Trump’s complaint against the New York Times for being a shotgun pleading that flagrantly violated Rule 8.
“As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective — not a protected platform to rage against an adversary,” Judge Merryday scoffed, adding that “Although lawyers receive a modicum of expressive latitude in pleading the claim of a client, the complaint in this action extends far beyond the outer bound of that latitude.”
It’s an embarrassing stumble for someone who has been practicing law for decades. But Brito’s humiliation is more than just hilarious fodder for legal blogs. Because none of this litigation is happening in a vacuum. Indeed, the Eleventh Circuit took pains to note that it was perfectly appropriate for the trial court to “bolster[] its finding of bad faith by pointing to Trump’s litigation conduct in other cases.” That’s an explicit greenlight for trial court judges in this circuit to start treating Trump like the vexatious litigant that he is.
This sharp and speedy rebuke is a clear warning to Trump and his lawyers. The Eleventh Circuit is conservative bastion, with seven of 13 active duty judges appointed by Trump himself. Chief Judge Pryor is a FedSoc stalwart (and kind of a dick). But the Eleventh Circuit will not be rolling out the red carpet for Trump’s nonsense lawsuits. And certainly not when the lawyering is so disgracefully sloppy and disrespectful of procedural rules. You want to come into Judge Pryor’s house, you better come correct.
That should make the hairs on the back of Alejandro Brito’s neck stand on end. The appeals court affirmed a seven-figure sanctions award for which Trump and his lawyer are jointly liable. Brito’s currently leading the charge on a whole bevy of extremely incorrect trollsuits in this circuit. He’s now been warned that these could be very costly for him personally. Guess we’ll find out this week if he heeds that message, or forges ahead and makes good on his threat to sue the BBC in Florida over a documentary that never even aired in North America.
Subscribe to read more at Law and Chaos….
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
