Concept
Amendment After Dismissal
Amendment as of right or by leave
Amendment After Dismissal
A court that finds a complaint legally insufficient seldom has to choose between ending the case and letting the complaint stand. Rule 15(a)(2) supplies a third course: outside the free-amendment windows, a party may amend with the opposing party’s written consent or the court’s leave, and the court “should freely give leave when justice so requires.”1 A plaintiff still inside the 21 days after service of the defendant’s Rule 12(b) motion may amend once as of course and needs no leave.2 After that window closes, or once the free amendment has been used, the plaintiff depends on leave. Three questions follow: whether the court should allow another chance after dismissing, what the plaintiff must show to get it, and how to read decisions written under earlier timing rules.
The One-Chance Default
When a court dismisses a first complaint for a defect that better drafting might cure, the usual course is dismissal without prejudice and at least one chance to try again. A dismissal without prejudice leaves the plaintiff free to pursue the claim; a dismissal with prejudice ends it. The court in Bausch, quoting Foster, observed that district courts “routinely do not terminate a case at the same time that they grant a defendant’s motion to dismiss”; they generally dismiss the complaint without prejudice and give the plaintiff at least one opportunity to amend.3 The same opinion adds that the court should give that opportunity even when it is skeptical about the plaintiff’s prospects.4
The reason becomes clear once you ask what the plaintiff knows at the moment of dismissal. Before the ruling, the plaintiff can only guess which allegations the court will find lacking; after it, the plaintiff knows what to repair. Many such gaps are drafting problems, which is why the governing question is whether a more carefully drafted complaint might state a claim.5 Ending the case at the first ruling would let a pleading defect decide the merits, and Rule 8 points the other way: one of its objectives is to decide cases fairly on their merits, not to debate finer points of pleading where the opponent has fair notice of the claim.6
The order in Catalano v. MarineMax shows the default at work and the consequence of the label. The court dismissed claims without prejudice and granted the plaintiffs a right to amend by a set date. Failure to file an amended complaint by that date would waive the right to amend, and the claims dismissed without prejudice would then be dismissed with prejudice.7 A without-prejudice dismissal paired with a deadline gives the plaintiff one chance and a fixed day on which that chance ends.
In Shane v. Fauver, prisoners at a New Jersey state prison appealed the dismissal of their § 1983 complaint without leave to amend. The court held that Section 803(d) of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(c)(1), did not change the procedures it had adopted for dismissing a complaint without granting leave to amend, and it vacated the dismissal and remanded.8 A reform statute directed at prisoner suits, in other words, left the existing procedure in place.
Garcia v. Chiquita Brands Int’l, Inc. shows the standard applied to a proposed amended complaint. The Eleventh Circuit explained that Rule 15(a)(2) “severely restrict[s]” a district court’s ability to dismiss with prejudice: “[g]enerally, where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.”9 The court then listed the exceptions, which restate the grounds for refusing leave covered above:
- undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by earlier amendments;
- undue prejudice to the opposing party from the amendment; and
- futility of the amendment.
The plaintiffs in Garcia sought to plead their entitlement to minority tolling, and the court found neither futility nor prejudice. Their proposed amended complaint identified each plaintiff who had been a minor before March 25, 2010, which was enough factual allegation to state a plausible claim for minority tolling for those plaintiffs. The defendant could not explain how one more opportunity to plead would prejudice it. The litigation had run for more than a decade, but “[t]he lengthy nature of litigation, without any other evidence of prejudice to the defendants or bad faith on the part of the plaintiffs, does not justify denying the plaintiffs the opportunity to amend their complaint.”10
The exception for repeated failure assumes that earlier amendments were already allowed and did not cure the defects.11 A plaintiff who has never been told what is wrong has not failed repeatedly, so the first dismissal is where the default applies with the most force.
Giving the Court Something Concrete
A plaintiff who wants the benefit of the default must give the court something it can evaluate, because each ground for refusing leave can be tested only against a specific proposal. Bausch shows how little form the pleading stage demands. The plaintiff there requested leave to file an amended complaint in her response to the motion to dismiss, and the district judge counted the absence of a formal motion against her.13 The court of appeals disagreed: a formal motion was not necessary at the Rule 12(b)(6) stage, and she was entitled to wait and see whether the court would find pleading problems that could be corrected.14 Waiting makes sense because, before the ruling, a plaintiff cannot know which defects the court will accept, and a rule demanding a redrafted complaint for every possible ruling would force a rewrite of one that might survive as written.
Bausch also gave the court something to test. After judgment she submitted a revised complaint, and the court of appeals held that the complaint was not futile, that the record showed no undue delay or other fault on her part, and that denying her leave was an abuse of discretion.15 The opinion contrasted James Cape & Sons Co. v. PCC Construction Co., which affirmed a dismissal with prejudice where the losing plaintiff did not request leave to amend until it was too late and the district court had no way of knowing what the proposed amended complaint entailed.16 Those two outcomes mark the range. A plaintiff who supplies a pleading the court can test is entitled to have it considered; one who leaves the court guessing has given it nothing to approve.
A federal district court decision involving PNC Bank sits at the other pole. Facing a motion for judgment on the pleadings, the plaintiff said in his response brief and at oral argument that he conditionally wanted “to state more clearly” a cause of action against the bank.17 The court denied what it called a very late and conditional request. A magistrate judge’s report and recommendation, issued before the discovery plan was filed, had already noted that the complaint made no claims under the Michigan Estates and Protected Individuals Code. The plaintiff nonetheless waited until he faced the motion and then sought to amend only “in the alternative,” by which time discovery had closed, which the court found extremely prejudicial to the bank.18
Both requests came in a response brief, so form cannot be what separates the two decisions. Timing and testability do. Bausch asked at the pleading stage, before any ruling, and followed with a revised complaint the court could examine. The PNC plaintiff asked after warning and after discovery closed, and framed the request as an alternative that mattered only if the court ruled against him. Students often read “freely give” as a promise that any request will be granted. The generosity attaches to a proposal the court can evaluate, made while the opponent can still respond to it.
Older Cases and Former Timing
Older decisions were written when a plaintiff could amend as of course for longer than the current rule allows, so their reasoning about timing does not carry over. In Keene Lumber Co. v. Leventhal the court said that once judgment of dismissal had been entered, it was too late for the plaintiff to amend as of right, which shows that the free amendment had survived until judgment. The plaintiff could have asked for discretionary relief under Rule 60(b), asking that the judgment be set aside so an amended complaint could be filed, but the record showed no such motion, and the court held that the trial judge had no duty to take the initiative of suggesting or inviting an amendment.20 Because the court was vacating the judgment and remanding, the plaintiff would have a fresh opportunity to invoke Rule 15(a) after remand.21 Shane v. Fauver describes the same structure in the words of its era: after amending once or after an answer was filed, the plaintiff could amend only with leave of court or the opposing party’s written consent, but leave was to be freely given when justice so required.22
The current rule shortens the free period. Under Rule 15(a)(1)(B), a pleader may amend once as of course within 21 days after service of a responsive pleading or of a Rule 12(b), (e), or (f) motion, whichever is earlier. A Rule 12(b)(6) motion therefore starts a clock that ends the free amendment 21 days later, however long the court takes to rule.23 The older reasoning, that a plaintiff holds a free amendment until the court rules and so is owed no invitation to amend, depends on timing that no longer exists. What remains open after the 21 days is the leave track. One decision, citing Firestone, restates the standard: a party may amend once as a matter of course and afterward by leave, which is freely given when justice so requires, and it is an abuse of discretion to deny leave without giving a sufficient reason.24
An older decision is therefore good authority for the leave standard it applies and poor authority for the deadline after which a plaintiff needs permission. Read such a decision for what it says about when leave must be given, and count the free period from the current text of Rule 15(a)(1)(B).