ALIOTO v. TOWN OF LISBON (July 7, 2011)

Two Lisbon, Wisconsin supervisors asked Sergeant Tom Alioto to investigate his boss, the police chief. Alioto did so and submitted a report, apparently implicating the chief in unlawful behavior. Lisbon suspended the chief and made Alioto the acting police chief. Shortly thereafter, under threat of litigation, the town reinstated the chief. Alioto claims that the chief got revenge by defaming him in the press, pursuing baseless criminal charges with the district attorney, and imposing unreasonable requirements when Alioto wanted to return to the department after a medical leave. Alioto brought suit against Lisbon and the chief under § 1983, alleging violations of his "constitutional rights." When the defendants challenged the allegations and moved for judgment on the pleadings, Alioto agreed to a briefing schedule. On the day the brief was due, however, Alioto did not respond to defendants' arguments. Instead, he moved to file an amended complaint. Judge Stadtmueller (E.D. Wis.) denied the motion for leave to amend and granted defendants' motion to dismiss. He concluded that Alioto waived any arguments on the merits by not respond to defendants’ motion and failed to show good cause for leave to amend. Alioto appeals.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Rovner affirmed. The Court noted that Rule 15(a)(2) contains a fairly lenient standard for granting leave to file an amended complaint. But Rule 16 requires a court to set a scheduling order with a deadline for amended pleadings, which the court did in this case. The scheduling order set a November 2008 deadline for amended pleadings. Rule 16(b)(4) requires good cause to modify a scheduling order. Here, Alioto requested leave to file his amended complaint months after the deadline. The district court was correct in evaluating his request under the standards both of Rule 16 and Rule 15. The court did not abuse its discretion in finding an absence of good cause. The principle good cause factor is diligence. Here, not only did Alioto request leave several months after the deadline, he waited until the last day of the briefing schedule to even advise the court and the defendants of his request. With respect to the motion to dismiss, the Court also affirmed. Not only did Alioto not respond to any of defendants' arguments in the district court, he never really addressed the waiver argument on appeal.