UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-1305

STATE OF NORTH CAROLINA; UNION COUNTY; K. M., by and through his next friends, C. Timothy Mathis and Shannon Mathis; Q. M., by and through his next friends, C. Timothy Mathis and Shannon Mathis; B. J., by and through his next friend, Jodi Livengood; L. L., by and through her next friend, Eric Livengood; K. B., by and through her next friends, Michelle Barnette and Michael Barnette; C. TIMOTHY MATHIS; SHANNON MATHIS; CHARLES MATHIS; JEFFREY MATHIS,

Plaintiffs - Appellants,

versus

WILLIAM FRANKLIN MCGUIRT, Sheriff of Union County, in his individual and official capacities; OLD REPUBLIC SURETY COMPANY, as surety; HARLEYSVILLE MUTUAL INSURANCE COMPANY, as surety; TED KEZIAH; HARRY FUSS; RANDY COX; GREG STEWART; LARK PLYLER, JR.; STEVE SIMPSON; DAIRY SIMPSON; DAVID F. PIERCE, as personal representative of the estate of Roger D. Laney; BILL TUCKER; SHANE MCKENZIE; JEFF WEBB; E. M. GOODMAN; DAVID LINTO; DEXTER WILSON; KAREN CROOK; KEVIN JAMES; BILL SHAW; TOMMY ALLEN; RYAN HUNKE; MIKE EASLY; W. A. GAGNON; CHAD COPPAGE; BRIAN HELMS; R. TOMBERLIN; J. KIRKLEY; TOMMY GALLIS; MICHAEL COPPAGE; EDWARD HENDRICKS; JOHN INGANI, Deputy Sheriffs, in their individual and official capacities; DANNY THOMPSON; JOHN DOES; JOYCE THOMAS,

Defendants - Appellees,

and

T. PRICE,

Defendant. No. 04-1306

STATE OF NORTH CAROLINA; UNION COUNTY; K. M., by and through his next friends, C. Timothy Mathis and Shannon Mathis; Q. M., by and through his next friends, C. Timothy Mathis and Shannon Mathis; B. J., by and through his next friend, Jodi Livengood; L. L., by and through her next friend, Eric Livengood; K. B., by and through her next friend, Michelle Barnette; MICHAEL BARNETTE; C. TIMOTHY MATHIS; SHANNON MATHIS; CHARLES MATHIS; JEFFREY T. MATHIS,

Plaintiffs - Appellants,

versus

WILLIAM FRANKLIN MCGUIRT, Sheriff of Union County, in his individual and official capacities; OLD REPUBLIC SURETY COMPANY, as surety; HARLEYSVILLE MUTUAL INSURANCE COMPANY, as surety; TED KEZIAH; HARRY FUSS; RANDY COX; GREG STEWART; LARK PLYLER, JR.; STEVE SIMPSON; DAIRY SIMPSON; DAVID F. PIERCE, as personal representative of the estate of Roger D. Laney; BILL TUCKER; SHANE MCKENZIE; JEFF WEBB; E. M. GOODMAN; DAVID LINTO; DEXTER WILSON; KAREN CROOK; KEVIN JAMES; BILL SHAW; TOMMY ALLEN; RYAN HUNKE; MIKE EASLY; W. A. GAGNON; CHAD COPPAGE; BRIAN HELMS; R. TOMBERLIN; T. PRICE; J. KIRKLEY; TOMMY GALLIS; MICHAEL COPPAGE; EDWARD HENDRICKS; JOHN INGANI, JOYCE THOMAS, Deputy Sheriffs, in their individual and official capacities; DANNY THOMPSON; FNU LNU, #1-18, as Deputy Sheriffs of Union County, in individual and official capacities; KAREN VONKAAS; MICHAEL JANKOWSKI; KEVIN P. COLLINS; DAVID F. PIERCE, as personal representative of the estate of Roger D. Laney,

Defendants - Appellees.

-2- Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CA-02-353-3; CA-03-401-3)

Argued: October 1, 2004 Decided: November 17, 2004

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for Appellants. Elizabeth Ann Martineau, HEDRICK, EATMAN, GARDNER & KINCHELOE, Charlotte, North Carolina; Matthew L. Mason, MOSS, MASON & HILL, Greensboro, North Carolina, for Appellees. ON BRIEF: Edward L. Eatman, Jr., HEDRICK, EATMAN, GARDNER & KINCHELOE, Charlotte, North Carolina; Fred W. DeVore, III, DEVORE, ACTON & STAFFORD, P.A., Charlotte, North Carolina; William L. Hill, MOSS, MASON & HILL, Greensboro, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

-3- PER CURIAM:

The district court dismissed the plaintiffs' complaint in

this case under Federal Rule of Civil Procedure 12(b)(6) because

the plaintiffs failed to file a complaint that contained a "short

and plain statement of [their] claim[s] showing that [they are]

entitled to relief," as required by Federal Rule of Civil Procedure

8(a). Because the plaintiffs had attempted to state their claims

in an earlier complaint that was dismissed for the same reasons,

the district court dismissed this complaint with prejudice. On

appeal, we conclude that the district court did not abuse its

discretion in dismissing the plaintiffs' complaint with prejudice

for failing to comply with the district court's earlier

instructions, and therefore we affirm.

I

The plaintiffs commenced an action on August 26, 2002,

to complain that over the course of eight years, Sheriff William

McGuirt of Union County, North Carolina, several deputies, and a

handful of other individuals engaged in a concerted effort to

harass plaintiff Timothy Mathis and destroy his bail bonding

business. The centerpiece of the complaint related to a search

conducted of Mathis' house on July 31, 2002, by sheriffs armed with

a search warrant.

The plaintiffs' complaint contained 211 counts and

occupied almost 200 pages. Although that complaint seemed to

-4- describe numerous interactions between the plaintiffs and

defendants, the district court observed that "[t]he majority of the

claims [arose] from a search executed pursuant to a search warrant,

'on or about July 31, 2002.'" Following the filing of that

complaint, the plaintiffs filed two amended complaints. On the

defendants' motion to dismiss the second amended complaint, the

district court observed that the plaintiffs had used a template,

which they "apparently . . . 'cut and pasted' into each of the

other counts alleg[ing] '. . . Sheriff McGuirt and his deputies

. . . under color of statute, ordinance, regulation, custom and

usage willfully, intentionally, arbitrarily, capriciously, and

maliciously subjected [particular plaintiff] to the deprivation of

rights, privileges, and immunities secured by the Constitution and

laws, in violation of

.'" The court concluded that

the prolix facts, however, did not support any viable claim upon

which relief could be granted and that the template was simply a

conclusory allegation that did not state a claim upon which relief

could be granted. The district court dismissed the complaint

without prejudice, granting the plaintiffs the right to file a

third amended complaint. Rather than filing a third amended

complaint, however, the plaintiffs proceeded to appeal the district

court's order. We dismissed that appeal because the district

court's order was not a final appealable order. The plaintiffs

-5- never filed a third amended complaint, and the court directed that

that case be closed.

In lieu of filing a third amended complaint in that case,

the plaintiffs filed another complaint, this time in a North

Carolina state court. That complaint made substantially the same

allegations in 113 counts filling 79 pages. The defendants removed

the state court action to the district court and again filed a

motion to dismiss the complaint. The district court again, relying

on Rules 8(a) and 12(b)(6), granted the defendants' motion to

dismiss. This time, however, the court dismissed the complaint

with prejudice.

The plaintiffs have appealed the closure of the first

action, in which the plaintiffs failed to file a third amended

complaint,* as well as dismissal of the second action, in which the

court ordered dismissal with prejudice.

II

Although we generally review an order dismissing a

complaint for failure to state a claim upon which relief can be

granted de novo, see Eastern Shore Markets, Inc. v. J. D. Assocs.

Ltd. P'ship,

, 180 (4th Cir. 2000), when that decision

is based on a plaintiff's failure to comport with Rule 8(a), we

* We affirm the district court's closing of the first action because plaintiffs never filed an amended complaint in that action, as authorized to do by the district court.

-6- review the district court's decision for abuse of discretion.

See Kittay v. Kornstein,

(2d Cir. 2000); In re

Westinghouse,

(3d Cir. 1996); 5 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1217

(3d ed. 2004). When determining whether a district court abused

its discretion in dismissing for failure to comply with Rule 8(a),

courts have looked to various factors, including the length and

complexity of the complaint, see, e.g., United States ex. rel.

Garst v. Lockheed-Martin Corp.,

(7th Cir. 2003),

whether the complaint was clear enough to enable the defendant to

know how to defend himself, see, e.g., Kittay,

, and

whether the plaintiff was represented by counsel, see, e.g., Elliot

v. Banson,

, 21-22 (2d Cir. 1989).

The complaint before us is both long and complex and

fails to state its claims clearly enough for the defendants to know

how to defend themselves. The factual background section of the

complaint occupies 20 pages and is filled with needless details,

such as why the Mathis family was out of town on one occasion, how

long Mathis had to wait to see his clients in jail at times, and

almost verbatim contents of conversations, including allegations

that the defendants used a "smart-alecky" tone of voice. It is

virtually impossible to separate the legally significant from the

legally insignificant facts in this factual background and then to

match them with claims purportedly made in the complaint.

-7- In another section, the plaintiffs do attempt to match

the factual allegations to legal claims, but they do so in a way

that forces the reader to cross-reference the factual background

section and wade indeterminately through the morass of superfluous

detail. In attempting to accomplish this cross-referencing effort,

the reader discovers that most of the cross-referenced facts do not

support any legal theory or claim. Moreover, simply to discover

who is being charged in each count becomes indeterminate. For

example, Count 82 alleges that Sheriff McGuirt and 17 deputies

committed a forcible trespass to Mathis' property on July 31, 2002

(albeit with a warrant), the background section of the complaint

names only 8 deputies involved in the July 31 incident, one of whom

is not among the 17 named in Count 82.

In short, the complaint in its present form does not

permit the defendants to figure out what legally sufficient claim

the plaintiffs are making and against whom they are making it. At

oral argument, the court attempted to discover the essence of

plaintiffs' claims, asking counsel specifically what theories were

being alleged. When counsel identified, as an example, the Fourth

Amendment as a source for a claim based on the allegation that the

sheriff and his deputies came onto Mathis' property on July 31,

2002, searched his home, and identified personal property, counsel

was unable to explain how the search violated the Fourth Amendment

when the officers concededly operated with a search warrant.

-8- Rather than enlighten the court on that claim, counsel shifted the

response to assert that the warrant was illegal. When the court

pursued why the warrant was illegal, particularly in view of the

fact that it had been signed by a judge, counsel shifted the

response to assert that the information presented to the judge was

untruthful in some unidentified way.

Although there might be facts on which plaintiffs could

have stated a claim with respect to the search-related issues, the

complaint as drafted does not reveal them. Accordingly, we readily

conclude that the district court did not abuse its discretion in

dismissing plaintiffs' complaint under Rule 12(b)(6) for failure to

comply with Rule 8(a). But this leaves the bigger question of

whether the district court abused its discretion by dismissing the

claim with prejudice.

Dismissing a claim with prejudice for failure to comply

with Rule 8(a) tends to undermine one of the policies of the

Federal Rules of Civil Procedure: facilitating a decision on the

merits rather than on pleading technicalities. Accordingly,

dismissal with prejudice is an extreme sanction that must be

examined carefully. See Davis v. Williams,

(4th

Cir. 1978); Wright &

§ 1217. Aggravating factors

may, however, present sufficient weight in favor of that sanction

and bring it within the appropriate discretion of the district

court. One such aggravating factor, for instance, is whether the

-9- plaintiff has persisted in failing to comply with Rule 8(a). See,

e.g., Lockheed-Martin,

(upholding district court's

dismissal with prejudice after finding plaintiff's fourth attempt

to comply with Rule 8(a) unsuccessful); Kuehl v. F.D.I.C.,

(1st Cir. 1993) (upholding district court's dismissal with

prejudice after plaintiff's amended complaint failed to comply with

Rule 8(a)).

In dismissing the first complaint, the district court

specifically directed the plaintiffs to allegations of a § 1983

claim to give an example of the type of conclusory language that

violated § 8(a) and 12(b)(6). Yet, in their second complaint, the

plaintiffs failed substantially to alter even that claim, repeating

almost verbatim what had been stated in the first complaint.

Although the plaintiffs managed to trim the second

complaint to less than half the number of pages of the original

complaint, they did so not by reducing or simplifying the

allegations, but by presenting their claims in a chart format that

is even more difficult to understand. Similarly, although the

second complaint appears to contain almost 100 fewer counts than

the first complaint, the plaintiffs created only an illusion by

numbering the claims in the second complaint by group rather than

individually.

We have seen no evidence in the record that would

indicate that if the plaintiffs were given further opportunities,

-10- they would be able to correct the deficiencies. It may be that

they simply do not have claims and are burying conclusory statutory

language in a long scenario of irrelevant facts to give the

appearance of legally justified claims. Indeed, we sought to find

out by inquiring at oral argument how plaintiffs would amend their

complaint if given the opportunity. The dialogue during oral

argument was no different in kind than the allegations reviewed by

the district court in the plaintiffs' pleadings. While the

discussion with this court during oral argument was not part of the

record before the district court, we are satisfied that based on

the record before the district court, the court did not abuse its

discretion in dismissing the plaintiffs' claim with prejudice.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

-11-