In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3921
G AETANO “T OM” A LIOTO ,
Plaintiff-Appellant,
v.
T OWN OF L ISBON, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cv-752—J.P. Stadtmueller, Judge.
A RGUED F EBRUARY 25, 2011—D ECIDED JULY 7, 2011
Before E ASTERBROOK, Chief Judge, and F LAUM and
R OVNER, Circuit Judges.
F LAUM, Circuit Judge. Gaetano “Tom” Alioto filed a
lawsuit against Wisconsin’s Town of Lisbon, its adminis-
trator, and the chief of its police department. Alioto
maintains that, among other things, the defendants de-
famed him, subjected him to a hostile work environment,
and violated his due process rights. According to the
complaint, whose well-pleaded allegations we accept as
2 No. 09-3921
true, Alioto suffered political payback after he spear-
headed an inquiry into allegedly unethical activities of
police chief Terry Martorano. The chief survived the
investigation and—along with town administrator
Jeffrey Musche—exacted revenge on Alioto.
The district court dismissed the case, and the reason it
provided for granting the motion effectively eliminates
Alioto’s chances on appeal. When the defendants moved
to dismiss the complaint, Alioto did not file a response
brief that met defendants’ arguments. Instead, he only
sought leave to amend the complaint based on the (incor-
rect) belief that complaints need to state legal theories.
The district court did not err when it denied Alioto’s
motion for leave to amend; by failing to respond to the
other arguments that the defendants had advanced in
favor of dismissal, Alioto waived his right to appeal the
dismissal order. Accordingly, we affirm the judgment
of the district court.
I. Background
Gaetano Alioto was a sergeant with the Town of
Lisbon Police Department. He was second in command to
police chief Terry Martorano. In 2006, two of the town’s
supervisors asked Alioto to investigate the chief. Alioto
was tasked with determining whether Martorano was
defrauding the town. In particular, the question was
whether the latter was “double-dipping”—submitting time
sheets to the town for time periods when he was in
fact working as security guard. (Martorano had two jobs
as a security guard, one at a jewelry store and another
No. 09-3921 3
at Carroll College.) Upon learning of the investigation,
Martorano warned Alioto, “[I]f you are coming after me,
I am going to get you.”
Alioto appears to have pressed on, submitting a report
to the town in April 2006. The report must have
implicated Martorano in wrongdoing, because the chief
was placed on administrative leave a few days later.
Alioto was made acting chief. At that point, the town
hired an independent investigator to conduct follow-
up on Alioto’s report. Although the independent investi-
gator substantiated the report’s findings, the town
gave Martorano his job back—under threat of a lawsuit,
it seems.
After resuming his post, Martorano worked with the
town administrator, Musche, to exact revenge on Alioto
for the investigation. Some of the allegations made in
the complaint amount to minor slights that would do
little to make out a plausible due process claim for con-
structive discharge, which is the theory Alioto ultimately
settled on, see Witte v. Wisconsin Dep’t of Corrections,
434 F.3d 1031, 1035 (7th Cir. 2006), but others start to
provide scaffolding for a lawsuit. Among the more
serious allegations, Alioto contends that Martorano
made defamatory statements to the press and lied to the
district attorney in an effort to have baseless criminal
charges brought against Alioto. The effort worked.
The D.A. told Alioto that no charges would be brought
if he resigned and, when he refused, charged him. Ac-
cording to the complaint, a state judge later dismissed
the case for want of probable cause.
4 No. 09-3921
In October 2006, Alioto took the advice of his personal
physician; because of the stress of the work environment
and all that attended it, he took medical leave from the
police department. When, in May 2007, he wanted to
return, the town required him to submit a medical re-
lease. Alioto complied, but Martorano told Alioto
that the release was not sufficiently “descriptive” and
demanded another one. Again Alioto obliged, but again
the defendants would not let Alioto return to work.
They imposed an additional requirement that Alioto
undergo a fitness-for-duty evaluation by someone they
selected. The evaluator indicated that Alioto was not fit
to return to duty; the latter never returned to work.
(In December 2007, the town disbanded its police de-
partment, having decided to contract with the Waukesha
County Sheriff’s Department for police services. Alioto
was not invited to join that police force.)
Alioto filed his lawsuit in state court in July 2008, and
the defendants removed the case to federal court two
months later. The complaint eschews chronology or any
other logical basis of organization. It consists of large,
numbered paragraphs whose language is rather difficult
to follow. Nonetheless, it made the allegations outlined
above, even if understanding the allegations takes some
effort, and defendants did not file a motion for a more
definite statement or to have the allegations grouped
into counts. (As they might have. See Fed. R. Civ. P. 10(b)
& 12(e).) In any event, the defendants filed answers
shortly after they removed the case to federal court. In
June 2009, the defendants filed motions to dismiss the
complaint (the town and Musche together; Alioto sepa-
No. 09-3921 5
rately) for failure to state a claim upon which relief can
be granted. The defendants styled them Rule 12(b)(6)
motions, but in reality the motions were for judgment
on the pleadings, Fed. R. Civ. P. 12(c), because the de-
fendants filed answers. See Fed. R. Civ. P. 12(b) (“A mo-
tion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed.”);
Fed. R. Civ. P. 12(h)(2)(B) (a motion for failure to state
a claim may be brought in a Rule 12(c) motion). The mis-
styling does not alter our analysis. See also McMillan
v. Collection Professionals Inc., 455 F.3d 754, 757 n.1 (7th
Cir. 2006).
According to the brief in support of the motion filed
by the town and Musche, Alioto’s complaint was
deficient at the outset because it did not cite the
specific constitutional provisions or rights that the de-
fendants were alleged to have violated—the complaint
merely indicated that “42 U.S.C. § 1983 constitutional
rights” were violated. In addition, the brief measured
the sufficiency of the allegations in the complaint
against the standards for claims under the Fourteenth
Amendment’s due process clause, its equal protection
clause, the First Amendment’s freedom of speech clause,
Title VII of the Civil Rights Act of 1964, and several state-
law torts. Unsurprisingly, the town and Musche found
the allegations wanting, for reasons that they spelled out
in their brief. They also contended that, as to any con-
stitutional claims Alioto was making, Musche was
entitled to qualified immunity and that there was no
basis for imputing Section 1983 liability to the town
under Monell v. Dep’t of Soc. Servs. of the City of New York,
6 No. 09-3921
436 U.S. 658 (1978). Martorano’s brief in support of
his motion to dismiss generally echoed the substance of
his co-defendants’ brief. His brief, too, maintained that,
as a pleading requirement, “a plaintiff is required to
pinpoint the specific constitutional right that was
allegedly violated.”
Several weeks after the defendants filed their motions
to dismiss, Alioto filed an agreed motion setting a
briefing schedule. He requested until August 6 (a little
over two months) to file a response brief. The district
court agreed. When August 6 arrived, however, Alioto
filed a motion for leave to file an amended complaint.
The proposed amended complaint is much easier to
follow than the original. The former abandoned any
claim of a hostile work environment as well as state-law
tort claims. It added a claim for overtime wages and
alleged a violation of his right to free association.
In support of his motion for leave to file the amended
complaint, Alioto filed a brief styled, “Plaintiff’s Com-
bined Brief in Support of Motion for Leave to Amend
Pursuant to F.R.C.P. 7(b) and in Response to Defendants’
Motions to Dismiss.” Yet the brief did little to address
the defendants’ arguments about the sufficiency of
Alioto’s original complaint. The brief spanned just over
five pages and devoted itself almost exclusively to its
request for leave to file the amended complaint. Indeed,
the response brief responded to only one of the short-
comings that the defendants had said marked Alioto’s
complaint—and only by way of an at-once tacit and
incorrect concession: “Defendants attacked plaintiff’s
original Complaint for an alleged failure to cite any
No. 09-3921 7
violation of constitutional rights. The proposed Amended
Complaint specifically lists those constitutional rights
which plaintiff alleges have been violated and how the
defendants’ conduct violated those rights” (citations
omitted). The non-responsive response brief did not
address the defendants’ arguments about why the com-
plaint’s allegations failed to state claims under state
and federal law.
The district court granted the defendants’ motions
to dismiss and denied Alioto’s motion for leave to
amend his complaint. The district court noted that
Alioto sought leave to amend his complaint well after
the deadline set out in the court’s scheduling order and
ruled that Alioto had not established good cause under
Rule 16(b) for leave to modify the scheduling order
and amend the complaint. In addition, the district court
ruled that Alioto forfeited 1 his opportunity to oppose
the defendants’ motions to dismiss by failing to respond
to the arguments in support of those motions.
II. Discussion
The district court correctly ruled that Alioto was
required to show good cause in order to amend his com-
1
Consistent with our precedent, we use the word waive,
although forfeit is perhaps the more accurate term. E.g., United
States v. Charles, 476 F.3d 492, 495 (7th Cir. 2007) (explaining
that waiver is voluntary while forfeiture is the result of an
unintentional relinquishment of a right).
8 No. 09-3921
plaint; the court did not abuse its discretion in con-
cluding that Alioto failed to meet that standard. See
Wollenburg v. Comtech Mfg. Co., 201 F.3d 973, 978 (7th Cir.
2000). As to the defendants’ motion to dismiss the com-
plaint, Alioto waived his right to contest the dismissal
by failing to oppose the motions. See Lekas v. Briley,
405 F.3d 602, 614 (7th Cir. 2005).
A. Alioto’s Motion for Leave to Amend
Generally, a motion for leave to amend a complaint is
evaluated under Federal Rule of Civil Procedure 15(a)(2).
That rule provides that courts “should freely give
leave when justice so requires.” See also Soltys v. Costello,
520 F.3d 737, 742-43 (7th Cir. 2008) (discussing the stan-
dard). However, the rule is in some tension with the
rule that governs scheduling orders, Federal Rule of
Civil Procedure 16. Under the rule, district courts are
generally required to issue scheduling orders in their
cases as soon as practicable. Fed. R. Civ. P. 16(b)(2).
And courts are required in a scheduling order to set a
deadline for filing amended pleadings. Fed. R. Civ.
P. 16(b)(3)(A). In this case, the district court read its
scheduling order as requiring amended pleadings to
be filed by the end of November 2008. Alioto does not
question that interpretation. Therefore, the district court
was entitled to apply the heightened good-cause
standard of Rule 16(b)(4) before considering whether
the requirements of Rule 15(a)(2) were satisfied. We put
the imprimatur on that approach in our decision in
Trustmark Ins. Co. v. General & Cologne Life Re of Am.,
No. 09-3921 9
424 F.3d 542, 553 (7th Cir. 2005). The two-step process
is consistent with nearly every one of our sister circuits
(and out of step with none). See O’Connell v. Hyatt Hotels
of Puerto Rico, 357 F.3d 152, 154-55 (1st Cir. 2004); Parker
v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.
2000); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614
F.3d 57, 84 (3d Cir. 2010); Nourison Rug Corp. v. Parvizian,
535 F.3d 295, 298 (4th Cir. 2008); S&W Enters., LLC v.
SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th
Cir. 2003); Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.
2003); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594,
610 (8th Cir. 2011); Coleman v. Quaker Oats Co., 232 F.3d
1271, 1294 (9th Cir. 2000); Sosa Airprint Sys., Inc., 133 F.3d
1417, 1419 (11th Cir. 1998) (per curiam); see also United
States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d
1161, 1166 (10th Cir. 2009) (reserving the issue of whether,
once a scheduling order has been entered, Rule 16
applies before the standards of Rule 15 are considered).
The district court did not did not abuse its discretion
in concluding that Alioto failed to establish good cause
for modifying the scheduling order. In making a
Rule 16(b) good-cause determination, the primary con-
sideration for district courts is the diligence of the
party seeking amendment. Trustmark, 424 F.3d at
553; see also 3 M OORE’S F EDERAL P RACTICE § 16.14[1][b],
at 16-72 (Matthew Bender 3d ed. 2010) (“[A]lthough
undoubtedly there are differences of views among
district judges about how compelling a showing must be
to justify extending the deadlines set in scheduling
orders, it seems clear that the factor on which courts
are most likely to focus when making this determination
10 No. 09-3921
is the relative diligence of the lawyer or lawyers who
seek the change.”). Alioto offers an insufficiently robust
explanation of why he was diligent. He argues chiefly
that he had no reason to know that his complaint was
deficient until the defendants filed their motions to
dismiss the complaint.
That explanation does not pass muster. The require-
ments for surviving a motion to dismiss are matters of
hornbook civil procedure law, and a party should always
ask itself whether the complaint it wants to file sets out
a viable claim. (If the party does not do so on its own,
its lawyer is required to ask that question. Fed. R. Civ.
P. 11(b)(2).) Moreover, Alioto acted with insufficient
diligence not merely because he waited to seek leave
to amend for more than eight months beyond the district
court’s deadline. He waited until the last day—under
a generous briefing schedule—for filing a response to
the defendants’ motion to dismiss. Indeed, he had de-
fendants’ motions to dismiss in his possession for
more than two months before seeking leave to amend
the complaint. As the 1983 advisory committee note
explains, among the aims of Rule 16 are to prevent
parties from delaying or procrastinating and to keep
the case “moving toward trial.” Although the lack of
clarity in the complaint made it difficult to perceive
precisely what Alioto was alleging, the proposed
amended complaint added at least one new theory and
overhauled another. In light of Alioto’s conduct and
the purposes of Rule 16, the district court committed
no abuse of its discretion in denying leave to amend. See
Eastern Minerals & Chems. Co. v. Mahan, 225 F.3d 330,
No. 09-3921 11
340 (3d Cir. 2000) (district court did not err in denying
leave to amend complaint where plaintiff waited more
than six months after the scheduling order cutoff).
B. Defendants’ Motions to Dismiss
Normally, we review without deference a district court’s
conclusion that a complaint fails to state a claim upon
which relief can be granted. Heyde v. Pittenger, 633 F.3d
512, 516 (7th Cir. 2011). In this case, however, Alioto
failed to meet the myriad arguments set out in the de-
fendants’ motions to dismiss. Instead, Alioto sought
leave to amend his complaint and responded (by way
of concession) to only one of the defendants’ argu-
ments—their incorrect position that a complaint must
set out specific provisions that have been violated. Al-
though a court may require that allegations be grouped
into logical counts for claims that are “founded on”
separate transactions or occurrences, see Fed. R. Civ.
P. 10(b), we have stated repeatedly (and frequently) that
a complaint need not plead legal theories, which can
be learned during discovery. E.g., Smith v. Med.
Benefit Adm’rs Group, Inc., 639 F.3d 277, 283 n.2 (7th
Cir. 2011); Joseph v. Elan Motorsports Techs. Racing Corp.,
638 F.3d 555, 561-62 (7th Cir. 2011); Rabe v. United Air
Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (“A com-
plaint need not identify legal theories, and specifying
an incorrect legal theory is not a fatal error.”).
In any event, because the district court did not abuse
its discretion in denying Alioto’s motion for leave to
amend, the briefing gambit of seeking that leave with-
12 No. 09-3921
out addressing the defendants’ principal arguments
undermined Alioto’s appeal before it was filed. Long-
standing under our case law is the rule that a person
waives an argument by failing to make it before the
district court. E.g., Everroad v. Scott Truck Sys., Inc., 604
F.3d 471, 480 (7th Cir. 2010); Taubenfeld v. AON Corp.,
415 F.3d 597, 599 (7th Cir. 2005) (citing Heller v. Equitable
Life Assurance Soc’y, 833 F.2d 1253, 1261-62 (7th Cir.
1987)). We apply that rule where a party fails to
develop arguments related to a discrete issue, and we
also apply that rule where a litigant effectively abandons
the litigation by not responding to alleged deficiencies
in a motion to dismiss. See Lekas, 405 F.3d at 614
(noting that a complaint may be compliant with the
notice pleading requirements of Rule 8(a)(2) and yet be
subject to dismissal where a plaintiff does not file a
brief supporting the legal adequacy of the complaint);
Farnham v. Windle, 918 F.2d 47, 51 (7th Cir. 1990). Moreover,
as in Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466-67 (7th
Cir. 2010), Alioto doubled down on his waiver by
failing to grapple on appeal with that aspect of the
district court’s order.
As we have noted previously, “Our system of justice
is adversarial, and our judges are busy people. If they
are given plausible reasons for dismissing a com-
plaint, they are not going to do the plaintiff’s research
and try to discover whether there might be something
to say against the defendants’ reasoning.” Kirksey v. R.J.
Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999)
(likening a dismissal of a “nonresponsive response brief”
to default judgment). It would have been far wiser for
No. 09-3921 13
Alioto to have responded to the defendants’ arguments
while explaining why, if the court did not accept his
contentions, any dismissal should have been without
prejudice. He did not do so.
Although Alioto cites two cases in support of his argu-
ment that “a motion for leave to amend [an] allegedly
deficient complaint is an appropriate response to a
motion to dismiss for failure to state a claim,” the cases
he cites do not support the proposition he advances.
The case of Elliott v. Foufas, 867 F.2d 877, 883 (5th Cir.
1989), merely remanded a case and in the process
directed a district court to consider a motion for leave
to amend the complaint. And Mayes v. Leipziger, 729 F.2d
605, 607-08 (9th Cir. 1984), dealt with an amendment as
a matter of right under Federal Rule of Civil Procedure
15(a)(1). Our case law, too, makes clear that a motion to
dismiss under Rule 12(b)(6) is not a responsive pleading
and so, if an answer has not been filed, a plaintiff ordi-
narily retains the ability to amend his complaint once as
a matter of right, even after a court grants a motion to
dismiss. Foster v. DeLuca, 545 F.3d 582, 583-84 (7th Cir.
2008). As we noted above, however, the defendants
filed their motions to dismiss under Rule 12(c). Answers
had been filed and the time for amending the complaint
as a matter of right had long since passed. Mayes does
not say that filing a non-responsive response brief along
with a motion to amend is an “appropriate” response to
a motion to dismiss. Given that Alioto no longer re-
tained the right to amend his complaint, the appropriate
response to the motions to dismiss was to oppose the
motions or risk abandoning the litigation.
14 No. 09-3921
Finally, we note that our finding of waiver is not
altered by the fact that the district court first concluded
that Alioto had forfeited his right to respond and then
explained its view of why the complaint was nonetheless
deficient. Some of the reasoning offered by the district
court was incorrect, and Alioto might have made a
strong argument for a due process claim in particular.
See Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1577 (Fed.
Cir. 1991) (ruling that a plaintiff lost his right to contest
dismissal even where the district court did not rely on
a waiver theory). To be sure, our rules on waiver leave
us discretion to excuse mishaps, see, e.g., Jenkins v. Nelson,
157 F.3d 485, 494 n.1 (7th Cir. 1998), but this appeal does
not warrant an act of grace. It is not merely that a court
“depend[s] upon counsel to apprise [it] of the issues
for decision.” Libertyville Datsun Sales, Inc. v. Nissan
Motor Corp. in U.S.A., 776 F.2d 735, 737 (7th Cir. 1985).
Rather, our system of litigation is premised upon the
notion that lawyers, through their participation, will
enhance the quality of the ultimate judicial product. E.g.,
Edward H. Levi, A N INTRODUCTION TO L EGAL R EASONING
5 (1949). Our rules on waiver encourage parties to
play their critical role. Moreover, allowing litigants to
opt out of the adversarial system until appeal would
run against the instinct of our judicial system to resolve
matters at the trial phase and avoid unnecessary re-
mands. E.g., McLish v. Roff, 141 U.S. 661, 665-66 (1891).
Alioto has not argued why his failure to file a respon-
sive brief should be excused. Particularly given that he
has been represented by counsel at all times, we will
not make an argument for him.
No. 09-3921 15
III. Conclusion
For the reasons set forth above, the judgment of the
district court is A FFIRMED.
7-7-11