Hearns v. San Bernardino Police Department

Opinion by Judge HART; Partial Concurrence and Partial Dissent by Judge KLEINFELD

It is the right and duty of a plaintiff initiating a case to file a “short and plain statement of the claim.” Fed.R.Civ.P. Rule 8(a)(2). The district court dismissed Plaintiff Kimberlyn Hearns’ 81-page complaint under Rule 8 without prejudice with leave to file an amended complaint. When Hearns filed an amended complaint that was substantially unaltered, the district court dismissed the case with prejudice. Neither complaint warranted dismissal under Rule 8: although each set forth excessively detailed factual allegations, they were coherent, well-organized, and stated legally viable claims. We therefore reverse in appeal No. 05-56214 and remand for further proceedings. Pursuant to Defendant’s non-opposition, we also reverse in appeal No. 05-56306. Finally, we dismiss appeals Nos. 05-56272 and 05-56324 as moot.

I. PROCEDURAL HISTORY

Plaintiff Kimberlyn Hearns, an African-American male, is a police officer employed by Defendant City of San Bernardino Police Department (“SBPD”). In December 2003, Plaintiff filed a complaint against the SBPD and 10 unnamed defendants in which he alleged that he experienced race-based discrimination and retaliation, in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986; Title VII, 42 U.S.C. § 2000e et seq.; and state law (the “First Case”). The complaint was 81 pages and raised 17 claims.

Defendants moved to dismiss the original complaint in its entirety based on Federal Rule of Civil Procedure 8(a) and alternatively moved to dismiss some claims under Federal Rule of Civil Procedure 12(b)(6). In an order dated June 25, 2004, the district court granted the motion in part, dismissing Plaintiffs complaint without prejudice for failing to comply with Rule 8 and allowing Plaintiff 18 days to file a first amended complaint (“FAC”). The district court did not reach Defendants’ Rule 12 arguments.

No FAC was filed within 18 days. In an order dated July 28, 2004, the district court ordered that Plaintiff show cause in writing as to why the case should not be dismissed for lack of diligent prosecution. Plaintiff filed a -written response. The attorney who represented him at the time stated in a declaration that she had not received the order of dismissal or the order to show cause. On September 21, 2004, the court granted Plaintiff 18 more days to file the FAC, which was filed on October 4. The FAC is 68 pages in length. It contains the same 17 claims as the original complaint. Although Plaintiff dropped one individual Defendant and removed or shortened some allegations, the 13-page reduction resulted primarily from narrowing the margins.

Defendants moved to dismiss the FAC, again raising Rule 8 and Rule 12(b)(6) arguments. The district court granted the motion to dismiss with prejudice “for failure to obey the June 25 order requiring [plaintiff] to comply with Rule 8(a).” The court also stated “that alternative measures less drastic than dismissal with prejudice would [not] be effective here. See McHenry [v. Renne], 84 F.3d [1172,] 1178 [ (9th Cir.1996) ].” The dismissal order was entered on the docket on February 17, 2005. Although neither party notes this fact, no separate Rule 58 judgment was ever entered on the docket, with the consequence that the order of dismissal did not become a final judgment until 150 days later, on July 18, 2005.1 Fed.R.Civ.P. 58(b)(2)(B).

*1128Plaintiffs then-attorney informed him that his case had been dismissed with prejudice because “the judge felt the complaint was still too long.” She did not recommend any other action. The attorney who represents Plaintiff on this appeal also drafted the original complaint, pursuant to a contract with Plaintiffs original attorney of record. When she learned of the dismissal, she offered to assist Plaintiff and entered her appearance after Plaintiff discharged his original attorney. Believing that more than 30 days had passed since the entry of judgment, Plaintiffs new attorney filed a Rule 60(b)(6) motion seeking relief from dismissal based on prior counsel’s misconduct and inaction. In the alternative, Plaintiff requested an extension of time to file a notice of appeal. On April 18, 2005, the district court reopened the case to hear the Rule 60(b)(6) motion.

While Plaintiffs motion for relief from the dismissal of the First Case was pending, he filed a second lawsuit against the SBPD and 10 unnamed defendants, alleging that he experienced retaliation for filing the first lawsuit, in violation of Title VII (the “Second Case”). The Second Case was transferred to the same judge who was presiding over the First Case. Thereafter, the court sua sponte consolidated the two cases.

In an Order entered on the docket on August 1, 2005, the district court denied the Rule 60(b) motion because Plaintiff had not shown that his former attorney was grossly negligent. Accordingly, the district court denied Defendants’ motion for discovery as moot. The court found, however, that because prior counsel had advised Plaintiff not to appeal, failed to inform him how to preserve his right to appeal, and delayed in turning over the case file, good cause existed for extending the time to appeal. Accordingly, the court entered an order granting a 10-day extension. Four days after the entry of this Order, Plaintiff filed a notice of appeal, No. 05-56214, challenging the original dismissal and the denial of his Rule 60(b)(6) motion.

On August 11, 2005, Defendants filed a motion for post-judgment relief seeking reconsideration of the extension of time to appeal, contending they did not have an adequate opportunity to file an opposition to that part of Plaintiffs Rule 60(b) motion. On August 19, the court denied the motion. In that Order, the court also stated:

Finally, the Court originally calendared a scheduling conference for August 22, 2005 in the [Second Case]. However, the [Second case] and [First case] were already consolidated for all purposes including trial. See Order of July 29, 2005. Accordingly, the entire matter is now up on appeal. The scheduling conference is hereby taken OFF CALENDAR. There are no matters pending before this Court in this case. The clerk is hereby ordered to close the file.

On August 19, Defendants filed a notice of cross-appeal, No. 05-56272, from the August 1 Order, in which they challenged the grant of an extension of time for Plaintiff to appeal. On August 30, 2005, Defendants filed a second notice of appeal, No. 05-56324, from the denial of their motion to reconsider.

Plaintiff then filed an application to sever the two cases and to reinstate the Second Case. Although Defendants did not oppose Plaintiffs request, the district court denied the application because “the allegations in each Complaint stem from a common nexus of facts and involve the same parties.” The court did not expressly address Plaintiffs reinstatement request. On August 25, Plaintiff filed a notice of appeal, No. 05-56306, from the portion of the August 19 Order directing that the Second Case be closed. At oral *1129argument, the SBPD informed the court that it does not oppose this appeal. We therefore vacate the district court’s dismissal of the Second Case and remand for further proceedings.

II. DEFENDANTS’APPEALS

In No. 05-56272, Defendants contend that the district court abused its discretion in extending the time for Plaintiff to appeal and seek reversal of the August 1, 2005 Order.

Defendants’ argument lacks merit because no extension of time was ever needed. Because no separate Rule 58 judgment was entered for the February 17, 2005 Order dismissing the FAC, the window for appealing that decision did not begin to run on that date. Pursuant to Federal Rule of Civil Procedure 58(b)(2)(B), the appeal period began to run 150 days later, on July 18, 2005. See Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 704 (9th Cir.2007). See also Fed. R.App. P. 4(a)(7)(A)(ii). Plaintiff therefore had at least 30 days thereafter (August 17, 2005) in which to appeal this order, see Fed. R.App. P. 4(a)(1), and in fact actually filed his notice of appeal prior to that date.2

We finally note that, although neither party has raised this issue, the district court never docketed in the First Case the August 1, 2005 Order denying Plaintiffs motion for post-judgment relief and extending the time to appeal in the First Case. This failure is of no consequence, however, because the parties have effectively waived the entry requirement by treating the order as an appealable judgment. See Calhoun v. United States, 647 F.2d 6, 10-11 (9th Cir.1981), overruled on other grounds, Acosta v. Louisiana Dep’t of Health & Human Res., 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986); see also Bankers Trust Co. v. Mallis, 435 U.S. 381, 382, 387-88, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978).

Because no extension of time to appeal the order dismissing the First Case was required, we therefore dismiss Defendants’ two appeals, Nos. 05-56272 and 05-56324, as moot.

III. DISMISSAL OF THE FIRST CASE

We turn now to the merits of the February 17, 2005 Order dismissing the First Case. Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint with prejudice for failure to comply with Rule 8(a). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir.1981). We review a Rule 41(b) dismissal for abuse of discretion. Id. at 674 (citing Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir.1980)). To do so, we must necessarily consider the legal question of whether the district court correctly dismissed without prejudice the original complaint on Rule 8 grounds. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.” (citation omitted)); In re Dominguez, 51 F.3d 1502, 1508 n. 5 (9th Cir.1995).

*1130As regards the application of Federal Rule of Civil Procedure 8(a), the original complaint and the FAC are essentially identical. The FAC is 68 pages long. The first four pages name and identify Plaintiff and 10 Defendants. The next 42 pages, captioned “Factual Background,” relate Plaintiffs 17-year history as a police officer and sergeant. The remaining 22 pages allege 17 different federal and state claims, clearly identifying each claim and each Defendant named in a particular claim. Other than the hostile workplace claim, no claim is more than nine paragraphs.

On appeal, Defendants do not attempt to identify particular allegations as immaterial or unnecessary. They do not assert that the complaint fails to set forth cognizable causes of action, that the legal theories are incoherent, or that they cannot tell which causes of action are alleged against which Defendants. They simply object that the complaint provides too much factual detail. The part that has been attacked as prolix is the Factual Background section, reciting Plaintiffs education, military service, training, promotion and demotion history, and discrimination incidents. We reject Defendants’ argument and conclude that neither complaint violated Rule 8(a).

We affirmed a district court’s dismissal on Rule 8 grounds in McHenry v. Renne, 84 F.3d 1172 (9th Cir.1996). Not only was the first complaint at issue in that case lengthy; it set out its claims in two sentences, which comprised 30 lines, without specifying which of the 20 named defendants were liable for which claims. Id. at 1174. To make matters worse, in response to the district court’s order to file an amended complaint “‘which clearly and concisely explains which allegations are relevant to which defendants,’ ” the plaintiffs filed an amended complaint that was longer than the first complaint. Id. (quoting district court’s order). The district court then gave the plaintiffs a final opportunity to file a proper complaint “ ‘which states clearly how each and every defendant is alleged to have violated plaintiffs’ legal rights.... [PJlaintiffs would be well advised to edit or eliminate their twenty-six page introduction and focus on linking their factual allegations to actual legal claims.’ ” Id. at 1176 (quoting district court’s order). We affirmed the district court’s dismissal of the final amended complaint, which we described as “argumentative, prolix, replete with redundancy, and largely irrelevant,” id. at 1177, noting that “[ojnly by months or years of discovery and motions [could] each defendant find out what he is being sued for,” id. at 1178. Considering Rule 41(b), we concluded that the district court had not abused its discretion because it had already given the plaintiffs multiple opportunities to comply, along with specific instructions on how to correct the complaint. Id. at 1178-79.

In Nevijel, 651 F.2d 671, we upheld a Rule 8(a) dismissal of a 48-page complaint that contained an additional 23 pages of addenda and exhibits. The complaint was characterized as “ ‘verbose, confusing and almost entirely conclusory.’ ” Id. at 674. After the district court dismissed the original complaint without prejudice, the plaintiff filed a late amended complaint that “named additional defendants without leave of court, and was equally as verbose, confusing and conclusory as the initial complaint.” Id. We found no abuse of discretion because the district court provided “reasonable opportunities and alternatives” before dismissing with prejudice; in light of the fact that the plaintiff offered no excuse for the late filing and utterly failed to comply with the district court’s order, there was no reason to think that an additional opportunity would yield different results. See id.

*1131In Schmidt, the complaint was 30 pages long. It was “impossible to designate the cause or causes of action attempted to be alleged in the complaint.” 614 F.2d at 1223. The complaint was described as a “confusing statement of a non-existing cause of action” and as “confusing, distracting, ambiguous, and unintelligible.” Id. at 1224. Additionally, the complaint’s conclusory allegations did not satisfy the heightened pleading requirement for averments of fraud. Id. The Ninth Circuit upheld the dismissal of the action following two amendments of the original complaint. Id. at 1223-24.

In Gillibeau v. City of Richmond, 417 F.2d 426, 431-32 (9th Cir.1969), one of the claims named seven defendants. As to only one of these defendants, that claim was dismissed for failing to comply with Rule 8(a)(2). This court reversed the dismissal based on Rule 8(a)(2). In doing so, this court stated that “a dismissal for a violation under Rule 8(a)(2), is usually confined to instances in which the complaint is so ‘verbose, confused and redundant that its true substance, if any, is well disguised.’ ” Id. at 431 (quoting Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.1965)). The claim at issue did not satisfy those criteria.

Defendants cite a 1964 decision of this court which upheld the dismissal of a 55-page complaint for violating Rule 8(a) and the subsequent dismissal of the case when the plaintiff failed to file any new pleading by two and one-half months after the date set for filing an amended complaint. See Agnew v. Moody, 330 F.2d 868, 870-71 (9th Cir.1964). That case provides only a brief statement of the holding that the complaint did not comply with Rule 8(a).

The complaint was dismissed as to the arresting officers for failure to satisfy the requirement of Rule 8(a) that it contain ‘a short and plain statement of the claim.’ Although the elements and factual context of appellant’s claim for relief were simple, the complaint extended over fifty-five pages, excluding the prayer and exhibits. Making full allowance for whatever additional verbiage appellant might be permitted in view of the many decisions emphasizing the need for specificity in pleadings under the Civil Rights Act (Stiltner v. Rhay, 322 F.2d 314, 316 n. 4 (9th Cir.1963)), the district court was entirely justified in holding that the complaint did not comply with Rule 8(a), and in ordering appellant to replead.

Id. at 870.

Unlike the facts here, the plaintiff in Agnew never filed an amended complaint as had been ordered. Agnew cannot fairly be read as holding that excessive length, by itself, is a sufficient basis for finding a violation of Rule 8(a). Two Ninth Circuit cases decided shortly after Agnew characterize the holding of Agnew as being limited to a complaint that is “so verbose, confused and redundant that its true substance, if any, is well disguised.” Gillibeau, 417 F.2d at 431; Corcoran, 347 F.2d at 223. Agnew has never been cited by this court as standing for the proposition that a complaint may be found to be in violation of Rule 8(a) solely based on excessive length, nor does any other Ninth Circuit case contain such a holding.

Decisions from other circuits are also consistent with the view that verbosity or length is not by itself a basis for dismissing a complaint based on Rule 8(a). See Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir.2004) (holding that district court erred in dismissing on Rule 8 grounds when the complaint, though long, was not “so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised” (internal quotation omitted)); Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir.2003) (“Some *1132complaints are windy but understandable. Surplusage can and should be ignored.”); Mann v. Boatwright, 477 F.3d 1140, 1148 (10th Cir.2007) (affirming Rule 8 dismissal when it was impossible to “separate the wheat from the chaff’ in the complaint and because “[i]t was not the district court’s job to stitch together cognizable claims for relief from the wholly deficient pleading”).

By contrast, the complaint at issue here was not “replete with redundancy and largely irrelevant.” Cf. McHenry, 84 F.3d at 1177. It set out more factual detail than necessary, but the overview was relevant to Plaintiffs causes of action for employment discrimination. Nor was it “confusing and conclusory.” Cf. Nevijel, 651 F.2d at 674. The complaint is logically organized, divided into a description of the parties, a chronological factual background, and a presentation of enumerated legal claims, each of which lists the liable Defendants and legal basis therefor. The FAC and the original complaint contain excessive detail, but are intelligible and clearly delineate the claims and the Defendants against whom the claims are made. These facts distinguish this complaint from the ones that concern the dissent. Here, the Defendants should have no difficulty in responding to the claims with an answer and/or with a Rule 12(b)(6) motion to dismiss.

The district court also has ample remedial authority to relieve a defendant of the burden of responding to a complaint with excessive factual detail. One option would have been to simply strike the surplusage from the FAC. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995); Fallon v. U.S. Gov’t, No. CIV S-06-1438, 2007 WL 707531, *2 (E.D.Cal. March 6, 2007); Grayson v. Schriro, No. CIV 05-1749, 2007 WL 91611, *3 (D.Ariz. Jan. 11, 2007) (quoting Marshall v. United Nations, No. CIV S-05-2575, 2006 WL 1883179, *3 (E.D.Cal. July 6, 2006)). Many or all of the paragraphs from 33 through 207 of the FAC, covering 38 pages, could have been stricken. Alternatively, the judge could have excused Defendants from answering those paragraphs.

Because dismissal with prejudice is a harsh remedy, our precedent is clear that the district court “should first consider less drastic alternatives.” McHenry, 84 F.3d at 1178. In weighing possible alternatives against the consequences of dismissal with prejudice, the district court should consider, for example, whether “public policy strongly favor[s] resolution of this dispute on the merits.” Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir.1996). The court should also consider whether “dismissal [would] severely penalize[ ] plaintiffs ... for then-counsels’ bad behavior.” Id. at 366; cf. Al-Torki v. Kaempen, 78 F.3d 1381, 1383—85 (9th Cir.1996) (affirming dismissal with prejudice when plaintiffs own conduct violated court orders). Even when the litigant is the one actually responsible for failure to comply with a court’s order, which evidence before the court did not show is the situation here, “[t]he sanction of dismissal should be imposed only if the deceptive conduct is willful, in bad faith, or relates to the matters in controversy in such a way as to interfere with the rightful decision of the case.” United States v. Nat’l Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir.1986) (citations omitted); see also Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1430 (9th Cir.1990) (noting that even in light of party’s misconduct, district court should generally consider alternatives to dismissal with prejudice).

The district court abused its discretion by imposing the sanction of dismissal with prejudice instead of imposing a less drastic alternative. Plaintiffs complaints were long but intelligible and allege viable, co*1133herent claims. Because we conclude that the district court abused its discretion in dismissing with prejudice, we need not reach the merits of the Rule 60(b) motion based on former counsel’s alleged misconduct.

In the district court, Defendants also raised Rule 12(b)(6) grounds for dismissal of some claims. Those grounds were not addressed by the court nor are they raised here. On remand, the district court may address the Rule 12(b)(6) issues before requiring an answer to the FAC. As indicated above, the district court may also consider striking surplusage from the FAC or not requiring Defendants to answer all paragraphs of the FAC.

In No. 05-56214, we vacate the dismissal order and remand for further proceedings.

IV. THE SECOND CASE DISMISSAL

The parties again fail to note that the district court never entered a separate Rule 58 judgment dismissing the Second Case. Regardless, the parties have treated the August 19, 2005 Order as a final appealable judgment and Plaintiff filed his notice of appeal well within the time permitted. See Fed. R.App. P. 4(a)(1), 4(a)(7)(A)(ii). Appeal No. 05-56306 is therefore properly before us. As that appeal is not opposed by SBPD, the only named Defendant, we remand the Second Case for reinstatement and further proceedings.

V. CONCLUSION

In No. 05-56214, the order of dismissal is VACATED and REMANDED for further proceedings consistent with this opinion. In No. 05-56306 the matter is REMANDED with instructions to reinstate the case. Appeals Nos. 05-56272 and OS-56324 are DISMISSED as moot.