Petition for Writ of Certiorari — Legacy Recovery Services, LLC, dba Legacy House, et al., Petitioners v. City of Monroe, Louisiana, et al.
Supreme Court briefMar 10, 2025
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No.
IN THE
Supreme Court of the United States
LEGACY RECOVERY SERVICES, LLC, ET AL.,
Petitioners,
V.
THE CITY OF MONROE, ET AL.,
Respondents.
On Petition For Writ of Certiorari
To the United States Court Of Appeals
For The Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
S. Hutton Banks
Attorney at Law
1040 North 9th Street
Monroe, Louisiana 71201
Telephone: (318) 570-5001
Facsimile: (318) 816-5026
hutton@banksshlaw.com
Counsel for Petitioners
LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com
i
QUESTIONS PRESENTED
1. Do the lower federal courts have authority to
create pleading requirements for civil rights
complaints above what is required under the
Federal Rules of Civil Procedure?
2. Is a complaint subject to dismissal under Rule 12
where the dismissal order announced heighten
pleadings standards while denying plaintiffs any
chance to amend the dismissed claims to conform
to the new pleading standards and no reason was
given for refusal to permit amendment?
3. Is the erroneous refusal to permit amendment of
claims dismissed with prejudice under Rule 12
sufficiently “final” for the purposes of invoking
appellate jurisdiction under 28 U.S.C. § 1291?
4. Does Rule 15’s mandate to grant leave to amend
“when justice so requires”, confer appellate
jurisdiction, ipso facto, over erroneous denials of
that mandate?
5. Is a result described by this Court as “entirely
contrary to the spirit of the Federal Rules of Civil
Procedure” a sufficiently “important public
interest” or “value of high order” to warrant review
under the collateral order doctrine?
6. Should this Court resolve disagreement among the
Circuits to harmonize the finality rule as it relates
to amendment, particularly in terms of claims
dismissed under Rule 12?
ii
LIST OF PARTIES TO THE PROCEEDING,
AND STATEMENT AS TO DIRECTLY
RELTAED PROCEEDINGS
The following is a list of all parties to the
proceeding in the Court below, as required by Rule
24.1(b) and Rule 29.1 of the Rules of the Supreme
Court of the United States.
1. Legacy Recovery Services, LLC; Petitioner,
2. Colburn “Cole” Sullivan, Petitioner,
3. Joe Montgomery, Petitioner,
4. James “Jimmy” Gaiennie, III, Petitioner,
5. The City of Monroe, Respondent,
6. The City Council of Monroe, Respondent,
7. Honorable Friday Ellis, Respondent,
8. Douglas Harvey, Respondent,
9. Juanita Woods, Respondent,
10. Carday Marshall, Sr., Respondent,
11. Kema Dawson, Respondent, and
12. Carolus Riley, Respondent.
The only related cases between these parties
are the lower court cases leading to this Petition,
listed below:
United States District Court
Western District of Louisiana, Monroe Division
Legacy Recovery Services LLC, et al.
vs.
City of Monroe, et al.
Civil Docket No. 3:23-00697
iii
United States Court of Appeals for the Fifth Circuit
Legacy Recovery Services, L.L.C., doing business as
Legacy House; Colburn Sullivan; Joe Montgomery;
James Gaiennie, III,
Plaintiffs—Appellants,
vs.
City of Monroe; Friday Ellis, individually and in his
official capacity as Mayor of Monroe; City Council of
Monroe; Douglas Harvey, individually and in his
official capacity as Monroe City Council Member;
Juanita Woods, individually and in her official
capacity as Monroe City Council Member; Carday
Marshall, Sr., individually and in his official capacity
as Monroe City Council Member; Kema Dawson,
individually and in her official capacity as Monroe
City Council Member; Carolus Riley, individually and
in her official capacity as Monroe City Clerk,
Defendants—Appellees.
No. 24-30211
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED…………………………….i
LIST OF PARTIES………………………………………ii
TABLE OF CONTENTS……………………………….iv
TABLE OF AUTHORITIES…………………………..vii
OPINIONS BELOW……………………………………..1
JURISDICTION………………………………………….1
STATUTES AND RULES INVOLVED………………2
STATEMENT OF THE CASE…………………………4
REASONS FOR GRANTING THE PETITON………6
I.
THE OPINION OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT
CONTRAVENES JOHNSON V. CITY OF
SHELBY, MISSISSIPPI, 574 U.S. 10 (2014)
AND SWIERKIEWICZ V. SOREMA, 534 U.S.
506 (2002) WHICH HOLD THAT A
FEDERAL COURT MAY NOT APPLY
HEIGHTENED PLEADING STANDARDS
ABOVE WHAT IS REQUIRED UNDER THE
FEDERAL RULES OF CIVIL PROCEDURE…..8
II.
THE
FIFTH
CIRCUIT’S
OPINION
CONTRAVENES FOMAN V. DAVIS, 371 U.S.
178 (1962) WHICH HELD THAT LEAVE TO
AMEND IS A MANDATE OF RULE 15 AND
SHOULD BE FREELY GIVEN IN THE
ABSENCE
OF
AN
APPARENT
OR
DECLARED REASON SUCH AS UNDUE
DELAY, BAD FAITH, REPEATED FAILURE
TO
CURE
DEFICENCIES,
UNDUE
PREJUDICE, OR FUTILITY OF
AMENDMENT…………….………………………10
v
III. THE OPINION OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT
CONTRAVENES FOMAN V. DAVIS, 371 U.S.
178
(1962)
WHICH
EXERCISED
OTHERWISE UNAVAILABLE APPELLATE
JURISFDICTION TO REVERSE THE
REFUSAL TO PERMIT AMENDMENT OF
CLAIMS DISMISSED UNDER RULE 12……12
IV. THIS COURT SHOULD ACCEPT THIS
WRIT TO RESOLVE DISAGREEMENT
AMONG THE CIRCUITS AS TO WHEN A
RULE 12 DISMISSAL ORDER DENYING
LEAVE
TO
AMEND
BECOMES
SUFFICENTLY “FINAL” UNDER 28 U.S.C. §
1291…………………………………………………16
V.
THE FIFTH CIRCUIT’S OPINION FINDING
NO APPELLATE JURISDICTION TO
CORRECT THE DENIEAL OF LEAVE TO
AMEND CLAIMS DISMISSED WITH
PREJUDICE UNDER RULE 12 MISAPPLIES
COHEN V. BENEFICIAL INDUSTRIAL
LOAN, CORP., 337 U.S. 541 (1949) WHICH
HELD
APPELLATE
JURISDICTION
EXISTS TO REVIEW AN ORDER THAT IS
CONCLUSIVE OF A CLAIMED RIGHT,
RESOLVES AN IMPORTANT QUESTION
SEPARATE FROM THER MERITS, AND
CANNOT
BE
EFFECTIVELY
OR
PRACTICALLY REVIEWED ON DIRECT
APPEAL AFTER ADJUDICATION OF THE
ENTIRE CASE……………………………………22
vi
CONCLUSION………………………………………….29
APPENDIX TABLE OF CONTENTS
Appendix A: United States Court of Appeals
for the Fifth Circuit, Judgment, November 6,
2024 ...........................................................................1a
Appendix B: United States Court of Appeals
for the Fifth Circuit, Opinion, November 6,
2024 ...........................................................................3a
Appendix C: United States District Court,
Western District of Louisiana, Monroe Division,
Judgment, March 18, 2024 .....................................14a
Appendix D: United States District Court,
Western District of Louisiana, Monroe Division,
Report and Recommendation, March 1, 2024 ........17a
Appendix E: United States District Court,
Western District of Louisiana, Monroe Division,
Complaint, May 25, 2023 ......................................101a
Appendix F: United States Court of Appeals
for the Fifth Circuit, Denial of En Banc
Rehearing, December 9, 2024 ...............................164a
vii
TABLE OF AUTHORITIES
FEDERAL CASES:
Ashcroft v. Iqbal,
556 U.S. 662 (2009)…..………………………….9
Bank v. Pitt,
928 F.2d 1108 (11th Cir. 1991).……….….18, 27
Britt v. Dejoy,
45 F.4th 790 (4th Cir. 2022)….…....7, 16, 17, 18
Cessna v. Skyways, Inc.,
532 F.2d 64 (8th Cir. 1976)……7, 21, 23, 24, 28
Ching-Luo v. Owen J. Roberts Sch. Dist.,
2022 WL 4480559 (3d Cir. 2022).………..18, 26
Cohen v. Beneficial Industrial Loan, Corp.,
337 U.S. 541 (1949)…………6, 7, 22, 23, 27, 28
Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978).……………………………23
Czeremcha v. Intern. Ass'n of Mach. & Aero.
Workers, 724 F.2d 1552 (11th Cir. 1984)…….19
Digital Equipment Corp. v. Desktop
Direct, Inc., 511 U.S. 863 (1994)….…23, 24, 27
Fletcher-Harlee Corp., v. Pote Concrete
Cont., Inc., 482 F.3d 247 (3d Cir. 2007)...17, 26
viii
Foman v. Davis,
371 U.S. 178 (1962)…………... 6, 10-13, 15, 17,
21, 24, 25, 26, 27
Gillespie v. U.S. Steel Corp.,
379 U.S. 148 (1964)……….……………………..6
Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305
(5th Cir. 2002)….………………………………..18
Griggs v. Hinds Junior College,
563 F.2d 179 (5th Cir. 1977)….…………...18, 26
Harris v. Nix,
52 F.3d 106 (5th Cir. 1995)…………….………20
Hart v. Bayer Corp.,
199 F.3d 239 (5th Cir. 2000)….…………...18, 26
Hertz Corp. v. Alamo Rental Car, Inc.,
16 F.3d 1126 (11th Cir. 1994)…7, 14, 15, 17, 21
Hitt v. City of Pasadena,
561 F.2d 606 (5th Cir. 1977)…….…………….25
Horner v. Ferron,
362 F.2d 224 (9th Cir. 1966)….……………….13
Jackson v. Nelson,
405 F.2d 872 (9th Cir. 1968)…….……14, 18, 27
Johnson v. City of Shelby Mississippi,
574 U.S. 10 (2014)……………………..6, 8, 9, 27
ix
Johnson v. Jones,
515 U.S. 304 (1995)………….…………….27, 28
Jung v. K.&D Minn. Co.,
356 U.S. 335 (1958)……………….……………17
Lanning v. Serworld,
474 F.2d 716 (9th Cir. 1973).…………13, 18, 27
Liberty Mutual Fire Insurance, Co. v. Volungis,
Supreme Court Docket No. 20-208…………..14
Lopez v. Smith,
203 F.3d 1122 (9th Cir. 2000 en banc)….……14
Marshall v. Sawyer,
301 F.2d 639 (9th Cir. 1962)………….……….12
Mohawk Industries, Inc. v. Carpenter,
558 U.S. 100 (2009)…………………………….24
Reed v. Oregon Health Sci. Uni.,
980 F.2d 738 (9th Cir. 1992).…………14, 18, 27
Ruby v. Sec. of the U.S. Navy,
365 F.2d 385 (9th Cir. 1966)
cert. denied 386 U.S. 1011 (1967)..….13, 18, 26
Schuurman v. Motor Vessel Betty K. V,
798 F.2d 442 (11th Cir. 1986).…………….15, 18
Scott v. Eversole Mortuary,
522 F.2d 1110 (9th Cir. 1975)……..7, 14, 17, 18
x
State of Minn. v. Pickands Mather & Co.,
636 F.2d 251 (8th Cir. 1980)….……………….22
Swierkiewicz v. Sorema,
534 U.S. 506 (2002)…………….……………..6, 8
Wagner v. Daewoo Heavy Indus. Am. Corp.,
314 F.3d 541 (11th Cir. 2002)….………….18, 27
Whitaker v. City of Houston, Tex.,
963 F.2d 831 (5th Cir. 1992)…….…7, 19, 20, 21
Will v. Hallock,
546 U.S. 345 (2006)……………….……………24
STATUTES:
28 U.S.C. § 1254………………………………………….1
28 U.S.C. § 1291………….3, 5-7, 13, 16, 19, 22, 23, 29
Fed. R. Civ. Pro. 8………………………………………..2
Fed. R. Civ. Pro. 12……1-2, 4-13, 16-17, 20-23, 27-29
Fed. R. Civ. Pro. 15…………………2, 3, 6, 7, 9-13, 1517, 19, 21, 25, 29
Fed. R. Civ. Pro. 54………………..7, 12, 15, 17, 19, 21
Fed. R. Civ. Pro. 58………………………………………7
xi
OTHER AUTHORITIES:
Charles E. Clark, Pleading Under the Federal
Rules, 12 Wyoming L.J. 177 (1958)……………….……8
Jason G. Gottesman, Speculating as to the
Plausible: Pleading Practice After Bell
Atlantic, Corp. v. Twombly [550 U.S. 544 (2007)],
17 Widener L.J. 973 (2008)……………………………...8
J. Moore, Federal Practice P 110.10 (2d ed. 1975)….24
1
OPINIONS BELOW
The unpublished opinion of the United States
Court of Appeals for the Fifth Circuit is not reported,
but attached hereto, as Appendix 3a. The Judgment
dismissing plaintiffs’ appeal is Appendix 1a. The
unpublished Judgment of the district court adopting
the magistrate’s Report and Recommendation
granting defendant’s Rule 12 motions in part is
Appendix 14a. The Report and Recommendation is
Appendix 17a. The Order for the United States Court
of Appeals for the Fifth Circuit denying petition for
rehearing en banc and petition for rehearing is
Appendix 164a. The complaint at issue in this case is
attached as Appendix 101a.
JURISDICTION
This Court has jurisdiction to review the
decision of the United States Court of Appeals for the
Fifth Circuit decided on November 6, 2024, with a
petition for rehearing en banc and petition for
rehearing denied December 9, 2024, by writ of
certiorari under 28 U.S.C. § 1254(1).
2
STATUTES AND RULES INVOLVED
Rules of Civil Procedure Construed:
Federal Rule of Civil Procedure 8 provides:
(a) Claim for Relief. A pleading that states a
claim for relief must contain:
(1) a short and plain statement of the grounds
for the court’s jurisdiction, unless the court
already has jurisdiction and the claim needs
no new jurisdictional support;
(2) a short and plain statement of the claim
showing that he pleader is entitled to relief;
and
(3) a demand for the relief sought, which may
include relief in the alternative or different
types of relief.
Fed. R. Civ. P. 8(a)
Federal Rule of Civil Procedure 15 provides:
(a) Amendments before Trial.
(1) Amending as a matter of course. A party may
amend its pleading once as a matter of course
within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive
pleading is required, 21 days after service of
a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
3
(2) Other Amendments. In all other cases, a
party may amend its pleading only with the
opposing party’s written consent or the
court’s leave. The court should freely give
leave when justice so requires.
Fed. R. Civ. P. 15(a)
Statute Construed:
28 U.S.C. § 1291 provides:
The courts of appeals (other than the United
States Court of Appeals for the Federal
Circuit) shall have jurisdiction of appeals
from all final decisions of the district courts of
the United States, the United States District
Court for the District of the Canal Zone, the
District Court of Guam, and the District
Court of the Virgin Islands, except where a
direct review may be had in the Supreme
Court. The jurisdiction of the United States
Court of Appeals for the Federal Circuit shall
be limited to the jurisdiction described
in sections 1292(c) and (d) and 1295 of this
title.
4
STATEMENT OF THE CASE
Petitioners allege the City of Monroe,
Louisiana and certain city officials are liable under
FHA, ADA, RA, ACA, § 1983, state tort law, and
breach of contract principles for discriminating in
performing an agreement to sell surplus municipal
property which plaintiffs intended to use as a
residential substance abuse treatment facility in
accordance with the objectives of CMS announced
during an unprecedented health crisis.
Defendants filed motions to dismiss under Rule
12(b)(6) arguing plaintiffs’ allegations were
insufficient to state any claim for relief.
Plaintiffs responded by pointing out the
supposedly missing allegations were already present
in the complaint, the allegations satisfied the
Twombly-Iqbal federal pleading standard, and if they
didn’t, plaintiffs should be afforded an opportunity to
cure any deficiency through amendment.
Writing for the Western District of Louisiana,
the magistrate recommended granting in part and
denying in part the motions to dismiss. Curiously, the
magistrate found plaintiffs’ allegations sufficient to
state discrimination claims under some provisions of
the ADA, RA, and under the Equal Protection Clause,
but not the FHA, ACA, or any remaining ADA, RA,
and Constitutional provision.
The magistrate recommended dismissing with
prejudice: the claims against the city council, the
5
official capacity claims, FHA claims, ADA and RA
failure-to accommodate claims, ACA claims, most of
plaintiffs’ § 1983 claims, Open Meeting Law
violations in part, tortious malfeasance claims, bad
faith breach of contract claims, and claims for
discrimination in real estate transactions.
The magistrate’s recommendation to dismiss
plaintiffs’ claims under Rule 12, with prejudice, does
not address plaintiffs’ request to amend or state any
reason why amendment would not be allowed.
The district court adopted the recommendation
in full over plaintiffs’ objection.
Plaintiffs appealed to the Fifth Circuit arguing
the rulings dismissing their federal complaints, with
prejudice, under a superficial heighten pleading
standard without allowing a single opportunity to
amend, are immediately appealable as “final
decisions” under 28 U.S.C. § 1291, or alternatively,
under jurisprudential explanations of the finality rule
such as the collateral order doctrine.
By per curium opinion not designated for
publication, the circuit panel – without mentioning
amendment – dismissed the appeal for lack of
jurisdiction finding the judgment of the district court
is not immediately appealable as final decision or
under the collateral order doctrine because “the order
here will be easily reviewable on appeal from a later
final judgment without jeopardizing any important
right of the appellants.” Slip Op. p. 5-8.
6
REASON FOR GRANTING THE WRIT
The rulings complained of depart from
accepted judicial proceedings because no court has
properly ruled what the Fifth Circuit has ruled here:
it lacks jurisdiction to reinstate claims erroneously
dismissed under Rule 12, with prejudice, where
plaintiffs were not given a chance to amend and there
is no clear or stated reason for denying leave to
amend, which Rule 15 requires a court “freely
give...when justice so requires”.
There are compelling reasons to grant this writ
of certiorari where such decision contravenes this
Court’s holdings in Johnson v. City of Shelby
Mississippi, 574 U.S. 10 (2014); Swierkiewicz v.
Sorema, 534 U.S. 506 (2002); and Foman v. Davis, 371
U.S. 178 (1962); while misapplying Cohen v.
Beneficial Ind. Loan, Corp., 337 U.S. 541 (1949).
Further, plaintiffs respectfully invite this
Court to resolve the confusion as to how amendment
generally influences finality under 28 U.S.C. § 1291,
and more specifically, how the mandates of Rule 15
impact finality in the context of Rule 12 dismissals.
Indeed, this Court has recognized “finality”
under §1291 can be “tricky” to discern: it does not
necessarily mean it is the last order that may be
possibly made, and the arguments for, and against,
the finality of a ruling may be equally forceful.
Gillespie v. U.S. Steel Corp., 379 U.S. 148 (1964).
Accordingly, finality is to be given a practical rather
than technical construction. Gillespie at 152-153.
7
As explained below, some circuits consider
amendment determinative, “vel non”, as to whether a
dismissal under Rule 12 qualifies as sufficiently final,
and therefore immediately appealable under § 1291.
Such is the case in the Fourth Circuit and DC Circuit,
provided a final judgment is entered under Rule 58.
Britt v. Dejoy, 45 F.4th 790 (4th Cir. 2022).
On the other hand, the Ninth and Eleventh
Circuits, “deem” rulings final under certain
circumstances, irrespective of Rule 58 and even where
that ruling dismisses less than all claims and is not
certified as immediately appealable under Rule 54.
Hertz Corp. v. Alamo Rental Car, Inc., 16 F.3d 1126
(11th Cir. 1994); Scott v. Eversole Mortuary, 522 F.2d
1110 (9th Cir. 1975). In those instances, finality is
predicated upon Rule 15, without reference to
jurisprudential explanations of finality, such as the
collateral order doctrine recognized in Cohen, supra.
Meanwhile, the Fifth Circuit holds that a
plaintiff’s request to amend “destroys [the] finality” of
a Rule 12 dismissal order, but the order then
“regains” finality if amendment is denied. Whitaker v.
City of Houston, Tex., 963 F.2d 831 (5th Cir. 1992).
Finaly, at least one circuit has explicitly found
the denial of amendment immediately reviewable
under the collateral order doctrine. Cessna v.
Skyways, Inc., 532 F.2d 64 (8th Cir. 1976).
In terms of the arguments advanced here the
above considerations demonstrate Rule 10 factors in
favor of justifying discretionary review by this Court.
8
I.
THE OPINION OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT
CONTRAVENES JOHNSON V. CITY OF
SHELBY, MISSISSIPPI, 574 U.S. 10 (2014)
AND SWIERKIEWICZ V. SOREMA, 534
U.S. 506 (2002) WHICH HOLD THAT A
FEDERAL COURT MAY NOT APPLY
HEIGHTENED PLEADING STANDARDS
ABOVE WHAT IS REQUIRED UNDER
THE FEDERAL RULES OF CIVIL
PROCEDURE.
“[E]very little while there seems to be a recurring
hope or belief that we can somehow tie the parties up
and avoid trials by requiring detailed pleading…” 1
In this case, the Fifth Circuit dismissed
plaintiffs’ claims by adding procedural barriers to the
pleading requirements listed in the Federal Rules of
Civil Procedure. These additional pleading hurdles
contravene, Johnson v. City of Shelby, Mississippi,
574 U.S. 10 (2014) and Swierkiewicz v. Sorema, 534
U.S. 506 (2002), which respectively reversed the Fifth
Circuit’s prior applications of these heightened
pleading requirements to dismiss civil rights
complaints filed against municipalities.
The lower court’s dismissal of plaintiffs’
complaints under Rule 12, with prejudice and without
Charles E. Clark, Pleading Under the Federal Rules, 12
Wyoming L.J. 177, 181 (1958) quoted in Jason G. Gottesman,
Speculating as to the Plausible: Pleading Practice After Bell
Atlantic, Corp. v. Twombly [550 U.S. 544 (2007)], 17 Widener
L.J. 973 (2008).
1
9
allowing a single opportunity to amend, is indeed
predicated on “further instance on a punctiliously
stated ‘theory of the pleadings’ ” 2 to include in this
case: willful blindness to allegations already present
in the complaint, plaintiffs’ supposed failure to plead
prima facie evidentiary requirements, and plaintiffs’
supposed failure to state the specific title of each
constitutional provision affording protections of
which plaintiffs claimed to have been deprived.
The straightforward holdings of Iqbal and
Twombly state in order “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. at
678 (2009). Thus, the new pleading requirements
sanctioned by the Fifth Circuit in this case are pure
technicalities which erroneously preclude any Court
from reaching the merits of petitioners’ claims. Not
only does such run contrary to the spirit of the Federal
Rules of Civil Procedure, this Court has reversed
those specific holdings in prior authoritative opinions.
Just as in Johnson v. City of Shelby,
Mississippi, 574 U.S. 10 (2014), plaintiffs here have
been deprived mandatory protections of Rule 15
which require courts to freely give leave to amend
claims dismissed under Rule 12 when justice so
requires. This court should grant this Writ to afford
plaintiffs the same protection in this case.
2 Johnson at 12.
10
II.
THE OPINION OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT
CONTRAVENES FOMAN V. DAVIS, 371
U.S. 178 (1962) WHICH HELD THAT
LEAVE TO AMEND IS A MANDATE OF
RULE 15 AND SHOULD BE FREELY
GIVEN IN THE ABSENCE OF AN
APPARENT OR DECLARED REASON
SUCH AS UNDUE DELAY, BAD FAITH,
REPEATED
FAILURE
TO
CURE
DEFICENCIES, UNDUE PREJUDICE, OR
FUTILITY OF AMENDMENT.
In the case at bar, the Fifth Circuit sanctioned
dismissal of plaintiffs’ claims, with prejudice, in
response to a Rule 12 motion where plaintiffs were not
afforded any chance to amend and there is no
apparent or declared reason for denying amendment.
Such ruling is contrary to Foman v. Davis, 371
U.S. 178 (1962) where this Court exercised otherwise
unavailable appellate jurisdiction to reverse the lower
courts’ refusal to permit amendment of claims
dismissed under Rule 12.
Reasoning, “[t]he Federal Rules reject the
approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome
and accept the principle that the purpose of pleading
is to facilitate a proper decision on the merits,” 3 the
Foman Court announced:
3
Foman at 181 citing Conley v. Gibson, 355 U.S. 41 (1957),
11
Rule 15(a) declares that leave to amend ‘shall
be freely given when justice so requires'; this
mandate is to be heeded. If the underlying
facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his
claim on the merits. In the absence of any
apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure
deficiencies by amendments previously
allowed, undue prejudice to the opposing
party by virtue of allowance of the
amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be
‘freely given.’ Of course, the grant or denial of
an opportunity to amend is within the
discretion of the District Court, but outright
refusal to grant the leave without any
justifying reason appearing for the denial is
not an exercise of discretion; it is merely
abuse of that discretion and inconsistent with
the spirit of the Federal Rules. 4
There is simply no way to square the lower
courts’ rulings in the case at bar with the “mandate”
of Rule 15 recognized by this Court in Foman.
4 Foman at 182.
12
III. THE OPINION OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT
CONTRAVENES FOMAN V. DAVIS, 371
U.S. 178 (1962) WHICH EXERCISED
OTHERWISE UNAVAILABLE APPELLATE
JURISDICTION TO REVERSE THE
REFUDSAL TO PERMIT AMENDMENT OF
CLAIMS DISMISSED UNDER RULE 12.
The appellant in Foman v. Davis, 371 U.S. 178
(1962) failed to technically perfect an appeal.
Nevertheless, this Court corrected the lower courts’
refusal to permit amendment of claims dismissed
under Rule 12 where there was no apparent reason
for the refusal. Accordingly, the Foman Court’s
jurisdiction appears to be predicated upon Rule 15’s
mandate to grant leave “when justice so requires”.
Fed. R. Civ. Pro. 15(a)(2).
Indeed, there are several examples of federal
circuit courts exercising otherwise unavailable
appellate jurisdiction, in accordance with Foman, to
correct a district court’s refusal to permit amendment
of claims dismissed under Rule 12.
In each case, respective circuit courts found
sufficient appellate jurisdiction even though the
rulings complained of dismissed some, but not all,
claims and were not certified as an immediately
appealable under Rule 54. In the following cases, the
respective circuit courts exercised appellate
jurisdiction irrespective of any jurisdictional
explanation of the finality rule.
13
In other words, even though the district court
rulings complained of were not those which are
usually considered immediately appealable “final
judgments” under 28 U.S.C. 1291, and even though
none of those rulings were certified as immediately
appealable under Rule 54, and even though no party
invoked the collateral order doctrine; the reversing
circuit nevertheless found sufficient appellate
jurisdiction to correct the lower court’s Rule 12
dismissal with corresponding erroneous refusal to
permit amendment mandated by Rule 15
“…when[ever] justice so requires.”
Those circuits sometimes refer to the Foman
factors as “special circumstances” and the holdings
espoused therein are consistent with this Court’s
interpretation of Rule 15 in Foman.
For example, the Ninth Circuit recognizes the
dismissal of some claims without dismissal of the
entire action is usually not an immediately
appealable final decision 5 and the denial of leave to
amend a complaint is ordinarily not an immediately
appealable final decision, 6 but the exception to these
general rules is when there are “special
circumstances which make it clear [the district] court
determined the action could not be saved by any
amendment of the complaint which the plaintiff could
reasonably be expected to make.” Ruby v. Sec. of the
U.S. Navy, 365 F.2d 385, 387 (9th Cir. 1966) certiorari
denied, 386 U.S. 1011, (1967); Lanning v. Serworld,
474 F.2d 716, 717 n.1 (9th Cir. 1973); Jackson v.
5 Marshall v. Sawyer, 301 F.2d at 639 (9th Cir. 1962).
6 Horner v. Ferron, 362 F.2d 224 (9th Cir. 1966).
14
Nelson, 405 F.2d 872, 873 (9th Cir. 1968); Reed v.
Oregon Health Sci. Uni., 980 F.2d 738 (9th Cir. 1992).
Just as in Ruby, supra, this Court has denied
certiorari to review the Ninth Circuit’s Rule that a
district court must automatically grant plaintiffs
leave to amend “even if no request…was made, unless
[the court] determines that the pleading could not
possible be cured by the allegation of other facts.”
Liberty Mutual Fire Insurance, Co. v. Volungis,
Supreme Court Docket No. 20-208; Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000 en banc)).
Without reference to the collateral order
doctrine, or any other jurisprudential explanation of
the finality rule, the Ninth Circuit recognized in Scott
v. Eversole Mortuary, 522 F.2d 1110 (9th Cir. 1975) a
district court’s dismissal of two of three claims
without affording plaintiffs at least one opportunity
to amend was sufficiently “final” and immediately
reviewable. Scott at 1112.
Similarly, the Eleventh Circuit recognizes that
orders dismissing claims and specifying a period for
amending those claims automatically become
appealable final judgments when the time allowed for
amendment expires without the plaintiff amending
his complaint or seeking an extension. Hertz Corp. v.
Alamo Rental Car, Inc., 16 F.3d 1126 at 1133 (11th
Cir. 1994). Such is true in the Eleventh Circuit even
where not all defendants, and not all claims, were
dismissed by that judgment, 7 and even though the
7
See Hertz at fn. 3 and 4.
15
judgment was not certified as immediately appealable
under Federal Rule of Civil Procedure 54. 8
In support of exercising appellate jurisdiction
over a judgment dismissing some, but not all, claims
which was not certified as immediately appealable
under Rule 54, the Hertz Court cited Schuurman v.
Motor Vessel Betty K. V, 798 F.2d 442 (11th Cir. 1986);
where the Eleventh Circuit held an order dismissing
a complaint that fixes a time for amending becomes a
final appealable order after expiration of that period.
The Schuurman Court reasoned the plaintiff should
be afforded “the choice of either pursuing his
permissive right to amend the complaint after
dismissal or of treating the order as final and
appealable”, and concluded by observing, “obviously,
district courts should avoid dismissals without clearly
stating the time within which amendments may be
made.” Schuurman at 444-446.
In each of these instances, federal appellate
jurisdiction over the dismissal of less than all claims,
not certified as immediately appealable under Rule
54, was based on amendment of the claims dismissed,
including Rule 15’s mandate that leave to amend
should be afforded “…when[ever] justice so requires.”
While the above cases are consistent with
Foman, none were analyzed in terms of a
jurisprudential explanation of the finality rule such
as the collateral order doctrine. Nevertheless, the
8 See Hertz fn. 3 and 4, along with dismissal order rendered in
United States District Court for the Southern District of Florida
Case No. 90-1167-CIV-RYSKAMP.
16
reviewing courts necessarily determined the denial of
plaintiffs’ right to amend under Rule 15 was a
sufficiently “final” determination of “important”
rights warranting immediate appellate review.
IV.
THIS COURT SHOULD ACCEPT THIS WRIT
TO RESOLVE DISAGREEMENT AMONG
THE CIRCUITS AS TO WHEN A RULE 12
DISMISSAL ORDER DENYING LEAVE TO
AMEND BECOMES SUFFICENTLY “FINAL”
UNDER 28 U.S.C. § 1291.
In stark contrast to the holdings of the Ninth
Circuit and Eleventh Circuit detailed above, the
Fourth Circuit recently announced in Britt v. Dejoy,
(4th Cir. 2022) 45 F.4th 790 its adoption of the D.C.
Circuit’s novel “brightline” rule to “clarify” under
what circumstances a judgment dismissing claims
under Rule 12 becomes immediately appealable. Britt
at 791, 795-796 The circuit split is explicitly
recognized in the Britt opinion at fn. 8 and 9.
One of the determinative factors for the Fourth
Circuit is how the district court handled amendment:
“When a district court dismisses a complaint or all
claims without granting leave to amend, its order is
final and appealable.” Britt at 791.
The Britt Court inquired that while “it is well
established that dismissals made without prejudice
when leave to amend is denied are final and
appealable, and…dismissals made without prejudice
and with leave to amend are not….what happens
when a district court dismisses a complaint or all
17
claims within the complaint without prejudice yet
remains silent as to the possibility of amendment?”
Britt at 794 citing Jung v. K.&D Minn. Co., 356 U.S.
at 337 (1958).
In answering that question, the Fourth Circuit
concluded a Rule 12 dismissal order is immediately
appealable when, “all claims” are dismissed, (Britt at
791) the order does not grant the plaintiff leave to
amend, (Britt at 796) and there is either entry of
either a final judgment under Rule 58 or, in the
alternative, a Rule 54 certification. Britt at 793, 796.
However, Britt is not directly on point because
the plaintiff there was given at least one opportunity
to amend claims dismissed under Rule 12. Britt at
791-792. Such is not the case here.
Accordingly, this instant case is more akin to
Scott and Hertz, supra where appellate courts
exercised jurisdiction to reverse the dismissal with
prejudice of some, but not all, claims under Rule 12,
and the plaintiff was not afforded a single opportunity
to amend, even though the judgment was not certified
as immediately appealable under Rule 54 and
irrespective of the collateral order doctrine.
The exercise of appellate jurisdiction in the
above cases is consistent with Rule 15 which requires
leave to be given “when justice so requires” as most
circuits explicitly recognize Foman requires plaintiffs
be given “at least one chance” to amend claims
dismissed under Rule 12 in the absence of apparent
or declared “special circumstances”. Fletcher-Harlee
18
Corp., v. Pote Concrete Cont., Inc., 482 F.3d 247, 251
(3d Cir. 2007); Ching-Luo v. Owen J. Roberts Sch.
Dist., 2022 WL 4480559 at *3 n.6 (3d Cir. 2022); Hart
v. Bayer Corp., 199 F.3d 239 (5th Cir. 2000); Great
Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 329 (5th Cir. 2002); Griggs v. Hinds
Junior College, 563 F.2d 179 (5th Cir. 1977);, Ruby v.
Secretary of the U.S. Navy, 365 F.2d 385, 387 (9th Cir.
1966) cert. denied, 386 U.S. 1011; Lanning v.
Serworld, 474 F.2d 716, 717 n.1 (9th Cir. 1973);
Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir. 1968);
Reed v. Oregon Health Sci. Uni., 980 F.2d 738 (9th Cir.
1992). Bank v. Pitt, 928 F.2d 1108, 112 (11th Cir.
1991); overruled in part by Wagner v. Daewoo Hvy.
Indus. Am. Corp., 314 F.3d 541, 542 & n.1.
Like the Ninth Circuit in Scott at 1112, and the
Eleventh Circuit in Schuurmann at 446, the Fourth
Circuit recognized in Britt,
We now hold that when a district court
dismisses a complaint or all claims without
providing leave to amend, we need not
evaluate the grounds for dismissal or do
anything more – the order dismissing the
complaint is final and appealable. By
requiring the district court to state whether a
plaintiff has leave to amend and concluding
that an order is final when a district court
does not, we no longer speculate… Any and all
intent regarding finality vel non is
communicated through the presence or lack of
permission to amend the complaint, thereby
illuminating a clear path to appellate review,
19
and better aligning [the Fourth Circuit’s]
jurisprudence with the purpose of the final
judgment rule. Britt at 796.
Even so, the D.C. Circuit and the Fourth
Circuit still require the entry of final order under Rule
58 or certification under Rule 54 for the dismissal to
become immediately appealable, unlike the Ninth
Circuit and the Eleventh Circuit which “deem” §1291
finality under certain circumstances, without
requiring the entry of a final order or certification.
Meanwhile, the Fifth Circuit acknowledged the
circuit split in Whitaker v. City of Houston, Tex., 963
F.2d 831, 835 (5th Cir. 1992) before adopting the
Eleventh Circuit’s approach set forth in Czeremcha v.
Intern. Ass'n of Mach. & Aero. Workers, 724 F.2d 1552
at 1554-1556 (11th Cir. 1984).
The Fifth Circuit explains an order dismissing
the complaint dismisses the action if the district court
intended to terminate the action. According to
Whitaker, “a district court’s order dismissing a
complaint constitutes dismissal of the action when
it…states no amendment is possible…or when
circumstances otherwise indicate no amendment is
possible.” Whitaker at 835. The Whitaker Court
continues, “if, on the other hand,…the district court’s
order does not…dismiss the action…[but] merely
dismisses the complaint…plaintiff may amend under
Rule 15, but only with permission of the court.”
Speculating that the district court “probably
intended” to dismiss plaintiff’s complaints, but not the
20
action, (Whitaker at 834 – emphasis maintained) the
Whitaker Court found there is no requirement for
entry of a final judgment under Rule 58 or Rule 54
certification for the Rule 12 dismissal to become
immediately appealable, so long as the plaintiff does
not request to amend. Whitaker at 833, 836
According to Whitaker, the finality of a Rule 12
dismissal is “destroyed” by a request to amend, but
the order can then regain finality if the district court
denies plaintiff’s request to amend. Whitaker at 836.
In the case at bar, the district court dismissed
complaints, but not the action; no final judgment was
entered under Rule 58; the judgment was not certified
under Rule 54; and the district court denied plaintiffs’
request to amend. Contrary to Whitaker, the Fifth
Circuit held the order was not appealable.
Instead of applying the finality analysis related
to amendment of claims dismissed under Rule 12
announced in Whitaker, the Fifth Circuit cited a
ruling on summary judgment in Harris v. Nix, 52 F.3d
1067 (5th Cir. 1995) to hold, contrary to Whitaker, that
Rule 54 certification was required for the court to
exercise jurisdiction over claims dismissed under
Rule 12 where the district court denied amendment.
At the risk of repetition, the Fifth Circuit’s
ruling in this case conflicts with its holding in
Whitaker as to whether appellate jurisdiction exists
to review dismissal of claims under Rule 12 where
amendment was denied.
21
Plaintiffs have not located a single authority
holding appellate courts lack jurisdiction to reverse
dismissal of claims under Rule 12, with prejudice,
where the plaintiff was not afforded a single
opportunity to amend and no apparent “special
circumstances” or Foman factors are cited for refusing
to allow amendment. This is because such ruling
contradicts Foman, Whitaker, and Rule 15.
Lastly, intra-circuit conflicting decisions are
unresolved in the Eight Circuit. Compare Cessna v.
Skyways, Inc., (8th Cir. 1976) 532 F.2d 64 holding
refusal to permit amendment is immediately
appealable because it satisfies the criteria of the
collateral order doctrine with State of Minn. v.
Pickands Mather & Co., 636 F.2d 251 (8th Cir. 1980)
holding appellate jurisdiction over denial of leave to
amend defenses to file a third-party complaint
“doubtful” under the collateral order doctrine. State of
Minn. at 252-253.
22
V.
THE OPINION OF THE COURT OF
APPEALS FOR THE FIFTH CIRCUIT
FINDING NO APPELLATE JURISDICTION
TO CORRECT THE DENIEAL OF LEAVE TO
AMEND
CLAIMS
DISMISSED
WITH
PREJUDICE UNDER RULE 12 MISAPPLIES
COHEN V. BENEFICIAL INDUSTRIAL
LOAN, CORP., 337 U.S. 541 (1949) WHICH
HELD APPELLATE JURISDICTION EXISTS
TO REVIEW AN ORDER THAT IS
CONCLUSIVE OF A CLAIMED RIGHT,
RESOLVES AN IMPORTANT QUESTION
SEPARATE FROM THER MERITS, AND
CANNOT
BE
EFFECTIVELY
OR
PRACTICALLY REVIEWED ON DIRECT
APPEAL AFTER ADJUDICATION OF THE
ENTIRE CASE.
The authority of Courts of Appeals to review
“all final decisions of the district courts” 28 U.S.C.
§1291, includes appellate jurisdiction over “a narrow
class of decisions that do not terminate the litigation,”
but are sufficiently important and collateral to the
merits that they should “nonetheless be treated as
final.” Digital Equipment Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 867 (1994).
The collateral order doctrine identified in
Cohen v. Beneficial Ind. Loan, Corp., 337 U.S. 541
(1949) is “best understood not as an exception to the
‘final decision’ rule laid down by congress in § 1291,
but as a ‘practical construction’ of it.” Digital Equip.
Corp. v. Desk. Dir., Inc., 511 U.S. 863, 867 (1994).
23
Whereas 28 U.S.C. 1291 “gives courts of
appeals jurisdiction over ‘all final decisions’ of district
courts” that are not directly appealable to this Court,
the collateral order doctrine accommodates a small
class of rulings which do not conclude the litigation
but conclusively resolve a claimed right, separable
from the merits, that is too important to be denied
review and too independent of the cause itself to
require that appellate consideration be deferred until
the whole case is adjudicated. Cohen, supra at 546.
For an order to be appealable under the
collateral order doctrine, it “must (1) conclusively
determine the disputed question, (2) resolve an
important issue completely separate from the merits
of the action, and (3) be effectively unreviewable on
appeal from a final judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978).
In the case at bar, the lower court’s rulings are
conclusive of whether plaintiffs will be afforded “at
least one opportunity” to amend supposedly deficient
pleadings erroneously dismissed with prejudice under
Rule 12. This issue is separate from merits of the
claims and cannot be effectively or ‘practically’
remedied by appellate consideration “…deferred until
the whole case is adjudicated.” Cohen at 1226.
At least one circuit has expressly held the
denial of leave to amend is appealable under the
collateral order doctrine despite the absence of a Rule
54 finding or certification under 28 U.S.C. § 1292(b).
See Cessna v. Skyways, Inc., (8th Cir. 1976) 532 F.2d
64, where, in so holding, the Eighth Circuit reasoned
24
review of the denial of leave to amend could not await
final judgment because “when that time comes, it will
be too late to effectively to review the … order and
rights conferred …will have been lost, probably
irreparably.” Cessna at 67 citing J. Moore, Federal
Practice P 110.10, at 133 (2d ed. 1975)
The importance of the right asserted has
always been a significant part of the collateral order
doctrine and a characteristic meriting appealability
“boils down to ‘a judgment about the value of the
interests that would be lost through rigorous
application of the final judgment requirement.’ ” Will
v. Hallock, 546 U.S. 345 (2006) citing Digital
Equipment, supra at 878-879.
Plaintiffs respectfully urge that the “spirit of
the Federal Rules of Civil Procedure” qualifies as a
“substantial public interest [and] a particular value of
high order” to warrant immediate review. Mohawk
Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).
Indeed, this Court held in Foman v. Davis, 371
U.S. 178, 182 (1962):
It is too late in the day and entirely
contrary to the spirit of the Federal Rules of
Civil Procedure for decisions on the merits to
be avoided on the basis of such mere
technicalities. The Federal Rules reject the
approach that pleading is a game of skill in
which one misstep by counsel may be decisive
to the outcome and accept the principle that
25
the purpose of pleading is to facilitate a
proper decision on the merits.
…
Rule 15 declares that leave to amend ‘shall be
freely given when justice so requires; this
mandate is to be heeded. If the underlying
facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he
ought to be afforded an opportunity to test his
claim on the merits.
…
In the absence of any apparent or declared
reason…the leave sought should, as
the rules require, be ‘freely given.’ Of course,
the grant or denial of an opportunity to amend
is within the discretion of the District Court,
but outright refusal to grant the leave without
any justifying reason appearing for the denial
is not an exercise of discretion; it is merely
abuse of that discretion and inconsistent with
the spirit of the Federal Rules. Foman at 181182.
In Hitt v. City of Pasadena, 561 F.2d 606 (5th
Cir. 1977), the Fifth Circuit noted that it “…has often
stated, a complaint is not subject to dismissal unless
it appears to be a certainty that the plaintiff cannot
possibly be entitled to relief under any set of facts
which could be proved in support of its allegations.
Even then, a court ordinarily should not dismiss the
complaint except after affording every opportunity
(for) the plaintiff to state a claim upon which relief
(can) be granted…With respect to the question of a
dismissal with prejudice…the dismissal of a case with
26
prejudice is a drastic remedy to be used only in those
cases where a lesser sanction would not better serve
the interests of justice.” (Hitt, 608 - citations omitted).
In Hart v. Bayer Corp., 199 F.3d 239 (5th Cir.
2000), the Fifth Circuit held “…a plaintiff's failure to
meet the specific pleading requirements should not
automatically or inflexibility result in dismissal of the
complaint with prejudice to re-filing. [Pleading]
deficiencies do not normally justify dismissal of the
suit on the merits and without leave to amend, at
least not in the absence of special circumstances.
Although a court may dismiss the claim, it should not
do so without granting leave to amend, unless the
defect is simply incurable or the plaintiff has failed to
plead with particularity after being afforded repeated
opportunities to do so.” (Hart at fn. 6 – cleaned up)
In Griggs v. Hinds Jr. College, 563 F.2d 179 (5th
Cir. 1977), the Fifth Circuit reversed the district
court’s refusal to permit amendment where it
declined to cite any reason for denying leave to amend
recognizing, “The Federal Rules of Civil Procedure
provide that “leave [to amend] shall be freely given
when justice so requires. Granting leave to amend is
especially appropriate…when the trial court has
dismissed the complaint for failure to state a claim.”
In these cases, the Fifth Circuit joined its sister
circuits in recognizing Foman requires a plaintiff
should be afforded “at least one chance” to amend
claims dismissed under Rule 12 in the absence of
apparent or declared “special circumstances”.
Fletcher-Harlee Corp., v. Pote Concrete Cont., Inc., 482
27
F.3d 247, 251 (3d Cir. 2007); Ching-Luo v. Owen J.
Roberts Sch. Dist., 2022 WL 4480559 at *3 n.6 (3d Cir.
2022); Ruby v. Sec. of the U.S. Navy, 365 F.2d 385, 387
(9th Cir. 1966) cert. denied, 386 U.S. 1011, (1967);
Lanning v. Serworld, 474 F.2d 716, 717 n.1 (9th Cir.
1973); Jackson v. Nelson, 405 F.2d 872, 873 (9th Cir.
1968); Reed v. Oregon Health Sci. Uni., 980 F.2d 738
(9th Cir. 1992). Bank v. Pitt, 928 F.2d 1108, 112 (11th
Cir. 1991); overruled in part by Wagner v. Daewoo
Heavy Indus. Am. Corp., 314 F.3d 541, 542 & n.1.
The lower courts’ decisions in the case at bar
sanctions a departure from Foman and these circuits
application of Rule 15.
Moreover, the authorities cited herein show
that the considerations of when and whether to
permit amendment is, and has always been, collateral
to a judgment dismissing claims with prejudice in
response to a Rule 12 motion. That claimed right is
important, wholly separate from the merits, and
cannot be “practically” vindicated by a decision
deferred until the entire case has been adjudicated.
Cohen v. Ben. Indus. Loan Corp., 337 U.S. 541 (1949).
Indeed, the practical value of plaintiffs’ rights
recognized by this Court in Foman v. Davis, 371 U.S.
178 (1962) and Johnson v. City of Shelby, Mississippi,
574 U.S. 10 (2014) would be destroyed if vindication
thereof was deferred until the entire case has been
adjudicated. See Johnson v. Jones, 515 U.S. 304
(1995) where this Court recognized appealability
under the collateral order doctrine is determined by
balancing the countervailing considerations of
28
“inconvenience and cost of piecemeal review on the
one hand and the danger of denying justice by delay
on the other.” Johnson at 315.
The cases cited herein also illustrate that, at a
minimum, the order at issue, denying plaintiffs’
claims with prejudice on the pleadings under Rule 12,
without allowing at least one opportunity to amend,
is within the category of orders that is subject to
immediate appellate review. Dig. Equip. Corp. v.
Desk. Dir., Inc., 511 U.S. 863, (1994). The ruling is
conclusive of whether plaintiffs will be afforded at
least one opportunity to cure supposedly deficient
pleadings. This issue is separate from merits of the
underlying claims and cannot be effectively or
‘practically’ remedied by review “…deferred until the
whole case is adjudicated”. Cohen at 1226. These
issues are purely legal questions involving no factual
controversy that will surface at trial on the merits and
also weigh in favor of immediate appealability as
discussed in Johnson at 313-316.
Plaintiffs are currently postured to proceed
with discrimination claims under the ADA and RA,
but will be forced to appeal the adjudication of those
claims in order to litigate their “other” ADA and RA
discrimination claims, arising from the same facts but
erroneously dismissed under heightened pleading
standards without affording plaintiffs a single
opportunity to amend.
This is precisely the kind of “countervailing
consideration” of “the danger of denying justice by
delay” cited by this Court in Johnson v. Jones, 515
29
U.S. 304 (1995) and applied in Cessna v. Skyways,
Inc., (8th Cir. 1976) 532 F.2d 64 to find the erroneous
denial of leave to amend appealable under the
collateral order doctrine. Cessna at 67-68.
CONCLUSION
This case presents several important issues
meriting review. First, are plaintiffs’ federal claims
subject to dismissal under Rule 12 where plaintiffs
were never given a chance to amend their claims to
comply with heightened pleading standards
announced in the dismissal order?
Second, is the erroneous refusal to permit
amendment of claims dismissed with prejudice under
Rule 12 sufficiently “final” for the purposes of
invoking appellate jurisdiction under § 1291?
Third, does Rule 15’s mandate to grant leave to
amend “when justice so requires”, confer appellate
jurisdiction, ipso facto, over erroneous denials of that
mandate?
Fourth, is a result previously described by this
court as “entirely contrary to the spirit of the Federal
Rules of Civil Procedure” a sufficiently “important
public interest” or “value of high order” to warrant
immediate review under the collateral order doctrine?
Fifth, this Court should accept this application
to resolve disagreement among the Circuits and
harmonize the finality rule as it relates to
30
amendment, particularly in terms of claims dismissed
under Rule 12.
Accordingly, this petition for writ of certiorari
should be granted.
Respectfully submitted,
S. Hutton Banks
1040 North 9th Street
Monroe, Louisiana 71201
(318) 570-5001
hutton@banksshlaw.com
Counsel for Petitioners
March 10, 2025
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