recognizing that “[e]fficiency and judicial economy require that the liberal pleading standards under [the United States Supreme Court’s decision in] Swierkiewicz and Rule 8(a) are inapplicable after discovery has commenced” and that a plaintiff cannot amend its complaint after the fact, “through argument in a brief opposing summary judgment”
How later courts described this case
- recognizing that “[e]fficiency and judicial economy require that the liberal pleading standards under [the United States Supreme Court’s decision in] Swierkiewicz and Rule 8(a) are inapplicable after discovery has commenced” and that a plaintiff cannot amend its complaint after the fact, “through argument in a brief opposing summary judgment”
- holding that the liberal pleading standard “does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage”
- holding that a plaintiff may not amend her complaint through argument in an opposition to defendant’s motion for summary judgment
- holding insufficient Gilmour’s attempt to raise a new claim in response to the employer’s summary judgment motion and noting that the proper procedure to assert a new claim would have been to seek to amend the complaint
Written by the judges who cited it.
The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12229
September 3, 2004
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00055-CV-2
TERRY GILMOUR,
Plaintiff-Appellant,
versus
GATES, MCDONALD AND COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 3, 2004)
Before CARNES, HULL and GODBOLD, Circuit Judges.
PER CURIAM:
The central issue in this case is whether a non-moving party plaintiff may
raise a new legal claim for the first time in response to the opposing party’s
summary judgment motion.1 We hold it cannot.
Following the tragic events of September 11, 2001 in New York City, Terry
Gilmour traveled to New Jersey to work as a volunteer for the Red Cross. After a
week of service Gilmour became ill, and on September 30, her illness was
diagnosed as Legionnaire’s disease. Her illness quickly progressed to Adult
Respiratory Syndrome, and she was placed on a respiratory device. As a result of
her illness Gilmour suffered a stroke or brain lesion and required extensive and
long-term medical treatment.
Gilmour’s only insurance coverage was through a post-employment
insurance plan mandated by federal law that eventually lapsed when she was
unable to afford to pay the monthly premium pursuant to this plan. Red Cross
offered $10,000 worth of limited insurance coverage to a staff member whose
illness or injury is related to the disaster to which he or she is called. Gates,
McDonald & Company administered this policy for Red Cross. Gilmour contacted
Gates in October 2001 regarding coverage under the Red Cross policy. Gates
responded by providing Gilmour with the necessary authorization paperwork,
1
This case overlaps factually with another case pending before this court, Terry Gilmour v.
American National Red Cross, Docket No. 04-12025-H, Filed June 9, 2004.
2
which Gilmour returned on December 13, 2001.
In January 2002 Gates requested medical records from providers identified
by Gilmour to process her coverage request. By March 2002 Gilmour’s post-
employment insurance coverage lapsed, and she was unable to procure treatment
for her medical condition. After the last medical record was received in April
2002, Gates sent the claim to medical review staff who could not confirm that
Gilmour’s medical conditions were connected to her work with the Red Cross in
New Jersey. In response Gilmour filed suit against Red Cross in July 2002. In
January 2003 the Red Cross paid Gilmour $10,000.
On February 27, 2003 Gilmour commenced the present action against Gates
in Georgia state court, asserting six causes of action: (1) negligent
misrepresentation; (2) promissory estoppel; (3) bad faith and negligence per se; (4)
infliction of emotional distress; (5) tortious interference with contract; and (6) a
claim for attorney’s fees. None of these causes of action asserted a claim against
Gates based on the contract between the Red Cross and Gates. Gates removed the
action to federal court on diversity grounds.
After discovery commenced Gates filed a summary judgment motion. In
response Gilmour withdrew every claim except for the bad faith and negligence per
se claims, the tortious interference with contract claim, and the claim for attorney’s
3
fees. Additionally, Gilmour asserted a new claim based on “breach of duty” under
contract law. This claim is premised on Gates breach of duty to Gilmour as a third
party beneficiary by failing to properly administer her claim under the contract
between Gates and the Red Cross. The court granted summary judgment on the
three remaining counts but did not address the new “breach of duty” claim. This
appeal followed.
Gilmour does not challenge the grant of summary judgment on the tort
claims set forth in the complaint. Instead, she challenges the district court’s failure
to rule on the “breach of duty” claim raised in her response to Gates’ summary
judgment motion and the attorney fees issue. We affirm.
We review de novo a district court’s order granting motion for summary
judgment and construe “all reasonable doubts about the facts in favor of the non-
movant.” Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir. 1990).
In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) the Supreme
Court has mandated a liberal pleading standard for civil complaints under Federal
Rule of Civil Procedure 8(a). This standard however does not afford plaintiffs
with an opportunity to raise new claims at the summary judgment stage. Indeed,
the “simplified notice pleading standard relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of
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unmeritorious claims.” Id. Efficiency and judicial economy require that the liberal
pleading standards under Swierkiewicz and Rule 8(a) are inapplicable after
discovery has commenced. At the summary judgment stage, the proper procedure
for plaintiffs to assert a new claim is to amend the complaint in accordance with
Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint through argument
in a brief opposing summary judgment. Shanahan v. City of Chicago, 82 F.3d 776,
781 (7th Cir. 1996).
In Chavis v. Clayton County Sch. Dist., 300 F.3d 1288, 1291 n.4 (11th Cir.
2002), we noted that a newly minted § 1985(2) claim advanced to the district court
in response to defendant’s summary judgment motion but not addressed in the
court’s order was not properly before us. Other circuits have held similarly. See,
e.g., Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990) (allegation
of improper benefits calculation not raised in second amended complaint but in
response to summary judgment motion is not properly before court); Green
Country Food Mkt., Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1279 (10th Cir.
2004) (failure of plaintiff to cite to statutory provision did not put defendants on
notice of need to defend against that claim).
Gilmour contends the issue of raising a new claim in response to a summary
judgment motion was raised and decided in Plumbers and Steamfitters Local No.
5
150 Pension Fund v. Vertex Constr. Co., Inc., 932 F.2d 1443, 1448 (11th Cir.
1991). Vertex Constr. Co, however, concerned whether language in the complaint
stating “entitled to audit the payroll, tax, and personnel records” encompassed a
defined term “cash disbursement journals,” not whether a new claim could be
raised in response to a summary judgment motion. Id. Our decision in that case
was guided by the pleading standard set forth in Fed. R. Civ. P. 8(a). That
principle is inapplicable here.
Accordingly, Gilmour may not raise a contractual claim in her opposition to
Gates’ summary judgment motion. Gates had no notice of a contract claim based
on the tort claims set forth in the complaint. Liberal pleading does not require that,
at the summary judgment stage, defendants must infer all possible claims that
could arise out of facts set forth in the complaint. The proper procedure for
Gilmour to assert a new contract claim was to seek to amend her complaint.
Even if Gilmour were correct in her assertion that new claims may be raised
by a non-movant in response to a summary judgment motion, her “breach of duty”
claim is without support in the record. Under Georgia law Gilmour cannot
maintain a contract action against Gates as a third party beneficiary where she
cannot show from the face of the contract that it was intended to benefit her. See
Florida Intern. Indem. Co. v. City of Metter, Ga., 952 F.2d 1297, 1300 n.10 (11th
6
Cir. 1992). Simply because Gilmour benefited from the performance of the
contract between Gates and Red Cross does not afford her third party beneficiary
status. See Satilla Cmty. Serv. Bd. v. Satilla Health Servs., 275 Ga. 805, 810
(2002).
Gilmour cites Gardner & White Consulting Servs., Inc. v. Ray, 222 Ga. App.
464 (1996) as authority for her breach of duty claim. Ray involved a third party
administrator who handled claims for a group of employees specifically for their
benefit. See id. at 467. Gilmour has not identified any contractual language
indicating that she was an intended beneficiary. She assumes that because Gates
acted as a third party administrator of the Red Cross policy it owed a duty to her.
Georgia law does not support that assumption.
The only other issue raised on appeal that does not depend on this court’s
allowing Gilmour to raise a new claim in her response is whether the district court
erred in granting summary judgment disallowing her claim for attorney’s fees. The
district court held that under Georgia law a claim for attorney’s fees could not lie
independently of the tort causes of action foreclosed by the summary judgment
order. We agree.
The attorney’s fees provision invoked by Gilmour in her complaint,
O.C.G.A. Section 13-6-11, requires an underlying claim. See United Cos. Lending
7
Corp. v. Peacock, 267 Ga. 145, 147 (1996). Gilmour did not appeal from the
district court’s summary judgment order on the tort claims. As she did not amend
her complaint to assert any other claims, she has no underlying claim for attorney’s
fees under O.C.G.A. § 13-6-11.
AFFIRMED.
8