The Limits Of A Complaint v. Social Media

Without reading the complaint itself, it’s hard to determine whether Northern District of Florida Judge Kent Wetherell was being fair or harsh with pro se plaintiff lawyer Allan Kassenoff. That a lawyer proceeded pro se is a red flag, as with anyone else. That the lawyer’s complaint was 110 pages was another red flag, although it’s not all that unusual in the age of computers for complaints to run needlessly long, just like judicial opinions.

But what plaintiff was fighting was not merely the battle to win a defamation case against a tiktokker who called upon his minions to destroy Kassenoff by bombarding his law firm, Greenberg Traurig, until they capitulated and fired him, but the ruination of him and his children on social media to millions.

The judge found that Kassenoff’s complaint went too far.

Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” and under Rule 10(b), the pleader “must state [his] claims … in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” “When a complaint fails to follow Rules 8 and 10, it may be classified as a shotgun pleading.”

According to the court, the complaint was a wee bit more passionate than a short and plain statement of the claim would require.

[T]he sheer length of the complaint and the way some of its allegations are pled make it more difficult than it needs to be for Defendant to frame a responsive pleading and suggest that the amended complaint was intended for a broader public audience than Defendant and the Court. Thus, the amended complaint violates the letter (and spirit) of Rules 8 and 10 and it needs to be re-pled in its entirety to conform to those rules…. [The complaint,] by any measure, is far longer than it needs be. It also contains numerous allegations that appear to have little to nothing to do with the legal claims asserted in the case and are replete with unnecessary commentary.

For example, the first six pages of the amended complaint contain a slanted narrative about the “nature of the action,” which reads more like a magazine article than allegations in a legal pleading, and the first 67 paragraphs (and nearly 40 pages) purport to provide a “backdrop” for the allegations about the allegedly defamatory videos on which Plaintiff’s claims are based that start at paragraph 68. The amended complaint also includes gratuitous (or at least far more extensive than necessary) allegations about things such as the attempted conception and ultimate adoption of Plaintiff’s children, Ms. Kassenoff’s revenge plot on an ex-boyfriend, accolades about Plaintiff’s law practice, the content of witness testimony from Plaintiff’s matrimonial proceedings, the details of the matrimonial proceedings and content of the court’s orders, and direct message communications between Defendant and his followers about subjects unrelated to Plaintiff.

While the judge may well be right about the length, content and prolixity of the complaint, what the court failed to appreciate is that there is no Rule 8(a)(2) for social media influencers, who are free to present their views without such constraints as relevance or honesty. And while a court can award damages, to the extent a plaintiff can collect them years later, the determination will never come close to the heft enjoyed by a tikkytokker.

On May 31, 2023, four days after Ms. Kassenoff’s Facebook post, Defendant began posting videos on social media about Plaintiff. In the videos, Defendant depicted Plaintiff as an abusive spouse and father who took advantage of the New York  court  system  by  “pa[ying]  off”  court-appointed  officials  during  the matrimonial proceeding. The videos have received approximately 39 million views, 5 million likes, and 150,000 comments.

In a series of videos from June 7 to June 9, 2023, Defendant encouraged his followers to “bombard” Plaintiff’s law firm, Greenberg Traurig (Greenberg), and its clients with emails, phone calls, voicemails, and social media attacks “demanding” Plaintiff’s termination. Greenberg received “many, many emails … as a result of [Defendant’s] incitement,” including one stating “[t]he emails, the calls, they won’t stop until you do the right thing and FIRE HIM …. FIRE KASSENOFF OR WE WILL NOT STOP.”

On June 9, 2023, as a result of these actions, the CEO of Greenberg informed Plaintiff that the firm had no choice but to sever ties with him. Plaintiff was told that he had to voluntarily resign or he would be fired, and two days later, Plaintiff “forcibly resigned” from the firm.

Whenever false allegations go viral on social media, someone will ask whether the target of the falsehoods and hatred can sue. Of course they can. Whether they can win is another matter, often having little to do with the falsity and more to do with the constraints of the First Amendment on what constitutes defamation and, in some cases, actual malice. But it’s a pale remedy for the impact of social media.

Millions of people desperately seeking an emotional outlet may follow a social media influencer and, getting the high of virtue, act upon the call to punish the target. Where does the target go to get his chance to defend himself? Where does he challenge the accusations?

It’s often argued here and elsewhere that the legal system is the mechanism by which society has determined dispute should be resolved. Despite its myriad flaws, it’s pretty much all we’ve got. But while a proper complaint should be limited to “a short and plain statement of the claim,” it may well be the one and only opportunity Kassenoff has to tell his side of the story and do what the tiktokker got to do to his millions of minions. It doesn’t make the complaint any less prolix, but where else could Kassenoff go to defend himself?

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