360 F.3d 73 (2nd Cir. 2004), 02-9101, Wynder v. McMahon

Docket Nº:02-9101.
Citation:360 F.3d 73
Party Name:Kenneth WYNDER, Plaintiff-Appellant, v. James W. MCMAHON, David Spahl, Robert Jones, Louis B. Barbaria, Craig Masterson, Individually, Defendants-Appellees, John Keats, Marine Midland Bank, Defendants.
Case Date:March 01, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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360 F.3d 73 (2nd Cir. 2004)

Kenneth WYNDER, Plaintiff-Appellant,


James W. MCMAHON, David Spahl, Robert Jones, Louis B. Barbaria, Craig Masterson, Individually, Defendants-Appellees,

John Keats, Marine Midland Bank, Defendants.

No. 02-9101.

United States Court of Appeals, Second Circuit

March 1, 2004

Argued: Dec. 17, 2003.

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Richard J. Merritt, Lindenhurst, NY, for Plaintiff-Appellant.

Susan H. Odessky, Assistant Attorney General, for Eliot Spitzer, Attorney General of the State of New York, for Defendants-Appellees.

Before: WALKER, Chief Judge, CALABRESI and CABRANES, Circuit Judges.

CALABRESI, Circuit Judge.

In February 1999, plaintiff-appellant Kenneth Wynder filed a civil rights complaint in the United States District Court for the Eastern District of New York. Twice the district court (Trager, J.) dismissed his complaint with leave to replead, imposing specific conditions on the form and content of the pleading. When, in the district court's estimation, Wynder's second amended complaint did not meet those conditions, the court dismissed the complaint pursuant to Fed.R.Civ.P. 41(b) and directed the clerk to close the case. In this appeal, we must determine (1) whether the district court may--on pain of dismissal--require a plaintiff's complaint to meet a higher pleading standard than that set forth in Fed.R.Civ.P. 8(a); and, if it may not, (2) whether Wynder's second amended complaint in fact complies with

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the dictates of Rule 8.1 We believe the answer to the first question is no; and to the second, yes. Accordingly, we vacate and remand this case for further proceedings.


Kenneth Wynder is an African-American male who, at all times relevant to this suit, served as a New York State Police Officer. His 1999 complaint alleged race discrimination and attendant violations of his rights under a cavalcade of constitutional and statutory provisions: the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as 42 U.S.C. §§ 1981, 1983, 1985, 1986, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and sections of the New York State Constitution. Plaintiff's claims all stemmed from a variety of alleged adverse employment actions occurring between 1992 and 1998. His complaint, totaling 14 pages with 64 paragraphs, described a wide array of acts and decisions by defendants which, he believes, collectively constituted a "common conspiratorial scheme" to harass him and to drive him out of the state police force--all on account of his race.

Wynder's claims have followed a long and winding road through the pleadings stage. Initially, defendants responded to his allegations with a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) & (b)(6). They offered a range of procedural grounds for dismissal, including Eleventh Amendment immunity, absolute and qualified individual immunity, and failure to state a claim. In January 2000, the district court dismissed Wynder's complaint for an entirely distinct reason which it raised on its own motion: plaintiff's failure "to articulate in a logical way what [his] theory of the case is and what [his] statutory claim is." The court ordered Wynder to provide a "very detailed complaint against each person, separately numbered, what your claim is against that person and what evidence you have as of this date as against that person, and what legal theory you're going against that person."2 The complaint, the court insisted, should be written in "plain English."

Wynder, responding to the court's order, filed a first amended complaint in March 2000.3 In October of the same year, defendants again moved for dismissal, on the same grounds as before. And again, the district court, after reserving judgment on their motion, dismissed the complaint--with leave to replead--because the complaint did not live up to the terms of its order. The court was unsatisfied with what it termed "cosmetic" changes to the pleading, and reminded Wynder that the special solicitude offered to pro se litigants in the construction of complaints did not extend to counseled plaintiffs. Wynder's counsel was further cautioned that a second failure to comply with the court's directions regarding the complaint would result in outright dismissal.

In January 2001, plaintiff filed a second amended complaint, by now totaling 26 pages and 90 paragraphs. For the third time, defendants submitted their same Rule 12(b) motion. And for the third time, the district court found the complaint wanting without considering defendants' motion. In August 2002, it dismissed the

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second amended complaint without prejudice, pursuant to Fed.R.Civ.P. 41(b), which allows for involuntary dismissals for "failure of the plaintiff to prosecute or to comply with ... [an] order of court." In its memorandum and order, the district court characterized the second amended complaint as "virtually identical" to the first, and reiterated the criticism that the latest rendition (1) did not separate out the legal claims against each of the defendants, and (2) did not succinctly and lucidly state the nature of his various allegations.4

Although the dismissal was, strictly speaking, "without prejudice," if affirmed it would likely prove fatal to Wynder's claims: as plaintiff acknowledged at oral argument before us, the statute of limitations has run on most, if not all, of his various causes of action. See, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (applying a three-year statute of limitations to a Section 1983 claim arising from events occurring in New York); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (applying a three-year statute of limitations to a New York Human Rights Law claim); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994) (Title VII suit must be commenced within 90 days of receiving EEOC right-to-sue letter). Under the circumstances, then, Wynder's ability to seek vindication in federal court on these claims depends on whether or not we reinstate his complaint.


On appeal, Wynder challenges the district court's Rule 41(b) dismissal. We have jurisdiction to consider his challenge because a dismissal without prejudice that does not give leave to amend and closes the case is a final, appealable order under 28 U.S.C. § 1291. See Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445, 448 (2d Cir. 1978) (if plaintiff is not given leave to amend, the order of dismissal is final and appealable); Allied Air Freight, Inc. v. Pan Am. World Airways, Inc., 393 F.2d 441, 444 (2d Cir. 1968) ("dismissals with and without prejudice are equally appealable as final orders"). In considering the merits, we review Rule 41(b) dismissals for abuse of discretion. See Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998). And, of course, a district court abuses its discretion when "its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or ... its decision--though not necessarily the product of a legal error or a clearly erroneous factual finding--cannot be located within the range of permissible decisions." Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnote omitted).

At bottom, Wynder's position on appeal is that it is legal error to impose conditions that exceed the requirements of Rule 8 and then to punish the plaintiff, by means of dismissal, for failure to meet those conditions. He argues that his second amended complaint is valid--and the court's dismissal correspondingly invalid--because the complaint meets the minimal threshold established by Rule 8(a) and Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). For their part, defendants argue that it is within the province of the district court's discretion to impose specific pleading requirements on a counseled plaintiff, and, in any event, that Wynder's second amended complaint is dismissable.5 For the reasons that follow,

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we conclude that defendants are wrong on both counts: (a) the district court may not order, under penalty of dismissal, that plaintiffs file a complaint that goes above and beyond what Rule 8 requires, and (b) the second amended complaint passes muster under Rule 8.


It is hardly debatable that the district court's order called for the plaintiff to supply a complaint that substantially exceeded the requirements of Rule 8. Under Swierkiewicz, Rule 8 pleading is extremely permissive. 534 U.S. at 512-13, 122 S.Ct. 992. As the Supreme Court there noted, Rule 8(a)(2) provides (a) that a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief," and (b) that such a statement simply " 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.' " 534 U.S. at 512, 122 S.Ct. 992 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).6 In the case before us, the district court demanded far more than a short and plain statement of the claims and the grounds upon which they rest.

Plaintiff was called upon to provide, inter alia, (1) "legal theor[ies]," (2) specific "authority, statutory and case law," (3), "evidence ... in detail," and (4) separate claims as to each defendant. Our case law makes clear that the first three are not requirements imposed by Rule 8. First, " 'federal pleading is by statement of claim, not by legal theory.' " Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997) (quoting Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir. 1991)). Second, even leaving aside case law and other authorities, Rule 8's "liberal pleading principles" do not permit dismissal for "...

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