Bertucelli v. Carreras, 25230
| Decision Date | 08 August 1972 |
| Docket Number | No. 25230,26830.,25230 |
| Citation | 467 F.2d 214 |
| Parties | Rafael M. BERTUCELLI, Plaintiff-Appellant, v. Gerald F. CARRERAS et al., Defendants-Appellees. Rafael M. BERTUCELLI, Appellant, v. Gerald F. CARRERAS et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jack Siedman (argued), James R. White III, San Francisco, Cal., for appellant.
Neil D. Reid (argued), Thomas C. Lynch, Atty. Gen. (argued), H. L. Cannon, Deputy City Atty. (argued), Thomas M. O'Connor, City Atty., Bledsoe, Smith, Cathcart, Johnson & Rogers, and John R. Swendsen (argued), San Francisco, Cal., for appellees.
Before ELY and HUFSTEDLER, Circuit Judges, and BYRNE, District Judge.*
Bertucelli appeals from the District Court's dismissal of his action seeking redress under 42 U.S.C. §§ 1983, 1985 for alleged infringements of his civil rights.1 He advances numerous grounds for reversal. At this time, however, we need consider only one, for we believe Bertucelli correctly contends that he was wrongfully denied an opportunity to amend his complaint before the action was dismissed.
The District Court dismissed the action for two reasons, only one of which is now of importance. Upon defendants' motions, it had ordered Bertucelli's complaint stricken because it did not comply with Rules 8(a) and 11,2 Fed.R.Civ.P.3 That Order was proper on both grounds.
There was a clear noncompliance with the requirements of Rule 8(a); the complaint was prolix and unintelligible. It was equally obvious that Bertucelli failed to comply with Rule 11. Allegations in the complaint, critical to one claim, were conclusively shown, by state court records, to be false.4 The District Court was therefore fully justified in concluding, as it did, that Bertucelli's then attorney signed the complaint with the intent to defeat the purpose of Rule 11. See 5 Wright & Miller, Federal Practice and Procedure § 1334 (1969).
Despite the defective pleading, we have concluded that the District Court dismissed the action prematurely. We see no difference, in purpose and effect, between an order striking an entire pleading and a dismissal order predicated upon fatally defective pleading. See Skolnick v. Hallett, 350 F.2d 861 (7th Cir. 1965); 2a Moore's Federal Practice ¶ 8.13. Such orders are not favored (Id. at ¶¶ 8.13, 12.21), but when they are made, ample opportunity for amendment should be provided in all except the most unusual cases. See III Moore's Federal Practice ¶ 15.10.
This is not one of those unusual cases. In the circumstances here, the District Court should have allowed Bertucelli at least one opportunity to correct his defective complaint.5Cf. Griffin v. Locke, 286 F.2d 514 (9th Cir. 1961).
Reversed.
* Honorable William M. Byrne, Jr., United States District Judge, Central District of California, sitting by designation.
1 Initially, Bertucelli sought damages from 11 named and 12 unnamed defendants. We have previously dismissed his appeal as to eight of the named defendants. Seven were dismissed upon Bertucelli's motion at oral argument; one was dismissed because Bertucelli failed to appeal from the District Court's order of dismissal in favor of that defendant.
3 Its other justification was a ruling that, as to several of the defendants, Bertucelli had failed to state a claim...
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