RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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LEISURE CAVIAR, LLC; BEMKA
Plaintiffs-Appellants, --
CORPORATION,
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No. 09-6228
,
>
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v.
UNITED STATES FISH AND WILDLIFE SERVICE; -
TIM VAN NORMAN, in his capacity as Chief of -
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the Branch of Permits, Division of
and Wildlife Service; JORGE VILLAVICENCIO, -
Management Authority, United States Fish
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in his capacity as an employee of the Branch
of Permits, Division of Management -
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Authority, United States Fish and Wildlife
Defendants-Appellees. -
Service,
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N
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 07-00304—Harry S. Mattice, Jr., District Judge.
Decided and Filed: August 19, 2010
Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*
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COUNSEL
ON BRIEF: James R. McKoon, McKOON, WILLIAMS & HAUN, Chattanooga,
Tennessee, for Appellants. M. Kent Anderson, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellees.
*
The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
1
No. 09-6228 Leisure Caviar et al. v. United States Fish Page 2
and Wildlife Service et al.
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OPINION
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SUTTON, Circuit Judge. Leisure Caviar, a wholesale dealer of paddlefish roe,
and Bemka Corporation, a buyer of paddlefish roe, challenge the district court’s denial
of their Rule 59 motion to alter or amend the order dismissing their suit against the
United States Fish and Wildlife Service and two of its employees. They also challenge
the rejection of their post-dismissal Rule 15 motion to revise their amended complaint.
Because the plaintiffs have not shown that any “newly discovered evidence” was
“previously unavailable,” GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834
(6th Cir. 1999), we affirm.
I.
The Fish and Wildlife Service is responsible for regulating and managing the
export and sale of paddlefish roe, see 50 C.F.R. §§ 23.1, 23.71, in accordance with the
requirements of the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (“the Convention”), 27 U.S.T. 1087, and the Endangered Species Act
of 1973, 16 U.S.C. §§ 1531–44. To qualify for a paddlefish roe export permit, an
applicant must show that it properly harvested the roe and that its export would not
undermine the survival of the species. See 50 C.F.R. §§ 23.36, 23.60, 23.61.
Leisure Caviar and Bemka sued the Fish and Wildlife Service and two of its
employees in their official capacities, alleging that the agency failed to act on a timely
basis on five permit applications, all pending for seven to twelve months, for permission
to export 4074.05 pounds of roe worth approximately $500,000. Because paddlefish roe
“has a shelf-life of approximately 12–15 months,” they said, the agency’s failure to grant
or deny the export permits put their entire investment “in the harvesting, curing and
marketing of the paddlefish roe . . . at risk of being lost.” R.1 ¶¶ 18, 21. The plaintiffs
sought a court order compelling the agency immediately to process its applications. See
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and Wildlife Service et al.
5 U.S.C. § 706 (a reviewing court may “compel agency action . . . unreasonably
delayed”); 28 U.S.C. § 1361 (writ of mandamus).
The agency moved to dismiss the action under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. It argued that the plaintiffs had failed to exhaust their
administrative remedies, a prerequisite for bringing suit against the government under
the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2675(a), and that the plaintiffs had
failed to state a cause of action for violation of any constitutional rights or otherwise to
provide any cognizable basis for obtaining mandamus relief.
The court granted the motion to dismiss. It first ruled that the plaintiffs had
failed to exhaust their administrative remedies and thus could not bring an FTCA claim.
It then ruled that the processing of applications under the Convention amounts to a
discretionary responsibility, one ineligible for mandamus relief. See Pittson Coal Group
v. Sebben, 488 U.S. 105, 121 (1988).
The plaintiffs asked the court to alter or amend the judgment, see Fed. R. Civ. P.
59(e), then separately filed a motion for leave to amend their complaint, see Fed. R. Civ.
P. 15(a). In denying the plaintiffs’ motion to alter the judgment, the court reasoned that
the plaintiffs had failed to demonstrate that their “newly discovered” evidence “was
unavailable prior to [the] Court’s ruling on Defendants’ Motion to Dismiss.” R.69 at 4.
As for the plaintiffs’ other arguments, the court ruled that they all had been raised in
earlier motions and filings, and Rule 59(e) “does not afford parties an opportunity to
reargue their case.” Id. at 5. The court also denied the claimants’ motion to amend the
complaint.
II.
Plaintiffs contend that the court erred (1) in refusing to grant their motion to alter
the judgment and (2) in refusing to allow them to amend their complaint.
The basics for obtaining relief under either theory are straightforward. Under
Rule 59, a court may alter the judgment based on: “(1) a clear error of law; (2) newly
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and Wildlife Service et al.
discovered evidence; (3) an intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.
2005). Under Rule 15, a court may grant permission to amend a complaint “when justice
so requires” and in the normal course will “freely” do so. Fed. R. Civ. P. 15(a); see
Foman v. Davis, 371 U.S. 178, 182 (1962); Benzon v. Morgan Stanley Distribs., Inc.,
420 F.3d 598, 613 (6th Cir. 2005). A district court, generally speaking, has considerable
discretion in deciding whether to grant either type of motion, and as a result we review
these types of decisions for abuse of discretion. See Morse v. McWhorter, 290 F.3d 795,
799 (6th Cir. 2002).
Plaintiffs’ requests come with two twists. In the first place, what looks like
multiple requests for relief amounts in reality to just one—or at least just one theory of
relief. Their Rule 59 position is not that the district court erred in granting the motion
to dismiss based on the existing pleadings. Plaintiffs, indeed, nowhere challenge the
court’s resolution of the motion to dismiss. They instead argue that the judgment should
be altered to allow them to amend their complaint based on newly discovered evidence,
which allegedly turned up for the first time during discovery. The essence of their
appeal, then, turns on a rejected request to amend their complaint due to newly
discovered evidence, which at this stage of the case requires a district court to grant
relief under Rule 15 and Rule 59. See Foman, 371 U.S. at 182; Benzon, 420 F.3d at 613;
Morse, 290 F.3d at 800.
In the second place, this is not a traditional motion to amend the complaint.
Rule 15 requests to amend the complaint are frequently filed and, generally speaking,
“freely” allowed. But when a Rule 15 motion comes after a judgment against the
plaintiff, that is a different story. Courts in that setting must “consider[] the competing
interest of protecting the finality of judgments and the expeditious termination of
litigation.” Morse, 290 F.3d at 800. If a permissive amendment policy applied after
adverse judgments, plaintiffs could use the court as a sounding board to discover holes
in their arguments, then “reopen the case by amending their complaint to take account
of the court’s decision.” James v. Watt, 716 F.2d 71, 78 (1st Cir. 1983) (Breyer, J.).
No. 09-6228 Leisure Caviar et al. v. United States Fish Page 5
and Wildlife Service et al.
That would sidestep the narrow grounds for obtaining post-judgment relief under Rules
59 and 60, make the finality of judgments an interim concept and risk turning Rules 59
and 60 into nullities. See 6 Charles Alan Wright, et al., Federal Practice and Procedure
§ 1489 (3d ed. 2010).
When a party seeks to amend a complaint after an adverse judgment, it thus must
shoulder a heavier burden. Instead of meeting only the modest requirements of Rule 15,
the claimant must meet the requirements for reopening a case established by Rules 59
or 60. See In re Ferro Corp. Derivative Litig., 511 F.3d 611, 624 (6th Cir. 2008); United
States ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 507 (6th Cir. 2008). In
post-judgment motions to amend, as a result, “the Rule 15 and Rule 59 inquiries turn on
the same factors.” Morse, 290 F.3d at 799. A court acts within its discretion in denying
a Rule 15 and a Rule 59 motion on account of “undue delay”—including delay resulting
from a failure to incorporate “previously []available” evidence, GenCorp, 178 F.3d at
834—and ought to pay particular attention to “the movant’s explanation for failing to
seek leave to amend prior to the entry of judgment.” Morse, 290 F.3d at 800.
Neither party disputes these rules or these considerations. They instead take
sides on how to apply them. Plaintiffs say that the district court abused its discretion in
denying their motions because the discovery process yielded important new information
that casts a different light on the dispute, requiring the court to reconsider its decision.
But there is less to the evidence obtained in discovery than plaintiffs suggest.
First, they claim that Jorge Villavicencio, a biologist with the Fish and Wildlife
Service, admitted in his deposition testimony “to threatening Plaintiffs with future
handling of applications outside of the bounds of applicable regulations” and to having
done so at the instruction of Timothy Van Norman, his supervisor. R.51 at 4–5; see
R.60-2 at 74–80. This admission, they argue, establishes the predicate for a new
retaliation claim against Villavicencio and Van Norman in their individual capacities.
The problem with this argument is that the alleged threat came in the form of an email,
an email the plaintiffs mentioned in their first amended complaint. The plaintiffs were
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and Wildlife Service et al.
thus already on notice of Villavicencio’s alleged misconduct and had no reason—other
than news that the court had dismissed their first amended complaint—to wait for this
deposition testimony to press a claim for retaliation. A plaintiff cannot use a Rule 59
motion (or for that matter a post-judgment Rule 15 motion) “to raise arguments which
could, and should, have been made before judgment issued.” Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).
Second, plaintiffs claim that they were “informed” during discovery that the
government offered leniency to an unnamed defendant in an unrelated criminal case in
exchange for information incriminating Leisure Caviar and its controlling member. This
information, plaintiffs say, supports an additional cause of action against “Unknown
Named Agent(s)” of the agency. R.60-4 ¶ 39. But plaintiffs offered no deposition
testimony, no affidavit, no identifying details—no evidence at all—to corroborate this
new claim. A district court does not abuse its discretion by rejecting an unsupported
theory for amending a complaint.
Third, plaintiffs asked to add a claim charging the agency with having
insufficient resources to process paddlefish roe permit applications in a timely manner,
depriving applicants of their property rights without due process of law. Some of the
deposition testimony, it is true, bolsters this claim. See, e.g., R.60-3 at 168–69 (“[the
agency] is underfunded and understaffed”). But so, too, do several passages from the
plaintiffs’ original complaint: “[P]ermit applications have been pending before [the
agency] for at least seven (7) months, and as long as approximately one year,” R.1 ¶ 17;
“[p]addlefish roe is a perishable good, and . . . [the agency] is aware of this time
limitation,” Id. at ¶ 18; “[the agency] . . . owes a duty to Leisure Caviar and Bemka
. . . to process applications for [export] permits in a timely manner,” Id. at ¶ 19; “the
entire significant investment . . . [in] paddlefish roe is at risk of being lost,” Id. at ¶ 21.
As their original complaint establishes, the plaintiffs knew that the agency was having
trouble keeping up with the influx of applications when they first filed the lawsuit and
that this delay threatened to destroy their investment. The district court did not abuse
No. 09-6228 Leisure Caviar et al. v. United States Fish Page 7
and Wildlife Service et al.
its discretion in ruling that the plaintiffs could have filed this claim before they lost the
original case.
Fourth, plaintiffs contend that deposition testimony supported their proposed
additional claim “challenging the constitutionality of the permitting process.” R.60 at
2. The agency, they say, “has failed to create clear guidelines . . . which limit official
discretion in order to preclude arbitrary discrimination,” R.60-4 ¶ 40, citing testimony
that agents “have discretion within [the] office in making [legal acquisition]
determinations,” R.60-1 at 39–40, that no written protocols govern what documents the
biologists place in the administrative record, and that the agency has no official
handbook concerning paddlefish roe.
It may be true that this information was “newly discovered” in one sense, in that
the plaintiffs apparently first learned about it during discovery. But the information
should not have come as a surprise. From the beginning, the agency has maintained that
the “issuance of export permits is not a ministerial duty but is a discretionary decision
based on investigations and findings” by the agency. R.15 at 14. And the relevant
regulations—all public—confirm the nature and scope of this discretion. They require
permit applicants to “provide sufficient information for [the agency] to find that your
proposed activity meets all of the following criteria,” including that “[t]he wildlife or
plant was legally acquired” and that “[t]he proposed export would not be detrimental to
the survival of the species.” 50 C.F.R. § 23.36(c). In making such “finding[s],” officials
“consider” a range of “factors” and a “continuum of risk.” 50 C.F.R. § 23.60(d). These
regulations put the plaintiffs on notice about the discretionary nature of the government
employees’ responsibilities. The district court, as a result, acted within its discretion in
reasoning that the plaintiffs failed to explain why they could not previously have learned
of the agency officials’ discretionary role. “To constitute ‘newly discovered evidence,’
the evidence must have been previously unavailable.” GenCorp, 178 F.3d at 834. That
was not so. A claimant who seeks to amend a complaint after losing the case must
provide a compelling explanation to the district court for granting the motion. The
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and Wildlife Service et al.
district court did not exceed its discretion in concluding that plaintiffs provided nothing
of the sort.
III.
For these reasons, we affirm.