our third case for this morning is towel against the board of education school district of brown deer wisconsin mr schumacher deprivation of his property and deprivation of his liberty interest i prepared to discuss how the facts are sufficient to show that mr hall was deprived for property interest without due process and knowledge of the gun as constitution or discuss out that parties have no obligation to plead legal theories and that one has to look at the underlying facts but that princip itself arises out of the the law concerning the disposition of the motions under rule twelve b six so if somebody said you know if this had been a twelve b six motion saying well you know you forgot to allege liberty or sorry property in count five i'd be very sympathetic to this but we've also said that it's a case moves forward and gets developed one needs to get more specific one needs to be clearer about what are in fact the legal theories that are being presented that you know discovery depends on a case management or does depend on a good preparation that people put into it and this doesn't come along until long after this litigation i started and there is that contrast between count four and count five just sitting there in the district judge thought well you know for whatever reason parties are masters of their own complaints mr chow is making a liberty claim under the federal constitution but a liberty and a property claim under the wisconsin constitution certainly nothing that says he can't do that and so i want to know why this principle about pleading legal theories hasn't just sort of fallen out of the case and he didn't have an obligation to be more clear sooner and i think you have the question is is the fifth claim violation of do you present a united states constitution sufficient as glad to allow them to pursue that claim if he hasn't said liberty interest i think you'd have a stronger case but you've pointed the other side in the direction that what they've got to think about is stigma they have to think about said liberty interest and not excluded a property interest we would be here but it still goes to the question of was the believe it sufficient to along pursue that why are we on the bleeding so that what i'm trying and ask you and i want to see i think that's the same standard the part of the school board thinking that you weren't doing that they might have looked account for figured it was just a mirror image but you actually pointed them in a different not to say misled them i think was probably all  left out that the term it would not have been fatal and the law is also if we had used the wrong legal term it's not fatal so for that reason i think the court should have allowed us to why they said that right and let me let me jump in here because as i understand it they filed for summary judgment on may eighteenth and sixteen and it isn't until august the ninth that you filed this motion to by telephone there was june thirtieth shortly thereafter before they filed their response we wrote a letter following up in that telephone conversation which saying we counsel you have you have me i don't know you're out my colleague i'm totally confused here on may  was the motion for summary judgment correct and then you responded on july twelfth and it wasn't till after that in early august that you tried to do your withdraw all and saying we had not previously alleged the theory of constructive discharge would be for patrick and so we then while the new motion count we're going to count one and count five so my point on these things is one think the pleadings are sufficient to discretion whether grant leaves to amend it but i think in this case district court is are some of less discretion here because a court should have been looking at this under rule sixteen or fifteen well probably bowl because i brought the motion on to rule fifty property claim lurking somewhere in this complaint a federal to process property claims you'd think that you would have mentioned it well earlier i think and if the judge and the judge has my discretion wholly and explicitly in the direction of a liberty interest deprivation and that that's more than just a head fake i mean that that's a pleading choice but it wasn't a pleading choice it was a bit was i'm actually sort of like you're on if i said we have to argu on this again if we were still on a twelve b six motion i think you would have much more of a leg to stand on but we are years into this litigation briefing summary judgment where the party has relied on the scope of what think pressing on mr schumaker and ask you why it was late i mean it's the summary judgment stage where theories come into focus where we get the factual record pulled together at least enough to see if there's a genuine issue which serial fact and it was not mr tell who was seeking summary judgment it was it was you brown dear and so the first opportunity at the summary judgment stage he has to clarify the scope of what he's really resting on is in his response to the summary judgment motion that you filed and that's where reading his response you can see that he means to be asserting both theories under the federal due process clause and so you have the reply could've responded to to those arguments since wisconsin follows the jurisprudence of the federal supreme court on due process the nature of the arguments wouldn't differ i certainly understand your argument about the scope of the remedy that in terms of briefing i don't see why he wasn't he didn't get in under the under the second amended complaint it's absolutely specific that's the first time that federal theory comes in though that's why you were able to remove when you did right and so just automatically there were two other versions before  he's the master of his complaint he knows what he's doing mr shoemaker is a very veteran and i mean that in a positive way lawyer he knows he knows how to plead these these kind of complaints but what do you do with the fact that it's very justify dismissing complaint under ashcroft under and under twamley you look to see if the complaint states a plausible claim for relief for and as you and every go go ahead as you pointed out were well behind beyond rule eight analysis were well beyond the rule toby six analysis so when when was the magic motion moment here because your position is july twelfth is too late that it's clear that he called it a liberty interest but what he was really looking at your eyes are probably going to restore you cited to the wrong number of the statute the differences between the state claims and federal claims are very stark and i'm looking at this complaint as somewhat yeah but in any event there are several junctures even after that point where he did you or should have known that hit this complaint did not state the property so we were moved to federal court docket entry number one at the district court and we say and i'll quote the week we stated that there was a single claim and i used the word claim in the singular under fire that was called underneath it presumably he reads our answer and he looks at his allegations again and at that point he should have said to himself i only allege a liberty interest so when you answer to you mean that you're answering all of the counts you're not just answering count five corre insecurity four with the wisconsin liberty around property right and we also we got his attention on the answer because we filed a counterclaim against mr tolle at that time alleging that he had misrepresented his past in the employment application so mr powell had to file an answer at that for you know answer to our conduct so there's two points immediately after he files a second and then a complaint then we have a scheduling conference in the fall of that year and mr shoemaker says to the court i don't need additional time to amend my pleadings so presumably at that point he should have or did go to his complaint and say ok my pleadings look good then fast forward two more years it's march of tw we have another rule twenty six conference because a case in that put into abeyance mr shoemaker asked for thirty more days at that point to to the court to amend his pleadings the court gives him thirty days that's where that able to twenty six twenty thought we  didn't to and mr shoemaker never addressed in his briefs at the court at the district court the sixteenth before analysis mr filtering a case management order listing contentions of both sides or anything of that just  level until his reply brief so it any argument that he's making now in a good cause which he can meet in any event he waved i know we're raising that issue before so and turning to the substance of the factual allegations apar something in the process was ongoing that wasn't a deprivation of process in the sense that you would expect to see when a public employee loses his or her child he was suspended with pay so there was no deprivation of property interest at that point and the investigation was ongoing at the time that he eventually writes in favor of taking a new job offer which right that the trial court never got to that but you're absolutely right in the facts he was suspended because of these business irregularities that dr kurt discovered but he was paid not only his salary but all benefit through the deprivation of property interests he's got to so he argues thought that this fits in the group of cases where you know if they put you in a closet down in the basement for a few years you can't do anything that you are actually being deprived of your job i think that's his focus how he could see to get that money yeah that's i think that's a poor analogy because in the case that you're talking about literally somebody was put into a basement right everybody closet and told you you're going to do this job because you've got to like  they discovered mandatory state reports that had never been done so they didn't put them in a closet and say now you're going to manage x they said we're going to decide whether we're going to fire you over this and during the course of the year there were several attempts by the and ten mr schumaker objected to it on a variety of grounds he was essentially seeking broad discovery which just isn't available at that kind of proceeding he's objective because of scheduling conflicts we rescheduled for january we then called the mediation so we've tried to resolve this case and wasn't there something in april two was and then we were about to go to a hearing in april right after numerous attempts to get it started again that's when mr tolle came to the district and said i've got this  and in april was on non renewal of this contract on the issue of after june thirtieth but all you have on property is these intangibles you know that he wasn't actually working no what we have is in squeak head in period this court recognizing removing a point from his contractual position in he has received full salary and benefits can give rise to deprivation of property without due process if it if it impedes future job opportunities and other effects on his teacher income that's exactly what we have here because of this he's not been able to get another job in addition to the liberty interest now that may be why there is some confusion about a liberty interest and a property interest and that the pr