UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1305
STATE OF NORTH CAROLINA; UNION COUNTY; K. M.,
by and through his next friends, C. Timothy
Mathis and Shannon Mathis; Q. M., by and
through his next friends, C. Timothy Mathis
and Shannon Mathis; B. J., by and through his
next friend, Jodi Livengood; L. L., by and
through her next friend, Eric Livengood; K.
B., by and through her next friends, Michelle
Barnette and Michael Barnette; C. TIMOTHY
MATHIS; SHANNON MATHIS; CHARLES MATHIS;
JEFFREY MATHIS,
Plaintiffs - Appellants,
versus
WILLIAM FRANKLIN MCGUIRT, Sheriff of Union
County, in his individual and official
capacities; OLD REPUBLIC SURETY COMPANY, as
surety; HARLEYSVILLE MUTUAL INSURANCE COMPANY,
as surety; TED KEZIAH; HARRY FUSS; RANDY COX;
GREG STEWART; LARK PLYLER, JR.; STEVE SIMPSON;
DAIRY SIMPSON; DAVID F. PIERCE, as personal
representative of the estate of Roger D.
Laney; BILL TUCKER; SHANE MCKENZIE; JEFF WEBB;
E. M. GOODMAN; DAVID LINTO; DEXTER WILSON;
KAREN CROOK; KEVIN JAMES; BILL SHAW; TOMMY
ALLEN; RYAN HUNKE; MIKE EASLY; W. A. GAGNON;
CHAD COPPAGE; BRIAN HELMS; R. TOMBERLIN; J.
KIRKLEY; TOMMY GALLIS; MICHAEL COPPAGE; EDWARD
HENDRICKS; JOHN INGANI, Deputy Sheriffs, in
their individual and official capacities;
DANNY THOMPSON; JOHN DOES; JOYCE THOMAS,
Defendants - Appellees,
and
T. PRICE,
Defendant.
No. 04-1306
STATE OF NORTH CAROLINA; UNION COUNTY; K. M.,
by and through his next friends, C. Timothy
Mathis and Shannon Mathis; Q. M., by and
through his next friends, C. Timothy Mathis
and Shannon Mathis; B. J., by and through his
next friend, Jodi Livengood; L. L., by and
through her next friend, Eric Livengood; K.
B., by and through her next friend, Michelle
Barnette; MICHAEL BARNETTE; C. TIMOTHY MATHIS;
SHANNON MATHIS; CHARLES MATHIS; JEFFREY T.
MATHIS,
Plaintiffs - Appellants,
versus
WILLIAM FRANKLIN MCGUIRT, Sheriff of Union
County, in his individual and official
capacities; OLD REPUBLIC SURETY COMPANY, as
surety; HARLEYSVILLE MUTUAL INSURANCE COMPANY,
as surety; TED KEZIAH; HARRY FUSS; RANDY COX;
GREG STEWART; LARK PLYLER, JR.; STEVE SIMPSON;
DAIRY SIMPSON; DAVID F. PIERCE, as personal
representative of the estate of Roger D.
Laney; BILL TUCKER; SHANE MCKENZIE; JEFF WEBB;
E. M. GOODMAN; DAVID LINTO; DEXTER WILSON;
KAREN CROOK; KEVIN JAMES; BILL SHAW; TOMMY
ALLEN; RYAN HUNKE; MIKE EASLY; W. A. GAGNON;
CHAD COPPAGE; BRIAN HELMS; R. TOMBERLIN; T.
PRICE; J. KIRKLEY; TOMMY GALLIS; MICHAEL
COPPAGE; EDWARD HENDRICKS; JOHN INGANI, JOYCE
THOMAS, Deputy Sheriffs, in their individual
and official capacities; DANNY THOMPSON; FNU
LNU, #1-18, as Deputy Sheriffs of Union
County, in individual and official capacities;
KAREN VONKAAS; MICHAEL JANKOWSKI; KEVIN P.
COLLINS; DAVID F. PIERCE, as personal
representative of the estate of Roger D.
Laney,
Defendants - Appellees.
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Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CA-02-353-3; CA-03-401-3)
Argued: October 1, 2004 Decided: November 17, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellants. Elizabeth Ann Martineau, HEDRICK, EATMAN, GARDNER &
KINCHELOE, Charlotte, North Carolina; Matthew L. Mason, MOSS, MASON
& HILL, Greensboro, North Carolina, for Appellees. ON BRIEF:
Edward L. Eatman, Jr., HEDRICK, EATMAN, GARDNER & KINCHELOE,
Charlotte, North Carolina; Fred W. DeVore, III, DEVORE, ACTON &
STAFFORD, P.A., Charlotte, North Carolina; William L. Hill, MOSS,
MASON & HILL, Greensboro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
The district court dismissed the plaintiffs' complaint in
this case under Federal Rule of Civil Procedure 12(b)(6) because
the plaintiffs failed to file a complaint that contained a "short
and plain statement of [their] claim[s] showing that [they are]
entitled to relief," as required by Federal Rule of Civil Procedure
8(a). Because the plaintiffs had attempted to state their claims
in an earlier complaint that was dismissed for the same reasons,
the district court dismissed this complaint with prejudice. On
appeal, we conclude that the district court did not abuse its
discretion in dismissing the plaintiffs' complaint with prejudice
for failing to comply with the district court's earlier
instructions, and therefore we affirm.
I
The plaintiffs commenced an action on August 26, 2002,
to complain that over the course of eight years, Sheriff William
McGuirt of Union County, North Carolina, several deputies, and a
handful of other individuals engaged in a concerted effort to
harass plaintiff Timothy Mathis and destroy his bail bonding
business. The centerpiece of the complaint related to a search
conducted of Mathis' house on July 31, 2002, by sheriffs armed with
a search warrant.
The plaintiffs' complaint contained 211 counts and
occupied almost 200 pages. Although that complaint seemed to
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describe numerous interactions between the plaintiffs and
defendants, the district court observed that "[t]he majority of the
claims [arose] from a search executed pursuant to a search warrant,
'on or about July 31, 2002.'" Following the filing of that
complaint, the plaintiffs filed two amended complaints. On the
defendants' motion to dismiss the second amended complaint, the
district court observed that the plaintiffs had used a template,
which they "apparently . . . 'cut and pasted' into each of the
other counts alleg[ing] '. . . Sheriff McGuirt and his deputies
. . . under color of statute, ordinance, regulation, custom and
usage willfully, intentionally, arbitrarily, capriciously, and
maliciously subjected [particular plaintiff] to the deprivation of
rights, privileges, and immunities secured by the Constitution and
laws, in violation of 42 U.S.C. § 1983.'" The court concluded that
the prolix facts, however, did not support any viable claim upon
which relief could be granted and that the template was simply a
conclusory allegation that did not state a claim upon which relief
could be granted. The district court dismissed the complaint
without prejudice, granting the plaintiffs the right to file a
third amended complaint. Rather than filing a third amended
complaint, however, the plaintiffs proceeded to appeal the district
court's order. We dismissed that appeal because the district
court's order was not a final appealable order. The plaintiffs
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never filed a third amended complaint, and the court directed that
that case be closed.
In lieu of filing a third amended complaint in that case,
the plaintiffs filed another complaint, this time in a North
Carolina state court. That complaint made substantially the same
allegations in 113 counts filling 79 pages. The defendants removed
the state court action to the district court and again filed a
motion to dismiss the complaint. The district court again, relying
on Rules 8(a) and 12(b)(6), granted the defendants' motion to
dismiss. This time, however, the court dismissed the complaint
with prejudice.
The plaintiffs have appealed the closure of the first
action, in which the plaintiffs failed to file a third amended
complaint,* as well as dismissal of the second action, in which the
court ordered dismissal with prejudice.
II
Although we generally review an order dismissing a
complaint for failure to state a claim upon which relief can be
granted de novo, see Eastern Shore Markets, Inc. v. J. D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000), when that decision
is based on a plaintiff's failure to comport with Rule 8(a), we
*
We affirm the district court's closing of the first action
because plaintiffs never filed an amended complaint in that action,
as authorized to do by the district court.
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review the district court's decision for abuse of discretion.
See Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000); In re
Westinghouse, 90 F.3d 696, 702 (3d Cir. 1996); 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1217
(3d ed. 2004). When determining whether a district court abused
its discretion in dismissing for failure to comply with Rule 8(a),
courts have looked to various factors, including the length and
complexity of the complaint, see, e.g., United States ex. rel.
Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003),
whether the complaint was clear enough to enable the defendant to
know how to defend himself, see, e.g., Kittay, 230 F.3d at 542, and
whether the plaintiff was represented by counsel, see, e.g., Elliot
v. Banson, 872 F.2d 20, 21-22 (2d Cir. 1989).
The complaint before us is both long and complex and
fails to state its claims clearly enough for the defendants to know
how to defend themselves. The factual background section of the
complaint occupies 20 pages and is filled with needless details,
such as why the Mathis family was out of town on one occasion, how
long Mathis had to wait to see his clients in jail at times, and
almost verbatim contents of conversations, including allegations
that the defendants used a "smart-alecky" tone of voice. It is
virtually impossible to separate the legally significant from the
legally insignificant facts in this factual background and then to
match them with claims purportedly made in the complaint.
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In another section, the plaintiffs do attempt to match
the factual allegations to legal claims, but they do so in a way
that forces the reader to cross-reference the factual background
section and wade indeterminately through the morass of superfluous
detail. In attempting to accomplish this cross-referencing effort,
the reader discovers that most of the cross-referenced facts do not
support any legal theory or claim. Moreover, simply to discover
who is being charged in each count becomes indeterminate. For
example, Count 82 alleges that Sheriff McGuirt and 17 deputies
committed a forcible trespass to Mathis' property on July 31, 2002
(albeit with a warrant), the background section of the complaint
names only 8 deputies involved in the July 31 incident, one of whom
is not among the 17 named in Count 82.
In short, the complaint in its present form does not
permit the defendants to figure out what legally sufficient claim
the plaintiffs are making and against whom they are making it. At
oral argument, the court attempted to discover the essence of
plaintiffs' claims, asking counsel specifically what theories were
being alleged. When counsel identified, as an example, the Fourth
Amendment as a source for a claim based on the allegation that the
sheriff and his deputies came onto Mathis' property on July 31,
2002, searched his home, and identified personal property, counsel
was unable to explain how the search violated the Fourth Amendment
when the officers concededly operated with a search warrant.
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Rather than enlighten the court on that claim, counsel shifted the
response to assert that the warrant was illegal. When the court
pursued why the warrant was illegal, particularly in view of the
fact that it had been signed by a judge, counsel shifted the
response to assert that the information presented to the judge was
untruthful in some unidentified way.
Although there might be facts on which plaintiffs could
have stated a claim with respect to the search-related issues, the
complaint as drafted does not reveal them. Accordingly, we readily
conclude that the district court did not abuse its discretion in
dismissing plaintiffs' complaint under Rule 12(b)(6) for failure to
comply with Rule 8(a). But this leaves the bigger question of
whether the district court abused its discretion by dismissing the
claim with prejudice.
Dismissing a claim with prejudice for failure to comply
with Rule 8(a) tends to undermine one of the policies of the
Federal Rules of Civil Procedure: facilitating a decision on the
merits rather than on pleading technicalities. Accordingly,
dismissal with prejudice is an extreme sanction that must be
examined carefully. See Davis v. Williams, 588 F.2d 69, 70 (4th
Cir. 1978); Wright & Miller, supra, § 1217. Aggravating factors
may, however, present sufficient weight in favor of that sanction
and bring it within the appropriate discretion of the district
court. One such aggravating factor, for instance, is whether the
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plaintiff has persisted in failing to comply with Rule 8(a). See,
e.g., Lockheed-Martin, 328 F.3d at 379 (upholding district court's
dismissal with prejudice after finding plaintiff's fourth attempt
to comply with Rule 8(a) unsuccessful); Kuehl v. F.D.I.C., 8 F.3d
905 (1st Cir. 1993) (upholding district court's dismissal with
prejudice after plaintiff's amended complaint failed to comply with
Rule 8(a)).
In dismissing the first complaint, the district court
specifically directed the plaintiffs to allegations of a § 1983
claim to give an example of the type of conclusory language that
violated § 8(a) and 12(b)(6). Yet, in their second complaint, the
plaintiffs failed substantially to alter even that claim, repeating
almost verbatim what had been stated in the first complaint.
Although the plaintiffs managed to trim the second
complaint to less than half the number of pages of the original
complaint, they did so not by reducing or simplifying the
allegations, but by presenting their claims in a chart format that
is even more difficult to understand. Similarly, although the
second complaint appears to contain almost 100 fewer counts than
the first complaint, the plaintiffs created only an illusion by
numbering the claims in the second complaint by group rather than
individually.
We have seen no evidence in the record that would
indicate that if the plaintiffs were given further opportunities,
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they would be able to correct the deficiencies. It may be that
they simply do not have claims and are burying conclusory statutory
language in a long scenario of irrelevant facts to give the
appearance of legally justified claims. Indeed, we sought to find
out by inquiring at oral argument how plaintiffs would amend their
complaint if given the opportunity. The dialogue during oral
argument was no different in kind than the allegations reviewed by
the district court in the plaintiffs' pleadings. While the
discussion with this court during oral argument was not part of the
record before the district court, we are satisfied that based on
the record before the district court, the court did not abuse its
discretion in dismissing the plaintiffs' claim with prejudice.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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