recognizing that 22 leave to amend should be freely given unless there has been “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously 23 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
How later courts described this case
- recognizing that 22 leave to amend should be freely given unless there has been “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously 23 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”
- holding that the district court abused its discretion because “[d]ismissal with prejudice and without leave to amend is not appropriate unless it is clear on de novo review that the complaint could not be saved by amendment”
- stating the party opposing amendment bears the burden to show undue prejudice and that there is a presumption in favor of amendment absent such a showing “or a strong showing of any of the remaining Foman factors”
- stating the party opposing amendment bears the burden to show undue prejudice and that absent such a showing “or a strong showing of the remaining Forman factors,” there is a presumption in favor of amendment
Written by the judges who cited it.
The opinion
REINHARDT, Circuit Judge,
concurring separately:
The per curiam opinion concludes that none of the relevant factors compels dismissal without leave to amend. With this result I concur. I write separately, however, to express my concern regarding the use of cliches in judicial opinions, a technique that aids neither litigants nor judges, and fails to advance our understanding of the law. In particular, I regret the opinion’s use of the undeservedly common “three bites at the apple” cliche, slip op. at 891, (even more commonly, “two bites at the apple”) also employed by the district court, which in turn lifted it from the written submission of the prevailing party. Such cliches too often provide a substitute for reasoned analysis.
Not only did the district court here fail to identify any of the Foman factors that would have supported a dismissal with prejudice, but it also in effect adopted a “three strikes” rule for securities fraud pleading that has no support in precedent. In the district court’s view, appellant had had “three bites” and deserved no more opportunities to comply with the stringent requirements of the PSLRA. Simply counting the number of times a plaintiff has filed a complaint cannot, however, substitute for an analysis of whether the rigorous standards of the PSLRA have been met.
*1054 The per curiam opinion regrettably (but deliberately) reiterates the same cliche used by the district court. Metaphors enrich writing only to the extent that they add something to more pedestrian descriptions. Cliches do the opposite; they deaden our senses to the nuances of language so often critical to our common law tradition. The interpretation and application of statutes, rules, and case law frequently depends on whether we can discriminate among subtle differences of meaning. The biting of apples does not help us.
It is one of the “great merits and advantages” of our common law tradition that, “instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases,” we have “broad -and comprehensive principles,” which are then applied and interpreted by judges in the “precise circumstances of particular cases.” Norway Plains Co. v. Boston & Me. R.R., 67 Mass. 263, 267 (1854)(Shaw, C.J.). This process of adaptation and progress, embedded in our legal tradition, necessitates the careful exposition of prose in our opinion writing. A cliche like “three bites at the apple” provides a formalistic rule that does not account for the particularities of an individual case.
The problem of cliches as a substitute for rational analysis is particularly acute in the legal profession, where our style of writing is often deservedly the subject of ridicule. The problem is not ours alone, however. Cliches have an adverse effect on various modes of thinking, some of which are even more important to our future welfare than the legal analyses in which we engage. As George Orwell wrote, over a half century ago:
Modern English, especially written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble. If one gets rid of these habits one can think more clearly, and to think clearly is a necessary step toward political regeneration: so that the fight against bad English is not frivolous and is not the exclusive concern of professional writers. 1
It is long past time we learned the lesson Orwell sought to teach us.
. George Orwell, "Politics and the English Language," 13 Horizon 76 (1946).