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Decided March 1, 2004 Before Walker, Ch.J.; Calabresi and Cabranes, C.J. Plaintiff-Appellant Kenneth Wynder appeals from a dismissal by the United States District Court for the Eastern District of New York (David G. Trager, Judge), pursuant to Fed. R. Civ. P. 41(b), for failure to comply with a district court order. VACATED and REMANDED. Richard J. Merritt, Lindenhurst, NY, for plaintiff-appellant. Susan H. Odessky, Assistant Attorney General, for Eliot Spitzer, Attorney General of the State of New York, for defendants-appellees. CALABRESI, C.J. – In February 1999, plaintiff-appellant Kenneth Wynder filed a civil rights complaint in the United States District Court for the Eastern District of New York. Twice the district court (Trager, J.) dismissed his complaint with leave to replead, imposing specific conditions on the form and content of the pleading. When, in the district court’s estimation, Wynder’s second amended complaint did not meet those conditions, the court dismissed the complaint pursuant to Fed. R. Civ. P. 41(b) and directed the clerk to close the case. In this appeal, we must determine (1) whether the district court may – on pain of dismissal – require a plaintiff’s complaint to meet a higher pleading standard than that set forth in Fed. R. Civ. P. 8(a); and, if it may not, (2) whether Wynder’s second amended complaint in fact complies with the dictates of Rule 8. [1] We believe the answer to the first question is no; and to the second, yes. Accordingly, we vacate and remand this case for further proceedings. I. Kenneth Wynder is an African-American male who, at all times relevant to this suit, served as a New York State Police Officer. His 1999 complaint alleged race discrimination and attendant violations of his rights under a cavalcade of constitutional and statutory provisions: the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as 42 U.S.C. ��1981, 1983, 1985, 1986, Title VII of the Civil Rights Act of 1964, 42 U.S.C. �2000e, and sections of the New York State Constitution. Plaintiff’s claims all stemmed from a variety of alleged adverse employment actions occurring between 1992 and 1998. His complaint, totaling 14 pages with 64 paragraphs, described a wide array of acts and decisions by defendants which, he believes, collectively constituted a “common conspiratorial scheme” to harass him and to drive him out of the state police force – all on account of his race. Wynder’s claims have followed a long and winding road through the pleadings stage. Initially, defendants responded to his allegations with a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) & (b)(6). They offered a range of procedural grounds for dismissal, including Eleventh Amendment immunity, absolute and qualified individual immunity, and failure to state a claim. In January 2000, the district court dismissed Wynder’s complaint for an entirely distinct reason which it raised on its own motion: plaintiff’s failure “to articulate in a logical way what [his] theory of the case is and what [his] statutory claim is.” The court ordered Wynder to provide a “very detailed complaint against each person, separately numbered, what your claim is against that person and what evidence you have as of this date as against that person, and what legal theory you’re going against that person.” [2] The complaint, the court insisted, should be written in “plain English.” Wynder, responding to the court’s order, filed a first amended complaint in March 2000. [3] In October of the same year, defendants again moved for dismissal, on the same grounds as before. And again, the district court, after reserving judgment on their motion, dismissed the complaint – with leave to replead – because the complaint did not live up to the terms of its order. The court was unsatisfied with what it termed “cosmetic” changes to the pleading, and reminded Wynder that the special solicitude offered to pro se litigants in the construction of complaints did not extend to counseled plaintiffs. Wynder’s counsel was further cautioned that a second failure to comply with the court’s directions regarding the complaint would result in outright dismissal. In January 2001, plaintiff filed a second amended complaint, by now totaling 26 pages and 90 paragraphs. For the third time, defendants submitted their same Rule 12(b) motion. And for the third time, the district court found the complaint wanting without considering defendants’ motion. In August 2002, it dismissed the second amended complaint without prejudice, pursuant to Fed. R. Civ. P. 41(b), which allows for involuntary dismissals for “failure of the plaintiff to prosecute or to comply with . . . [an] order of court.” In its memorandum and order, the district court characterized the second amended complaint as “virtually identical” to the first, and reiterated the criticism that the latest rendition (1) did not separate out the legal claims against each of the defendants, and (2) did not succinctly and lucidly state the nature of his various allegations. [4] Although the dismissal was, strictly speaking, “without prejudice,” if affirmed it would likely prove fatal to Wynder’s claims: as plaintiff acknowledged at oral argument before us, the statute of limitations has run on most, if not all, of his various causes of action. See, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (applying a three-year statute of limitations to a Section 1983 claim arising from events occurring in New York); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (applying a three-year statute of limitations to a New York Human Rights Law claim); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994) (Title VII suit must be commenced within 90 days of receiving EEOC right-to-sue letter). Under the circumstances, then, Wynder’s ability to seek vindication in federal court on these claims depends on whether or not we reinstate his complaint. II. On appeal, Wynder challenges the district court’s Rule 41(b) dismissal. We have jurisdiction to consider his challenge because a dismissal without prejudice that does not give leave to amend and closes the case is a final, appealable order under 28 U.S.C. �1291. See Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445, 448 (2d Cir. 1978) (if plaintiff is not given leave to amend, the order of dismissal is final and appealable); Allied Air Freight, Inc. v. Pan Am. World Airways, Inc., 393 F.2d 441, 444 (2d Cir. 1968) (“dismissals with and without prejudice are equally appealable as final orders”). In considering the merits, we review Rule 41(b) dismissals for abuse of discretion. See Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998). And, of course, a district court abuses its discretion when “its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or . . . its decision – though not necessarily the product of a legal error or a clearly erroneous factual finding – cannot be located within the range of permissible decisions.” Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnote omitted). At bottom, Wynder’s position on appeal is that it is legal error to impose conditions that exceed the requirements of Rule 8 and then to punish the plaintiff, by means of dismissal, for failure to meet those conditions. He argues that his second amended complaint is valid – and the court’s dismissal correspondingly invalid – because the complaint meets the minimal threshold established by Rule 8(a) and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). For their part, defendants argue that it is within the province of the district court’s discretion to impose specific pleading requirements on a counseled plaintiff, and, in any event, that Wynder’s second amended complaint is dismissable. [5] For the reasons that follow, we conclude that defendants are wrong on both counts: (a) the district court may not order, under penalty of dismissal, that plaintiffs file a complaint that goes above and beyond what Rule 8 requires, and (b) the second amended complaint passes muster under Rule 8. A. It is hardly debatable that the district court’s order called for the plaintiff to supply a complaint that substantially exceeded the requirements of Rule 8. Under Swierkiewicz, Rule 8 pleading is extremely permissive. 534 U.S. at 512-13. As the Supreme Court there noted, Rule 8(a)(2) provides (a) that a complaint must include only “a short and plain statement of the claim showing that the pleader is entitled to relief,” and (b) that such a statement simply ” ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’ ” 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). [6] In the case before us, the district court demanded far more than a short and plain statement of the claims and the grounds upon which they rest. Plaintiff was called upon to provide, inter alia, (1) “legal theor[ies],” (2) specific “authority, statutory and case law,” (3), “evidence . . . in detail,” and (4) separate claims as to each defendant. Our case law makes clear that the first three are not requirements imposed by Rule 8. First, ” ‘federal pleading is by statement of claim, not by legal theory.’ ” Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997) (quoting Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir. 1991)). Second, even leaving aside case law and other authorities, Rule 8′s “ liberal pleading principles” do not permit dismissal for ” ‘failure in a complaint to cite a statute, or to cite the correct one . . . . Factual allegations alone are what matters.’ ” Id. (quoting Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (in banc)). Third, “ [m]ore extensive pleading of fact[s] is not required” under Rule 8 because the Federal Rules “provide other devices besides pleadings that will serve to define the facts and issues.” Scutti Enters., LLC. v. Park Place Entm’t Corp., 322 F.3d 211, 215 (2d Cir. 2003) (internal quotation marks omitted). Finally, nothing in our past precedents requires plaintiffs formally to separate claims defendant by defendant in order to satisfy the Rule. B. Rule 41(b) clearly authorizes dismissal where plaintiffs have “fail[ed] . . . to comply with these rules [i.e. the Federal Rules of Civil Procedure],” including, of course, Rule 8. Fed R. Civ. P. 41(b); see also Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir. 1988) (the court may dismiss under Rule 41(b) a complaint which fails to comply with Rule 8); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (same). But does the provision empower district courts to condition the perdurance of a lawsuit on requirements that specifically exceed those set forth in the Federal Rules – in this case additional pleading imperatives absent from Rule 8(a)? We have not previously answered this question. Cf. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (noting that district courts may dismiss a deficient complaint either for failure to follow Rule 8 or, under Rule 41(b), “for failure to comply with a court order, treating the noncompliance as a failure to prosecute,” but not discussing how the two rules interact) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962)). [7] We do so now. We assume for the moment that the plaintiff has met the basic requisites of Rule 8. On that assumption, a Rule 41(b) dismissal could properly rest only on one of two other grounds: that plaintiff has failed (1) to prosecute; or (2) to comply with a court order. But neither of these grounds can justify the imposition of heightened pleading requirements. Rule 8 would become a dead letter if district courts were permitted to supplement the Rule’s requirements through court orders demanding greater specificity or elaboration of legal theories, and then to dismiss the complaint for failure to comply with those orders. Under such a regime, what Rule 8 currently forbids – dismissals based on stringent pleading standards – could occur indirectly through Rule 41(b). This would not only be troublesome in the individual case, where a plaintiff would be held to account for omissions deemed immaterial under the Rules; it would be particularly problematic across the span of cases. For then district courts could impose disparate levels of pleading requirements on different sorts of plaintiffs. In both respects, Rule 8(a)’s purposes – to lower the entry barriers for federal plaintiffs and to establish prospectively a rule common to all litigants – would be violated. [8] In defending the district court’s decision, defendants advert to Nita v. Connecticut Department of Environmental Protection, 16 F.3d 482 (2d Cir. 1994), which details factors relevant to a Rule 41 dismissal determination. [9] The Nita factors, however, reveal only what is meant by “failure to prosecute or to comply with [the Federal Rules of Civil Procedure] or any order of court” and what sorts of safeguards the court must nevertheless adhere to before issuing a Rule 41(b) dismissal. The Rule is intended to serve as a rarely employed, but useful, tool of judicial administration available to district courts in managing their specific cases and general caseload. [10] Nita does not imply that the Rule gives license to courts to impose higher standards than those set out in the Federal Rules of Civil Procedure. C. It follows that the district court could only correctly dismiss Wynder’s complaint at this stage if the complaint in fact failed to meet the minimum pleading standards set forth in Rule 8(a). Dismissals for failure to comply with Rule 8(a), like dismissals under Rule 41(b), are reviewed for abuse of discretion. Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000). The key to Rule 8(a)’s requirements is whether adequate notice is given. 2 James Wm. Moore et al., Moore’s Federal Practice �8.04[1] (3d ed. 1999) (“The rule is fashioned in the interest of fair and reasonable notice, not technicality.”). In the case before us, plaintiff’s submission is a model of neither clarity nor brevity, and we can sympathize with the district court’s displeasure with it, but it is sufficient to put the defendants on fair notice. In Simmons, we defined fair notice as “that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.” 49 F.3d at 86 (internal quotation marks omitted); see also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (fair notice is judged by whether the complaint enables defendants “to answer and prepare for trial”). Wynder’s complaint, at its core, achieves these ends. [11] It plainly asserts, among other things, that plaintiff, as a counselor at the New York State Police Academy, was required to perform tasks involving manual labor that white counselors were not required to perform (�5); that when he was interviewed for a position with the Bureau of Criminal Investigation, he was made to stand facing a picture depicting a Civil War battlefield and a Confederate flag, thereby being subjected to racial animus (��20-21); that the denial of his promotion was in retaliation for complaining to the internal affirmative action officer and the EEOC about such discriminatory acts (��17-19, ��22-23); that defendants created a hostile work environment, in an effort to force his resignation, by conducting a malicious – and baseless – criminal investigation into his failure to report a stolen weapon (��32-39); and that certain named defendants falsely filed and litigated administrative charges against him (��40-42). Furthermore, while Rule 8 does not necessarily require – as the district court here did – that the complaint separate out claims against individual defendants, each of the named defendants-appellees is explicitly tied to one or more of Wynder’s allegations. He asserts, inter alia, that defendant Masterson directed him to perform the manual labor not required of white counselors (�16); that defendant Spahl improperly forced him back to work and retaliated against him for complaining to Spahl’s superiors and others (��25-26); that defendant McMahon initiated the criminal investigation in bad faith (��30, 34, 36); that defendant Barbaria participated in that investigation (��33-34, 37-38); and that defendant Jones suppressed exculpatory evidence out of discriminatory animus (��41-42). Moreover, just as in Simmons, the defendants themselves “did not even remotely suggest” in their motion papers that the amended complaint “did not give them notice of the substance of [plaintiff's] claims, or that it was otherwise unintelligible.” 49 F.3d at 87. [12] Based on the foregoing, we find that Wynder’s second amended complaint is sufficient to meet the lenient standard of Rule 8. Dismissal pursuant to the rule “is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin, 861 F.2d at 42. This is not such a case. While we have insisted that complaints be concise “because unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage,” id. (internal quotation marks omitted), see also Fed. R. Civ. P. 8(e), plaintiff’s long submission does not overwhelm the defendants’ ability to understand or to mount a defense. And while we of course believe that “form matters in our system of adjudication,” Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003) (emphasis deleted), this pleading is not so lacking in form as to warrant dismissal. III. Because a Rule 41(b) dismissal would only be proper if the complaint did not pass muster under Rule 8, and because this complaint exceeds the Rule 8 floor, we find that the district court’s order was an abuse of discretion. Accordingly, Wynder should be permitted to proceed on his second amended complaint. That is not to say, of course, that all aspects of the complaint will ultimately survive dismissal. For one thing, there is a critical distinction between the notice requirements of Rule 8(a) and the requirement, under Rule 12(b)(6), that a plaintiff state a claim upon which relief can be granted. Although, reading the complaint carefully, the individual defendants can discern which claims concern them and which do not, the complaint accuses all of the defendants of having violated all of the listed constitutional and statutory provisions. As a result, a series of 12(b)(6) motions to dismiss would lie to permit each particular defendant to eliminate those causes of action as to which no set of facts has been identified that support a claim against him. Moreover, we by no means preclude the district court from striking those particular portions of the complaint, if any, that do not satisfy Rule 8. We leave that specific determination to the discretion of that court. See Salahuddin, 861 F.2d at 43 (suggesting that courts may simply strike redundant or immaterial matter, leaving the facially valid claims to be litigated); see also Fed. R. Civ. P. 12(f) (court may strike any portions that are redundant or scandalous). IV. We are satisfied that the core of Wynder’s complaint is sufficient for purposes of Rule 8, and that the district court’s in toto dismissal was improper. Accordingly, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion. FootNotes: [1] Plaintiff’s second amended complaint is attached as an appendix to this opinion. [2] The court added: “You’ve sued five people. Each one is to be dealt with separately. Each of them, you’re going to allege whatever evidence you have in detail as to that person, and your legal theories, and your cite of authority, statutory and case law.” [3] This complaint added defendant Keats. [4] The court did not reference Fed. R. Civ. P. 8(a) in reaching this conclusion. [5] The key inquiry, on their view, is not whether the complaint meets the bare-bones standards of Rule 8. Rather, it is whether Judge Trager properly balanced considerations of judicial economy, prejudice to the defendant, and solicitude to the plaintiff in ordering dismissal as a result of non-compliance with his explicit order – factors relevant to a dismissal determination under Rule 41. [6] Other provisions of Rule 8 are inextricably linked to Rule 8(a)’s simplified notice pleading standard. Rule 8(e)(1) states that “[n]o technical forms of pleading or motions are required,” and Rule 8(f) provides that “[a]ll pleadings shall be so construed as to do substantial justice.” This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. “The provisions for discovery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court.” 5 C. Wright & A. Miller, Federal Practice and Procedure �1202, p. 76 (2d ed. 1990). [7] In Simmons, our vacatur rested in part on the fact that the district court never explicitly ordered the plaintiff to provide a clearer and more concise statement of his claims. See id. at 88. But we did not discuss whether, if the court had so ordered and the plaintiff had subsequently failed to comply with that order, the initial complaint – which satisfied Rule 8(a) – could have been dismissed for that compliance failure. [8] Nor is the limitation that we today recognize on a district court’s use of Rule 41(b) likely restricted to Rule 8. The well-settled rule is that a court should not grant a Rule 12(b)(6) motion to dismiss unless “it appears [certain] that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). It would be very strange indeed if a district court could, on pain of dismissal pursuant to Rule 41, require a plaintiff to adduce more facts or to meet a higher burden than that required by Rule 12(b)(6). And this same principle would seem to obtain with respect to the various floors and ceilings established by other Federal Rules as well. Of course, since such situations are not currently before us, we need not, and hence do not, so hold today. [9] Nita sets forth the following factors: [1] the duration of the plaintiff’s failures [to comply], [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party’s right to due process and a fair chance to be heard, and [5] whether the judge has adequately assessed the efficacy of lesser sanctions. Nita, 16 F.3d at 485 (internal quotation marks omitted). [10] We have characterized these dismissals as “harsh remed[ies]” that are “ appropriate only in extreme situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). [11] The fact that both Salahuddin and Simmons involved pro se plaintiffs whose pleadings we read more liberally, see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001), does not lessen the relevance of the two opinions to the instant case, because the basic requirements of Rule 8 apply to self-represented and counseled plaintiffs alike. See Scutti Enters., LLC. v. Park Place Entm’t Corp., 322 F.3d 211, 217 (2d Cir. 2003) (remanding case on ground that certain claims in counseled plaintiff’s complaint were adequately pled under the generous standards of Rule 8(a)). [12] Indeed, defendants do not specifically raise compliance with Rule 8(a) in their appellate submission; they focus largely on the district court’s power to condition dismissal on failure to comply with its order, and discuss only briefly what they view to be the deficiencies in the pleadings themselves.

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