Opinion
No. 96-603OWM
December 23, 1998
Before: William A. HILL, SCHERMER, and SCOTT, Bankruptcy Judges.
[ Opinion]
UNPUBLISHED DISPOSITION
Plaintiff-Appellant Magdeline Georgetta Reid ("Appellant") appeals from the Judgment of the bankruptcy court denying her Motion to Alter and Amend its prior Order dismissing her complaint and assessing her costs. We reverse.
I. BACKGROUND
Appellant filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code on September 19, 1990. On April 14, 1997, she filed suit, as a pro se litigant, against Defendants-Appellees Checkett Pauly, P.C.; J. Kevin Checkett; Charles W. Pauly; and Chris L. Weber ("Appellees"), in the Circuit Court of Greene County, Missouri. Appellant's Complaint was twenty-four pages in length and consisted of 133 separate paragraphs in all.
On May 12, 1997, the state court action was removed to the United States Bankruptcy Court for the Western District of Missouri, where it was treated as an Adversary Proceeding, and where Appellant continued in her pro se status. On June 20, 1997, Appellees moved to dismiss for failure to state a claim. On October 15, 1997, the bankruptcy court declined to rule on the motion and, instead, ordered Appellant to refine her Complaint to comply with Rule 8 of the Federal Rules of Civil Procedure ["Fed.R.Civ.P."] with the following: "A review of the Complaint reveals that many of the allegations are repetitious and Plaintiff has failed to set forth her [claims] in separate counts, which she is ordered to do on or before the 19th day of September 1997[,]" ["compliance order"]. The bankruptcy court did not alert Appellant to any potential consequence or sanction for noncompliance with its Order.
On November 17, 1997, Appellees moved for dismissal. On December 17, 1997, the bankruptcy court granted the motion and assessed Appellant costs for failing to follow the compliance order ["dismissal order"].
On December 29, 1997, Appellant, then represented by counsel, filed a Motion to Alter and Amend, arguing upon grounds of excusable neglect that she "was not represented by an attorney in this matter and lacked the expertise required to comply with said Order," and, further, that compliance therewith was "temporally impossible" because, "the [bankruptcy court's] Order granting Plaintiff until September 19, 1997, to file an Amended Complaint was not learned of by Plaintiff until October 15, 1997, the date said Order was signed and [entered]." On February 18, 1998, the bankruptcy court denied the motion, noting that denial was not "a harsh remedy under the circumstances because [P]laintiff made a conscious decision to disregard the Court's orders."
II. DISCUSSION
Fed.R.Civ.P. 8, which applies to adversary proceedings pursuant to Rule 7008 of the Federal Rules of Bankruptcy Procedure ["Fed.R.Bankr.P."], provides, inter alia, that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and that "[e]ach averment of a pleading shall be simple, concise, and direct." Fed.R.Civ.P. 8(a)(2), (e)(1). A complaint which fails to comply with Rule 8 is subject to dismissal with prejudice under Fed.R.Civ.P. 41(b), which is made applicable herein pursuant to Fed.R.Bankr.P. 7041, and which provides that a court may dismiss a case for, inter alia, failure of the plaintiff to comply with court orders. Fed.R.Civ.P. 41(b); First Gen. Resources Co. v. Elton Leather Corp., 958 F.2d 204, 206 (8th Cir. 1992); Dennis v. A.H. Robbins Co., 860 F.2d 871, 872 (8th Cir. 1988). Although it is not so stated in the bankruptcy court's dismissal order, or elsewhere evident in the record on appeal, it appears that Appellant's Complaint was dismissed pursuant to Fed.R.Civ.P. 41(b).
We review a Rule 41(b) dismissal for abuse of discretion. See Rodgers v. University of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998); Wright v. Sargent, 869 F.2d 1175, 1176 (8th Cir. 1989) (per curiam). Under this standard, we recognize that "[d]ismissal is . . . a drastic sanction which should be sparingly exercised," Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir. 1988) (citation and internal quotation marks omitted),cert. denied, 488 U.S. 1013, 109 S.Ct. 802, 102 L.Ed.2d 793 (1989); see First Gen. Resources Co., 958 F.2d at 206; cf. Mann v. Lewis, 108 F.3d 145, 147 (8th Cir. 1997) ("not every instance of failure to comply with an order of court, however inexcusable, justifies total extinction of a client's cause of action."). In order for such a sanction to withstand review, there must be proportionality between it and the transgression it is intended to redress. See Rodgers, 135 F.3d at 1219; Mann, 108 F.3d at 147. Accordingly, dismissal "should be used only in cases of willful disobedience of a court order or . . . persistent failure to prosecute a complaint." Mann, 108 F.3d at 147 (internal quotation marks omitted, quoting Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984)). Moreover, in considering whether dismissal is warranted under the particular facts of this case, we are mindful of the United States Supreme Court's instruction that federal courts are to liberally construe the "in artful pleadings" of pro se litigants. Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982) (per curiam); Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980); see Williams v. Carter, 10 F.3d 563, 567 (8th Cir. 1993); Toombs v. Hicks, 773 F.2d 995, 997 (8th Cir. 1985).
Helpful to our inquiry into whether the sanction in the instant matter is proportionate to the transgression is an exposition of two cases in which the Eighth Circuit did find dismissal to be an appropriate sanction. In First General Resources Company, the court affirmed dismissal upon the following factual basis:
The Appellants committed a series of deliberate acts that delayed the progress of the underlying litigation and culminated in a total failure to comply with the district court's direct order to respond to the Appellees' discovery requests. The district court twice ordered the Appellants to respond to the discovery requests, provided them an extension on each occasion, and expressly warned the Appellants in the second order that failure to do so would result in dismissal of their action.
958 F.2d at 205 (emphasis added).
In Mangan, a case with an even greater bearing on the instant matter, the appellant filed two suits which were eventually consolidated. His first complaint was 432 pages long and contained 28 counts detailed in 1,793 paragraphs, while his second was 662 pages long and contained 64 counts detailed in over 1,800 paragraphs. On the motions of several defendants, the district court dismissed the appellant's complaints without prejudice for failure to comply with Rule 8, allowed him thirty days in which to file amended complaints, and imposed sanctions pursuant to Fed.R.Civ.P. 11 in the amount of $1,000.00 against him and his attorney. The district court further advised the appellant that further violation of Rule 8 could result in the dismissal of his action with prejudice.
Appellant then proceeded to file noncompliant amended complaints which only slightly improved upon their originals, principally by reducing their total number of pages, although not their content. As a result, the district court dismissed the complaints with prejudice for failure to comply with Rule 8 and, additionally, for failure to state a claim upon which relief could be granted. In affirming the district court, the Eighth Circuit held as follows:
"Although appellant succeeded in reducing the total number of pages of each complaint, he did so primarily by using a smaller size of type, narrowing the margins, single-spacing the allegations, eliminating numerous pages of quoted army regulations, and deleting blank paragraphs and pages which he had previously 'reserved for future amendments.' [Footnote 4. The amended complaint in the first action consisted of 24 pages and 364 paragraphs and presented 15 causes of action. Attached to the amended complaint was a 17-page, single-spaced 'Continuation of the Facts,' a television [report] and exhibits. . . . The [second] amended complaint . . . was 26 pages long and contained 375 paragraphs and 65 causes of action. It also was accompanied by numerous attachments and exhibits.]" 848 F.2d at 910.
After reviewing the original and amended complaints, and in light of the express warning from the district court and the opportunity afforded appellant to comply with Fed.R.Civ.P. 8 , we conclude that the district court did not abuse its discretion in holding that appellant's 'deliberate persistence in refusing to conform his pleadings to the requirements of Rule 8 justifie[s] dismissal . . . with prejudice.'
848 F.2d at 911 (emphasis added, alteration in the original). In both cases, the lower courts provided their respective appellants with subsequent opportunities to comply with their initial orders, and in both apprised the appellants of the consequences which would result from continued noncompliance.
In contrast to these cases, the bankruptcy court in the instant matter ordered dismissal of the pro se litigant's Complaint upon her first failure to comply with the court's own internally inconsistent compliance order. In this latter respect, the bankruptcy court ordered the submission of a compliant Amended Complaint by September 19, 1997 in its Order entered on October 15, 1997. Moreover, the October 15, 1997 Order failed to alert the then-pro-se Appellant to any possible sanction which might result in the event of her noncompliance therewith.
Based upon the foregoing, and having paid due consideration to Appellant's pro se status during the occurrence of all events pertinent to the bankruptcy court's dismissal of her Complaint, we conclude that the bankruptcy court acted prematurely in dismissing Appellant's action under Rule 41(b) without affording her an additional opportunity to satisfactorily present its merits. Accordingly, and without addressing the merits of the Complaint or otherwise restricting the bankruptcy court's discretion to require that Appellant file proper pleadings and obey all applicable procedural rules, we will remand this action to the bankruptcy court for further proceedings consistent with this opinion.
III. ORDER
For the foregoing reasons, the bankruptcy court's February 18, 1998 Judgment Denying Motion to Alter and Amend its December 17, 1997 Order Dismissing Appellant's Complaint, and assessing her costs, is REVERSED, and Appellant's Complaint is REINSTATED.