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01-3342 Bontkowski v. Smith, et al.

By: dmc-admin//September 30, 2002//

01-3342 Bontkowski v. Smith, et al.

By: dmc-admin//September 30, 2002//

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“[I]n asking for a declaration of his right to the return of the prints or, if they’ve been sold, to the proceeds of the sale, Bontkowski may have meant that he wanted an order that would give him either the prints or the proceeds, and so, especially in light of his pro se status, his suit should have been interpreted as an action for replevin or for an affirmative injunction or (so far as the proceeds are concerned), in the alternative, for damages. See Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987). Moreover, if he can prove his case (a tremendous if, obviously) he would be entitled to the imposition of a constructive trust on the prints and the proceeds; his plea for an injunction commanding the return of the prints or the rendering up of the proceeds if the defendants have sold them can be interpreted as a request for the imposition of such a trust, a form of equitable relief and thus a cousin to an injunction. … And even if the district court was right that Bontkowski is seeking relief to which he’s not entitled, this would not justify dismissal of the suit. Although Rule 8(a)(3) of the civil rules requires that a complaint contain ‘a demand for judgment for the relief the pleader seeks,’ the demand is not itself a part of the plaintiff’s claim, Laird v. Integrated Resources, Inc., 897 F.2d 826, 841-42 and n. 69 (5th Cir. 1990); Schoonover v. Schoonover, 172 F.2d 526, 530 (10th Cir. 1949); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1255 (2d ed. 1990), and so failure to specify relief to which the plaintiff was entitled would not warrant dismissal under Rule 12(b)(6) (dismissal for failure to state a claim). Any doubt on this score is dispelled by Rule 54(c), which provides that a prevailing party may obtain any relief to which he’s entitled even if he ‘has not demanded such relief in [his] pleadings.’ See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66 (1978); Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081 (7th Cir. 1998); Felce v. Fiedler, 974 F.2d 1484, 1501- 02 (7th Cir. 1992); Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 394 (1st Cir. 1999); Pension Benefit Guaranty Corp. v. East Dayton Tool & Die Co., 14 F.3d 1122, 1127 (6th Cir. 1994). It would be appropriate and indeed quite sensible for a judge confronting a complaint that does not demand proper relief to ascertain whether the plaintiff wants the improper relief sought in the complaint or nothing; if so, the complaint must be dismissed. But there is no indication that Bontkowski has his heart set on declaratory and injunctive relief. That would make no sense. Obviously he wants his Dali prints back or, if they’ve been sold, the proceeds.”

Reversed and Remanded.

Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Posner, J.

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