Schneider, Frederick v. Town of Campbell et al

Filing 47

ORDER striking 45 Amended Complaint for failure to comply with Federal Rule of Civil Procedure 8; denying as moot 20 Motion to Dismiss; denying as moot 23 Motion to Dismiss. Plaintiff will file a second amended complaint consistent with this order within 10 days. Signed by District Judge James D. Peterson on 6/23/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

FREDERICK P. SCHNEIDER,
Plaintiff,
v.
ORDER
TOWN OF CAMPBELL, ANDREW J. GAVRILOS,
ADAM BREIDEL, MICHAEL VALENCIA,
COUNTY OF LA CROSSE, and
JOANN R. SCHALLER,

16-cv-208-jdp

Defendants.
Plaintiff Frederick P. Schneider filed an amended complaint, Dkt. 45, within the time
permitted by the preliminary pretrial conference order, Dkt. 42, at 1. The amended
complaint is substantially longer than the initial complaint, as plaintiff has added a new
defendant, new facts, and (what appear to be) new claims.
Plaintiff’s amended complaint was timely. But it does not comply with Federal Rule of
Civil Procedure 8, because it does not contain a short and plain statement of the claim
showing that plaintiff is entitled to relief. Instead, plaintiff has filed a ponderous document
replete with legal argument and citations, irrelevant facts and argument concerning a
different case, and lumped-together references to various causes of action that do not readily
identify the claims that plaintiff intends to bring. Such a needlessly prolix and confusing
complaint wastes the time of the opposing party and the court, and it violates Rule 8. Vicom,
Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994); see also Kirksey v. R.J.
Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (“All that’s required to state a
claim in a complaint filed in a federal court is a short statement, in plain (that is, ordinary,
nonlegalistic) English, of the legal claim.”); Smith v. Nat’l Health Care Servs. of Peoria, 934 F.2d

95, 97 (7th Cir. 1991) (“[T]he complaint need not and should not contain citations to legal
argument.” (citation and internal quotation marks omitted)). As the Seventh Circuit made
clear in Vicom, the fact that plaintiff asserts a conspiracy claim does not relieve plaintiff of his
obligation under Rule 8 to present a short and plain statement of his case. Vicom, 20 F.3d at
776.
Also, the court will not accept plaintiff’s attempt to incorporate the entire case docket
into the complaint. Dkt. 45, ¶ 11 (“This first amended complaint incorporates by reference
every other filing, affidavit, the original complaint, and all exhibits. All arguments proffered
in affidavit form and filed with CM/ECF up to now are incorporated by reference to support
this FAC.”). The rules allow a complaint to incorporate the written instruments that are
attached to the complaint as exhibits or other documents that are specifically mentioned. See
Fed. R. Civ. P. 10(c). But the court will not accept plaintiff’s kitchen-sink approach by which
he attempts to buttress his complaint with everything filed so far.
Plaintiff’s amended complaint is dismissed for failure to comply with Rule 8. Plaintiff
has 10 days to file and serve a second amended complaint that complies with Rule 8. Given
plaintiff’s abuse of the incorporation-by-reference doctrine, his new complaint must be fully
free-standing, completely replacing the original complaint and the first amended complaint.
In expectation of plaintiff’s filing of a cleaned-up second amended complaint, the
court will deny as moot defendants’ pending motions to dismiss. Dkt. 20 and Dkt. 23. The
motions are directed toward a no-longer-operative complaint, and it appears that the
deficiencies of service have been corrected. “Under normal circumstances, the filing of an
amended complaint renders moot any pending motion to dismiss.” Aqua Fin., Inc. v. Harvest
King, Inc., No. 07-cv-15, 2007 WL 5404939, at *1 (W.D. Wis. Mar. 12, 2007) (citing Pure

2

Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) (“If anything, Pure
Country’s motion to amend the complaint rendered moot Sigma Chi’s motion to dismiss the
original complaint.”); Lim v. Cent. DuPage Hosp., 972 F.2d 758, 762 (7th Cir. 1992) (noting
without comment trial judge’s denial of pending motion to dismiss as moot in light of
amended complaint)). In some cases, the court would simply redirect pending motions
toward the newly-operative complaint, in the interests of efficiency. But here, the amended
complaint appears to incorporate new claims and legal theories (although the court expects
the forthcoming second amended complaint to do so much more succinctly and clearly).
Accordingly, the traditional approach is called for because it will be clearer for the defendants
to respond to plaintiff’s new Rule 8-compliant complaint. Pursuant to Federal Rule of Civil
Procedure 15(a)(3), defendants will have 14 days after service of the second amended
complaint to answer or otherwise respond to it.1

ORDER
IT IS ORDERED that:
1. Plaintiff Frederick P. Schneider’s amended complaint, Dkt. 45, is STRICKEN for
failure to comply with Federal Rule of Civil Procedure 8.
2. Plaintiff will file a second amended complaint consistent with this order within 10
days.

1

This deadline will not apply to defendant Schaller, who has apparently not yet been served.
Schaller should be promptly served or dismissed from the case.

3

3. Defendants’ motions to dismiss, Dkt. 20 and Dkt. 23, are DENIED as moot.
Entered June 23, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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