69 F. 3d 547 - Arena Land Investment Co Inc v. C Petty

Arena Land & Investment Company (hereinafter "Arena") appeals the district court's order dismissing its third amended complaint with prejudice pursuant to Fed.R.Civ.P. 8, 9(b), 12(b)(1) and 12(b)(6).2 We affirm.

Arena and fifteen others brought suit alleging violations under the Securities Exchange Act of 1934, the Securities Act of 1933, and the Racketeer Influenced and Corrupt Organizations Act as well as various pendant state law claims. A magistrate judge assigned to the case recommended dismissal of the initial complaint under Fed.R.Civ.P. 8. The initial complaint was 143 pages long, alleged thirty-six counts and was accompanied by 273 pages of exhibits. The magistrate judge's order, which the district court adopted, clearly explained the complaint's legal and structural deficiencies. Arena was given three chances to amend the complaint before the district court finally dismissed the third amended complaint, which was eighty-nine pages long, with prejudice. The district court's order thoroughly discussed the applicable law supporting its dismissal and provided alternative bases for dismissal under Fed.R.Civ.P. 8, 9(b), 12(b)(1) and 12(b)(6).

The district court dismissed Arena's third amended complaint for violating Fed.R.Civ.P. 8, and found alternatively the complaint also violated Fed.R.Civ.P. 9(b), 12(b)(1) and 12(b)(6). We agree, finding Arena's Rule 8 violations egregious enough to warrant dismissal of the third amended complaint. Under Fed.R.Civ.P. 8 appellants needed to set forth a short and plain statement of the claim showing they were entitled to relief. Arena failed to do so. The third amended complaint is wordy, repetitive and fails to allege the necessary elements of the claims it is asserting. Indicative of the complaint's inadequacy is the fact that it rambles on for sixty-four pages before reaching the first claim for relief. It is neither the court's nor the appellees' role to sift through a lengthy, conclusory and poorly written complaint to piece together the cause of action. Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368, 371-72 (10th Cir.1989).

The district court based its dismissal on Arena's failure to heed previous court directions to delete "scandalous, impertinent and redundant matter" and the complaint's confusing grammatical and structural problems that contained legal conclusions unsupported by relevant facts. In short, the court found the complaint denied the defendants adequate notice of the claims being brought against them. We agree with the district court's conclusions. After reviewing the third amended complaint it is difficult to tell what exactly the appellees have done that makes them liable to the appellants. The third amended complaint contains a long litany of the evils committed by Michael Strand, but fails to specify how or why the appellees are responsible for the actions of a man who is not a party to this lawsuit. Arena merely makes conclusory statements alleging that the appellees owed the appellants a duty to disclose certain information, and were coconspirators and "controllers" of Mr. Strand.

Appellants contend the district court's mandate that they plead the Racketeer Influenced and Corrupt Organizations Act and fraud claims with particularity pursuant to Fed.R.Civ.P. 9 combined with Rule 8's brevity requirements created the impossible dilemma of having a complaint that was "both too long and too short at the same time." Appellants miss the point of both Rule 8 and Rule 9. As this case exemplifies, mere wordiness is not what it takes to state a cause of action under Rule 9. It is a matter of precision, not length that is required. Vague and conclusory assertions, regardless of how long or how short, are inadequate to state such causes of action. Glenn v. First Nat'l Bank in Grand Junction, 868 F.2d 368, 371 (10th Cir.1989). Arena could have met the requirements of Rules 8 and 9 by alleging specific times, dates and actions of the appellees in a concise manner.

The district court was more than patient in providing Arena three chances to amend its initial complaint. The district court's order dismissing Arena's third amended complaint with prejudice is AFFIRMED.