“Generosity in Futility”
Eleventh Circuit Clarifies the Limits on Dismissing Claims
With Prejudice After Finding a Shotgun Pleading

Introduction

The United States Court of Appeals for the Eleventh Circuit, in Marc M. Dulcio v. Arcadis U.S. Inc., Nos. 23-13045 & 23-13474 (11th Cir. July 28 2025) (non-published), confronted two recurring federal-practice questions:

• When may a district court dismiss a pro se shotgun complaint with prejudice?
• How rigorously must a court assess the futility of amendment before foreclosing further pleading?

Plaintiff-appellant Marc Dulcio, a dry-cleaning business owner, alleged that state environmental authorities and their contractors erroneously blamed him for toxic discharges and thereby ruined his livelihood. His first amended complaint (“FAC”) spanned 229 paragraphs, asserted thirteen mixed state and federal claims, and was dismissed by the Southern District of Florida both as a “shotgun pleading” and, in part, on the merits—several counts with prejudice.

On appeal, the Eleventh Circuit affirmed the shotgun-pleading dismissal, but vacated the prejudicial dismissal of two declaratory-judgment counts, holding that the district court abused its discretion in finding amendment futile. The opinion thus further cements a pro-se-friendly rule: unless it is “scarcely possible” that a better-drafted complaint could state a claim, dismissal with prejudice is improper, even after a shotgun-pleading ruling.

Summary of the Judgment

• Shotgun Pleading: The court upheld dismissal of the FAC for violating Fed. R. Civ. P. 8(a) & 10(b). Incorporation of 50 paragraphs into every count, conclusory allegations, and lumping multiple defendants together deprived defendants of fair notice (Weiland criteria).
• Counts Dismissed with Prejudice: Dismissal of Counts III, V, XI, XII & XIII was affirmed—amendment would be futile (statutory misfit, lack of constitutional right, sovereign immunity, or plaintiff effectively abandoned claims).
• Counts I & II Rescued: The court vacated dismissal with prejudice of Dulcio’s declaratory-judgment counts. Although standing was deficient, the allegations of active civil and criminal investigations rendered future harm “conceivably” redressable. Pro se plaintiffs deserve “generosity” where futility is close (O’Halloran/ Silva).
• Remand: Case returned for leave to re-plead Counts I & II; appeal issues arising from the second amended complaint and reconsideration motion became moot.

Analysis

1. Precedents Cited

• Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) – Articulates the plausibility standard for Rule 12(b)(6). Invoked to contrast with shotgun complaints that obscure claim bases.
• Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015) – Enumerates four archetypes of shotgun pleadings and their defects; applied to label Dulcio’s FAC.
• Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291 (11th Cir. 2018) – Affirms appellate duty to curb shotgun pleadings because they waste judicial resources.
• O’Halloran v. First Union Nat’l Bank, 350 F.3d 1197 (11th Cir. 2003); Silva v. Bieluch, 351 F.3d 1045 (11th Cir. 2003) – Create the “err on the side of generosity” rule for futility analysis.
• Woldeab v. DeKalb Cty. Bd. of Educ., 885 F.3d 1289 (11th Cir. 2018) – Requires at least one opportunity to amend a pro se complaint unless amendment is futile or unwanted.
• Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342 (11th Cir. 1999) – Defines Article III standing for declaratory relief (real, immediate threat).
• Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) – Recognizes First Amendment right to record police in public; distinguished as inapplicable to private-property inspections.

2. Legal Reasoning

a) Shotgun Pleading Determination

• The panel identified classic § 8 defects: excessive length, paragraph incorporation, conclusory statements, and “lumping” defendants.
• Such pleadings deny fair notice, thwart Rule 12 and 56 filtering, and justify dismissal without addressing underlying merits.

b) Evaluating Dismissal “With Prejudice”

• The district court has discretion but must analyze futility count-by-count.
• Under Woldeab, pro se plaintiffs deserve at least one meaningful chance to amend.
• Futility exists only if “more carefully drafted” allegations could not conceivably cure defects.
• Here, the district court:
  • Correctly found futility for (i) Florida “underground facility” negligence statute (misfit), (ii) § 1983 inspection-recording claim (no constitutional right), (iii) injunctive relief against sovereign-immune agencies, and (iv) abandoned RICO counts.
  • Erred for declaratory counts: ongoing investigations and a search warrant suggested non-speculative future harm; additional facts could satisfy standing. Hence futility was not “inescapable.”

3. Impact on Future Litigation

• Heightened Scrutiny of “with prejudice” Orders: District courts in the Eleventh Circuit must articulate, with specificity, why no amendment could possibly cure each dismissed count, particularly for pro se litigants.
• Shotgun Pleading Doctrine Preserved, but Tempered: Courts remain empowered to dismiss messy complaints, yet must provide a clear path to re-pleading and cannot use shotgun defects as a shortcut to dispose of viable claims forever.
• Clarification on Declaratory-Judgment Standing: The case illustrates that active government investigations, even without new citations, may establish a real and immediate controversy.
• Strategic Drafting Guidance: Litigants (and counsel) should segregate defendants and counts, avoid blanket incorporations, and plead concrete future harms to secure declaratory relief.

Complex Concepts Simplified

• Shotgun Pleading: A complaint so disorganized that the court and defendants cannot tell who is accused of what. Typical signs: long chains of incorporated paragraphs, multiple legal theories stuffed into one count, or lumping all defendants together.
• Dismissal With Prejudice: A final dismissal that ends a claim forever; the plaintiff may not file it again. Courts reserve this for situations where no set of facts could possibly state a valid claim.
• Futility of Amendment: A court may deny leave to amend only if even a perfect rewrite would still be legally dead on arrival.
• Declaratory Judgment: A court declaration of the legal rights of parties, often sought to avoid future liability. Requires a real, non-speculative threat of harm.
• Standing: Constitutional requirement that a plaintiff show (1) concrete injury, (2) traceable to defendant, (3) redressable by court order.
• Pro Se Litigant: A person who represents himself without a lawyer. Courts give some procedural leeway but not substantive advantages.

Conclusion

The Eleventh Circuit’s opinion in Dulcio threads a careful needle: it endorses a stern stance against shotgun pleadings yet simultaneously guards against the premature burial of potentially valid claims—especially for self-represented parties. The new precedent may be encapsulated as: a district court must err on the side of generosity when futility is “close,” and cannot wield a shotgun-pleading dismissal as an automatic warrant to dispose of counts with prejudice.

Practitioners should draw two lessons. First, plead clearly—segregate facts, defendants, and causes of action to avoid shotgun pitfalls. Second, when moving to dismiss, recognize that success on Rule 8 grounds does not automatically yield a claim-killing judgment; careful attention to the availability of amendment is essential. The decision reaffirms the Eleventh Circuit’s commitment to both procedural efficiency and substantive fairness, ensuring that litigants receive one full and fair opportunity to state their claims before the courthouse doors close for good.