
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1419                             DAVID E. AND JEAN E. KUEHL,                               Plaintiffs, Appellants,                                          v.                    FEDERAL DEPOSIT INSURANCE CORPORATION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                  [Hon. Juan M. Perez-Gimenez,* U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                 ____________________            Alex Komaridis for appellants.            ______________            Richard E. Mills for appellees.            ________________                                 ____________________                                  November 17, 1993                                 ____________________                                    ____________________        *Of the District of Puerto Rico, sitting by designation.               COFFIN,  Senior Circuit Judge.  The district court dismissed                        ____________________          plaintiffs'  43-page,  358-paragraph  complaint  because  of  its          failure  to conform to the  concise pleading requirements of Rule          8(a) of the Federal Rules of Civil Procedure.  Plaintiffs contend          that the court erred in  doing so, and in failing to give them an          opportunity to file an amended complaint.  We cannot say that the          district court abused its discretion and, accordingly, affirm the          dismissal.                               I. Procedural Background                                  _____________________               Plaintiffs David and Jean Kuehl originally filed this lender          liability lawsuit in state court, seeking damages from  two banks          and  numerous bank officers  and directors based  on foreclosures          against  their properties and their resulting inability to obtain          credit.   The state court complaint consisted of 19 single-spaced          typed pages containing 36 counts against 28 defendants.               In October  1991, the two  banks were taken over  by federal          agencies, and the action was removed to federal court.  Following          a status conference  in early February  1992, a magistrate  judge          ordered  plaintiffs to submit  "an amended complaint"  to conform          the pleadings  to the concise  pleading requirements  of Fed.  R.          Civ.  P. 8(a).1   The  order noted  the  magistrate's expectation          that "a review of the  proposed amended complaint and the results                                        ____________________          1 The relevant portion of Rule 8(a) states:               A pleading which  sets forth a claim  for relief .  . .               shall contain . . . (2)  a short and plain statement of               the  claim  showing  that the  pleader  is  entitled to               relief . . . .          of  Rule 12(b)(6)  motions [to  dismiss  for failure  to state  a          claim]  will reduce  considerably  the number  of parties  in the          action."               Several  days later, plaintiffs filed a 43-page, now double-          spaced, complaint with the  same number of counts, and  including          all of the  original defendants, plus  the two federal  agencies.          The complaint  set forth,  inter alia, eight  separate counts  of                                     _____ ____          respondeat superior, eight counts  of negligent supervision,  six          counts  of  breach of  good  faith,  three  counts of  breach  of          fiduciary duty,  three counts  of negligence,  and two  counts of          conspiracy.2               Defendants  promptly filed motions  to dismiss.   They urged          that the entire  complaint be dismissed for failure  to provide a                                        ____________________          2 The complaint's prolixity is illustrated  by the counts alleged          against  the individual members of HomeBank's board of directors.          Two of the negligence counts were against  this group.  One count          (Count III) alleged breach of a duty to ensure that all terms and          conditions  of  loans  between  the  Kuehls  and  the  bank  were          fulfilled and  the other (Count IV)  alleged breach of  a duty to          supervise the  officers of the  bank to ensure that  the officers          fulfilled  the bank's obligations to its customers, including the          Kuehls.   The complaint  also included two  negligent supervision          counts (Counts VIII and XII) charging  these same defendants with          essentially  the  same  conduct.    The  complaint  also  alleged          multiple respondeat superior claims  against HomeBank (Counts IX,          XIII, XV,  XX) as the  responsible employer and principal  of the          officers and directors.               The  counts  against  HomeBank's  president, Charles  Reese,          included one  for negligence (Count II), alleging that he "failed          to properly supervise his subordinates  and permitted the bank to          breach its  agreement with Kuehl,"  as well as two  for negligent          supervision (Counts  VII and XI),  alleging that he  breached his          duty   and  responsibility  to   Kuehl  by  failing   to  correct          misrepresentations made to Kuehl by Reese's subordinates.               These examples are by no means exhaustive.                                         -3-          short  and plain  statement of  the  claims as  required by  Rule          8(a)(2), and  as ordered  by the magistrate  judge.   The motions          alternatively sought dismissal against the individual defendants,          who had  been sued  only in their  official capacities,  and also          challenged certain counts as  failing to state claims upon  which          relief could be granted.               Plaintiffs objected  to  the  motions,  asserting  that  the          complaint did conform to the  requirements of Rule 8(a), and that          every count stated a  viable cause of action.  They  did not seek          leave to further amend the complaint.               On July 23, 1992, the magistrate judge issued his Report and          Recommendation  calling for dismissal of the complaint because it          violated  Rule  8(a).    He  found  that,  despite  the  explicit          directions  in his February  order, plaintiffs had  "proceeded to          file a verbose and redundant complaint containing the same number          of counts as  the original."  He  noted that several counts  were          nearly  identical  to  each  other,  several  other  counts  were          ambiguous as to  which defendant was  named, and "[t]he  possible          substance of the claim is hidden in prolixity."               The  Kuehls filed an objection to the recommended dismissal,          complaining that no consideration had been given to the merits of          their  claims  or  to  their  "right" to  further  amend.    This          complaint  was their  first in  the federal format,  they pointed          out, and Fed. R. Civ. P. 15(a) allows a party one amendment "as a                                         -4-          matter  of course"  before  a  responsive  pleading  is  served.3          Plaintiffs did  not, as  part of their  objection, seek  leave to          amend or submit a proposed amended complaint.               Plaintiffs did  attempt to file  a motion to amend  in early          September, attaching  a proposed  amended complaint.   They  also          filed a dismissal without prejudice  of all claims against the 21          defendants  who were  directors  of  the two  banks.   The  court          refused the motion to amend,  however, because plaintiffs had not          sought concurrence from the defendants, as required by Local Rule          11.   No  subsequent attempt  was made  to obtain  concurrence or          refile the pleading.               On September 25,  1992, the district  court issued an  order          adopting the magistrate judge's recommendation that the complaint          be dismissed  in its entirety.   The court noted  that plaintiffs          had failed to file an amended  complaint meeting the requirements          of  Rule  8(a), as  ordered,  "even  after  the Magistrate  Judge          gratuitiously  gave plaintiffs rather specific guidance as to how          the complaint should be amended."               Plaintiffs filed a Motion for Reconsideration, stating that,          in  attempting to  balance the  various  federal pleading  rules,          "[p]laintiffs' attorney unintentionally  violated Rule 8(a)"  and                                        ____________________          3 The relevant portion of Fed. R. Civ. P. 15(a) states:                    A party  may amend the  party's pleading once                    as a matter  of course at  any time before  a                    responsive   pleading  is  served  .  .  .  .                    Otherwise  a  party  may  amend  the  party's                    pleading only by leave of court or by written                    consent of the adverse party; and leave shall                    be freely given when justice so requires.                                         -5-          that dismissal with  prejudice was too harsh a  penalty under the          circumstances.  For the first time, plaintiffs submitted a proper          request  for permission to  amend their complaint,  although they          did  not submit  a proposed  new complaint.   The  district court          denied the  motion for reconsideration  on March 12, 1993.   This          appeal followed.               The Kuehls now  attack the dismissal on two  fronts.  First,          they claim that they are  absolutely entitled to another round of          repleading under  Rule 15(a)  because  they have  filed only  one          federal  complaint  and  defendants  have  not  filed  responsive          pleadings.4   Second, they argue  that the deficiencies  of their          complaint were  not so severe  as to warrant a  dismissal without          the opportunity to amend.                                II. The Right to Amend                                    __________________               Under Rule 81(c) of the Federal Rules of Civil Procedure, an          action that is  removed from state to  federal court need not  be          repled "unless  the court so  orders."  The Kuehls  maintain that          their  original  federal  complaint  was   a  repleading  ordered          pursuant  to Rule  81(c), but  that --  contrary to  the district          court's conclusion --  that redrafting did not use  up their Rule          15(a) right to amend their complaint once as a matter of course.               We  can  agree,   generally,  with  the  principle   that  a          repleading  ordered  under  Rule  81(c)  does  not  automatically          deprive the plaintiff of the  one-time option to amend granted by                                        ____________________          4  It is well established in this circuit that motions to dismiss          are  not responsive pleadings.  See Correa-Martinez v. Arrillaga-                                          ___ _______________    __________          Belendez, 903 F.2d 49, 59 n.8 (1st Cir. 1990).          ________                                         -6-          Rule  15(a).   This  seems particularly  so  when the  repleading          involves  simply a  change of  format  to fit  the federal  court          model.               In  this  case,  however,  the magistrate  judge  explicitly          ordered  an  amended  complaint  that  was  intended  to  contain                       _______          substantive  changes to  meet  Rule  8(a)'s  requirements.    The          plaintiffs,  therefore,   had  a   chance   to  make   meaningful          modifications to  their complaint  and, indeed,  were given  some          advice about how to do so.  They point to no authority supporting          the proposition that they are entitled,  as a matter of right, to                                                   ____________________          a second chance to improve the substance of their complaint.  The          fact that plaintiffs squandered their one  guaranteed opportunity          by making only stylistic changes does not yield them another.                              III. Too Tough a Sanction?                                   _____________________               A district court has the power to dismiss a complaint when a          plaintiff fails  to  comply  with  the  Federal  Rules  of  Civil          Procedure, including  Rule 8(a)(2)'s "short and  plain statement"          requirement.  Vakalis v. Shawmut Corp., 925 F.2d 34, 36 (1st Cir.                        _______    _____________          1991); Mangan v.  Weinberger, 848 F.2d 909, 911  (8th Cir. 1988).                 ______     __________          See Fed.  R. Civ. P. 41(b).  Its decision  to do so is reviewable          ___          only  for abuse  of discretion.   Mangan,  848 F.2d  at 911;  HMG                                            ______                      ___          Property Investors v. Parque Indus. Rio Canas, 847 F.2d 908, 916-          __________________    _______________________          17 (1st Cir. 1988).                Plaintiffs  now acknowledge  a technical  violation of  Rule          8(a),  conceding that  their complaint  is  excessively long  and          unnecessarily redundant.    They claim,  however, that  dismissal                                         -7-          with  prejudice  is  too  drastic a  sanction  because  this  was          "unintentional  error" on the  part of plaintiffs'  attorney, who          believed that it was essential to plead in detail in light of the          magistrate's  stated  expectation that  many defendants  and some          claims  would be  dismissed.   By  drafting  counts in  numerous,          short, separate  paragraphs, plaintiffs explain,  they sought  to          permit any dismissed  counts to be excised without  affecting the          remainder of the claims or the complaint as a whole.               Were plaintiffs'  confessed overdrafting their only  sin, we          would be  inclined to  agree that dismissal  was an  overly harsh          penalty.  Our federal rules  promote the disposition of claims on          the merits rather than on  the basis of technicalities, see Foman                                                                  ___ _____          v.  Davis, 371  U.S. 178,  181-82  (1962), and  courts should  be              _____          reluctant  to  impose  a dismissal  with  prejudice  for  a rules          violation that  is neither persistent nor vexatious, particularly          without some review of the merits.               These  plaintiffs are  culpable  for  more  than  simply  an          overwritten  complaint, however.   Their faulty pleading  was not          their  first,  but  an  amended version  that  had  changed  only          superficially  from the state  court complaint, despite  an order          that  it conform  to the  concise pleading  requirements  of Rule                                    _______          8(a).  Additionally,  the magistrate judge had  fairly explicitly          telegraphed   that   the   number   of   defendants   should   be          "considerably" reduced. Instead, plaintiffs added two more.  When          plaintiffs  finally  attempted six  weeks after  the magistrate's          decision to file a motion to  amend, they failed to follow  local                                         -8-          rules.   At no time did they properly  offer the court a proposed          amended complaint to cure the deficiencies.               Thus, by the time the district court acted on the magistrate          judge's recommendation, it  had before it a flouted  order and no          indication that plaintiffs were  ready to conform to Rule  8(a)'s          requirements.  Their one apparent attempt to comply -- the motion          that ran  afoul of  Local Rule  11 --  had been  abandoned.   And          defendants  already had  expended considerable  time  and expense          responding  to   the  defective   complaint.     See  Newman   v.                                                           ___  ______          Commonwealth  of  Mass., 115  F.R.D.  341,  344 (D.  Mass.  1987)          _______________________          (recognizing  role of  "`pragmatic matters,'"  such  as time  and          expense for defendants  and court, in deciding  whether complaint          should be dismissed).               In these  circumstances, the  district  court's decision  to          dismiss, though  very severe,  does not strike  us as  beyond the          pale.   It is  well settled that  the question on  review "is not          whether we would have imposed a more lenient penalty had we  been          sitting in the  trial judge's place, but whether  the trial judge          abused his discretion  in imposing the penalty he  did."  Spiller                                                                    _______          v. U.S.V. Laboratories, Inc., 842  F.2d 535, 537 (1st Cir. 1988).             _________________________          We believe  this decision was  within the wide boundaries  of the          court's discretion.  See 5 Charles A. Wright &  Arthur R. Miller,                               ___          Federal Practice and Procedure    1217, at 178 (1990) ("[I]n some          ______________________________          circumstances if a party fails or  refuses to file an amended and          simplified pleading or does not exercise good faith in purporting          to do so, the severe sanction of a dismissal on the merits may be                                         -9-          warranted."); see also Jones v. Winnepesaukee Realty, 990 F.2d 1,                        ___ ____ _____    ____________________          5 (1st Cir. 1993) ("Trial judges enjoy great latitude in carrying          out case-management functions.")               The order of dismissal is therefore affirmed.               ____________________________________________                                         -10-
