Rule 11 Sanctions Order Not Final and Appealable Until Amount of Award Is Fixed — Where Leave to Amend Complaint Requested Only Informally in Brief, Court May Deny Request Implicitly by Not Addressing It

Corsini v. Condé Nast, 2015 U.S. App. LEXIS 7785 (2d Cir. May 12, 2015):

IV. Rule 11 Sanctions

Corsini argues that the district court abused its discretion in granting the Belkin defendants' motion for Rule 11 sanctions, because that motion was filed with the court before the expiration of the "safe harbor" period of Rule 11(c)(2). But because the district court did not fix the amount of sanctions in its order granting the motion (and apparently has never done so), that order is not final as to the sanctions within the meaning of 28 U.S.C. § 1291. See Pannonia Farms, Inc. v. USA Cable, 426 F.3d 650, 652-53 (2d Cir. 2005). We therefore dismiss the portion of Corsini's appeal related to Rule 11 sanctions for lack of appellate jurisdiction.

V. Leave to Amend

Finally, Corsini asserts that he should have been granted leave to amend his complaint, arguing that the district court ordinarily grants plaintiffs permission to file an amended complaint, [*6]  and that it is "rare that such leave should be denied . . . especially when there has been no prior amendment." Appellant's Br. 54. But the district court did allow Corsini to amend his complaint; he filed a first amended complaint and never formally moved to amend that complaint. Instead, he merely raised the prospect of a second amendment in his opposition to the motion to dismiss. The district court did not abuse its discretion by not addressing this vague allusion to a possible second amendment. "It is within the court's discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss." In re Tamoxifen Citrate Antitrust Litig, 466 F.3d 187, 220 (2d Cir. ), abrogated on other grounds by FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013); see also McLaughlin v. Anderson, 962 F.2d 187, 195 (2d Cir. 1992).

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