Alioto v. Town of Lisbon

• Decision Date: 07 July 2011
• Docket Number: No. 09–3921.,09–3921.
• Parties: Gaetano “Tom” ALIOTO, Plaintiff–Appellant,v.TOWN OF LISBON, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

651 F.3d 715

112 Fair Empl.Prac.Cas. (BNA) 1326

Gaetano “Tom” ALIOTO, Plaintiff–Appellant,

v.TOWN OF LISBON, et al., Defendants–Appellees.

No. 09–3921.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 25, 2011.Decided July 7, 2011.

Kari Helene Race (argued), Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee, WI, for Plaintiff–Appellant.Daniel J. Borowski (argued), Andrew T. Phillips, Phillips & Borowski, S.C., Mequon, WI, for Town of Lisbon and Jeffrey Musche.Oyvind Wistrom (argued), Lindner & Marsack, Milwaukee, WI, for Terry Martorano.Before EASTERBROOK, Chief Judge, and FLAUM and ROVNER, Circuit Judges.FLAUM, Circuit Judge.

Gaetano “Tom” Alioto filed a lawsuit against Wisconsin's Town of Lisbon, its administrator, and the chief of its police department. Alioto maintains that, among other things, the defendants defamed 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 true, Alioto suffered political payback after he spearheaded 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' arguments. Instead, he only sought leave to amend the complaint based on the (incorrect) 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 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 investigator 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 constructive 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. According to the complaint, a state judge later dismissed the case for want of probable cause.

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 release. 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 department, 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 separately) 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 defendants filed answers. See Fed.R.Civ.P. 12(b) (“A motion 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 misstyling 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 defendants 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 constitutional 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, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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 Combined 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 shortcomings 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 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 complaint'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...