United States District Court, W.D. Wisconsin
FREDERICK P. SCHNEIDER, Plaintiff
TOWN OF CAMPBELL, ANDREW J. GAVRILOS, ADAM BREIDEL, MICHAEL VALENCIA, COUNTY OF LA CROSSE, and JOANN R. SCHALLER, Defendants.
D. PETERSON District Judge
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)
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
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.
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
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 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
Plaintiff Frederick P. Schneider's amended complaint,
Dkt. 45, is STRICKEN for failure to comply with Federal Rule
of Civil Procedure 8.
Plaintiff will file a second amended complaint consistent
with this order within 10 days.
Defendants' motions to dismiss, Dkt. 20 and Dkt. 23, are
DENIED as moot.
 This deadline will not apply to
defendant Schaller, who has apparently not yet been served.
Schaller should be promptly served or ...