Rafael M. Bertucelli v. Gerald F. Carreras, Rafael M. Bertucelli v. Gerald F. Carreras, 467 F.2d 214 (9th Cir. 1972). · Go Syfert
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Rafael M. Bertucelli v. Gerald F. Carreras, Rafael M. Bertucelli v. Gerald F. Carreras, 467 F.2d 214 (9th Cir. 1972). Cases Citing This Book View Copy Cite
20 citation events (7 in the last 25 years) across 10 distinct courts.
Strongest positive: Michael W. Canady v. R. James Nicholson, 20 Vet. App. 393 (Vet. App. 2006)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
How cited ↗
Cited for
At page 215 Denying opportunity to amend defective pleadings7 citing casesnoting that when a complaint is dismissed because of a defective pleading, "ample opportunity for amendment should be provided in all except the most unusual cases2 citing courts put it this way · 6 listed here
  • Michael W. Canady v. R. James Nicholson, 20 Vet. App. 393 (Vet. App. 2006).published 2 cites
    (noting that when a complaint is dismissed because of a defective pleading, "ample opportunity for amendment should be provided in all except the most unusual cases)
  • Michael W. Canady v. R. James Nicholson, 20 Vet. App. 353 (Vet. App. 2006).published 2 cites
    (noting that when a complaint is dismissed because of a defective pleading, "ample opportunity for amendment should be provided in all except the most unusual cases)
  • Ciralsky v. Cent. Intelligence Agency, 355 F.3d 661 (D.C. Cir. 2004).published
    See Elmore v. Henderson, 221 F.3d 1009, 1011 (7th Cir.2000) (“[A] suit that has been *670 dismissed with prejudice cannot be refiled; the refiling is blocked by the doctrine of res judicata”)- For that reason, “it will generally be an abus…
  • Guzzino v. United States, 37 F. App'x 199 (7th Cir. 2002).unpublished
    And because there is “no difference in purpose and effect, between an order striking an entire pleading and a dismissal order predicated upon fatally defective pleading,” Asay v. Hallmark Cards, Inc., 594 F.2d 692 , 697 n. 2 (8th Cir.1979)…
  • Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988).published 2 cites
    See, e.g., Gordon v. Green, 602 F.2d 743, 745-47 (5th Cir.1979) (ruling that 4000-page pleading should have been dismissed for lack of compliance with Rule 8 but that leave to file amended complaint should be granted); Bertucelli v. Carrer…
  • Roger Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir. 1979).published
    In Bertucelli v. Carreras, 467 F.2d 214, 215 (9th Cir. 1972), the Ninth Circuit stated: We see no difference, in purpose and effect, between an order striking an entire pleading and a dismissal order predicated upon fatally defective plead…
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Rafael M. BERTUCELLI, Plaintiff-Appellant,
v.
Gerald F. CARRERAS Et Al., Defendants-Appellees; Rafael M. BERTUCELLI, Appellant, v. Gerald F. CARRERAS Et Al., Appellees
25230, 26830.
Court of Appeals for the Ninth Circuit.
Aug 8, 1972.
Published opinion
467 F.2d 214
1972 U.S. App. LEXIS 8017
Jack Siedman (argued), James R. White III, San Francisco, Cal., for appellant., Neil D. Reid (argued), Thomas C. Lynch, Atty. Gen. (argued), H. L. Cannon, Deputy City Atty. (argued), Thomas M. O’Connor, City Atty., Bled-soe, Smith, Cathcart, Johnson & Rogers, and John R. Swendsen (argued), San Francisco, Cal., for appellees.
Ely, Hufstedler, Byrne.
Cited by 19 opinions  |  Published
[*215] PER CURIAM:

Bertucelli appeals from the District Court’s dismissal of his action seeking redress under 42 U.S.C. §§ 1983, 1985 for alleged infringements of his civil rights. [1] He advances numerous grounds for reversal. At this time, however, we need consider only one, for we believe Bertucelli correctly contends that he was wrongfully denied an opportunity to amend his complaint before the action was dismissed.

The District Court dismissed the action for two reasons, only one of which is now of importance. Upon defendants’ motions, it had ordered Bertucelli’s complaint stricken because it did not comply with Rules 8(a) and 11, [2] Fed.R.Civ.P. [3] That Order was proper on both grounds.

There was a clear noncompliance ' with the requirements of Rule 8(a); the complaint was prolix and unintelligible. It was equally obvious that Bertucelli failed to comply with Rule 11. Allegations in the complaint, critical to one claim, were conclusively shown, by state court records, to be false. [4] The District Court was therefore fully justified in concluding, as it did, that Bertu-celli’s then attorney signed the complaint with the intent to defeat the purpose of Rule 11. See 5 Wright & Miller, Federal Practice and Procedure § 1334 (1969).

Despite the defective pleading, we have concluded that the District Court dismissed the action prematurely. We see no difference, in purpose and effect, between an order striking an entire pleading and a dismissal order predicated upon fatally defective pleading. See Skolnick v. Hallett, 350 F.2d 861 (7th Cir. 1965); 2a Moore’s Federal Practice ¶ 8.13. Such orders are not favored (Id. at t[jf 8.13, 12.21), but when they are made, ample opportunity for amendment should be provided in all except the most unusual cases. See III Moore’s Federal Practice ff 15.10.

This is not one of those unusual cases. In the circumstances here, the District Court should have allowed Ber-[*216] tucelli at least one opportunity to correct his defective complaint. [5] Cf. Griffin v. Locke, 286 F.2d 514 (9th Cir. 1961).

Reversed.

1

. Initially, Bertucelli sought damages from 11 named and 12 unnamed defendants. We have previously dismissed his appeal as to eight of the named defendants. Seven were dismissed upon Bertucelli’s motion at oral argument; one was dismissed because Bertucelli failed to appeal from the District Court’s order of dismissal in favor of that defendant.

2

. In pertinent part, Rule 8(a) provides:

“A pleading which sets forth a claim for relief . . . shall contain . (2) a short and plain statement of the claim . . . (Emphasis added.)

Rule 11 provides:

“Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name . . . . The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served.”
3

. Its other justification was a ruling that, as to several of the defendants, Ber-tucelli had failed to state a claim upon which relief could be granted because those defendants were immune from liability for the consequences of the acts they performed in a judicial or quasi-judicial role. We are no longer concerned with the correctness of that decision because all of the defendants covered by it were dismissed from this appeal upon motion of Bertucelli’s present attorney.

4

. Bertucelli alleged “on information and belief” that the warrant issued to secure his arrest was not signed by a magistrate, as is required by California law. Cal. Pen. Code § 814 (West 1970)." In this situation, since that information was a matter of public record and not something peculiarly within the knowledge of the defendants, pleading on information and belief was improper. See Carroll v. Morrison Hotel Corp., 149 F.2d 404, 406 (7th Cir. 1945). Consequently, the equivocal form of the allegation does not provide any defense to a charge that that part of the complaint was false within the meaning of Rule 11.

5

. At the hearing on the appellees’ motion to strike and dismiss the complaint, Ber-tucelli was unrepresented by counsel. His attorney was unable to appear, apparently because of illness. Bertueelli’s request for a one week continuance was denied by the District Court.