[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

No. 13-12696

__________________________

D.C. Docket No. 6:11-cv-00059-PCF-TBS

BLANCHE PAYLOR,

Plaintiff - Appellant,

versus

HARTFORD FIRE INSURANCE COMPANY,

Defendant - Appellee.

__________________________

Appeal from the United States District Court

for the Middle District of Florida

__________________________

(April 8, 2014)

Before TJOFLAT, COX, and ALARCÓN,

* Circuit Judges.

TJOFLAT, Circuit Judge:

 

* Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting 

by designation.

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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.

I.

We first describe the events leading up to Paylor’s lawsuit and then recount 

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). 

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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.

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 

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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.”

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.

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 

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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.

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.

II.

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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).

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, 

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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). 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). 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.

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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.

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.

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 

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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.

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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:

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.”).

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.

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 

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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); 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 

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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.

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 

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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).1

 

Specifically, we consider (1) the education and business experience of the 

employee; (2) the time the employee spent considering the agreement before 

 

1 Paylor 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), simply because of the plaintiff’s age.

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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.

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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.

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) (“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 

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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) (“[T]his court has been roundly, repeatedly, and consistently 

condemning [shotgun pleadings] for years, long before this lawsuit was filed.”).2

 

2 See also Starship Enter. of Atlanta, Inc. v. Coweta Cnty., Ga., 708 F.3d 1243 (11th Cir. 

2013); PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802 (11th Cir. 2010); 

Cook v. Randolph Cnty., Ga., 573 F.3d 1143 (11th Cir. 2009); Wagner v. First Horizon Pharm. 

Corp., 464 F.3d 1273 (11th Cir. 2006); Ambrosia Coal & Const. Co. v. Pages Morales, 368 F.3d 

1320 (11th Cir. 2004); Strategic Income Fund, LLC v. Spear, Leeds, and Kellogg Corp., 305 

F.3d 1293 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001); Magluta v. 

Samples, 256 F.3d 1282 (11th Cir. 2001); 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).

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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)] 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 

 

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.

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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.

 

3 Rule 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).

4 Rule 12(e), titled “Motion for a More 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 

[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 

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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.

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 

 

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).

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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.

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, 

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[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.

* * *

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,

AFFIRMED.

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