[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ December 10, 2002
THOMAS K. KAHN
No. 01-11998 CLERK
________________________
D. C. Docket No. 00-00797-CV-ODE-1
ANDREW J. WAGNER,
Plaintiff-Appellant,
versus
DAEWOO HEAVY INDUSTRIES AMERICA CORPORATION,
JACK MOSLER, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 10, 2002)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.
WILSON, Circuit Judge:
Andrew J. Wagner appealed the district court’s dismissal of his case
pursuant to Federal Rule of Civil Procedure 12(b)(6). He asserted that the district
court erred in finding that he failed to state a claim upon which relief could be
granted. After hearing oral argument, a panel of this Court vacated the district
court’s dismissal of Wagner’s case. Wagner v. Daewoo Heavy Indus. Am. Corp.,
289 F.3d 1268, 1275 (11th Cir.) (per curiam), vacated, 298 F.3d 1228 (11th Cir.
2002) (per curiam). Relying upon Bank v. Pitt, 928 F.2d 1108 (11th Cir. 1991)
(per curiam), the panel held that the district court should not have dismissed
Wagner’s case without providing him an opportunity to amend his complaint.
Wagner, 289 F.3d at 1273. We subsequently vacated the panel’s opinion and
ordered that the case be reheard en banc. Wagner, 298 F.3d at 1228. We thus
address en banc whether a district court is required to grant a plaintiff leave to
amend his complaint sua sponte when the plaintiff, who is represented by counsel,
never filed a motion to amend nor requested leave to amend before the district
court. In so doing, we overrule Bank and substitute the following rule: A district
court is not required to grant a plaintiff leave to amend his complaint sua sponte
when the plaintiff, who is represented by counsel, never filed a motion to amend
nor requested leave to amend before the district court.1 We, however, conclude
that this rule will be applied prospectively.
1
In this opinion, we decide and intimate nothing about a party proceeding
pro se.
2
I.
The allegations in the complaint are discussed in, and a copy of the
complaint is set forth in, the panel’s opinion. See Wagner, 289 F.3d at 1270–73,
1277–83. After hearing oral argument, the panel concluded that the complaint
failed to state a claim upon which relief could be granted and that it was not
obvious that a more carefully drafted complaint would fail to state a claim. Id. at
1271, 1274. We agree.
II.
In this en banc opinion, we address whether this case should be remanded to
the district court with instructions to permit the plaintiff to amend his complaint.
Under Bank, we would answer that question in the affirmative. 928 F.2d at 1112
(“Where a more carefully drafted complaint might state a claim, a plaintiff must be
given at least one chance to amend the complaint before the district court dismisses
the action with prejudice.”). We, however, have determined that the Bank rule
should no longer be followed. As a result, we overrule Bank and substitute the
following rule: A district court is not required to grant a plaintiff leave to amend
his complaint sua sponte when the plaintiff, who is represented by counsel, never
filed a motion to amend nor requested leave to amend before the district court.
3
This new rule is more efficient and in line with the critically important
concept of finality in our judicial system. Powers v. Boston Cooper Corp., 926
F.2d 109, 112 (1st Cir. 1991) (“Finality is a critically important concept in our
system of jurisprudence. At some point, battles must end” (internal quotation
marks omitted).); see Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276
(11th Cir. 2000) (noting that interlocutory appeals “are generally disfavored”
because “[p]iecemeal appellate review has a deleterious effect on judicial
administration”). It also is in line with the general rule of this Circuit that issues
not raised before the district court will not be considered on appeal. See Wright v.
Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001). In addition, it satisfies
the apparent purpose of the Federal Rules of Civil Procedure, which is “to secure
the just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1.
Under the Bank rule, a plaintiff could sit idly by as he awaited the district
court’s determination with respect to a Rule 12(b)(6) motion to dismiss; he need
not seek leave to amend his complaint nor amend it as of right,2 because he would
2
Federal Rule of Civil Procedure 15 sets forth the standards for amendments.
It provides,
A party may amend the party’s pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is
one to which no responsive pleading is permitted and the action has
not been placed upon the trial calendar, the party may so amend it at
4
have “two bites at the apple” on appeal. See, e.g., Bank, 928 F.2d at 1113. As in
this case, the plaintiff could appeal the adverse ruling of the district court as long as
it was a final judgment. Briehler v. City of Miami, 926 F.2d 1001, 1002 (11th Cir.
1991) (per curiam) (discussing when an order dismissing a complaint is final and
appealable). If we reversed the district court, the plaintiff’s appeal was successful.
His appeal, however, also was successful if we affirmed the district court, because
we would then remand the case to the district court and instruct the court to permit
the plaintiff to amend his complaint.3 See, e.g., Bank, 928 F.2d at 1113.
Consequently, the plaintiff reaped several benefits without taking any risks by
appealing the dismissal without seeking leave to amend before the district court.
any time within 20 days after it is served. Otherwise a party may
amend the party’s pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given when
justice so requires.
Fed. R. Civ. P. 15(a) (emphasis added).
3
Our remand of these cases was based upon the possibility that the plaintiff
could allege a set of facts to support his claim. In fact, it did not matter whether
the plaintiff provided the district court or this Court with the additional facts that
would make the complaint sufficient. See, e.g., Bank, 928 F.2d at 1113 n.8 (noting
that we would not consider the proposed amendments submitted by the plaintiffs
because we were not granting leave to amend). The mere chance that a plaintiff
could assert a set of facts to support a cause of action does not outweigh the
burdens that these appeals have placed upon defendants and the courts.
5
Our system thus turned these appeals into interlocutory appeals, because no
matter what our ruling was, the district court would have to entertain further
proceedings.4 This added great trouble, time, and expense for defendants and the
courts. Bush, 221 F.3d at 1276 (noting that such appeals “are inherently disruptive,
time-consuming, and expensive” and are therefore disfavored (internal quotation
marks omitted)). As we have noted,
[p]iecemeal appellate review has a deleterious effect on judicial
administration. It increases the workload of the appellate courts, to
the detriment of litigants and judges. . . . [I]t creates opportunities for
abuse by litigants seeking to delay resolution of a case by raising with
the appellate court objections to the scope of an order that should have
been raised first with the district court itself.
Id.
We avoid this costly, additional litigation by following the rule we announce
today. In adopting this rule, we bring our Circuit in line with the majority of our
sister circuits. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2d Cir.
1998); Gov’t of Guam v. Am. President Lines, 28 F.3d 142, 144 (D.C. Cir. 1994);
Cinel v. Connick, 15 F.3d 1338, 1346 (5th Cir. 1994); Domino Sugar Corp. v.
4
Not only would there be further litigation before the district court, there
would be further litigation before this Court. After a case was remanded and the
complaint was amended, the district court likely would consider the sufficiency of
the complaint again. Should the district court decide that the complaint still failed
to state a claim upon which relief could be granted, the plaintiff likely would
appeal that determination to this Court.
6
Sugar Workers Local Union 392 of the United Food & Commercial Workers Int’l
Union, 10 F.3d 1064, 1068 n.1 (4th Cir. 1993); Sinay v. Lamson & Sessions Co.,
948 F.2d 1037, 1041–42 (6th Cir. 1991); Royal Bus. Group, Inc. v. Realist, Inc.,
933 F.2d 1056, 1066 (1st Cir. 1991); Glenn v. First Nat’l Bank in Grand Junction,
868 F.2d 368, 371 (10th Cir. 1989); Cohen v. Ill. Inst. of Tech., 581 F.2d 658, 662
(7th Cir. 1978). But see Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)
(“In dismissing for failure to state a claim, a district court should grant leave to
amend even if no request to amend the pleading was made, unless it determines
that the pleading could not possibly be cured by the allegation of other facts”
(internal quotation marks omitted).); Dist. Council 47, Am. Fed’n of State, County,
& Mun. Employees v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986) (noting that “this
court has consistently held that when an individual has filed a complaint under §
1983 which is dismissable for lack of factual specificity, he should be given a
reasonable opportunity to cure the defect, if he can, by amendment of the
complaint” (internal quotation marks omitted)).
III.
As we have established a new rule, we now must address the application of
that rule. We can apply our new rule retroactively or prospectively. See James B.
7
Beam Distilling Co. v. Georgia, 501 U.S. 529, 535–37 (1991); see also McKinney
v. Pate, 20 F.3d 1550, 1565 (11th Cir. 1994) (en banc).
Generally, new rules of law are applied retroactively as well as
prospectively. Int’l Ass’n of Machinists & Aerospace Workers, Local Lodge No.
1688 v. Allied Prods. Corp., 786 F.2d 1561, 1564 (11th Cir. 1986). The general
rule, however, “is just that: a general presumption that is subject to rebuttal.”
McKinney, 20 F.3d at 1566. Thus, we have noted that a new rule of law may be
applied prospectively if the following conditions are met:
1) the decision adopting the rule does so either by overruling
clear past precedent or by deciding an issue of first impression
the resolution of which was not clearly foreshadowed; and
2) the application of the old rule in the instant case [does] not
contravene the purpose and operation of the provision being
interpreted; and
3) application of the new rule in the instant case [would] be
inequitable.
Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1282 (11th Cir. 2001)
(alterations in original) (internal quotation marks omitted); see also McKinney, 20
F.3d at 1565.
The first and third conditions are satisfied easily in this case. The first
condition is satisfied, because this case clearly is one in which we are “overruling
clear past precedent.” The rule set forth in Bank provided the plaintiff with “two
bites at the apple.” The plaintiff could appeal a Rule 12(b)(6) dismissal, hoping
8
that the complaint would be deemed sufficient on appeal; if it was not deemed
sufficient, the plaintiff’s case likely would be remanded to the district court with
instructions to permit the plaintiff to amend. See Bank, 928 F.2d at 1113. The rule
of law we set forth today clearly contravenes the old rule. We now have decided
that a district court is not required to grant a plaintiff who is represented by counsel
leave to amend his complaint sua sponte. Thus, we are no longer required to
remand to the district court with instructions to permit the plaintiff to amend when
he never filed a motion to amend nor requested leave to amend before the district
court.
In addition, the third condition is satisfied, because it would be inequitable
to apply the new rule to this case and to other cases now on appeal. See McKinney,
20 F.3d at 1566 & n.23 (noting that retroactive application would be inequitable to
the plaintiff and “would also produce inequities – for defendants in other pending
cases”). Wagner and other plaintiffs likely relied upon Bank in determining
whether to seek leave to amend before the district court or to appeal the dismissal.5
5
At oral argument, Wagner’s attorney stated that he relied upon the rule set
forth in Bank when he brought this appeal. In addition, Wagner requested leave to
amend his complaint pursuant to Bank in his initial brief before the panel. Br. of
Appellant at 24–25. Were we to apply our new rule retroactively, we would strip
Wagner of the opportunity to have his case heard on the merits. Prospective
application avoids any inequity to him.
9
It would be inequitable to punish those parties for following the clearly established
precedent of this Circuit.
It is the second condition that gives us some pause. The apparent purpose of
the Federal Rules of Civil Procedure is “to secure the just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1. As we noted above, our new
rule follows that purpose, for it is designed to secure efficiency and to reduce
costly, additional litigation. We, however, also note that the purpose of allowing
amendments is to resolve litigation on the merits, and decisions based upon the
merits generally are favored under the Rules. See Foman v. Davis, 371 U.S. 178,
181–82 (1962). As Wagner followed our precedent in appealing his case rather
than seeking to amend before the district court, the retroactive application of this
rule would strip him of the opportunity to have his case heard on the merits. As a
result, it seems consistent with the purpose of the Federal Rules of Civil Procedure
to decline to apply our new rule in this case.
Thus, as the conditions of Kirkland are satisfied, this rule will be applied
prospectively; it applies only to cases in which the notice of appeal was filed after
the date of this decision.
CONCLUSION
10
Thus, we VACATE the district court’s dismissal of Wagner’s complaint and
REMAND this case to the district court with instructions to grant Wagner leave to
amend his complaint.
11