                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2004

Alston v. Parker
Precedential or Non-Precedential: Precedential

Docket No. 03-2683




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"Alston v. Parker" (2004). 2004 Decisions. Paper 756.
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                     PRECEDENTIAL      Joseph B. Young [ARGUED]
                                       New Jersey Protection & Advocacy, Inc.
       UNITED STATES                   210 South Broad Street, 3rd Floor
      COURT OF APPEALS                 Trenton, NJ 08608
    FOR THE THIRD CIRCUIT                Counsel for Appellant

                                       Joanne Leone
            No. 03-2683                Maria Desautelle [ARGUED]
                                       Office of the Attorney General of NJ
                                       Division of Law
   GARY MARSHALL ALSTON                25 Market Street
                  v.                   Trenton, NJ 08625
WILLIAM PARKER; JACK SINGER              Counsel for Appellees
(N.J. (Newark) D.C. No. 95-cv-06158)

                                             OPINION OF THE COURT
   GARY MARSHALL ALSTON
                  v.
   CARROLL SIMMON; LYNDA
                                       RENDELL, Circuit Judge.
            NAVRATIL
(N.J. (Newark) D.C. No. 95-cv-06159)           At the end of Gary Marshall
                                       Alston’s 17-year sentence in a New Jersey
         Gary Marshall Alston,         prison, he was involuntarily committed to
                   Appellant           Greystone Park Psychiatric Hospital.
                                       Wh ile there, Alston sued various
                                       Greystone employees in a pro se § 1983
   Appeal from the United States       complaint, raising several challenges with
           District Court              respect to his prison sentence and his
   for the District of New Jersey      psychiatric commitment.         Before the
   (D.C. Civil Nos. 95-cv-06158        merits of Alston’s claims could be tested,
         and 95-cv-06159)              the District Court granted a motion to
    District Judge: Honorable          dismiss for failure to state a claim under
         William H. Walls              Fed. R. Civ. P. 12(b)(6). The Court
                                       concluded that Alston’s pleading did not
                                       meet the factual specificity requirement for
      Argued January 15, 2004          civil rights complaints and dismissed his
                                       complaint. Because we hold that the
Before: SLOVITER, RENDELL and          District Court subjected Als ton’s
    ALDISERT, Circuit Judges.          complaint to a heightened pleading
                                       standard no longer applicable in such civil
        (Filed: April 5, 2004)         rights cases, we will reverse.
                     I.                            Greystone and requested the appointment
                                                   of counsel to help advance his case.
       Challenging his transfer to
Greystone, Alston filed two pro se                         The District Court referred the
complaints under 42 U.S.C. § 1983 on               matter to a Magistrate Judge, who granted
December 4, 1995. In those complaints,             Alston’s application for counsel on March
which were later consolidated, Alston              19, 1996. The threshold requirement for
sought over $63 million in damages from            the appointment of counsel to indigent
four Greystone employees, who he                   plaintiffs is the arguable legal and factual
contended had violated his rights. The             merit of a complaint. See Tabron v.
employees included William Parker, Jack            Grace, 6 F.3d 147 (3d Cir. 1993). The
Singer, and Lynda Navratil (collectively,          Magistrate Judge recognized two claims in
“Defendants”). 1    The complaints, the            Alston’s complaint: 1) a claim that his 17-
pertinent text of which we set forth in the        year term in prison caused him such harm
margin, are not models of clarity. 2 Yet,          that his sentence constituted cruel and
their thrust is clear enough: Alston               unusual punishment; and 2) that his
questioned the basis of his transfer to            involuntary commitment, as Alston put it
                                                   “without victim without evidence,”
                                                   violated due process. With respect to the
      1
   Although Alston also named “Carroll             latter claim, the Magistrate Judge cited
Simmon” as a defendant, the parties have           Vitek v. Jones, 445 U.S. 480 (1980), in
been unable to identify such an individual.        which the Supreme Court articulated the
                                                   minimum procedural protections that must
  2
    With the exception of misspellings, we         be afforded to a prisoner who is
set out Alston’s allegations verbatim. In          transferred to a psychiatric institution.
o n e com plaint, A lst o n s ta t e d:            Such procedures include fair notice and a
“Defendant(s) slanderous allege that I was         hearing at which evidence may be
a threat(s) that got me six (6) month(s)           presented. This Vitek claim is at the heart
more in jail without victim without                of Alston’s complaint. The Magistrate
evidence when than know I have no other            Judge recognized the legal sufficiency of
right to petitioner the covered which I am         these claims, but noted at the same time
exercising.”     In the other complaint,           the paucity of factual development.
Alston stated: “Plaintiff did seventeen (17)       Nevertheless, after considering other
years in hard labor and maximum security           factors, including his doubt that Alston
jail after serving this cruel and unusual          could adequately present his case without
punishment(s) I am denied release as the           assistance, he ordered counsel to be
judiciary promised at the completion of my         appointed.
jail term I was transfer to another jail for
                                                        Four years later, in August of 2000,
an year now for allege medical reason(s)
                                                   the District Court finally appointed
that never had existed until I got in this
jail.”

                                               2
counsel for Alston.3 By that time, Alston         that it was “well settled” that civil rights
had been released from Greystone and his          complaints must be pled with factual
whereabouts were unknown. Eventually,             specificity.     Concluding that Alston’s
his counsel successfully located him and          complaint was unsubstantiated and did not
entered into a representation agreement on        specifically set forth how each defendant
November 7, 2000. One month later, on             infringed Alston’s rights, the District
December 6, 2000, Alston’s counsel filed          Court found that Alston had not met the
a status update with the District Court.          pleading requirements necessary to pursue
Counsel informed the District Court that it       a § 1983 action. The District Court further
was attempting to locate, and serve               held that Alston had sufficient notice of
Alston’s pro se complaint on, the                 this pleading defect, referring to the
Defendants. A similar status update was           Magistrate Judge’s admonition in 1996
filed on February 21, 2001.                       that the allegations lacked factual support. 4
Notwithstanding these updates, on March           Accordingly, the District Court entered an
20, 2001, the District Court dismissed the        order granting the Defendants’ 12(b)(6)
case for lack of prosecution.                     motion and dismissing the complaint. The
                                                  order did not specify whether the dismissal
       Subsequently, Alston’s counsel
                                                  was with or without prejudice, but
successfully served the complaint on three
                                                  pursuant to Fed. R. Civ. P. 41(b), we treat
out of the four named defendants and
                                                  the dismissal as an “adjudication upon the
petitioned the District Court to reconsider
                                                  merits.” Subsequently, the District Court
its dismissal. On January 29, 2002, the
                                                  rejected Alston’s motion for reargument
District Court reinstated the case upon
                                                  and reconsideration. Alston appeals both
Alston’s motion and vacated its earlier
                                                  the orders dismissing his complaint and
dismissal order.         The Defendants
                                                  denying reconsideration.
responded by filing a 12(b)(6) motion,
invoking various defenses, such as defects
in the pleading, witness immunity,
qualified immunity, and sovereign
immunity.
       The District Court determined that            4
                                                      The District Court initially misspoke
Alston’s complaint was fatally defective,
                                                  when it stated that counsel had seven years
and on that basis, granted the motion to
                                                  after its appointment to rectify the
dismiss. Citing Darr v. Wolfe, 767 F.2d
                                                  pleadings, since counsel had only been
79, 80 (3d Cir. 1985), the Court observed
                                                  appointed in 2000. The Court corrected
                                                  this error in its response to Alston’s
                                                  motion for reconsideration, noting that
  3
   There is nothing in the record before us       Alston’s counsel nevertheless had more
that explains this unfortunate delay in the       than enough notice and time to amend the
appointment of counsel.                           defective complaint.

                                              3
                    II.                            We have plenary review of the District
                                                   Court’s grant of a motion to dismiss for
        Alston’s principal contention on
                                                   failure to state a claim pursuant to Fed. R.
appeal is that he should have been
                                                   Civ. P. 12(b)(6). Nami v. Fauver, 82 F.3d
permitted to have discovery so as to
                                                   63, 65 (3d Cir. 1996). In considering this
comply with the fact-pleading standard
                                                   appeal from a Rule 12(b)(6) dismissal, we
imposed by the District Court. This Court
                                                   accept all allegations as true and attribute
has long recognized the importance of
                                                   all reasonable inferences in favor of
discovery in the successful prosecution of
                                                   Alston. Thus, we will affirm the District
civil rights complaints. See Colburn v.
                                                   Court’s dismissal only if it appears that
Upper Darby Township, 838 F.2d 663, 666
                                                   Alston could prove no set of facts that
(3d Cir. 1988) (“[I]n civil rights cases
                                                   would entitle him to relief. Id. at 65. We
‘much of the evidence can be developed
                                                   review the District Court’s denial of
only through discovery’ of materials held
                                                   reconsideration for abuse of discretion.
by defendant officials.” (quoting Frazier v.
                                                   Max’s Seafood Café ex rel. Lou-Ann, Inc.
Southeastern Pa. Transp. Auth., 785 F.2d
                                                   v. Quinteros, 176 F.3d 669, 673 (3d Cir.
65, 68 (3d Cir. 1986)). We acknowledge
                                                   1999).
Alston’s need for discovery to present his
case, which we discuss more fully below.
But, the lack of discovery was not the real
                                                                       B.
barrier blocking Alston’s path to relief.
Rather, it was the stringent pleading                      The District Court tested Alston’s
standard presupposed by the parties and            complaint against a pleading requirement
the District Court.        Our discussion          for civil rights cases based on our opinion
therefore begins by examining the District         in Darr v. Wolfe. The District Court
Court’s requirement of factual specificity,        observed that it was “well settled” that
which is in conflict with Fed. R. Civ. P.          Third Circuit law requires civil rights
8(a)’s simplified notice pleading standard.        plaintiffs to plead with particularity. 5 We
We will then consider Alston’s contention          disagree.
that the District Court should have
                                                        Alston’s § 1983 complaint should
presented an opportunity to amend the
                                                   have been considered not under a
complaint before dismissing it with
prejudice. Lastly, we will comment on the
right to discovery in actions such as this.
                                                     5
                                                      In seeking to affirm the District Court’s
                                                   order, the Defendants argue that pro se
                    A.                             plaintiffs like Alston are not exempt from
                                                   the strictures of heightened pleading.
       Jurisdiction was proper in the trial
                                                   Brief for Appellee at 9 (citing Ressler v.
court based on 28 U.S.C. § 1331. Our
                                                   Scheipe, 505 F. Supp. 155, 156 (E.D. Pa.
review is predicated on 28 U.S.C. § 1291.
                                                   1981)).

                                               4
heightened pleading requirement, but              67; Ross v. Meagan, 638 F.2d 646, 650
under the more liberal standards of notice        (3d Cir. 1981); Rotolo v. Borough of
pleading. Although once enforced in               Charleroi, 532 F.2d 920, 922 (3d Cir.
several circuits, including ours, a fact-         1976), none of which have been expressly
pleading requirement for civil rights             overruled, these pronouncements preceded
complaints has been rejected by the               and cannot be reconciled with the Supreme
Supreme Court in no uncertain terms.              Court’s holdings in Leatherman and
Leatherman v. Tarrant County Narcotics            Swierkiewicz. Insofar as our decisions,
Intelligence & Coordination Unit, 507             such as Darr, run counter to the principle
U.S. 163, 168 (1993). In Leatherman, the          of notice pleading in § 1983 actions, they
Court instructed that Rule 9’s standard for       are not controlling. Fundamentally, a
averments of fraud and mistake should not         heightened pleading requirement for civil
be imported to the notice pleading                rights complaints no longer retains vitality
standard of Rule 8, which requires only “a        under the Federal Rules.6
short and plain statement of the claim
showing that the pleader is entitled to
relief.”      Id.    More recently, in                6
                                                        The Defendants likewise argue on
Swierkiewicz v. Sorema N.A., 534 U.S.
                                                  appeal that Alston’s complaint lacked
506, 513 (2002), the Court reaffirmed its
                                                  sufficient factual support. But a plaintiff
holding in Leatherman and stated that
                                                  need not plead facts. To withstand a
“Rule 8(a)’s simplified pleading standard
                                                  12(b)(6) motion, a plaintiff need only
applies to all civil actions, with limited
                                                  make out a claim upon which relief can be
exceptions.” Our Court of Appeals has
                                                  granted. If more facts are necessary to
r e c o gnized the Supre me C ourt’ s
                                                  resolve or clarify the disputed issues, the
abrogation of a heightened pleading
                                                  parties may avail themselves of the civil
requirement for § 1983 actions. See Ray
                                                  discovery mechanisms under the Federal
v. Kertes, 285 F.3d 287, 297 (3d Cir.
                                                  Rules. Swierkiewicz, 534 U.S. at 512
2002) (“[T]he Court [has] explained that
                                                  (“This simplified notice pleading standard
courts should narrowly interpret statutory
                                                  relies on liberal discovery rules . . . to
language to avoid heightened pleadings
                                                  define disputed facts and issues and to
standards.”); Abbott v. Latshaw, 164 F.3d
                                                  dispose of unmeritorious claims.”).
141, 149 (3d Cir. 1998) (observing that
                                                          The need for discovery before
nothing more is required of § 1983 cases
                                                  testing a complaint for factual sufficiency
than the notice pleading requirement of
                                                  is particularly acute for civil rights
Rule 8).
                                                  plaintiffs, who often face informational
        While our ruling in Darr, 767 F.2d        disadvantages. See Colburn, 838 F.2d at
at 80, is one of several decisions in which       667. Plaintiffs may be unaware of the
this Court imposed a higher bar for § 1983        identities and roles of relevant actors and,
pleadings, see, e.g., Frazier, 785 F.2d at        owing to the ir inc a r c eration or
                                                  institutionalization, unable to conduct a

                                              5
                                                              Alston’s complaint should have
                                                      been subject only to the “short and plain
                                                      statement” requirement of Rule 8(a).
pre-trial investigation to fill in the gaps.
                                                      Courts are to construe complaints so “as to
But by itself, this lack of knowledge does
                                                      do substantial justice,” Fed. R. Civ. P. 8(f),
not bar entry into a federal court. The
                                                      keeping in mind that pro se complaints in
principles of notice pleading and the
                                                      particular should be construed liberally.
liberal discovery rules allow for
                                                      Dluhos v. Strasberg, 321 F.3d 365, 369 (3d
meritorious claims to proceed even if a
                                                      Cir. 2003).         Comprising only two
confined prisoner cannot adduce all the
                                                      paragraphs in all, Alston’s pro se
necessary facts at the outset. For instance,
                                                      complaint was “short” and, despite some
our cases permit the naming of fictitious
                                                      vagueness, sufficiently “plain.” Both the
defendants as stand-ins until the identities
                                                      District Court and the Magistrate Judge
can be learned through discovery. Hindes
                                                      found that the complaint, construed
v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998).
                                                      liberally, set forth cognizable legal claims.
As the Magistrate Judge here recognized,
                                                      Likewise, the Defendants never argued
counsel appointed under 28 U.S.C.
                                                      that the complaint ran afoul of the short
§ 1915(d) can help litigants like Alston
                                                      and plain statement requirement. 7 To the
surmount these obstacles to pleading. But
legal help alone is insufficient; in such
cases, access to discovery may well be                identification of responsible defendants or
critical. See Gillespie v. Civiletti, 629             the lack thereof, district courts should
F.2d 637, 642 (9 th Cir. 1980) (“[T]he                strongly consider granting it. Because
plaintiff should be given an opportunity              Alston’s complaint was dismissed before
through discovery to identify the unknown             an opportunity for discovery, any
defendants, unless it is clear that discovery         expectation of factual sufficiency was
would not uncover the identities, or that             premature. It is a first principle of federal
the complaint would be dismissed on other             civil procedure that litigants “are entitled
grounds.”); see also Billman v. Indiana               to discovery before being put to their
Dep’t of Corr., 56 F.3d 785, 789-90 (7 th             proof.” Bennett v. Schmidt, 153 F.3d 516,
Cir. 1995) (Posner, C.J.) (“ The peculiar             519 (7 th Cir. 1998).
perversity of imposing heightened
                                                             7
pleading standards in prisoner cases . . . is                 It is likely, however, that the
that it is far more difficult for a prisoner to       Defendants’ pleading defect argument was
write a detailed complaint than for a free            a reaction to the fact that portions of
person to do so, and again this is not                Alston’s complaint made little sense. But
because the prisoner does not know the                in that case, the parties and the District
law but because he is not able to                     Court still had several procedural tools at
investigate before filing suit.”).           If       their disposal. The Defendants, or the
discovery is sought by a plaintiff, as it was         District Court on its own initiative, may
here, and if it would aid in the                      have sought a more definite statement to

                                                  6
contrary, their 12(b)(6) motion was replete            discovery. Cf. McHenry v. Renne, 84 F.3d
with defenses that responded to claims                 1172, 1178 (9th Cir. 1996) (stating that a
they discerned in Alston’s complaint.                  complaint should set forth “who is being
                                                       sued, for what relief, and on what theory,
        Although Alston’s complaint
                                                       with enough detail to guide discovery.”).
arguably complies with Rule 8(a), we
                                                       Thus, we have no doubt that the complaint
recognize that it lacks clarity and will
                                                       will require amendment. We are equally
likely require amendment. Indeed, his
                                                       certain that Alston may have made some
c o m p l a i n t h a s y ie l d e d v a r i e d
                                                       progress in that regard had he been
interpretations. The Magistrate Judge
                                                       afforded the opportunity. The denial of
recognized two claims, one involving the
                                                       that opportunity to amend will be taken up
cruel and unusual punishment clause and
                                                       next.
the other a deprivation of due process.
The Defendants, in their 12(b)(6) motion,
focused instead on Alston’s allegations of
                                                                           C.
“slander,” i.e., that he was committed to
Greystone as a result of false testimony. In                   While the District Court’s error in
addition to these claims, Alston’s response            granting Defendants’ 12(b)(6) motion by
to the 12(b)(6) motion included claims                 imposing a fact-pleading requirement on
concerning the double jeopardy and ex                  Alston’s complaint mandates that we
post facto clauses of the constitution.                remand the case to the District Court for
Given these varying interpretations of                 further proceedings, Alston argues that
what is at issue, we concede that Alston’s             irrespective of the appropriate pleading
complaint may have lacked enough detail                standard, he should have been given an
to have served its function as a guide to              opportunity to amend his complaint before
                                                       dismissal. Indeed, Alston’s counsel stated
                                                       at oral argument that Alston intends to
resolve any ambiguity or vagueness. Fed.               amend both the allegations and the parties
R. Civ. P. 12(e). Matters in the complaint             named in the complaint. In particular, it
that w ere deemed imm aterial o r                      appears that Alston will seek to strike all
impertinent could have been stricken. Fed.             but the claim that his involuntary
R. Civ. P. 12(f). Alternatively, the District          commitment violated due process and seek
Court could have dismissed the complaint               to add New Jersey state officials in their
without prejudice permitting Alston to                 official capacity. We therefore discuss the
amend the complaint to make it plain. By               issue of amendment as guidance for the
contrast, dismissals with prejudice may be             District Court’s consideration on remand.
appropriate where a party refuses to file an
amended complaint or if the repleading
                                                               We have held that even when a
does not remedy the Rule 8 violation. See
                                                       plaintiff does not seek leave to amend, if a
In re Westinghouse Sec. Litig., 90 F.3d
                                                       complaint is vulnerable to 12(b)(6)
696, 703-04 (3d Cir. 1996).

                                                   7
dismissal, a District Court must permit a         principles apply equally to pro se plaintiffs
curative amendment, unless an amendment           and those represented by experienced
would be inequitable or futile. Grayson v.        counsel. 213 F.3d at 116 (citing District
Mayview State Hosp., 293 F.3d 103, 108            Council 47 v. Bradley, 795 F.2d 310, 316
(3d Cir. 2002) (citing Shane v. Fauver, 213       (3d Cir. 1986)). Dismissal without leave
F.3d 113, 116 (3d Cir. 2000)). In Shane,          to amend is justified only on the grounds
we held that this aspect should be                of bad faith, undue delay, prejudice, or
considered and noted in dismissing a claim        futility. Id. at 115 (citing In re Burlington
for failure to state a claim:                     Coat Factory Sec. Litig., 114 F.3d 1410,
                                                  1434 (3d Cir. 1997)).
       [W]e suggest that district
       judges expressly state,                            On remand, the District Court
       where appropriate, that the                should offer Alston leave to amend
       plaintiff has leave to amend               pursuant to the above procedures for
       within a specified period of               12(b)(6) dismissals, unless a curative
       time, and that application                 amendment would be inequitable, futile, or
       for dismissal of the action                untimely. Neither the District Court nor
       may be made if a timely                    the Defendants made or advocated such a
       amendment is not                           finding, or even argued that there was bad
       forthcoming within that                    faith, undue delay, prejudice, or futility.
       time. If the plaintiff does not
                                                          Amendments to pleadings are
       desire to amend, he may file
                                                  governed by Rule 15 of the Federal Rules
       an appropriate notice with
                                                  of Civil Procedure. In particular, Rule
       the district court asserting
                                                  15(a) provides that a party can amend the
       his intent to stand on the
                                                  complaint to add or substitute parties, as
       complaint, at which time an
                                                  Alston is apparently intending to do. Rule
       order to dismiss the action
                                                  15(c), however, sets forth requirements
       would be appropriate.
                                                  that determine whether an amendment
                                                  adding an entirely new defendant will
                                                  relate back to the original date of the filing
Id. at 116 (quoting Borelli v. City of
                                                  of the complaint for purposes of the
Reading, 532 F.2d 950, 951 n.1 (3d Cir.
1976)).8 As we noted in Shane, these

                                                  of factual specificity, he should be given a
   8
    In the very case cited by the District        reasonable opportunity to cure the defect,
Court to justify a heightened pleading            if he can, by amendment of the complaint
requirement, Judge Maris went on to note          and that denial of an application for leave
that “this court has consistently held that       to amend under these circumstances is an
when an individual has filed a complaint          abuse of discretion.” Darr, 767 F.2d at 81.
under § 1983 which is dismissable for lack

                                              8
governing statute of limitations.                   Alston argues that he should have been
                                                    given the opportunity to engage in some
       The relation back provision of Rule
                                                    discovery in order to live up to the
15 aims to relieve the harsh result of the
                                                    “specificity” standard the District Court
strict application of the statute of
                                                    imposed. We note, first, that, as discussed
limitations.      Garvin v. C ity o f
                                                    above, no such standard exists. Second, to
Philadelphia, 354 F.3d 215, 220 (3d Cir.
                                                    the extent that in a civil rights action the
2003). The issue then becomes whether
                                                    Court finds that plaintiff may be
the proposed pleading amendment to add
                                                    disadvantaged by not having access to
or substitute defendants will relate back to
                                                    precisely who the relevant actors were, and
the date of the filing of the original
                                                    their precise roles, perhaps access to some
complaint. 9 Rule 15(c)(3) requires that for
                                                    initial discovery would be advisable. We
an amendment adding a new party to relate
                                                    have noted the difficulty faced by
back, the proposed new defendants must
                                                    plaintiffs in such situations. See Colburn,
have had actual or constructive notice of
                                                    838 F.2d at 667. While the Federal Rules
the institution of the action within the
                                                    do not provide for discovery in aid of
period set forth by Rule 4(m), i.e., 120
                                                    pleading, as such, nonetheless it would be
days. See Garvin, 354 F.3d at 220
                                                    beneficial in difficult cases such as this.
(explaining that “[t]he parties to be
                                                    But, again, we note that it is not essential
brought in by amendment must have
                                                    at the pleading stage in order to satisfy the
received notice of the institution of the
                                                    standard of notice pleading, and the
action within 120 days following the filing
                                                    District Court did not abuse its discretion
of the action, the period provided for
                                                    in not ordering it. 11
service of the complaint by Rule 4(m) of
the Federal Rules of Civil Procedure”).                    The District Court dismissed
                                                    Alston’s complaint with prejudice and
       The District Court should make all
                                                    without leave to amend. We conclude that
these determinations in the first instance.10
                                                    the District Court erred in applying a
                    III.                            heightened pleading standard, and that, in
                                                    light of the procedures for 12(b)(6)
       As we indicated at the outset,
                                                    dismissal, the District Court should offer
                                                    Alston an opportunity to amend his
  9
   Neither party discussed the issue in its         complaint absent inequity, futility, or
brief, but were requested by the Court in           untimeliness. Therefore, we will vacate
advance to be prepared to discuss it at oral
argument.
                                                      11
                                                        Rule 26(d) provides that discovery is
  10
   Given the nature of our disposition, we          not to commence until a discovery
need not address Alston’s contention that           conference has occurred pursuant to Rule
the District Court erred by denying his             26(f), which the District Court here did not
motion for reconsideration.                         schedule. Fed. R. Civ. P. 26(d), (f).

                                                9
the order dismissing the complaint and will
remand for further proceedings in
accordance with this opinion.




                                              10
