U.S. 9th Circuit Court of Appeals
BAUTISTA v LA COUNTY
9756074
SERGIO BAUTISTA; MIGUEL
RODRIGUEZ; JOSE SOTO; MANUEL
FERNANDEZ; ALICE FARNHAM;
ALFREDO FIGUEROA; JOSE LUIS
ALEJO; MARIO MEJIA; GUADALUPE
CEDILLO; HECTOR REYES; MARCOS
MARTINEZ; ROBERTO GUTIERREZ;
LEOPOLDO CERVANTES; DAVID
SALAS; MARCOS ORTEGA; JORGE
FLORES; JUAN MAGANA; MARTIN
JIMENEZ; JOSE CUEVAS; MIGUEL
DE LA TORRE; JORGE DEL VALLE;
LIBRADO CRUZ; VICENTE CEDILLO;
MANUEL ALVAREZ; GERONIMO
No. 97-56074
LIMON; ROBERTO RODRIGUEZ;
RAFAEL ABARCA; SALVADOR
D.C. No.
RODARTE; JOHN ESCOBAR; RAUL
CV-96-08717-JSL
SANDOVAL; ROSENDO OROZCO;
ISRAEL PACHECO; MANUEL ROSALES;
JORGE ALBERTO ROSALES; MAURO
MUNGUIA; CARLOS JIMENEZ;
JOAQUIN VILLEGES; BERNARD
RUSSELL; RAMON HERNANDEZ;
ARNULFO LEON,
Plaintiffs-Appellants,
v.
LOS ANGELES COUNTY; MUSIC
CENTER OPERATING COMPANY; R.A.
MUSIC, INC.; FAMILY RESTAURANTS,
Defendants-Appellees.
6573
SERGIO BAUTISTA; MIGUEL
RODRIGUEZ; JOSE SOTO; MANUEL
FERNANDEZ; ALICE FARNHAM;
ALFREDO FIGUEROA; JOSE LUIS
ALEJO; MARIO MEJIA; GUADALUPE
CEDILLO; HECTOR REYES; MARCOS
MARTINEZ; ROBERTO GUTIERREZ;
LEOPOLDO CERVANTES; DAVID
SALAS; MARCOS ORTEGA; JORGE
FLORES; JUAN MAGANA; MARTIN
JIMENEZ; JOSE CUEVAS; MIGUEL
DE LA TORRE; JORGE DEL VALLE;
No. 97-56341
LIBRADO CRUZ; VICENTE CEDILLO;
D.C. No.
MANUEL ALVAREZ; GERONIMO
CV-96-08717-JSL
LIMON; ROBERTO RODRIGUEZ;
RAFAEL ABARCA; SALVADOR
OPINION
RODARTE; JOHN ESCOBAR; RAUL
SANDOVAL; ROSENDO OROZCO;
ISRAEL PACHECO; MANUEL ROSALES;
JORGE ALBERTO ROSALES; MAURO
MUNGUIA; CARLOS JIMENEZ;
JOAQUIN VILLEGES; BERNARD
RUSSELL; RAMON HERNANDEZ;
ARNULFO LEON,
Plaintiffs-Appellants-
Cross-Appellees,
v.
6574
LOS ANGELES COUNTY; MUSIC
CENTER OPERATING COMPANY; R.A.
MUSIC, INC.,
Defendants-Appellees-
Cross-Appellants,
and
FAMILY RESTAURANTS,
Defendant-Appellee.
Appeals from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
Argued and Submitted
April 5, 2000--Pasadena, California
Filed June 20, 2000
Before: Stephen Reinhardt and Diarmuid F. O'Scannlain,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Schwarzer; Concurrence by
Judge Reinhardt; Partial Concurrence and Partial Dissent by
Judge O'Scannlain
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Civil Litigation and Procedure/Judgments and Orders
The court of appeals reversed a judgment of the district
court. The court held that where a plaintiff's amended com-
plaint contains deficiencies that were readily curable with
some guidance from the court, dismissal without leave to
amend is an abuse of discretion.
Appellee R.A. Music took over operations of appellee Fam-
ily Restaurants. Appellants, employees of Family Restaurants,
filed a complaint in state court alleging claims of employment
discrimination against R.A. Music, Inc., the County of Los
Angeles and others. Defendants removed to federal court.
The complaint alleged that the plaintiffs had been employ-
ees of Family Restaurants but were denied employment by
R.A. Music based upon their race, age and disability though
they were qualified for the positions they held with Family
Restaurants and had performed their jobs satisfactorily.
After plaintiffs filed a first amended complaint, the district
court granted the defendants' motion to dismiss without leave
to amend as to all defendants other than R.A. Music. It dis-
missed the claims against R.A. Music with leave to amend for
any plaintiff who could plead specific facts that would create
an individual prima facie claim of age, race, or disability dis-
crimination. Plaintiffs filed a second amended complaint,
which the court dismissed with prejudice without explanation.
The second amended complaint was not substantially dif-
ferent from the earlier complaint. It alleged claims of employ-
ment discrimination based on race, age and disability on
behalf of all plaintiffs collectively. It also alleged that R.A.
Music substantially reduced the percentage of minority work-
ers and increased the percentage of white workers, reduced
the percentage of minority workers in higher paid positions,
and reduced the percentage of workers over forty years of
age. It then alleged three claims for relief: that R.A. Music (1)
denied plaintiffs over forty employment in favor of younger
employees; (2) discriminated against plaintiffs on account of
their race, national origin and ancestry by denying them
employment while employing less qualified Anglo employ-
ees; and (3) discriminated against them on the basis of their
physical disabilities while employing less qualified employ-
ees.
The district court dismissed the plaintiffs' second amended
complaint with prejudice without explanation. The plaintiffs
appealed.
[1] Federal Rule of Civil Procedure 8(a) states that a plead-
ing which sets forth a claim for relief shall contain a short and
plain statement of the claim showing that the pleader is enti-
tled to relief. A claim is the aggregate of operative facts which
give rise to a right enforceable in the courts. To comply with
Rule 8, each plaintiff had to plead a short and plain statement
of the elements of his or her claim, identifying the transaction
or occurrence giving rise to the claim and the elements of the
prima facie case: that he or she was a member of a particular
protected class, was qualified and applied for the position he
or she sought and was rejected on a prohibited ground. The
three claims alleged in the complaint did not meet this test.
[2] Each plaintiff's claim being founded upon a separate
transaction or occurrence, it is properly stated in a separate
count because a separation facilitates the clear presentation of
the matters set forth. Separate counts will be required if nec-
essary to enable the defendant to frame a responsive pleading
or to enable the court and the other parties to understand the
claims.
[3] Dismissal of the complaint for failure to comply with
the rules was within the court's discretion. [4] District courts
have the inherent power to control their dockets and in the
exercise of that power they may impose sanctions including
dismissal of a case. Dismissal is a harsh penalty, however,
and should therefore be imposed only in extreme circum-
stances. In determining whether to dismiss a case for failure
to comply with a court order, district courts must weigh five
factors: (1) the public interest; (2) the court's need to manage
the docket; (3) the risk of prejudice to the defendant; (4) the
public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic alternatives. There was
no indication in the record that the district court considered
any of these factors.
[5] The record showed no indication of undue delay, docket
congestion or risk of prejudice to R.A. Music militating in
favor of dismissal or outweighing the policy favoring disposi-
tion of cases on their merits. Nor was there a consideration of
less drastic alternatives. When it granted plaintiffs leave to
file a second amended complaint, the court issued a
bare-bones order with only cursory direction. It made no ref-
erence to the Federal Rules, it did not specify what it required
in the pleading, and it gave no warning that it would dismiss
the next complaint with prejudice if it did not comply.
[6] The deficiencies of the plaintiffs' second amended com-
plaint were readily curable with some guidance from the
court. The court's sudden-death response was an abuse of dis-
cretion.
Judge Reinhardt concurred, writing that he did not join the
majority opinion because it addressed procedural matters that
had not been raised in the litigation and expressed views he
believed were incorrect.
Judge O'Scannlain, concurring in part and dissenting in
part, rejected the notion that the district court court's failure
to give plaintiffs some guidance on how to plead their case
was an abuse of discretion.
_________________________________________________________________
COUNSEL
Thomas A. Brill and Federico C. Sayre, Law Offices of
Federico C. Sayre, Newport Beach, California, for the
plaintiffs-appellants-cross-appellees.
Mark R. Attwood and Mia D. Farber, Jackson, Lewis,
Schnitzler & Krupman, Los Angeles, California, for the
defendants-appellees-cross-appellants.
_________________________________________________________________
OPINION
SCHWARZER, Senior District Judge:
We must decide whether the district court abused its discre-
tion in dismissing with prejudice plaintiffs' second amended
complaint.
Plaintiffs filed their complaint in state court alleging claims
of employment discrimination under California Government
Code section 12940 on behalf of fifty-one named individuals.
Named as defendants were R.A. Music, Inc., the County of
Los Angeles and others no longer parties. Defendants
removed pursuant to 28 U.S.C. S 1331, alleging subject mat-
ter jurisdiction under 29 U.S.C. S 301 because plaintiffs were
covered by a collective bargaining agreement. The nub of the
controversy alleged is that in August 1995, defendant R.A.
Music took over the operations of Family Restaurants in the
Los Angeles Music Center. The complaint alleged that the
fifty-one named plaintiffs had been employees of Family Res-
taurants but were denied employment by R.A. Music based
upon their race, age and disability though they were qualified
for the positions they held with Family Restaurants and had
performed their jobs satisfactorily.
After plaintiffs filed a first amended complaint, defendants
moved to dismiss. The district court granted the motion with-
out leave to amend as to all defendants other than R.A. Music.
It dismissed the claims against the latter "with leave to amend
for any plaintiff who can plead specific facts that would create
an individual prima facie claim of age, race, or disability dis-
crimination." Plaintiffs filed a second amended complaint,
which the court dismissed with prejudice without explanation.
The second amended complaint is not substantially differ-
ent from the earlier complaint. It alleges on behalf of all plain-
tiffs collectively that they performed their jobs satisfactorily
and were each qualified for positions with R.A. Music, that
they applied for such positions and that they were denied
employment based upon their race, age and disability. It also
alleges that after R.A. Music took over, it substantially
reduced the percentage of minority workers and increased the
percentage of white workers, reduced the percentage of
minority workers in higher paid positions, and reduced the
percentage of workers over forty years of age. It then alleges
three claims for relief. The first claim, on behalf of twenty of
the named plaintiffs, alleges that they were over the age of
forty and were denied employment by defendant in favor of
younger employees. The second claim, on behalf of fifty-one
named plaintiffs, alleges that defendant discriminated against
them on account of their race, national origin and ancestry by
denying them employment while employing less qualified
Anglo employees. The third claim, on behalf of three named
plaintiffs, alleges that defendant discriminated against them
on the basis of their physical disabilities while employing less
qualified employees. Plaintiffs pray for compensatory and
punitive damages and attorneys' fees.
SUFFICIENCY OF THE PLEADINGS
[1] Federal Rule of Civil Procedure 8(a) states that "[a]
pleading which sets forth a claim for relief . . . shall contain
. . . a short and plain statement of the claim showing that the
pleader is entitled to relief." A claim is the "aggregate of
operative facts which give rise to a right enforceable in the
courts." Original Ballet Russe, Ltd. v. Ballet Theatre, Inc.,
133 F.2d 187, 189 (2d Cir. 1943). While the complaint con-
tains stray allegations of discriminatory policies or practices
imposed by R.A. Music, what it seeks is individual relief for
each of the plaintiffs. Each plaintiff's right to relief therefore
depends upon proof of the operative facts giving rise to an
enforceable right in favor of that plaintiff. The three claims
alleged in the complaint do not meet that test; they are hybrids
that qualify neither as class action allegations nor as state-
ments of individual claims. To comply with Rule 8 each
plaintiff must plead a short and plain statement of the ele-
ments of his or her claim, identifying the transaction or occur-
rence giving rise to the claim and the elements of the prima
facie case: that he or she is a member of a particular protected
class, was qualified and applied for the position he or she
sought and was rejected on a prohibited ground.
[2] Moreover, each plaintiff's claim being founded upon a
separate transaction or occurrence, it is properly "stated in a
separate count . . . [because] a separation facilitates the clear
presentation of the matters set forth." Fed. R. Civ. P. 10(b);
JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE,
S 10.03[2][a] (3d ed. 1997). "Separate counts will be required
if necessary to enable the defendant to frame a responsive
pleading or to enable the court and the other parties to under-
stand the claims." MOORE'S, S 10.03[2][a]. Courts have
required separate counts where multiple claims are asserted,
where they arise out of separate transactions or occurrences,
and where separate statements will facilitate a clear presenta-
tion. WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE:
CIVIL 2D S 1324. In such cases, separate counts permit plead-
ings to serve their intended purpose to frame the issue and
provide the basis for informed pretrial proceedings."Experi-
ence teaches that, unless cases are pled clearly and precisely,
issues are not joined, discovery is not controlled, the trial
court's docket becomes unmanageable, the litigants suffer,
and society loses confidence in the court's ability to adminis-
ter justice." Anderson v. District Bd. of Trustees, 77 F.3d 364,
367 (11th Cir. 1996); see also Erone Corp. v. Skouras The-
atres Corp., 19 F.R.D. 299, 300 (S.D.N.Y. 1956) (Weinfeld,
J.) (directing filing of an amended complaint stating the
claims of each plaintiff in a separate count, among other rea-
sons because "there may be defenses available to the defen-
dants which are applicable to one or more plaintiffs but not
to the others").
DISMISSAL OF THE ACTION
[3] Dismissal of the complaint for failure to comply with
the rules was therefore within the court's discretion. See Orig-
inal Ballet Russe, 133 F.2d at 188. Although the rules do not
specifically authorize motions to require a separate statement
of claims, courts have used their inherent power to issue such
orders and have dismissed actions for noncompliance under
Rule 41(b). See H.L. Miller Mach. Tools, Inc. v. Acroloc Inc.,
679 F. Supp. 823, 828 (C.D. Ill. 1988); Three D Dep'ts, Inc.
v. K Mart Corp., 670 F. Supp. 1404, 1409 (N.D. Ill. 1987);
United States v. Jeffrey Garden Apts., Inc., 21 F.R.D. 147,
149 (E.D.N.Y. 1957); WRIGHT AND MILLER, S 1324. Whether
dismissal with prejudice was proper, however, is another
question.
[4] District courts have the inherent power to control their
dockets and in the exercise of that power they may impose
sanctions including, where appropriate, dismissal of a case.
See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
Dismissal is a harsh penalty, however, and should therefore
be imposed only in extreme circumstances. See id. In deter-
mining whether to dismiss a case for failure to comply with
a court order, district courts must weigh five factors: (1) the
public interest; (2) the court's need to manage the docket; (3)
the risk of prejudice to the defendant; (4) the public policy
favoring disposition of cases on their merits; and (5) the avail-
ability of less drastic alternatives. See id. at 1260-61. While
it is not required that the district court make explicit findings
to show that it has considered these factors, see id. at 1261,
there is no indication in the record that it in fact considered
any of them here.
[5] We may review the record independently to determine
whether the district court abused its discretion. See Oliva v.
Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). We find on this
record no indication of undue delay, docket congestion or risk
of prejudice to defendant militating in favor of dismissal or
outweighing the policy favoring disposition of cases on their
merits. Nor do we find consideration of less drastic alterna-
tives. When it granted plaintiffs leave to file a second
amended complaint, the court issued a bare-bones order with
only a cursory direction to "plead specific facts that would
create an individual prima facie claim of age, race, or disabil-
ity discrimination." The court made no reference to Rule 8(a)
or Rule 10(b), it did not specify what it required in the plead-
ing, and it gave no warning that it would dismiss the next
complaint with prejudice if it did not comply. Cf. McHenry v.
Renne, 84 F.3d 1172 (9th Cir. 1996).
[6] While plaintiffs' second amended complaint frustrates
the aim of the federal rules to bring about the just, speedy and
inexpensive resolution of cases, its deficiencies were readily
curable with some guidance from the court. The court's
sudden-death response was therefore an abuse of discretion.
REVERSED AND REMANDED.
_________________________________________________________________
REINHARDT, Circuit Judge, concurring separately:
Judge Schwarzer's opinion reaches the correct result: the
district court's dismissal with prejudice of the plaintiffs' sec-
ond amended complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6), was erroneous. Dismissal with prejudice
is proper under Rule 12(b)(6) only if it "appears beyond doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45 -46 (1957). That is not the case here. The
complaint set forth proper claims for employment discrimina-
tion based on age, race, and disability under the California
Fair Employment and Housing Act (FEHA), Cal. Gov't Code
12.900 et seq. In fact, the second amended complaint alleged
that each plaintiff was a member of at least one protected
class; that plaintiffs duly performed all conditions of their
employment agreement at the Music Center until R.A. Music
terminated their employment on or about August 13, 1995;
that they were all qualified for the positions they held and for
which they reapplied; and that similarly situated individuals
outside the plaintiffs' protected classes were treated more
favorably: i.e., retained or hired at the time of plaintiffs' ter-
mination. In my view, the second amended complaint com-
plied with all of the applicable pleading requirements, and the
district court erred in dismissing that complaint.
Having said that, the principal reason I do not join Judge
Schwarzer's opinion is that it addresses procedural matters
never before raised in the litigation and expresses views on
those matters which I believe to be incorrect. The defendants
did not cite Federal Rules of Civil Procedure 8, 10, or 41 in
their pleadings. Nor did the district court rely on those rules
in its dismissal order. The parties did not even mention them
in their briefs to this court. The requirements the rules set
forth are not jurisdictional. I must assume, therefore, that
Judge Schwarzer discusses these rules not as a basis for a
holding, but rather as a general educational guide for future
litigants.
In fact, I am not certain precisely what guidance the lead
opinion means to impart, but whatever that guidance may be,
it does not appear to me to reflect the purpose or intent of the
Federal Rules. Rule 8(a) requires that a complaint contain
only "a short and plain statement of the claim showing that
the pleader is entitled to relief." Particularity is required only
for those actions involving averments of fraud or mistake, as
listed under Rule 9(b). Leatherman v. Tarrant Co. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).
The federal rules otherwise "do not require a claimant to set
out in detail the facts upon which he bases the claim." Conley,
355 U.S. at 47. Indeed, this court has penalized litigants who
fail to comply with "Rule 8's requirement of simplicity,
directness, and clarity." See McHenry v. Renne, 84 F.3d 1172,
1178-79 (9th Cir. 1996) (affirming dismissal of "prolix" and
"confusing" complaint).
The lead opinion asserts that because the plaintiffs' com-
plaint seeks "individual relief for each of the plaintiffs" and
is not brought as a class action, it must identify "the transac-
tion or occurrence giving rise to the claim and the elements
of the prima facie case" for each plaintiff. But the complaint
already does this. It alleges that on August 13, 1995, R.A.
Music took over the Music Center's food service operations,
terminated the plaintiffs' employment, and hired or retained
other less qualified workers outside plaintiffs' protected
classes. This court has described the term "transaction or
occurrence" as referring to "similarity in the factual back-
ground of a claim"; claims that "arise out of a systematic pat-
tern of events" arise from the same transaction or occurrence.
Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997); see
also Union Paving Co. v. Downer Corp., 276 F.2d 468, 470
(9th Cir. 1960) (claims that have "very definite logical rela-
tionship" arise out of same transaction and occurrence).
Because each plaintiff in this case claims to have lost his or
her employment at the same time due to the same event --
R.A. Music's assumption of control over the Music Center's
food service operations -- their claims arise from the same
transaction or occurrence, which the complaint properly
relates in a single set of allegations.
True, the complaint states the relevant facts at a high level
of generality. But that is the point of notice pleading: a plain-
tiff need only provide the bare outlines of his claim. As one
authoritative treatise has summarized the matter,"except
when specific pleading is required . . . , evidentiary facts need
not be set forth in the complaint: `(F)ederal courts and liti-
gants must rely on summary judgment and control of discov-
ery to weed out unmeritorious claims.' " 2 William W.
Schwarzer et al., Federal Civil Procedure Before Trial P 8:16,
at 8-4 (2000) (quoting Leatherman, 507 U.S. at 168-69).
Thus, to the extent that a complaint lacks detail that the defen-
dants believe they need to investigate the claims and prepare
their defense strategy, they can obtain such detail readily
through interrogatories or early depositions.1
Surely Judge Schwarzer does not intend to say that each
plaintiff in a multi-plaintiff action must plead each element of
his or her claim in repetitious separate paragraphs. Neither the
Federal Rules nor common sense would require that rather
than alleging in a single paragraph that the plaintiffs were
qualified for the positions in which they sought continued
employment, the complaint include a separate allegation for
each plaintiff, i.e.:
. . . .
87. Sergio Bautista was qualified for the posi-
tion in which he sought continued employment.
88. Miguel Rodriguez was also qualified for the
position in which he sought continued employment.
89. Jose Soto, too, was qualified for . . . .
. . . .
Far from advancing the interests of clarity and precision, the
resulting abundance of repetitious allegations would com-
pound the confusion of courts and parties and frustrate the
just, speedy, and inexpensive resolution of cases. See Fed. R.
Civ. P. 1. Individual plaintiffs who share particular attributes
or experiences relevant to their legal claims should be allowed
-- indeed, encouraged -- to consolidate those attributes or
experiences in a single set of allegations.
This commonsense approach to pleading finds support not
only in Rule 8(a), but also in Rule 10(b). Regarding factual
allegations, Rule 10(b) provides that each paragraph should
be limited "as far as practicable to a statement of a single set
of circumstances." It does not require that separate paragraphs
relate the same circumstances for each individual party,
thereby causing a multiplicity of paragraphs.
As for claims, Rule 10(b) provides: "Each claim founded
upon a separate transaction or occurrence . . . shall be stated
in a separate count . . . whenever a separation facilitates the
clear presentation of the matters set forth" (emphasis added).
See Original Ballet Russe v. Ballet Theatre, 133 F.2d 187,
189 (2d Cir. 1943) ("Under Rule 10(b) a separation of claims
into separate counts is mandatory only when necessary to
facilitate clear presentation."). As explained above, the three
counts in the second amended complaint each correspond to
a common transaction or occurrence: the allegedly discrimi-
natory firings of the plaintiffs by R.A. Music in August 1995
on the basis of age, race, and disability. Rule 10(b) does not
require multiple plaintiffs whose claims arise from the same
transaction or occurrence to state allegations and counts sepa-
rately. See, e.g., Mathes v. Nugent, 411 F. Supp. 968, 972
(N.D. Ill. 1976); Clark v. Springfield City Water Co., 14
F.R.D. 504, 504 (W.D. Mo. 1953); Trebuhs Realty Co. v.
News Syndicate Co., 12 F.R.D. 110, 111 (S.D.N.Y. 1951).
Plaintiffs who base their claims on a common legal theory
and set of facts are entitled to consolidate their claims in a sin-
gle count of the complaint. Indeed, the separate statement of
seventy-three almost identical counts in this case would only
waste paper and increase confusion, not promote the principal
objective of pleading under the Federal Rules: "to facilitate a
proper decision on the merits." Foman v. Davis, 371 U.S. 178,
181-82 (1962); Conley, 355 U.S. at 48. Because the section of
the lead opinion entitled "Sufficiency of the Pleadings" is
advisory only, I do not believe that it establishes a contrary
rule that is binding on the courts of this circuit.
The holding in this case is only that the district court erred
in dismissing the plaintiffs' second amended complaint with
prejudice. I concur in that holding. As to the lead opinion's
earlier non-binding discussion of the Federal Rules, I would
add only that devotion to the Federal Rules is desirable and
commendable if they are implemented with some flexibility
and understanding. In our zeal to preserve their inviolability,
however, sometimes even the best and brightest of us fails to
see the forest for the trees. We sometimes overlook the reason
for the Rules' existence and examine a complaint with the
eyes of a laboratory technician rather than with those of a dis-
penser of justice.
I hasten to add that, in this case, Judge Schwarzer wisely
arrives at the proper result in the part of his opinion that does
establish circuit law. The district judge's forfeiture of the
rights of the civil rights plaintiffs by dismissing their case
with prejudice was unreasonable. I believe, however, that the
comments in the lead opinion regarding Federal Rules of
Civil Procedure 8, 10, and 41 are not only unwarranted but set
forth improper guidance regarding the application of those
rules.
_________________________________________________________________
O'SCANNLAIN, Circuit Judge, concurring in part and dis-
senting in part:
Because of the defects in the second amended complaint,
ably analyzed in the majority's opinion, the district court
properly dismissed this action after entertaining two previous
efforts to fashion a viable complaint. While I concur in the
court's opinion to that extent, I specifically reject the notion
that the district court must give plaintiffs "some guidance" on
how to plead their case and that it is an abuse of discretion
when it does not. Majority opinion at 6583. To that extent and
as to the judgment, I must respectfully dissent.
Plaintiffs are represented by experienced counsel duly
admitted to practice in the federal courts. In determining
whether the district court abused its discretion, the majority
conducts an analysis that presumes district courts must con-
duct tutorials for the benefit of wayward plaintiffs. The court
chastises the district court for
issu[ing] a bare-bones order with only a cursory
direction to "plead specific facts that would create an
individual prima facie claim of age, race, or disabil-
ity discrimination." The court made no reference to
Rule 8(a) or Rule 10(b), [and] it did not specify what
it required in the pleading . . . .
Id. The majority obviously assumes that its prescribed hand-
holding is the role of the district court and, moreover, any
failure to fulfill that role amounts to an abuse of discretion. I
fear the court goes too far.
When parties fail to plead their claims with sufficient speci-
ficity, the district court is under no obligation to redraft the
pleadings for them. Cf. Baldwin County Welcome Center v.
Brown, 466 U.S. 147, 149 (1984) (allowing dismissal without
any requirement that the district court rehabilitate deficient
pleadings); 5 Charles Alan Wright & Arthur R. Miller, Fed-
eral Practice and Procedure S 1217 (2d ed. 1990) (discussing
dismissal under Rule 8 without ever suggesting that the dis-
trict court has a duty to assist in the revision of pleadings).
District courts are in the business of judging, not editing. The
majority's directive belies its assumption that the district court
knew what the plaintiffs were trying to say and should there-
fore have "specif[ied] what it required in the pleading." Id. As
every law student knows, it is Rule 8 that sets forth the stan-
dard for pleadings, not customized orders from district courts.
The litigation explosion cannot sustain a world in which
plaintiffs can simply toss incomprehensible documents before
the district court and have the court do the work of sorting out
what should be pled. I believe that advocates retain the burden
of -- and receive handsome remuneration for -- presenting
their cases to the courts. With the greatest respect, I cannot
join a ruling that district courts have the obligation to educate
competent counsel on basic fundamentals, such as what fed-
eral rules apply to the filing of complaints./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found |
