In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3921

GAETANO “TOM” ALIOTO,

Plaintiff-Appellant,

v.

TOWN OF LISBON, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:08-cv-752—J.P. Stadtmueller, Judge.

ARGUED FEBRUARY 25, 2011—DECIDED JULY 7, 2011

Before EASTERBROOK, Chief Judge, and FLAUM and

ROVNER, Circuit Judges.

FLAUM, Circuit Judge. Gaetano “Tom” Alioto filed a

lawsuit against Wisconsin’s Town of Lisbon, its administrator, and the chief of its police department. Alioto

maintains that, among other things, the defendants defamed him, subjected him to a hostile work environment,

and violated his due process rights. According to the

complaint, whose well-pleaded allegations we accept as
2 No. 09-3921

true, Alioto suffered political payback after he spearheaded an inquiry into allegedly unethical activities of

police chief Terry Martorano. The chief survived the

investigation and—along with town administrator

Jeffrey Musche—exacted revenge on Alioto. 

The district court dismissed the case, and the reason it

provided for granting the motion effectively eliminates

Alioto’s chances on appeal. When the defendants moved

to dismiss the complaint, Alioto did not file a response

brief that met defendants’ arguments. Instead, he only

sought leave to amend the complaint based on the (incorrect) belief that complaints need to state legal theories.

The district court did not err when it denied Alioto’s

motion for leave to amend; by failing to respond to the

other arguments that the defendants had advanced in

favor of dismissal, Alioto waived his right to appeal the

dismissal order. Accordingly, we affirm the judgment

of the district court.

I. Background

Gaetano Alioto was a sergeant with the Town of

Lisbon Police Department. He was second in command to

police chief Terry Martorano. In 2006, two of the town’s

supervisors asked Alioto to investigate the chief. Alioto

was tasked with determining whether Martorano was

defrauding the town. In particular, the question was

whether the latter was “double-dipping”—submitting time

sheets to the town for time periods when he was in

fact working as security guard. (Martorano had two jobs

as a security guard, one at a jewelry store and another
No. 09-3921 3

at Carroll College.) Upon learning of the investigation,

Martorano warned Alioto, “[I]f you are coming after me,

I am going to get you.”

Alioto appears to have pressed on, submitting a report

to the town in April 2006. The report must have

implicated Martorano in wrongdoing, because the chief

was placed on administrative leave a few days later.

Alioto was made acting chief. At that point, the town

hired an independent investigator to conduct followup on Alioto’s report. Although the independent investigator substantiated the report’s findings, the town

gave Martorano his job back—under threat of a lawsuit,

it seems.

After resuming his post, Martorano worked with the

town administrator, Musche, to exact revenge on Alioto

for the investigation. Some of the allegations made in

the complaint amount to minor slights that would do

little to make out a plausible due process claim for constructive discharge, which is the theory Alioto ultimately

settled on, see Witte v. Wisconsin Dep’t of Corrections,

434 F.3d 1031, 1035 (7th Cir. 2006), but others start to

provide scaffolding for a lawsuit. Among the more

serious allegations, Alioto contends that Martorano

made defamatory statements to the press and lied to the

district attorney in an effort to have baseless criminal

charges brought against Alioto. The effort worked.

The D.A. told Alioto that no charges would be brought

if he resigned and, when he refused, charged him. According to the complaint, a state judge later dismissed

the case for want of probable cause.
4 No. 09-3921

In October 2006, Alioto took the advice of his personal

physician; because of the stress of the work environment

and all that attended it, he took medical leave from the

police department. When, in May 2007, he wanted to

return, the town required him to submit a medical release. Alioto complied, but Martorano told Alioto

that the release was not sufficiently “descriptive” and

demanded another one. Again Alioto obliged, but again

the defendants would not let Alioto return to work.

They imposed an additional requirement that Alioto

undergo a fitness-for-duty evaluation by someone they

selected. The evaluator indicated that Alioto was not fit

to return to duty; the latter never returned to work.

(In December 2007, the town disbanded its police department, having decided to contract with the Waukesha

County Sheriff’s Department for police services. Alioto

was not invited to join that police force.)

Alioto filed his lawsuit in state court in July 2008, and

the defendants removed the case to federal court two

months later. The complaint eschews chronology or any

other logical basis of organization. It consists of large,

numbered paragraphs whose language is rather difficult

to follow. Nonetheless, it made the allegations outlined

above, even if understanding the allegations takes some

effort, and defendants did not file a motion for a more

definite statement or to have the allegations grouped

into counts. (As they might have. See Fed. R. Civ. P. 10(b)

& 12(e).) In any event, the defendants filed answers

shortly after they removed the case to federal court. In

June 2009, the defendants filed motions to dismiss the

complaint (the town and Musche together; Alioto sepa-
No. 09-3921 5

rately) for failure to state a claim upon which relief can

be granted. The defendants styled them Rule 12(b)(6)

motions, but in reality the motions were for judgment

on the pleadings, Fed. R. Civ. P. 12(c), because the defendants filed answers. See Fed. R. Civ. P. 12(b) (“A motion asserting any of these defenses must be made

before pleading if a responsive pleading is allowed.”);

Fed. R. Civ. P. 12(h)(2)(B) (a motion for failure to state

a claim may be brought in a Rule 12(c) motion). The misstyling does not alter our analysis. See also McMillan

v. Collection Professionals Inc., 455 F.3d 754, 757 n.1 (7th

Cir. 2006).

According to the brief in support of the motion filed

by the town and Musche, Alioto’s complaint was

deficient at the outset because it did not cite the

specific constitutional provisions or rights that the defendants were alleged to have violated—the complaint

merely indicated that “42 U.S.C. § 1983 constitutional

rights” were violated. In addition, the brief measured

the sufficiency of the allegations in the complaint

against the standards for claims under the Fourteenth

Amendment’s due process clause, its equal protection

clause, the First Amendment’s freedom of speech clause,

Title VII of the Civil Rights Act of 1964, and several statelaw torts. Unsurprisingly, the town and Musche found

the allegations wanting, for reasons that they spelled out

in their brief. They also contended that, as to any constitutional claims Alioto was making, Musche was

entitled to qualified immunity and that there was no

basis for imputing Section 1983 liability to the town

under Monell v. Dep’t of Soc. Servs. of the City of New York,
6 No. 09-3921

436 U.S. 658 (1978). Martorano’s brief in support of

his motion to dismiss generally echoed the substance of

his co-defendants’ brief. His brief, too, maintained that,

as a pleading requirement, “a plaintiff is required to

pinpoint the specific constitutional right that was

allegedly violated.”

Several weeks after the defendants filed their motions

to dismiss, Alioto filed an agreed motion setting a

briefing schedule. He requested until August 6 (a little

over two months) to file a response brief. The district

court agreed. When August 6 arrived, however, Alioto

filed a motion for leave to file an amended complaint.

The proposed amended complaint is much easier to

follow than the original. The former abandoned any

claim of a hostile work environment as well as state-law

tort claims. It added a claim for overtime wages and

alleged a violation of his right to free association.

In support of his motion for leave to file the amended

complaint, Alioto filed a brief styled, “Plaintiff’s Combined Brief in Support of Motion for Leave to Amend

Pursuant to F.R.C.P. 7(b) and in Response to Defendants’

Motions to Dismiss.” Yet the brief did little to address

the defendants’ arguments about the sufficiency of

Alioto’s original complaint. The brief spanned just over

five pages and devoted itself almost exclusively to its

request for leave to file the amended complaint. Indeed,

the response brief responded to only one of the shortcomings that the defendants had said marked Alioto’s

complaint—and only by way of an at-once tacit and

incorrect concession: “Defendants attacked plaintiff’s

original Complaint for an alleged failure to cite any
No. 09-3921 7

Consistent with our precedent, we use the word waive, 1

although forfeit is perhaps the more accurate term. E.g., United

States v. Charles, 476 F.3d 492, 495 (7th Cir. 2007) (explaining

that waiver is voluntary while forfeiture is the result of an

unintentional relinquishment of a right). 

violation of constitutional rights. The proposed Amended

Complaint specifically lists those constitutional rights

which plaintiff alleges have been violated and how the

defendants’ conduct violated those rights” (citations

omitted). The non-responsive response brief did not

address the defendants’ arguments about why the complaint’s allegations failed to state claims under state

and federal law.

The district court granted the defendants’ motions

to dismiss and denied Alioto’s motion for leave to

amend his complaint. The district court noted that

Alioto sought leave to amend his complaint well after

the deadline set out in the court’s scheduling order and

ruled that Alioto had not established good cause under

Rule 16(b) for leave to modify the scheduling order

and amend the complaint. In addition, the district court

ruled that Alioto forfeited his opportunity to oppose 1

the defendants’ motions to dismiss by failing to respond

to the arguments in support of those motions.

II. Discussion

The district court correctly ruled that Alioto was

required to show good cause in order to amend his com-
8 No. 09-3921

plaint; the court did not abuse its discretion in concluding that Alioto failed to meet that standard. See

Wollenburg v. Comtech Mfg. Co., 201 F.3d 973, 978 (7th Cir.

2000). As to the defendants’ motion to dismiss the complaint, Alioto waived his right to contest the dismissal

by failing to oppose the motions. See Lekas v. Briley,

405 F.3d 602, 614 (7th Cir. 2005).

A. Alioto’s Motion for Leave to Amend 

Generally, a motion for leave to amend a complaint is

evaluated under Federal Rule of Civil Procedure 15(a)(2).

That rule provides that courts “should freely give

leave when justice so requires.” See also Soltys v. Costello,

520 F.3d 737, 742-43 (7th Cir. 2008) (discussing the standard). However, the rule is in some tension with the

rule that governs scheduling orders, Federal Rule of

Civil Procedure 16. Under the rule, district courts are

generally required to issue scheduling orders in their

cases as soon as practicable. Fed. R. Civ. P. 16(b)(2).

And courts are required in a scheduling order to set a

deadline for filing amended pleadings. Fed. R. Civ.

P. 16(b)(3)(A). In this case, the district court read its

scheduling order as requiring amended pleadings to

be filed by the end of November 2008. Alioto does not

question that interpretation. Therefore, the district court

was entitled to apply the heightened good-cause

standard of Rule 16(b)(4) before considering whether

the requirements of Rule 15(a)(2) were satisfied. We put

the imprimatur on that approach in our decision in

Trustmark Ins. Co. v. General & Cologne Life Re of Am.,
No. 09-3921 9

424 F.3d 542, 553 (7th Cir. 2005). The two-step process

is consistent with nearly every one of our sister circuits

(and out of step with none). See O’Connell v. Hyatt Hotels

of Puerto Rico, 357 F.3d 152, 154-55 (1st Cir. 2004); Parker

v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.

2000); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614

F.3d 57, 84 (3d Cir. 2010); Nourison Rug Corp. v. Parvizian,

535 F.3d 295, 298 (4th Cir. 2008); S&W Enters., LLC v.

SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th

Cir. 2003); Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.

2003); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594,

610 (8th Cir. 2011); Coleman v. Quaker Oats Co., 232 F.3d

1271, 1294 (9th Cir. 2000); Sosa Airprint Sys., Inc., 133 F.3d

1417, 1419 (11th Cir. 1998) (per curiam); see also United

States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d

1161, 1166 (10th Cir. 2009) (reserving the issue of whether,

once a scheduling order has been entered, Rule 16

applies before the standards of Rule 15 are considered).

The district court did not did not abuse its discretion

in concluding that Alioto failed to establish good cause

for modifying the scheduling order. In making a

Rule 16(b) good-cause determination, the primary consideration for district courts is the diligence of the

party seeking amendment. Trustmark, 424 F.3d at

553; see also 3 MOORE’S FEDERAL PRACTICE § 16.14[1][b],

at 16-72 (Matthew Bender 3d ed. 2010) (“[A]lthough

undoubtedly there are differences of views among

district judges about how compelling a showing must be

to justify extending the deadlines set in scheduling

orders, it seems clear that the factor on which courts

are most likely to focus when making this determination
10 No. 09-3921

is the relative diligence of the lawyer or lawyers who

seek the change.”). Alioto offers an insufficiently robust

explanation of why he was diligent. He argues chiefly

that he had no reason to know that his complaint was

deficient until the defendants filed their motions to

dismiss the complaint. 

That explanation does not pass muster. The requirements for surviving a motion to dismiss are matters of

hornbook civil procedure law, and a party should always

ask itself whether the complaint it wants to file sets out

a viable claim. (If the party does not do so on its own,

its lawyer is required to ask that question. Fed. R. Civ.

P. 11(b)(2).) Moreover, Alioto acted with insufficient

diligence not merely because he waited to seek leave

to amend for more than eight months beyond the district

court’s deadline. He waited until the last day—under

a generous briefing schedule—for filing a response to

the defendants’ motion to dismiss. Indeed, he had defendants’ motions to dismiss in his possession for

more than two months before seeking leave to amend

the complaint. As the 1983 advisory committee note

explains, among the aims of Rule 16 are to prevent

parties from delaying or procrastinating and to keep

the case “moving toward trial.” Although the lack of

clarity in the complaint made it difficult to perceive

precisely what Alioto was alleging, the proposed

amended complaint added at least one new theory and

overhauled another. In light of Alioto’s conduct and

the purposes of Rule 16, the district court committed

no abuse of its discretion in denying leave to amend. See

Eastern Minerals & Chems. Co. v. Mahan, 225 F.3d 330,
No. 09-3921 11

340 (3d Cir. 2000) (district court did not err in denying

leave to amend complaint where plaintiff waited more

than six months after the scheduling order cutoff).

B. Defendants’ Motions to Dismiss

Normally, we review without deference a district court’s

conclusion that a complaint fails to state a claim upon

which relief can be granted. Heyde v. Pittenger, 633 F.3d

512, 516 (7th Cir. 2011). In this case, however, Alioto

failed to meet the myriad arguments set out in the defendants’ motions to dismiss. Instead, Alioto sought

leave to amend his complaint and responded (by way

of concession) to only one of the defendants’ arguments—their incorrect position that a complaint must

set out specific provisions that have been violated. Although a court may require that allegations be grouped

into logical counts for claims that are “founded on”

separate transactions or occurrences, see Fed. R. Civ.

P. 10(b), we have stated repeatedly (and frequently) that

a complaint need not plead legal theories, which can

be learned during discovery. E.g., Smith v. Med.

Benefit Adm’rs Group, Inc., 639 F.3d 277, 283 n.2 (7th

Cir. 2011); Joseph v. Elan Motorsports Techs. Racing Corp.,

638 F.3d 555, 561-62 (7th Cir. 2011); Rabe v. United Air

Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (“A complaint need not identify legal theories, and specifying

an incorrect legal theory is not a fatal error.”).

In any event, because the district court did not abuse

its discretion in denying Alioto’s motion for leave to

amend, the briefing gambit of seeking that leave with-
12 No. 09-3921

out addressing the defendants’ principal arguments

undermined Alioto’s appeal before it was filed. Longstanding under our case law is the rule that a person

waives an argument by failing to make it before the

district court. E.g., Everroad v. Scott Truck Sys., Inc., 604

F.3d 471, 480 (7th Cir. 2010); Taubenfeld v. AON Corp.,

415 F.3d 597, 599 (7th Cir. 2005) (citing Heller v. Equitable

Life Assurance Soc’y, 833 F.2d 1253, 1261-62 (7th Cir.

1987)). We apply that rule where a party fails to

develop arguments related to a discrete issue, and we

also apply that rule where a litigant effectively abandons

the litigation by not responding to alleged deficiencies

in a motion to dismiss. See Lekas, 405 F.3d at 614

(noting that a complaint may be compliant with the

notice pleading requirements of Rule 8(a)(2) and yet be

subject to dismissal where a plaintiff does not file a

brief supporting the legal adequacy of the complaint);

Farnham v. Windle, 918 F.2d 47, 51 (7th Cir. 1990). Moreover,

as in Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466-67 (7th

Cir. 2010), Alioto doubled down on his waiver by

failing to grapple on appeal with that aspect of the

district court’s order.

As we have noted previously, “Our system of justice

is adversarial, and our judges are busy people. If they

are given plausible reasons for dismissing a complaint, they are not going to do the plaintiff’s research

and try to discover whether there might be something

to say against the defendants’ reasoning.” Kirksey v. R.J.

Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999)

(likening a dismissal of a “nonresponsive response brief”

to default judgment). It would have been far wiser for
No. 09-3921 13

Alioto to have responded to the defendants’ arguments

while explaining why, if the court did not accept his

contentions, any dismissal should have been without

prejudice. He did not do so.

Although Alioto cites two cases in support of his argument that “a motion for leave to amend [an] allegedly

deficient complaint is an appropriate response to a

motion to dismiss for failure to state a claim,” the cases

he cites do not support the proposition he advances.

The case of Elliott v. Foufas, 867 F.2d 877, 883 (5th Cir.

1989), merely remanded a case and in the process

directed a district court to consider a motion for leave

to amend the complaint. And Mayes v. Leipziger, 729 F.2d

605, 607-08 (9th Cir. 1984), dealt with an amendment as

a matter of right under Federal Rule of Civil Procedure

15(a)(1). Our case law, too, makes clear that a motion to

dismiss under Rule 12(b)(6) is not a responsive pleading

and so, if an answer has not been filed, a plaintiff ordinarily retains the ability to amend his complaint once as

a matter of right, even after a court grants a motion to

dismiss. Foster v. DeLuca, 545 F.3d 582, 583-84 (7th Cir.

2008). As we noted above, however, the defendants

filed their motions to dismiss under Rule 12(c). Answers

had been filed and the time for amending the complaint

as a matter of right had long since passed. Mayes does

not say that filing a non-responsive response brief along

with a motion to amend is an “appropriate” response to

a motion to dismiss. Given that Alioto no longer retained the right to amend his complaint, the appropriate

response to the motions to dismiss was to oppose the

motions or risk abandoning the litigation.
14 No. 09-3921

Finally, we note that our finding of waiver is not

altered by the fact that the district court first concluded

that Alioto had forfeited his right to respond and then

explained its view of why the complaint was nonetheless

deficient. Some of the reasoning offered by the district

court was incorrect, and Alioto might have made a

strong argument for a due process claim in particular.

See Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1577 (Fed.

Cir. 1991) (ruling that a plaintiff lost his right to contest

dismissal even where the district court did not rely on

a waiver theory). To be sure, our rules on waiver leave

us discretion to excuse mishaps, see, e.g., Jenkins v. Nelson,

157 F.3d 485, 494 n.1 (7th Cir. 1998), but this appeal does

not warrant an act of grace. It is not merely that a court

“depend[s] upon counsel to apprise [it] of the issues

for decision.” Libertyville Datsun Sales, Inc. v. Nissan

Motor Corp. in U.S.A., 776 F.2d 735, 737 (7th Cir. 1985).

Rather, our system of litigation is premised upon the

notion that lawyers, through their participation, will

enhance the quality of the ultimate judicial product. E.g.,

Edward H. Levi, AN INTRODUCTION TO LEGAL REASONING

5 (1949). Our rules on waiver encourage parties to

play their critical role. Moreover, allowing litigants to

opt out of the adversarial system until appeal would

run against the instinct of our judicial system to resolve

matters at the trial phase and avoid unnecessary remands. E.g., McLish v. Roff, 141 U.S. 661, 665-66 (1891).

Alioto has not argued why his failure to file a responsive brief should be excused. Particularly given that he

has been represented by counsel at all times, we will

not make an argument for him.
No. 09-3921 15

III. Conclusion

For the reasons set forth above, the judgment of the

district court is AFFIRMED.

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