WBSY Licensing, LLC v. Duval County School Board

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WBSY LICENSING, LLC,

Plaintiff,

vs. Case No. 3:21-cv-805-MMH-JBT

DUVAL COUNTY SCHOOL

BOARD,

Defendant.

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O R D E R

THIS CAUSE is before the Court on Plaintiff WBSY Licensing LLC’s

Opposition to Defendant’s Motion to Dismiss (Doc. 17; Response), filed on

December 3, 2021. In the Response, in addition to asserting that the motion to

dismiss is due to be denied, Plaintiff alternatively requests that any dismissal

be without prejudice. See Response at 13 n.2. In doing so, Plaintiff is requesting

that, in the event the Court determines that the allegations in its Complaint are

inadequate, it have the ability to file an amended complaint or a new complaint

in a separate action. This request for leave to amend is legally insufficient

and therefore due to be denied.

Pursuant to Rule 7, and Eleventh Circuit precedent, a request for

affirmative relief must be presented to the Court in a motion. See Fed. R. Civ.

P. 7(b) (“A request for a court order must be made by motion.”). Thus, a request

for affirmative relief, such as a request for leave to amend a pleading, is not

properly made when simply included in a response to a motion. See Rosenberg

v. Gould, 554 F.3d 962, 965 (11th Cir. 2009) (“‘Where a request for leave to file

an amended complaint simply is imbedded within an opposition memorandum,

the issue has not been raised properly.’” (quoting Posner v. Essex Ins. Co., 178

F.3d 1209, 1222 (11th Cir. 1999))); Davidson v. Maraj, 609 F. App’x 994, 1002

(11th Cir. 2015) (“It has long been established in this Circuit that a district

court does not abuse its discretion by denying a general and cursory request for

leave to amend contained in an opposition brief.” (citations omitted)). Indeed,

“the proper method to request leave to amend is through filing a motion, and

such motion for leave to amend should either set forth the substance of the

proposed amendment or attach a copy of the proposed amendment.” Burgess

v. Religious Tech. Ctr., Inc., 600 F. App’x 657, 665 (11th Cir. 2015) (citing Long

v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999)); see also Newton v. Duke

Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018) (“When moving the

district court for leave to amend its complaint, the plaintiff must ‘set forth the

substance of the proposed amendment or attach a copy of the proposed

amendment’ to its motion.” (quoting Cita Tr. Co. AG v. Fifth Third Bank, 879

F.3d 1151, 1157 (11th Cir. 2018))); McGinley v. Fla. Dep’t of Highway Safety &

Motor Vehicles, 438 F. App’x 754, 757 (11th Cir. 2011) (affirming denial of leave

to amend where plaintiff did not set forth the substance of the proposed

amendment). This makes sense because without knowing the substance of a

plaintiff’s proposed amendment, a court would be unable to determine whether

the plaintiff could amend the complaint to cure a defective claim. See United

States ex rel. Atkins v. Mclnteer, 470 F.3d 1350, 1362 (11th Cir. 2006) (“[A]

plaintiff should not be allowed to amend [its] complaint without showing how

the complaint could be amended to save the meritless claim.” (internal

quotation marks and citation omitted)). Thus, to the extent Plaintiff’s request

that any dismissal be without prejudice is intended to seek or secure an

opportunity to file an amended complaint, it is not properly before the Court.1

Plaintiff is advised that, if it believes a better drafted complaint would

cure any alleged deficiency identified by Defendant in its motion to dismiss,

Plaintiff is required to file an appropriate motion for leave to amend the

Complaint, in accordance with the Federal Rules of Civil Procedure and the

Local Rules of this Court.2 Significantly, Plaintiff cannot await the Court’s

ruling on the motion to dismiss before properly seeking leave to amend. See

1 Plaintiff’s request also fails to comply with Local Rules 3.01(a) and 3.01(g), United

States District Court, Middle District of Florida (Local Rule(s)). Local Rule 3.01(a) requires a

memorandum of legal authority in support of a request from the Court. See Local Rule 3.01(a).

Local Rule 3.01(g) requires certification that the moving party has conferred with opposing

counsel in a good faith effort to resolve the issue raised by the motion and advising the Court

whether opposing counsel agrees to the relief requested. See Local Rule 3.01(g).

2 In making this observation, the Court expresses absolutely no opinion on the merit

of Defendant’s arguments. Indeed, the Court has not yet undertaken a review of the

substantive arguments. Rather, as is this Court’s custom, in this Order in an abundance of

caution the Court simply addresses the procedural posture of the case.

Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 2018)

(stating that the Eleventh Circuit has “rejected the idea that a party can await

a ruling on a motion to dismiss before filing a motion for leave to amend”) (citing

Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.

2002)). Plaintiff is further cautioned that in the event the Court determines

that the motion to dismiss for failure to state a claim is due to be granted, and

Plaintiff has not filed a proper motion requesting leave to amend, any such

dismissal likely would be with prejudice. See Eiber Radiology, Inc. v. Toshiba

Am. Med. Sys., Inc., 673 F. App’x 925, 929–930 (11th Cir. 2016) (noting that a

dismissal for failure to state a claim under Rule 12(b)(6) ordinarily acts as a

dismissal with prejudice and affirming the refusal to give a plaintiff a “second

bite at [the] apple” where the plaintiff “inexplicably failed to follow the well-

trodden procedural path toward amendment”); see also Wagner, 314 F.3d at 542

(“A district court is not required to grant a plaintiff leave to amend [its]

complaint sua sponte when the plaintiff, who is represented by counsel, never

filed a motion to amend nor requested leave to amend before the district

court.”); Long, 181 F.3d at 1279–80 (holding that a plaintiff’s failure to

properly request leave to amend “preclude[d] the plaintiff’s argument on appeal

that the district court abused its discretion by denying her leave to amend her

complaint”); Davidson, 609 F. App’x at 1002 (“Under our case law, Davidson’s

request for leave to amend was insufficient as a matter of law and the district

court did not abuse its discretion in denying it.”); Cita, 879 F.3d at 1157 (holding

that the plaintiff had failed to properly move to amend its complaint where □□□□□□

[the plaintiff] did was, in the conclusion of its response in opposition to Fifth

Third’s motion to dismiss the complaint, alternatively request dismissal without

prejudice so that it could amend the complaint”). Accordingly, it is

ORDERED:

To the extent that it requests affirmative relief from the Court, Plaintiff

WBSY Licensing LLC’s Opposition to Defendant’s Motion to Dismiss (Doc. 17)

is DENIED without prejudice to filing a legally sufficient motion for leave to

amend that complies with the Federal Rules of Civil Procedure and the Local

Rules of this Court.

DONE AND ORDERED in Jacksonville, Florida, on December 6, 2021.

United States District Judge

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Copies to:

Counsel of Record

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