Commercial Litigation and Arbitration

Outside of Civil Rights Cases, Request to Amend Complaint Must Be Accompanied by Proposed Amendment (Third Circuit)

Delrio-Mocci v. Connolly Properties Inc., 2012 U.S. App. LEXIS 3698 (3d Cir. Feb. 24, 2012):

Bolmer also argues that the District Court abused its discretion by refusing to allow him to amend his complaint for a third time in order to plead additional facts that would demonstrate that the Property Managers prevented their undocumented residents from being detected by law enforcement. He relies on Alston v. Parker, 363 F.3d 229 (3d Cir. 2004), for the proposition that, "even when a plaintiff does not expressly seek leave to amend, 'if a claim is vulnerable to a 12(b)(6) dismissal, the court must give the party an opportunity to amend its pleadings unless such amendment would be futile or the party has expressed his intent to stand on his pleadings.'" Appellant's Br. 48 (quoting Alston, 363 F.3d at 236). Alston, however, was given no opportunity whatsoever to amend his complaint, while Bolmer amended his complaint twice. Alston, 363 F.3d at 234 n.7. Moreover, Alston's was a civil rights complaint. "In non-civil rights cases, the settled rule is that properly requesting leave to amend a complaint requires submitting a draft amended complaint." Fletcher-Harlee Corp. v. Pote Concrete Contrs., Inc., 482 F.3d 247, 252-53 (3d Cir. 2007). Bolmer never presented a draft of a third amended complaint to the District Court. This failure is fatal to his request.

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