Michaelis v. Nebraska State Bar Ass'n

• Decision Date: 13 September 1983
• Docket Number: No. 83-1766,83-1766
• Citation: Michaelis v. Nebraska State Bar Ass'n, 717 F.2d 437 (8th Cir. 1983)
• Parties: Ken L. MICHAELIS (formally known as Kenneth L. Michaelis) and Iona Rae Michaelis; Rory Lee Michaelis, a Minor, by Ken L. Michaelis, his father and next friend, and Kyle Lee Michaelis, a Minor, by Ken L. Michaelis, his father and next friend, Appellants, v. The NEBRASKA STATE BAR ASSOCIATION, a Nebraska Association, and Homer Ed Hurt, Jr.; James Egley; Kenneth Olds; Pliny M. Moodie; Robert D. Moodie; John M. Thor, Jr.; Stanley P. Gushard; William E. Webster, all Nebraska lawyers and members of the Nebraska State Bar Association; Richard P. Garden, a Nebraska lawyer and member of the Nebraska State Bar Association; Lucille Toelle; Norris Maack; Richard Lindberg; Gwen Lindberg, d/b/a West Point News; Theodore M. Huettmann and Gladys M. Huettmann, d/b/a Wisner News-Chronicle; The Norfolk Daily News; Fremont Tribune; Lincoln Journal newspaper; Omaha World Herald Company, owner-publisher of Omaha World Herald newspapers; The Associated Press Wireservices and Paul Douglas, Appellees. Ken L. MICHAELIS (formally known as Kenneth L. Michaelis) and Iona Rae Michaelis; Rory Lee Michaelis, a Minor, by Ken L. Michaelis, his father and next friend, Kyle Lee Michaelis, a Minor, by Ken L. Michaelis, his father and next friend, and Kari Lynn Michaelis, a Minor, by Ken L. Michaelis, her father and next friend, Appellants, v. Norman M. KRIVOSHA; Leslie Boslaugh; William C. Hastings; Hale McCown; Donald Brodkey; Lawrence M. Clinton (deceased); Edward Asche; Dixon G. Adams; Pliny M. Moodie; Robert D. Moodie; Homer Ed Hurt, Jr.; Stanley P. Gushard; Kenneth Olds; James Egley; John M. Thor, Jr.; William E. Webster, all being members of the Nebraska State Bar Association; The Nebraska State Bar Association, a Nebraska Association consisting of all licensed Nebraska lawyers, all Nebraska lawyers, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 437

717 F.2d 437

Ken L. MICHAELIS (formally known as Kenneth L. Michaelis)

and Iona Rae Michaelis; Rory Lee Michaelis, a Minor, by Ken

L. Michaelis, his father and next friend, and Kyle Lee

Michaelis, a Minor, by Ken L. Michaelis, his father and next

friend, Appellants, v.The NEBRASKA STATE BAR ASSOCIATION, a Nebraska Association, and Homer Ed Hurt, Jr.; James Egley; Kenneth Olds; Pliny

M. Moodie; Robert D. Moodie; John M. Thor, Jr.; Stanley

P. Gushard; William E. Webster, all Nebraska lawyers and

members of the Nebraska State Bar Association; Richard P.

Garden, a Nebraska lawyer and member of the Nebraska State

Bar Association; Lucille Toelle; Norris Maack; Richard

Lindberg; Gwen Lindberg, d/b/a West Point News; Theodore

M. Huettmann and Gladys M. Huettmann, d/b/a Wisner

News-Chronicle; The Norfolk Daily News; Fremont Tribune;

Lincoln Journal newspaper; Omaha World Herald Company,

owner-publisher of Omaha World Herald newspapers; The

Associated Press Wireservices and Paul Douglas, Appellees.

Ken L. MICHAELIS (formally known as Kenneth L. Michaelis)

and Iona Rae Michaelis; Rory Lee Michaelis, a Minor, by Ken

L. Michaelis, his father and next friend, Kyle Lee

Michaelis, a Minor, by Ken L. Michaelis, his father and next

friend, and Kari Lynn Michaelis, a Minor, by Ken L.

Michaelis, her father and next friend, Appellants, v.Norman M. KRIVOSHA; Leslie Boslaugh; William C. Hastings;

Hale McCown; Donald Brodkey; Lawrence M. Clinton

(deceased); Edward Asche; Dixon G. Adams; Pliny M.

Moodie; Robert D. Moodie; Homer Ed Hurt, Jr.; Stanley P.

Gushard; Kenneth Olds; James Egley; John M. Thor, Jr.;

William E. Webster, all being members of the Nebraska State

Bar Association; The Nebraska State Bar Association, a

Nebraska Association consisting of all licensed Nebraska

lawyers, all Nebraska lawyers, Appellees.

No. 83-1766.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 7, 1983.

Decided Sept. 13, 1983.

Paul L. Douglas, Atty. Gen., Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., Michael McGill, Robert L. Lepp, of McGill, Koley, Parsonage & Lanphier, P.C., Charles F. Gotch and Dennis R. Riekenberg, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, Neb., for appellees.

Rory Lee Michaelis and Ken L. Michaelis, pro se.

Before HENLEY, Senior Circuit Judge, and JOHN R. GIBSON and FAGG, Circuit Judges.

PER CURIAM.

This is a consolidated appeal from the district court's dismissal of civil rights complaints.On appeal the issue is whether the district court properly dismissed the complaints with prejudice for refusal to comply with the Federal Rules of Civil Procedure and for lack of subject matter jurisdiction.Having considered the record, we affirm.

AppellantKen L. Michaelis was disbarred for his actions during his 1978 campaign for County Attorney of Cuming County, Nebraska.SeeState ex rel. Nebraska State Bar Association v. Michaelis, 210 Neb. 545, 316 N.W.2d 46, cert. denied, --- U.S. ----, 103 S.Ct. 27, 74 L.Ed.2d 42(1982).Following his disbarment Michaelis filed two actions in federal court, alleging deprivation of various rights.His initial complaint was dismissed, without prejudice and with leave to amend, for lack of compliance with Fed.R.Civ.P. 8.He then filed a complaint commencing a second action and later filed an amended complaint pursuant to the terms of the earlier dismissal.Both of these complaints were substantially similar to his initial complaint in form, content and parties.After a consolidated hearing on motions to dismiss filed in both cases, the district court dismissed both complaints with prejudice, 566 F.Supp. 89and566 F.Supp. 94.

Under Rule 8(a) a claim for relief is required to contain a short and plain statement of the claim.Similarly, Rule 8(e)(1) specifies that each averment of a pleading is to be simple, concise and direct.Ordinarily dismissal of a plaintiff's complaint for failure to comply with Rule 8 should be with leave to amend.SeeKoll v. Wayzata State Bank, 397 F.2d 124, 127(8th Cir.1968).But if the plaintiff has persisted in violating Rule 8the district court is justified in dismissing the complaint with prejudice.SeeMicklus v. Greer, 705 F.2d 314, 317 n. 3(8th Cir.1983).

In the present case Michaelis refused persistently to comply with the requirements of Rule 8 despite adequate warning from the district court and sufficient...