Excessive incorporation by reference can be problematic. When a party indiscriminately incorporates assertions from one count to another, for example, by incorporating all facts or defenses from all previous counts into each successive count, it can result in an unnecessarily long and confusing pleading and counts that contain irrelevant facts or defenses, and it can prevent the opposing party from reasonably being able to prepare a response or simply make the burden of doing so more difficult. When faced with what some judges have called “shotgun pleading,” a district court often will order the party to replead and state his claims or defenses more clearly.
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Although there is no prescribed procedure for referring to incorporated matter, the references to prior allegations must be direct and explicit to enable the responding party to ascertain the nature and extent of the incorporation. Thus, statements in a counterclaim that the defendant “realleges all of the allegations contained in his amended answer,” without greater specificity, have been held to be an insufficient designation of what matter was intended to be incorporated. Similarly, a sweeping allegation that “each statement and allegation in each count of this Complaint shall be considered as repeated and realleged and incorporated by this reference into any other count of this Complaint where such incorporation shall be or appear necessary to the validity of the cause of action or claim for relief therein stated” was held to be an ineffective incorporation by reference. As discussed earlier in this section, these types of allegations are precisely what some federal courts have referred to as “shotgun pleading” and have sought to discourage.
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When appropriate, an objection to an incorporation by reference can be made by a motion to strike, a motion for a more definite statement, or a motion to dismiss for failure to state a claim upon which relief can be granted. In addition, the district court, on its own motion, may point out a defect in an incorporation and suggest its correction. Leave to amend the pleading to correct a defective incorporation should be granted liberally.
