Hearns v. City of San Bernardino Police Department

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLYN HEARNS, 
Plaintiff-Appellant,
v.
SAN BERNARDINO POLICE
DEPARTMENT; GARRET ZIMMON;
MICHAEL BILLDT, in his capacity as
Assistant Chief and Patrol
Division Commander of the
SBPD; WESLEY FARMER,
individually and in his capacity as
Captain in the SBPD; MARK
GARCIA, individually and in his No. 05-56214
capacity as a Lieutenant in the
SBPD; MARK EMOTO, individually  D.C. No.
and in his capacity as a Lieutenant CV-03-01434-SJO
in the SBPD; MITCHAL KIMBALL,
individually and in his capacity as
a Lieutenant in the SBPD; WALT
GOGGIN, individually and in his
capacity as a Lieutenant in the
SBPD; CRAIG KEITH, individually
and in his capacity as a Narcotics
Sergeant in the SBPD; ERNIE
LEMOS, individually and in his
capacity as an Internal Affairs
Supervisor in the SBPD,
Defendants-Appellees.

7871
7872 HEARNS v. SAN BERNARDINO POLICE
KIMBERLYN HEARNS, 
Plaintiff-Appellee,
v.
SAN BERNARDINO POLICE
DEPARTMENT; GARRET ZIMMON;
MICHAEL BILLDT, in his capacity as
Assistant Chief and Patrol
Division Commander of the
SBPD; WESLEY FARMER,
individually and in his capacity as
Captain in the SBPD; MARK
GARCIA, individually and in his No. 05-56272
capacity as a Lieutenant in the
SBPD; MARK EMOTO, individually  D.C. No.
and in his capacity as a Lieutenant CV-03-01434-SJO
in the SBPD; MITCHAL KIMBALL,
individually and in his capacity as
a Lieutenant in the SBPD; WALT
GOGGIN, individually and in his
capacity as a Lieutenant in the
SBPD; CRAIG KEITH, individually
and in his capacity as a Narcotics
Sergeant in the SBPD; ERNIE
LEMOS, individually and in his
capacity as an Internal Affairs
Supervisor in the SBPD,
Defendants-Appellants.

HEARNS v. SAN BERNARDINO POLICE 7873
KIMBERLYN HEARNS, 
Plaintiff-Appellant,
v.
SAN BERNARDINO POLICE
DEPARTMENT; GARRET ZIMMON;
MICHAEL BILLDT, in his capacity as
Assistant Chief and Patrol
Division Commander of the
SBPD; WESLEY FARMER,
individually and in his capacity as
Captain in the SBPD; MARK
GARCIA, individually and in his No. 05-56306
capacity as a Lieutenant in the
SBPD; MARK EMOTO, individually  D.C. No.
and in his capacity as a Lieutenant CV-03-01434-SJO
in the SBPD; MITCHAL KIMBALL,
individually and in his capacity as
a Lieutenant in the SBPD; WALT
GOGGIN, individually and in his
capacity as a Lieutenant in the
SBPD; CRAIG KEITH, individually
and in his capacity as a Narcotics
Sergeant in the SBPD; ERNIE
LEMOS, individually and in his
capacity as an Internal Affairs
Supervisor in the SBPD,
Defendants-Appellees.

7874 HEARNS v. SAN BERNARDINO POLICE
KIMBERLYN HEARNS, 
Plaintiff-Appellee,
v.
SAN BERNARDINO POLICE
DEPARTMENT; GARRET ZIMMON;
MICHAEL BILLDT, in his capacity as
Assistant Chief and Patrol
Division Commander of the
SBPD; WESLEY FARMER,
individually and in his capacity as
Captain in the SBPD; MARK
GARCIA, individually and in his No. 05-56324
capacity as a Lieutenant in the
SBPD; MARK EMOTO, individually  D.C. No.
CV-03-01434-SJO
and in his capacity as a Lieutenant
OPINION
in the SBPD; MITCHAL KIMBALL,
individually and in his capacity as
a Lieutenant in the SBPD; WALT
GOGGIN, individually and in his
capacity as a Lieutenant in the
SBPD; CRAIG KEITH, individually
and in his capacity as a Narcotics
Sergeant in the SBPD; ERNIE
LEMOS, individually and in his
capacity as an Internal Affairs
Supervisor in the SBPD,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
May 10, 2007—Pasadena, California
HEARNS v. SAN BERNARDINO POLICE 7875
Filed July 1, 2008
Before: Andrew J. Kleinfeld and Richard A. Paez,
Circuit Judges, and William T. Hart,* District Judge.
Opinion by Judge Hart;
Partial Concurrence and Partial Dissent by Judge Kleinfeld
*The Honorable William T. Hart, United States Senior District Judge
for the Northern District of Illinois, sitting by designation.
HEARNS v. SAN BERNARDINO POLICE 7877
COUNSEL
Letitia E. Pepper, Riverside, California, for the plaintiff in
Appeals Nos. 05-56214, 05-56272, and 05-56324.
Leo James Terrell, Beverly Hills, California, for the plaintiff
in Appeal No. 05-56306.
James A. Odlum, Mundell, Odlum & Haws, LLP, San Bernar-
dino, California, for defendants in Appeals Nos. 05-56214,
05-56272, 05-56306, and 05-56324.
OPINION
HART, District Judge:
It is the right and duty of a plaintiff initiating a case to file
a “short and plain statement of the claim.” Fed. R. Civ. P.
Rule 8(a)(2). The district court dismissed Plaintiff Kimberlyn
Hearns’ 81-page complaint under Rule 8 without prejudice
with leave to file an amended complaint. When Hearns filed
an amended complaint that was substantially unaltered, the
district court dismissed the case with prejudice. Neither com-
plaint warranted dismissal under Rule 8: although each set
forth excessively detailed factual allegations, they were coher-
ent, well-organized, and stated legally viable claims. We
therefore reverse in appeal No. 05-56214 and remand for fur-
ther proceedings. Pursuant to Defendant’s non-opposition, we
also reverse in appeal No. 05-56306. Finally, we dismiss
appeals Nos. 05-56272 and 05-56324 as moot.
I. PROCEDURAL HISTORY
Plaintiff Kimberlyn Hearns, an African-American male, is
a police officer employed by Defendant City of San Bernar-
dino Police Department (“SBPD”). In December 2003, Plain-
7878 HEARNS v. SAN BERNARDINO POLICE
tiff filed a complaint against the SBPD and 10 unnamed
defendants in which he alleged that he experienced race-based
discrimination and retaliation, in violation of 42 U.S.C.
§§ 1981, 1983, 1985, and 1986; Title VII, 42 U.S.C. § 2000e
et seq.; and state law (the “First Case”). The complaint was
81 pages and raised 17 claims.
Defendants moved to dismiss the original complaint in its
entirety based on Federal Rule of Civil Procedure 8(a) and
alternatively moved to dismiss some claims under Federal
Rule of Civil Procedure 12(b)(6). In an order dated June 25,
2004, the district court granted the motion in part, dismissing
Plaintiff’s complaint without prejudice for failing to comply
with Rule 8 and allowing Plaintiff 18 days to file a first
amended complaint (“FAC”). The district court did not reach
Defendants’ Rule 12 arguments.
No FAC was filed within 18 days. In an order dated
July 28, 2004, the district court ordered that Plaintiff show
cause in writing as to why the case should not be dismissed
for lack of diligent prosecution. Plaintiff filed a written
response. The attorney who represented him at the time stated
in a declaration that she had not received the order of dis-
missal or the order to show cause. On September 21, 2004,
the court granted Plaintiff 18 more days to file the FAC,
which was filed on October 4. The FAC is 68 pages in length.
It contains the same 17 claims as the original complaint.
Although Plaintiff dropped one individual Defendant and
removed or shortened some allegations, the 13-page reduction
resulted primarily from narrowing the margins.
Defendants moved to dismiss the FAC, again raising Rule
8 and Rule 12(b)(6) arguments. The district court granted the
motion to dismiss with prejudice “for failure to obey the June
25 order requiring [plaintiff] to comply with Rule 8(a).” The
court also stated “that alternative measures less drastic than
dismissal with prejudice would [not] be effective here. See
McHenry [v. Renne], 84 F.3d [1172,] 1178 [(9th Cir. 1996)].”
HEARNS v. SAN BERNARDINO POLICE 7879
The dismissal order was entered on the docket on February
17, 2005. Although neither party notes this fact, no separate
Rule 58 judgment was ever entered on the docket, with the
consequence that the order of dismissal did not become a final
judgment until 150 days later, on July 18, 2005.1 Fed. R. Civ.
P. 58(b)(2)(B).
Plaintiff’s then-attorney informed him that his case had
been dismissed with prejudice because “the judge felt the
complaint was still too long.” She did not recommend any
other action. The attorney who represents Plaintiff on this
appeal also drafted the original complaint, pursuant to a con-
tract with Plaintiff’s original attorney of record. When she
learned of the dismissal, she offered to assist Plaintiff and
entered her appearance after Plaintiff discharged his original
attorney. Believing that more than 30 days had passed since
the entry of judgment, Plaintiff’s new attorney filed a Rule
60(b)(6) motion seeking relief from dismissal based on prior
counsel’s misconduct and inaction. In the alternative, Plaintiff
requested an extension of time to file a notice of appeal. On
April 18, 2005, the district court reopened the case to hear the
Rule 60(b)(6) motion.
While Plaintiff’s motion for relief from the dismissal of the
First Case was pending, he filed a second lawsuit against the
SBPD and 10 unnamed defendants, alleging that he experi-
enced retaliation for filing the first lawsuit, in violation of
Title VII (the “Second Case”). The Second Case was trans-
ferred to the same judge who was presiding over the First
Case. Thereafter, the court sua sponte consolidated the two
cases.
In an Order entered on the docket on August 1, 2005, the
district court denied the Rule 60(b) motion because Plaintiff
had not shown that his former attorney was grossly negligent.
Accordingly, the district court denied Defendants’ motion for
1
The 150th day was Sunday, July 17.
7880 HEARNS v. SAN BERNARDINO POLICE
discovery as moot. The court found, however, that because
prior counsel had advised Plaintiff not to appeal, failed to
inform him how to preserve his right to appeal, and delayed
in turning over the case file, good cause existed for extending
the time to appeal. Accordingly, the court entered an order
granting a 10-day extension. Four days after the entry of this
Order, Plaintiff filed a notice of appeal, No. 05-56214, chal-
lenging the original dismissal and the denial of his Rule
60(b)(6) motion.
On August 11, 2005, Defendants filed a motion for post-
judgment relief seeking reconsideration of the extension of
time to appeal, contending they did not have an adequate
opportunity to file an opposition to that part of Plaintiff’s
Rule 60(b) motion. On August 19, the court denied the
motion. In that Order, the court also stated:
Finally, the Court originally calendared a schedul-
ing conference for August 22, 2005 in the [Second
Case]. However, the [Second case] and [First case]
were already consolidated for all purposes including
trial. See Order of July 29, 2005. Accordingly, the
entire matter is now up on appeal. The scheduling
conference is hereby taken OFF CALENDAR. There
are no matters pending before this Court in this case.
The clerk is hereby ordered to close the file.
On August 19, Defendants filed a notice of cross-appeal,
No. 05-56272, from the August 1 Order, in which they chal-
lenged the grant of an extension of time for Plaintiff to appeal.
On August 30, 2005, Defendants filed a second notice of
appeal, No. 05-56324, from the denial of their motion to
reconsider.
Plaintiff then filed an application to sever the two cases and
to reinstate the Second Case. Although Defendants did not
oppose Plaintiff’s request, the district court denied the appli-
cation because “the allegations in each Complaint stem from
HEARNS v. SAN BERNARDINO POLICE 7881
a common nexus of facts and involve the same parties.” The
court did not expressly address Plaintiff’s reinstatement
request. On August 25, Plaintiff filed a notice of appeal, No.
05-56306, from the portion of the August 19 Order directing
that the Second Case be closed. At oral argument, the SBPD
informed the court that it does not oppose this appeal. We
therefore vacate the district court’s dismissal of the Second
Case and remand for further proceedings.
II. DEFENDANTS’ APPEALS
In No. 05-56272, Defendants contend that the district court
abused its discretion in extending the time for Plaintiff to
appeal and seek reversal of the August 1, 2005 Order.
Defendants’ argument lacks merit because no extension of
time was ever needed. Because no separate Rule 58 judgment
was entered for the February 17, 2005 Order dismissing the
FAC, the window for appealing that decision did not begin to
run on that date. Pursuant to Federal Rule of Civil Procedure
58(b)(2)(B), the appeal period began to run 150 days later, on
July 18, 2005. See Stephanie-Cardona LLC v. Smith’s Food
& Drug Ctrs., Inc., 476 F.3d 701, 704 (9th Cir. 2007). See
also Fed. R. App. P. 4(a)(7)(A)(ii). Plaintiff therefore had at
least 30 days thereafter (August 17, 2005) in which to appeal
this order, see Fed. R. App. P. 4(a)(1), and in fact actually
filed his notice of appeal prior to that date.2
2
Alternatively, we would find Plaintiff’s August 5th notice of appeal
timely under Federal Rule of Appellate Procedure 4(a)(4)(A)(iv) and (vi)
because he filed his motion for post-judgment relief within ten days of the
judgment becoming final on July 18, 2005—indeed, he filed the motion
before that date. Construing Plaintiff’s motion as seeking relief under
either Federal Rule of Civil Procedure 59 or 60(b), that motion tolled the
time period for filing the notice of appeal. See Shapiro v. Paradise Valley
Unified Sch. Dist. No. 69, 374 F.3d 857, 863 (9th Cir. 2004); Miller v.
Marriott Int’l, Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002).
7882 HEARNS v. SAN BERNARDINO POLICE
We finally note that, although neither party has raised this
issue, the district court never docketed in the First Case the
August 1, 2005 Order denying Plaintiff’s motion for post-
judgment relief and extending the time to appeal in the First
Case. This failure is of no consequence, however, because the
parties have effectively waived the entry requirement by treat-
ing the order as an appealable judgment. See Calhoun v.
United States, 647 F.2d 6, 10-11 (9th Cir. 1981), overruled on
other grounds, Acosta v. Louisiana Dep’t of Health & Human
Res., 478 U.S. 251 (1986); see also Bankers Trust Co. v. Mal-
lis, 435 U.S. 381, 382, 387-88 (1978).
Because no extension of time to appeal the order dismiss-
ing the First Case was required, we therefore dismiss Defen-
dants’ two appeals, Nos. 05-56272 and 05-56324, as moot.
III. DISMISSAL OF THE FIRST CASE
[1] We turn now to the merits of the February 17, 2005
Order dismissing the First Case. Federal Rule of Civil Proce-
dure 41(b) authorizes a district court to dismiss a complaint
with prejudice for failure to comply with Rule 8(a). Nevijel v.
North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
We review a Rule 41(b) dismissal for abuse of discretion. Id.at 674 (citing Schmidt v. Hermann, 614 F.2d 1221, 1224 (9th
Cir. 1980)). To do so, we must necessarily consider the legal
question of whether the district court correctly dismissed
without prejudice the original complaint on Rule 8 grounds.
See Koon v. United States, 518 U.S. 81, 100 (1996) (“A dis-
trict court by definition abuses its discretion when it makes an
error of law.” (citation omitted)); In re Dominguez, 51 F.3d
1502, 1508 n.5 (9th Cir. 1995).
As regards the application of Federal Rule of Civil Proce-
dure 8(a), the original complaint and the FAC are essentially
identical. The FAC is 68 pages long. The first four pages
name and identify Plaintiff and 10 Defendants. The next 42
pages, captioned “Factual Background,” relate Plaintiff’s 17-
HEARNS v. SAN BERNARDINO POLICE 7883
year history as a police officer and sergeant. The remaining
22 pages allege 17 different federal and state claims, clearly
identifying each claim and each Defendant named in a partic-
ular claim. Other than the hostile workplace claim, no claim
is more than nine paragraphs.
On appeal, Defendants do not attempt to identify particular
allegations as immaterial or unnecessary. They do not assert
that the complaint fails to set forth cognizable causes of
action, that the legal theories are incoherent, or that they can-
not tell which causes of action are alleged against which
Defendants. They simply object that the complaint provides
too much factual detail. The part that has been attacked as
prolix is the Factual Background section, reciting Plaintiff’s
education, military service, training, promotion and demotion
history, and discrimination incidents. We reject Defendants’
argument and conclude that neither complaint violated Rule
8(a).
We affirmed a district court’s dismissal on Rule 8 grounds
in McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). Not only
was the first complaint at issue in that case lengthy; it set out
its claims in two sentences, which comprised 30 lines, without
specifying which of the 20 named defendants were liable for
which claims. Id. at 1174. To make matters worse, in response
to the district court’s order to file an amended complaint
“ ‘which clearly and concisely explains which allegations are
relevant to which defendants,’ ” the plaintiffs filed an
amended complaint that was longer than the first complaint.
Id. (quoting district court’s order). The district court then gave
the plaintiffs a final opportunity to file a proper complaint
“ ‘which states clearly how each and every defendant is
alleged to have violated plaintiffs’ legal rights. . . . [P]laintiffs
would be well advised to edit or eliminate their twenty-six
page introduction and focus on linking their factual allega-
tions to actual legal claims.’ ” Id. at 1176 (quoting district
court’s order). We affirmed the district court’s dismissal of
the final amended complaint, which we described as “argu-
7884 HEARNS v. SAN BERNARDINO POLICE
mentative, prolix, replete with redundancy, and largely irrele-
vant,” id. at 1177, noting that “[o]nly by months or years of
discovery and motions [could] each defendant find out what
he is being sued for,” id. at 1178. Considering Rule 41(b), we
concluded that the district court had not abused its discretion
because it had already given the plaintiffs multiple opportuni-
ties to comply, along with specific instructions on how to cor-
rect the complaint. Id. at 1178-79.
In Nevijel, 651 F.2d 671, we upheld a Rule 8(a) dismissal
of a 48-page complaint that contained an additional 23 pages
of addenda and exhibits. The complaint was characterized as
“ ‘verbose, confusing and almost entirely conclusory.’ ” Id. at
674. After the district court dismissed the original complaint
without prejudice, the plaintiff filed a late amended complaint
that “named additional defendants without leave of court, and
was equally as verbose, confusing and conclusory as the ini-
tial complaint.” Id. We found no abuse of discretion because
the district court provided “reasonable opportunities and alter-
natives” before dismissing with prejudice; in light of the fact
that the plaintiff offered no excuse for the late filing and
utterly failed to comply with the district court’s order, there
was no reason to think that an additional opportunity would
yield different results. See id.In Schmidt, the complaint was 30 pages long. It was “im-
possible to designate the cause or causes of action attempted
to be alleged in the complaint.” 614 F.2d at 1223. The com-
plaint was described as a “confusing statement of a non-
existing cause of action” and as “confusing, distracting,
ambiguous, and unintelligible.” Id. at 1224. Additionally, the
complaint’s conclusory allegations did not satisfy the height-
ened pleading requirement for averments of fraud. Id. The
Ninth Circuit upheld the dismissal of the action following two
amendments of the original complaint. Id. at 1223-24.
In Gillibeau v. City of Richmond, 417 F.2d 426, 431-32
(9th Cir. 1969), one of the claims named seven defendants. As
HEARNS v. SAN BERNARDINO POLICE 7885
to only one of these defendants, that claim was dismissed for
failing to comply with Rule 8(a)(2). This court reversed the
dismissal based on Rule 8(a)(2). In doing so, this court stated
that “a dismissal for a violation under Rule 8(a)(2), is usually
confined to instances in which the complaint is so ‘verbose,
confused and redundant that its true substance, if any, is well
disguised.’ ” Id. at 431 (quoting Corcoran v. Yorty, 347 F.2d
222, 223 (9th Cir. 1965)). The claim at issue did not satisfy
those criteria.
Defendants cite a 1964 decision of this court which upheld
the dismissal of a 55-page complaint for violating Rule 8(a)
and the subsequent dismissal of the case when the plaintiff
failed to file any new pleading by two and one-half months
after the date set for filing an amended complaint. See Agnew
v. Moody, 330 F.2d 868, 870-71 (9th Cir. 1964). That case
provides only a brief statement of the holding that the com-
plaint did not comply with Rule 8(a).
The complaint was dismissed as to the arresting
officers for failure to satisfy the requirement of Rule
8(a) that it contain ‘a short and plain statement of the
claim.’ Although the elements and factual context of
appellant’s claim for relief were simple, the com-
plaint extended over fifty-five pages, excluding the
prayer and exhibits. Making full allowance for what-
ever additional verbiage appellant might be permit-
ted in view of the many decisions emphasizing the
need for specificity in pleadings under the Civil
Rights Act (Stiltner v. Rhay, 322 F.2d 314, 316 n.4
(9th Cir. 1963)), the district court was entirely justi-
fied in holding that the complaint did not comply
with Rule 8(a), and in ordering appellant to replead.
Id. at 870.
[2] Unlike the facts here, the plaintiff in Agnew never filed
an amended complaint as had been ordered. Agnew cannot
7886 HEARNS v. SAN BERNARDINO POLICE
fairly be read as holding that excessive length, by itself, is a
sufficient basis for finding a violation of Rule 8(a). Two
Ninth Circuit cases decided shortly after Agnew characterize
the holding of Agnew as being limited to a complaint that is
“so verbose, confused and redundant that its true substance,
if any, is well disguised.” Gillibeau, 417 F.2d at 431; Corco-
ran, 347 F.2d at 223. Agnew has never been cited by this
court as standing for the proposition that a complaint may be
found to be in violation of Rule 8(a) solely based on excessive
length, nor does any other Ninth Circuit case contain such a
holding.
[3] Decisions from other circuits are also consistent with
the view that verbosity or length is not by itself a basis for
dismissing a complaint based on Rule 8(a). See Wynder v.
McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (holding that dis-
trict court erred in dismissing on Rule 8 grounds when the
complaint, though long, was not “so confused, ambiguous,
vague or otherwise unintelligible that its true substance, if
any, is well disguised” (internal quotation omitted)); Garst v.
Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003)
(“Some complaints are windy but understandable. Surplusage
can and should be ignored.”); Mann v. Boatwright, 477 F.3d
1140, 1148 (10th Cir. 2007) (affirming Rule 8 dismissal when
it was impossible to “separate the wheat from the chaff” in the
complaint and because “[i]t was not the district court’s job to
stitch together cognizable claims for relief from the wholly
deficient pleading”).
[4] By contrast, the complaint at issue here was not “replete
with redundancy and largely irrelevant.” Cf. McHenry, 84
F.3d at 1177. It set out more factual detail than necessary, but
the overview was relevant to Plaintiff’s causes of action for
employment discrimination. Nor was it “confusing and con-
clusory.” Cf. Nevijel, 651 F.2d at 674. The complaint is logi-
cally organized, divided into a description of the parties, a
chronological factual background, and a presentation of enu-
merated legal claims, each of which lists the liable Defendants
HEARNS v. SAN BERNARDINO POLICE 7887
and legal basis therefor. The FAC and the original complaint
contain excessive detail, but are intelligible and clearly delin-
eate the claims and the Defendants against whom the claims
are made. These facts distinguish this complaint from the ones
that concern the dissent. Here, the Defendants should have no
difficulty in responding to the claims with an answer and/or
with a Rule 12(b)(6) motion to dismiss.
[5] The district court also has ample remedial authority to
relieve a defendant of the burden of responding to a complaint
with excessive factual detail. One option would have been to
simply strike the surplusage from the FAC. See Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995); Fallon v. U. S. Gov’t,
No. CIV S-06-1438, 2007 WL 707531, *2 (E.D. Cal. March
6, 2007); Grayson v. Schriro, No. CIV 05-1749, 2007 WL
91611, *3 (D. Ariz. Jan. 11, 2007) (quoting Marshall v.
United Nations, No. CIV S-05-2575, 2006 WL 1883179, *3
(E.D. Cal. July 6, 2006)). Many or all of the paragraphs from
33 through 207 of the FAC, covering 38 pages, could have
been stricken. Alternatively, the judge could have excused
Defendants from answering those paragraphs.
[6] Because dismissal with prejudice is a harsh remedy, our
precedent is clear that the district court “should first consider
less drastic alternatives.” McHenry, 84 F.3d at 1178. In
weighing possible alternatives against the consequences of
dismissal with prejudice, the district court should consider, for
example, whether “public policy strongly favor[s] resolution
of this dispute on the merits.” Dahl v. City of Huntington
Beach, 84 F.3d 363, 366 (9th Cir. 1996). The court should
also consider whether “dismissal [would] severely penalize[ ]
plaintiffs . . . for their counsels’ bad behavior.” Id. at 366; cf.
Al-Torki v. Kaepmen, 78 F.3d 1381, 1383-85 (9th Cir. 1996)
(affirming dismissal with prejudice when plaintiff’s own con-
duct violated court orders). Even when the litigant is the one
actually responsible for failure to comply with a court’s order,
which evidence before the court did not show is the situation
here, “[t]he sanction of dismissal should be imposed only if
7888 HEARNS v. SAN BERNARDINO POLICE
the deceptive conduct is willful, in bad faith, or relates to the
matters in controversy in such a way as to interfere with the
rightful decision of the case.” United States v. Nat’l Med.
Enters., Inc., 792 F.2d 906, 912 (9th Cir. 1986) (citations
omitted); see also Hamilton Copper & Steel Corp. v. Primary
Steel, Inc., 898 F.2d 1428, 1430 (9th Cir. 1987) (noting that
even in light of party’s misconduct, district court should gen-
erally consider alternatives to dismissal with prejudice).
[7] The district court abused its discretion by imposing the
sanction of dismissal with prejudice instead of imposing a less
drastic alternative. Plaintiff’s complaints were long but intelli-
gible and allege viable, coherent claims. Because we conclude
that the district court abused its discretion in dismissing with
prejudice, we need not reach the merits of the Rule 60(b)
motion based on former counsel’s alleged misconduct.
In the district court, Defendants also raised Rule 12(b)(6)
grounds for dismissal of some claims. Those grounds were
not addressed by the court nor are they raised here. On
remand, the district court may address the Rule 12(b)(6)
issues before requiring an answer to the FAC. As indicated
above, the district court may also consider striking surplusage
from the FAC or not requiring Defendants to answer all para-
graphs of the FAC.
[8] In No. 05-56214, we vacate the dismissal order and
remand for further proceedings.
IV. THE SECOND CASE DISMISSAL
The parties again fail to note that the district court never
entered a separate Rule 58 judgment dismissing the Second
Case. Regardless, the parties have treated the August 19, 2005
Order as a final appealable judgment and Plaintiff filed his
notice of appeal well within the time permitted. See Fed. R.
App. P. 4(a)(1), 4(a)(7)(A)(ii). Appeal No. 05-56306 is there-
fore properly before us. As that appeal is not opposed by
HEARNS v. SAN BERNARDINO POLICE 7889
SBPD, the only named Defendant, we remand the Second
Case for reinstatement and further proceedings.
V. CONCLUSION
In No. 05-56214, the order of dismissal is VACATED and
REMANDED for further proceedings consistent with this
opinion. In No. 05-56306 the matter is REMANDED with
instructions to reinstate the case. Appeals Nos. 05-56272 and
05-56324 are DISMISSED as moot.
KLEINFELD, Circuit Judge, concurring in part and dissent-
ing in part:
There are two cases before us, one filed by Hearns in 2003,
and one filed in 2005. I concur in the reversal and remand in
the 2005 case, and dissent in the 2003 case. We are all agreed
that Hearns’s 2005 complaint should not have been dismissed.
My dissent, therefore, has no bearing on whether Hearns may
proceed with his case. The important issue is whether district
courts may apply Federal Rule of Civil Procedure 8 and our
precedent.
The district court, granting the motion to dismiss in the
2003 case, carefully explained that the court was acting pursu-
ant to Federal Rule of Civil Procedure 8(a) as construed in our
decisions Nevijel v. North Coast Life Insurance1 and McHenry
v. Renne.2 The panel does not follow these authorities, even
though they are binding circuit law. The district court exer-
cised its discretion to dismiss only after giving plaintiff
numerous opportunities to cure not only the pleading defect
but also other defects, and providing the plaintiff with guid-
ance about what was wrong with the complaint. The district
1
651 F.2d 671 (9th Cir. 1981).
2
84 F.3d 1172 (9th Cir. 1996).
7890 HEARNS v. SAN BERNARDINO POLICE
court’s liberality was repaid with contumaciousness and eva-
sion. The plaintiff filed an amended complaint distinguished
from the dismissed version only by smaller margins.3
The majority opinion recites but does not actually apply the
standard of review for dismissal under Rule 8, abuse of discre-
tion.4 The majority offers no authority and no reason for its
extraordinary holding, that the district court should have
stricken “[m]any or all of the paragraphs from 33 through
207” or excused defendants from answering them. The closest
it comes is a Second Circuit case addressing a 4 ½ page pro
se complaint, not an 81 page counseled compliant.5 The
majority errs by holding that district courts have the duty (not
merely the discretion) to “relieve a defendant of the burden of
responding to a complaint with excessive factual detail” and
should “simply strike the surplusage from” faulty complaints.6
One might suppose that this jurisprudential surprise would
occur in a pro se case, but this is a counseled case, in which
plaintiff has had at least three attorneys of record.
The many additional authorities cited in the majority opin-
ion largely uphold dismissals and none of them uphold the
new rule announced by the panel, the citations in the majority
opinion being more in the nature of decorations than applica-
tions of law.7
3
There were negligibly minor revisions and four fewer averments.
4
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
5
Simmons v. Abruzzo, 49 F.3d 83, 85 (2d Cir. 1995).
6
Majority Opinion p.7887.
7
See Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004); Garst v.
Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003); Mann v. Boat-
wright, 477 F.3d 1140, 1148 (10th Cir. 2007); McHenry v. Renne, 84 F.3d
1172, 1176-79 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651
F.2d 671, 674 (9th Cir. 1981); Schmidt v. Hermann, 614 F.2d 1221, 1223-
24 (9th Cir. 1980); Gillibeau v. City of Richmond, 417 F.2d 426, 431-32
(9th Cir. 1969); Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1965);
Agnew v. Moody, 330 F.2d 868, 870 (9th Cir. 1964).
HEARNS v. SAN BERNARDINO POLICE 7891
Facts.
A comprehensive factual recount shows why the district
court reasonably exercised its discretion to dismiss Hearns’s
complaint.
The original complaint is 81 pages long, much longer than
we allow appellate briefs to be. It has 336 separate averments
of events spanning more than a decade (and setting out many
alleged wrongs for which the statute of limitations would bar
claims, as well as Title VII claims against fellow employees
rather than the employer, plainly barred by law).8 It is very
hard to understand. Even the chronology is hard to follow
because the events are not set out in any logical order, chrono-
logical or otherwise. The claims do not start until page 57,
after a lengthy, largely irrelevant and entirely unnecessary
history of Hearns’s life and work, and the many wrongs com-
mitted against him and others at work.
In 2005, a different lawyer filed a different complaint,
alleging substantially the same history and claims plus a retal-
iation claim. By contrast with the 2003 complaint and
amended complaint, the 2005 complaint is clear and concise,
9 pages instead of 81, and 39 averments instead of 336. Were
there the slightest doubt whether the case lent itself to a clear
and concise pleading, the well pleaded 2005 case would elim-
inate the doubt.
The complaint and amended complaint in the 2003 case are
not just prolix and largely unnecessary to the “short and plain
statement of the claim[s]” required by Rule 8(a)(2), but are
also very difficult to read because of odd rhetorical devices.
For example, instead of calling defendants “defendants,” or
using their names where the averments and claims distinguish
them, it calls them the “GOBN,” defining this acronym
(which one must memorize to read the complaint) as the
8
See 42 U.S.C. § 2000e-2(a).
7892 HEARNS v. SAN BERNARDINO POLICE
“Good Ole Boys Network” (plaintiff is male, and does not
allege sex discrimination).
The district judge, in dismissing the 2003 complaint,
explained that “the complaint is unnecessarily long, even
given that it contains seventeen legal claims.” The factual sec-
tion is “over 50 pages long, and includes many details that are
not necessary in order to give Defendants notice of the allega-
tions of racial discrimination at issue here. For example,
plaintiff need not have inserted entire email exchanges into
the complaint . . . in order to give Defendants notice that
Plaintiff was alleging a hostile relationship between himself”
and a particular supervisor. Nor did the averment about some
coworker’s alleged rapes have much to do with Hearns’s
claims. The district court aptly noted that “such specificity at
the initial pleading stage is unduly cumbersome to Defen-
dants’ ability to timely answer the complaint.”
On June 25, 2004, the district court gave plaintiff 18 days
to file an amended complaint or else have the action dis-
missed for failure to prosecute under Rule 41(b). Two weeks
after this deadline passed, instead of dismissing the case, the
court issued an order to show cause why the action should not
be dismissed. Again, no response.
Plaintiff did not file anything until two and a half months
after the dismissal without prejudice, long after the deadline
on the order to show cause. Counsel claimed (but did not
swear or declare under penalty of perjury) that she “did not
become aware until Sunday, 9/5/04” of either order. She
requested another 18 days to file an amended complaint.
Meanwhile, she had been quoted in a newspaper accusing
defendants of racial harassment perpetrated by the GOBN.
The court expressed skepticism about counsel’s unsworn
claim that she had not received the orders, and noted that the
record showed that both documents were mailed to counsel at
her present law office address, but gave her the 18 days she
HEARNS v. SAN BERNARDINO POLICE 7893
asked for anyway. Though she filed the amended complaint
within 18 days, she did not make any substantive changes.
She instead used narrower margins to cut the number of
pages. The amended complaint rambled on in the same prolix
way about the GOBN, about how those blacks and other
minorities who were not mistreated were “tools” and “de-
coys,” and claimed that promotions went to WTW’s. This
acronym was defined as “who they want.” The amended com-
plaint has about the same number of words as the initial com-
plaint.
This case was not just a counseled case rather than a pro se
case, but also it was a counseled case in which the plaintiff
as well as his attorney bore personal responsibility for the
defiance of Rule 8 and of the court order. Hearns’s lawyer,
Danuta Tuszynska, gave defense counsel an affidavit which
was filed, stating that a contract attorney, Letitia Pepper, had
actually drafted the original complaint. Tuszynska said in her
sworn statement that “[a]fter the court’s order granting the
first motion to dismiss, I advised plaintiff that we needed to
shorten the pleading, but he refused. Instead he urged me to
lengthen the first amended complaint by adding additional
parties, which I declined to do.” Tuszynska shortened the
complaint from 81 pages down to 68 pages, but not by cutting
what the judge had said to cut. She just deleted four of the 336
averments and made the margins narrower.
Granting a motion to dismiss the amended complaint, this
time with prejudice, the judge explained that he “thoroughly
compared the [First Amended Complaint] to the complaint
and conclude[d] that they include nearly all of the same fac-
tual and legal allegations. Hearns . . . made no genuine effort
to comply with the June 25 order. Hearns’ factual allegations
remain grossly excessive, and in certain parts, repetitive and
immaterial. It is clear that Hearns’ [First Amended Com-
plaint] has not cured the pleading deficiencies discussed in the
June 25 order.” The district court expressly considered sanc-
7894 HEARNS v. SAN BERNARDINO POLICE
tions other than dismissal with prejudice, but rejected them
because of the history:
The court does not believe that alternative measures
less drastic than dismissal with prejudice would be
effective here. See McHenry, 84 F.3d at 1178. The
court has already given Hearns leave to amend to
comply with Rule 8(a), which he failed to do. More-
over, when Hearns’ counsel claimed not to have
received the June 25 order or the July 28, 2004
Order to Show Cause why his case should not be dis-
missed for failure to amend within the time allotted
by the court, the court extended the time to file a
[First Amended Complaint], even though it was
‘extremely coincidental’ that Hearns’ counsel did not
receive two court documents mailed from the Clerk
of the Court to her present law office address.
After the dismissal of the amended complaint, Hearns sub-
stituted Tuszynska’s contract attorney, Letitia Pepper, as his
new counsel. Pepper missed what she understood to be the
appeal deadline, and blamed it on Hearns’s first lawyer, Tus-
zynska. Pepper sought an extension of time to file an appeal
because of Tuszynska’s “gross negligence and/or egregious
misconduct.” According to Pepper, Tuszynska delayed in
releasing Hearns’s files, failed to convey messages to Hearns
about Pepper’s willingness to help Tuszynska with the First
Amended Complaint, and failed to timely appeal the dismissal
order. Pepper also blamed the delay on a falling out between
herself and Tuszynska that arose from when Tuszynska ini-
tially represented Pepper after she was arrested for dog theft
(no charges were filed) and Tuszynska abruptly ended the
representation.
Analysis
Federal Rule of Civil Procedure 8(a)(2) requires a “short
and plain statement of the claim showing that the pleader is
HEARNS v. SAN BERNARDINO POLICE 7895
entitled to relief.” Subsection 8(d)(1) requires that “[e]ach
allegation must be simple, concise and direct.”9 Rule 84 pro-
vides that “[t]he forms in the Appendix suffice under these
rules and illustrate the simplicity and brevity that these rules
contemplate.” The forms in the Appendix for complaints
range from three to eight averments, none requiring more than
a few pages after the caption, even for such complex matters
as patent infringement, copyright infringement and unfair
competition, and interpleader and declaratory relief.
“We review dismissal of a complaint with prejudice for
failure to comply with a court’s order to amend the complaint
to comply with Rule 8 for abuse of discretion.”10 “The district
judge’s evaluation of whether the plaintiff complied with his
order is entitled to considerable weight.”11 I cannot see that
the majority opinion gives any weight, much less “consider-
able weight,” to the district judge’s evaluation.
We have for decades upheld dismissals with prejudice of
needlessly prolix and confusing complaints, after plaintiff
failed to take advantage of an invitation to cure the defects in
an amended complaint.12 So have our sister circuits.13 Federal
courts not infrequently exercise discretion not to dismiss with
prejudice rambling complaints by pro se litigants who are not
9
Emphasis added.
10
McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
11
Id.12
See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.
1981); Schmidt v. Hermann, 614 F.2d 1221, 1223-24 (9th Cir. 1980);
Agnew v. Moody, 330 F.2d 868, 871 (9th Cir. 1964).
13
Keul v. FDIC, 8 F.3d 905 (1st Cir. 1993); In re Westinghouse Secs.
Litigation, 90 F.3d 696 (3rd Cir. 1996); Smith v. Intn’l Longshoremen’s
Ass’n, AFL-CIO, Local No. 333, 592 F.2d 225 (4th Cir. 1979); Collier v.
First Michigan Coop. Housing Ass’n, 274 F.2d 467 (6th Cir. 1960); Garst
v. Lockheed Martin Corp., 328 F.3d 374 (7th Cir. 2003); Koll v. Wayzata
State Bank, 397 F.2d 124 (8th Cir. 1968); Ausherman v. Stump, 643 F.2d
715 (10th Cir. 1981); McCann v. Clark, 191 F.2d 476 (D.C. Cir. 1951).
7896 HEARNS v. SAN BERNARDINO POLICE
likely to be able to plead any more clearly.14 “Conversely, the
federal courts are far less charitable when one or more
amended pleadings already have been filed with no measur-
able increase in clarity.”15
I now turn to the earlier of the two cases upon which the
district judge based his decision, Nevijel v North Coast Life
Insurance Company.16 As in the case before us, the district
court dismissed with prejudice, after first giving the plaintiff
an opportunity to amend. We affirmed, holding that in appro-
priate circumstances “[a] complaint which fails to comply
with rules 8(a) and 8(e) may be dismissed with prejudice pur-
suant to rule 41(b),”17 and that such a dismissal will be over-
turned on appeal “only” if the district court abused its
discretion.18 The circumstances in that case resembled those in
the case at bar, except that the complaint in Nevijel was
nowhere near as verbose and confusing as the one in this case,
nor did the plaintiff in Nevijel sneak around the court’s
instructions in the earlier dismissal by word processor manip-
ulation.
Fifteen years later, in McHenry v. Renne,19 we followed our
holding in Nevijel. We upheld a dismissal with prejudice of
a civil rights complaint a fraction of the length of the one in
the case before us, and comparably confusing. The majority’s
ground for not following McHenry is that among the many
faults with the complaint, one could not figure out which
defendants were being sued on which claims. That is not
much of a distinction, considering the hours it would take to
prepare an outline of the complaint in the case before us, nor
14
5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Pro-
cedure § 1217 (3d ed. 2004).
15
Id.
16
651 F.2d 671 (9th Cir. 1981).
17
Id. at 673.
18
Id. at 674.
19
84 F.3d 1172, 1177 (9th Cir. 1996).
HEARNS v. SAN BERNARDINO POLICE 7897
was that the issue on which McHenry turned. As in the case
before us, the complaint in McHenry “read[ ] like a magazine
story instead of a traditional complaint.”20
We held in McHenry that the Federal Rules “require,” not
merely suggest, that complaints be “simple, concise and
direct,”21 and pointed out that Rule 84 and the Appendix of
Forms illustrated the “simplicity and brevity” contemplated
by Rule 8.22 As in the case before us, the complaint in
McHenry was “argumentative, prolix, replete with redun-
dancy, and largely irrelevant.”23 We took special note that
“[n]one of this material has any resemblance to the sample
pleadings in the Appendix of Forms,” and rather than set out
the claims, “the pleading seems designed to provide quota-
tions for newspaper stories.”24
True, dismissal with prejudice is a harsh remedy. But so is
the failure to dismiss with prejudice, where such a dismissal
is appropriate. The harshness and injustice of failure to dis-
miss falls not only on courts, but also on defendants and liti-
gants in other cases. As we explained in McHenry, complaints
like this one require the judge in effect to draft a proper com-
plaint in chambers, a task likely to take at least half a day. The
majority thinks the judge ought to have trudged through the
81 pages, 336 averments with a red pen, striking averments or
drafting an order telling defendants when averments did not
need to be answered. Indeed, in this case, that is just what the
majority says the district judge should have done, as though
the judge should have been Hearns’s fourth lawyer in this
case. By contrast with the hours of effort the majority imposes
on the district judge, all Hearns’s lawyer evidently had to do
20
Id. at 1176.
21
McHenry, 84 F.3d at 1177.
22
Id. at 1177.
23
Id.24
Id. at 1178.
7898 HEARNS v. SAN BERNARDINO POLICE
was a “select all” and narrow the margins on her word proces-
sor.
Failure to dismiss reeks of unfairness to defendants. The
defendants are put to the expense of a far more extensive pre-
trial process, and in all likelihood a far lengthier trial requir-
ing expensive preparation on all sorts of irrelevancies, leaving
as detritus the uncertainty about how to apply res judicata to
whatever was adjudicated, if the plaintiff sues again.
Prolix, confusing complaints such as the ones
plaintiffs filed in this case impose unfair burdens on
litigants and judges. As a practical matter, the judge
and opposing counsel, in order to perform their
responsibilities, cannot use a complaint such as the
one plaintiffs filed, and must prepare outlines to
determine who is being sued for what. Defendants
are then put at risk that their outline differs from the
judge’s, that plaintiffs will surprise them with some-
thing new at trial which they reasonably did not
understand to be in the case at all, and that res judi-
cata effects of settlement or judgment will be differ-
ent from what they reasonably expected. “[T]he
rights of the defendants to be free from costly and
harassing litigation must be considered.” Von Pop-
penheim [v. Portland Boxing and Wrestling
Comm’n, 442 F.2d 1047, 1054 (9th Cir. 1971)].
The judge wastes half a day in chambers preparing
the “short and plain statement” which Rule 8 obli-
gated plaintiffs to submit. He then must manage the
litigation without knowing what claims are made
against whom. This leads to discovery disputes and
lengthy trials, prejudicing litigants in other case who
follow the rules, as well as defendants in the case in
which the prolix pleading is filed. “[T]he rights of
litigants awaiting their turns to have other matters
resolved must be considered. . . .” Nevijel, 651 F.2d
HEARNS v. SAN BERNARDINO POLICE 7899
at 675; Von Poppenheim, 442 F.2d at 1054. While
commendable in its consideration for plaintiffs in
this case, the magistrate’s thorough analysis and
thirty-page report, and the judge’s study of the
report, took a great deal of time away from more
deserving litigants waiting in line.25
A complaint with hundreds of averments generates tens of
thousands of dollars in discovery and motions expenses. Even
answering the complaint is an expensive and unjustified bur-
den, because Rule 8(b) requires the defendants to state their
defenses to “each” claim, and worse, in a complaint with hun-
dreds of averments, to “admit or deny the allegations asserted
against it by an opposing party.”26 One experienced in litiga-
tion knows how time consuming for the lawyer and expensive
for the client it is to search out documents and personnel and
get people on the phone, in order to file a good faith answer
to hundreds of averments. The majority’s claim that
“[d]efendants should have no difficulty in responding to the
claims with an answer and/or with a Rule 12(b)(6) motion to
dismiss” assumes days of associates’ time available and an
unlimited litigation budget.
Failure to dismiss with prejudice, as we explained in
McHenry, also imposes injustices on other litigants waiting in
line for the district court’s time. No doubt judges feel that
they are doing a fine and charitable thing when they devote
a great deal of time to an incompetently pleaded complaint,
trying to turn a sow’s ear into a silk purse.
The feeling of compassion, though, may be unjustified. The
judge who does what the majority opinion says he ought to do
with a complaint that violates Rule 8 is like a clerk in a gro-
cery store displaying warmth and friendliness by chatting with
the customer at the register, while a half dozen others stand
25
McHenry, 84 F.3d at 1179-80.
26
Fed. R. Civ. Pro. 8(b)(1).
7900 HEARNS v. SAN BERNARDINO POLICE
seething in the slow line. The district court owes it to the
other litigants in other cases as well as to the defendants to
husband its resources for cases that are properly pleaded.
None of our disagreement goes to whether Hearns may liti-
gate his civil rights claim. We are all agreed that dismissal of
the 2005 complaint was indeed an abuse of discretion. The
only reason I can see for why the district court dismissed that
complaint was that it could hardly be seen, under the huge
pile of garbage dumped on the court by the complaint and
amended complaint in the 2003 case. What our dispute is
about is whether the mandatory language of Rule 8 shall be
followed, and whether a panel shall follow the binding prece-
dents of our own court. Today’s majority decision means that
a district judge who conscientiously applies the rule and fol-
lows our precedents in Nevijel and McHenry cannot count on
us to do the same.