Commercial Litigation and Arbitration

In Judging Futility of Amendment of Complaint, Court Considers All Possible Amendments, Not Just Proposed Amended Complaint — Standards for Denial of Leave to Amend and for Reconsideration Motion

From Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 2009 U.S. App. LEXIS 20652 (2d Cir. Sept. 17, 2009):

Leave to Amend

We review denial of leave to amend under an "abuse of discretion" standard. ***

First, it is well established that although leave to amend should be "freely given," Fed. R. Civ. P. 15(a), there is no rule that every request to amend must be granted.... Second, though we have observed that complaints assessed under Rule 9(b) of the Federal Rules of Civil Procedure are routinely allowed "at least one opportunity to plead fraud with greater specificity," ... we assess this complaint under Rule 8, not Rule 9(b), because this plaintiff alleges negligent preparation of the registration statement and prospectus, rather than fraudulent preparation..... There is no general rule that just because the complaint is brought under the federal securities laws, a plaintiff will automatically receive leave to amend. ***

Motion for Reconsideration

We generally review motions for reconsideration under an "abuse of discretion" standard.... When the denial of leave to amend is based on a legal interpretation, such as for futility, a reviewing court conducts a de novo review.... Because the District Court did not consider the issue of futility until it decided the motion for reconsideration, we turn to that question in reviewing the District Court's order denying the motion for reconsideration, which we review de novo.

Despite alleging new facts, the proposed second amended complaint does not cure the deficiencies of the dismissed (first) amended complaint. ***

Despite the deficiencies in the proposed second amended complaint, granting leave to amend anew may not be futile in this case. Granting leave to amend is futile if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to support the claim.... Although courts commonly look to proposed amendments to determine futility, courts need not determine futility based only on an assessment of the proposed amendments--that is, the complaint presented to the court for its consideration. Cf. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 235 (2d Cir. 2007) (directing the district court to consider "whether the proposed amendment or different amendments to the complaint should be allowed") (emphasis added). Instead, courts may consider all possible amendments when determining futility. Because it seems to us possible that plaintiff could allege additional facts that Ikanos knew the defect rate was above average before filing the registration statement, and that this allegation, if made, would be sufficient to meet the high standards that Iqbal and Twombly require for pleadings, further amendment may not be futile.

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