Commercial Litigation and Arbitration

Mere Request in Brief for Leave to Amend, without Motion, Justifies Denial — As Does Subsequent Failure to File Proposed Amendment in District Court

From In re Novastar Fin. Inc. Secs. Litg., 2009 U.S. App. LEXIS 19634 (8th Cir. Sept. 1, 2009):

"Although leave to amend 'shall be freely given when justice so requires,' see Fed. R. Civ. P. 15(a), plaintiffs do not have an absolute or automatic right to amend." U.S. ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005). "[I]n order to preserve the right to amend the complaint, a party must submit the proposed amendment along with its motion." Clayton v. White Hall Sch. Dist., 778 F.2d 457, 460 (8th Cir. 1985). Lester never submitted a proposed amended complaint to the district court, nor did he proffer the substance of such an amended complaint until he filed his appellate brief. Instead, Lester merely included a footnote at the end of his response to Novastar's motion to dismiss stating that "[t]o the extent that the court finds the Complaint's allegations insufficient, plaintiffs respectfully request an opportunity to amend their claims." These circumstances mirror those present in Clayton, where we held that a district court properly denied a plaintiff leave to amend because she "did not submit a motion for leave to amend but merely concluded her response to [the defendant's] motion to dismiss with a request for leave to amend" and "did not offer a proposed amended complaint or even the substance of the proposed amendment to the district court." Id.; see also Dudek v. Prudential Sec., Inc., 295 F.3d 875, 880 (8th Cir. 2002) (reaching the same result under nearly identical circumstances). Moreover, even after the district court dismissed Lester's complaint and denied his request to amend the complaint, Lester failed to file a motion under Federal Rules of Civil Procedure 15(a)(2), 59(e), or 60(b), seeking leave to file an amended complaint. Cf. U.S. ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 823 (8th Cir. 2009) ("[P]ost-judgment leave to amend may be granted if timely requested."). As we have noted before, "the district court [i]s not required to engage in a guessing game" as a result of the plaintiff's failure to specify proposed new allegations. Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 914 (8th Cir. 2002). Accordingly, we affirm the district court's denial of leave to amend the complaint.

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