In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3175

UNITED STATES OF AMERICA

BY AND THROUGH JOSEPH E. GARST,

Plaintiff-Appellant,

v.

LOCKHEED-MARTIN CORPORATION, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 98 C 5072—John F. Grady, Judge.

____________

ARGUED APRIL 14, 2003—DECIDED MAY 8, 2003

____________

Before CUDAHY, POSNER, and EASTERBROOK, Circuit

Judges.

EASTERBROOK, Circuit Judge. In 1990 the Department

of Veterans Affairs chose Lockheed-Martin as the supplier

of a new office automation system that was supposed to

provide software, hardware, and services for database

management and other services across a secure nationwide network. Lockheed performed under this contract

between 1991 and 1997. Shortly after the VA replaced

Lockheed with a different vendor, Joseph Garst, who used

to work at the VA, filed this qui tam action on behalf of
2 No. 02-3175

the United States. Garst alleged that Lockheed had violated the False Claims Act, 31 U.S.C. §§ 3729-33, by overpromising and under-performing, submitting fraudulent

claims in the process. After reviewing Garst’s allegations,

the Department of Justice declined to take over the suit,

leaving it in private hands.

Garst’s complaint did not allege any specific fraud,

leading Lockheed to move for its dismissal. (We use

“Lockheed” as a collective description for all defendants,

which include multiple corporate subsidiaries. Lockheed

Martin Integrated Solutions Co., which performed the

services under the contract, has been sold since 1997 to

ACS State and Local Solutions, Inc., a subsidiary of Affiliated Computer Services, Inc., but Lockheed apparently

retains all potential liability in this case.) Before the

district court could act on Lockheed’s motion, Garst filed

an amended complaint. At 16 pages and 71 paragraphs,

it was 50% longer than the initial complaint—but, the

district judge concluded, no better. The court dismissed it

for failure to plead fraud with particularity, 158 F. Supp. 2d

816 (N.D. Ill. 2001), a requirement that applies because

the False Claims Act condemns fraud but not negligent

errors or omissions. The district court observed that Garst

had not given any specific example of a fraudulent claim.

The judge permitted Garst to try again but reminded him

of the need to allege “the who, what, when, where, and

how: the first paragraph of any newspaper story.” See DiLeo

v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). The

judge instructed Garst to file an organized and concise

document.

Garst’s second amended complaint ballooned to 74 doublespaced pages with 198 paragraphs. Concise it was not.

Before Lockheed could respond, Garst filed a third amended

complaint, which broke the scale at 109 pages containing

345 numbered paragraphs; this document had 74 attachments, many of them lengthy. Lockheed asked the dis-
No. 02-3175 3

trict judge to dismiss this complaint for failure to plead

fraud with particularity, as Fed. R. Civ. P. 9(b) requires,

and for the omission of any “short and plain statement of

the claim”, as Fed. R. Civ. P. 8(a)(2) contemplates. These

rules are not in conflict: it is possible to write a short

statement narrating the claim—which is to say, the basic

grievance—even if Rule 9(b) requires supplemental particulars. But the district judge concluded that this complaint is so sprawling as to be essentially incomprehensible (a Rule 8 problem) and that despite the bloat it

lacks details outlining fraud (a Rule 9 shortcoming). Instead of dismissing this complaint, the judge directed

Garst to file a more definite statement. To make sure that

Garst knew exactly what was needed, the judge explained

that the statement “should be brief and should as to each

count: (1) identify specific false claims for payment or

specific false statements made in order to obtain payment;

(2) if a false statement is alleged, connect that statement to

a specific claim for payment and state who made the

statement to whom and when; and (3) briefly state why

those claims or statements were false” (underlining

in original). Garst responded with 23 single-spaced pages

plus 25 new attachments. The statement is loaded with so

many acronyms and cross-references to the third amended

complaint (plus its attachments) that no one could understand it without juggling multiple documents. Concluding

that matters had taken a turn for the worse, the district

judge threw up his hands and dismissed the complaint,

with prejudice, for Garst’s inability or unwillingness to

conform his pleadings to Rules 8 and 9. 2002 U.S. Dist.

LEXIS 14307 (N.D. Ill. July 31, 2002).

The third amended complaint and statement together

equate to 155 double-spaced pages and more than 400

numbered paragraphs, plus 99 attachments. You’d think

that all this paper and ink would be enough to narrate

at least one false claim. Yet Garst’s appellate brief does
4 No. 02-3175

not extract from the pleadings a single instance of a false

statement made to obtain payment. A few selections from

the “more definite statement” show why, after four years

of overseeing Garst’s efforts to plead a claim, the district

judge’s patience ran out. Here is the first paragraph of

the “more definite statement,” right under the caption

“SPECIFIC FALSE OR FRAUDULENT CLAIMS FOR

PAYMENT (SFCFP)” (a caption that shows Garst’s love of

inscrutable acronyms):

Claim for $2,584,926.04, MDS Ex. 1, TAC Ex. 47,

submitted on August 9, 1993 and related payments

by T.A. Sieverson, Vice-President of Lockheed

Integrated Solutions Company, Lockheed Corporation to VA Contracting Officer Steve Stapleton for

equipment and service provided during Phase I

and Phase II of the OA&MM/ISMS LAN/WAN

PROJECT. See TAC ¶¶ 141-181, 217-243, 252, 280-

282, 291-295.

The acronyms alone force readers to look elsewhere. MDS

means “More Definite Statement” and “TAC” means

“Third Amended Complaint.” LAN is local area network,

WAN is wide-area network, and PROJECT appears to

be the word “project” masquerading as an acronym. What

“OA&MM/ISMS” might mean, we have not endeavored

to discover. It is not defined anywhere in the more definite statement. To understand the paragraph one would

have to read two exhibits and seventy-seven paragraphs

scattered throughout the third amended complaint! This

is simplification? Yet still one would not learn (a)

what Sieverson said, (b) why it is false, and (c) what

OA&MM/ISMS stands for. Paragraph 21 of the “specific

false claims” reads: “All Lockheed invoices and payments

within the statute of limitations following Lockheed

purchasing tickets in excess of one thousand dollars for VA

presidential appointees and senior executives, as detailed

in TAC ¶55-Ex 5 and 6.” This is specific? How does “[a]ll
No. 02-3175 5

Lockheed invoices and payments within the statute of

limitations” zero in on the fraud? And, once again, what

were the statements and why were they false? Garst reveals

in his appellate brief that, in his view, any claim for

payment implies that the vendor has not violated any

ethical rules and that by lobbying the VA’s top officials

Lockheed committed such violations. Why ethical problems

(if any) equate to fraudulent claims is hard to see; at all

events, the pleading defect is that Garst has made it so

hard to grasp his point.

The second section of the “more definite statement” begins

with the caption “SPECIFIC FALSE STATEMENTS OR

RECORDS MADE IN ORDER TO OBTAIN PAYMENT”.

The first paragraph in this section reads:

The total claims for the OA&MM LAN/WAN are

fraudulent or false because Lockheed’s cost estimate given to the VA’s Stapleton was false because,

to obtain the project task order, Lockheed told

the VA that it could accomplish the OA&MM

LAN/WAN statement of work for $1.2 million, a

savings of $700,000 over the previously selected

Banyan VINES configuration. Lockheed billed the

VA for at least $2.6 million and never delivered a

working LAN/WAN that met the contract requirements. Lockheed submitted the false cost statement

to the NOAVA Contracting Officer (Stapleton). TAC

¶ 141, Ex. 41.

“NOAVA” stands for “National Office Automation for

Veterans Affairs.” VINES expands to “Virtual Integrated

Network Services” but used in this paragraph is the name

of a competitor’s product rather than an acronym for a

family of network protocols. What “the OA&MM LAN/WAN

statement of work” might be is a mystery; perhaps Garst

meant to say “segment of work.” A contention that the

“total claims” are false again fails the requirement of
6 No. 02-3175

specificity. What did Lockheed say? This time Garst at

least hints at a falsehood: Lockheed promised to do a task

for $1.2 million and eventually billed $2.6 million without

meeting contract requirements. (Other parts of the complaint and statement suggest that the shortcoming that

most concerns Garst is Lockheed’s inability to make the

network secure enough for the transmission of military

secrets, though an outsider might suppose that a database of pensions and health benefits does not require

quite that degree of sophisticated encryption.) Yet failing

to keep one’s promise is just breach of contract, and cost

overruns in government procurement projects may occur

without fraud. To satisfy Rule 9(b), Garst had to allege

that Lockheed said something knowing at the time that

the representation was false (or not intending to perform);

failures to satisfy the customer ex post are not fraud, for

as Judge Friendly remarked there is no “fraud by hindsight.” Denny v. Barber, 576 F.2d 465, 470 (2d Cir. 1978).

See also Murray v. Abt Associates Inc., 18 F.3d 1376 (7th

Cir. 1994). The VA hired Lockheed to solve problems. That

Lockheed knew in advance that there were problems (the

most charitable description of Garst’s allegations), some

of which turned out to be insuperable (by Lockheed’s staff,

at least), does not come close to alleging fraud with particularity.

We could go on with other paragraphs of the complaint

and statement, but there would be little point to the

exercise. Some come closer to specific allegations of deceit

but fail to link them to any claim for payment. (Lockheed

says that it swallowed some of the costs, and did not submit bills, when it realized that certain objectives could not

be achieved.) But even if it were possible to navigate

through these papers to a few specific instances of fraud,

why should the court be obliged to try? Rule 8(a) requires

parties to make their pleadings straightforward, so that

judges and adverse parties need not try to fish a gold coin
No. 02-3175 7

from a bucket of mud. Federal judges have better things to

do, and the substantial subsidy of litigation (court costs do

not begin to cover the expense of the judiciary) should

be targeted on those litigants who take the preliminary

steps to assemble a comprehensible claim. Garst’s lawyer

filed documents so long, so disorganized, so laden with

cross-references and baffling acronyms, that they could not

alert either the district judge or the defendants to the

principal contested matters.

Some complaints are windy but understandable.

Surplusage can and should be ignored. Instead of insisting

that the parties perfect their pleadings, a judge should

bypass the dross and get on with the case. A district court

is not “authorized to dismiss a complaint merely because

it contains repetitious and irrelevant matter, a disposable

husk around a core of proper pleading.” Davis v. Ruby

Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001). But although

“[f]at in a complaint can be ignored”, Bennett v. Schmidt,

153 F.3d 516, 518 (7th Cir. 1998), “dismissal of a complaint

on the ground that it is unintelligible is unexceptionable.”

Davis, 269 F.3d at 820. Length may make a complaint

unintelligible, by scattering and concealing in a morass of

irrelevancies the few allegations that matter. Three other

circuits have held that length and complexity may doom a

complaint by obfuscating the claim’s essence. See In re

Westinghouse Securities Litigation, 90 F.3d 696, 702-03

(3d Cir. 1996) (600 paragraphs spanning 240 pages); Kuehl

v. FDIC, 8 F.3d 905, 908-09 (1st Cir. 1993) (358 paragraphs

in “only” 43 pages); Michaelis v. Nebraska State Bar

Association, 717 F.2d 437, 439 (8th Cir. 1983) (144 paragraphs in 98 pages). At 400 paragraphs covering 155 pages,

and followed by 99 attachments, Garst’s distended pleadings join that unsavory company. A concise statement

of the claim illustrated by 400 concrete examples of fraud

would be one thing, but 400 variations on the kind of

paragraph we have quoted are quite another. Complaints
8 No. 02-3175

like this are pestilential, and the district court showed

great restraint in wading through four iterations plus one

“more definite statement” before giving up. Garst received

more judicial attention than his pleadings deserved.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-8-03