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.
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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
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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.
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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).
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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
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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
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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
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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.
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