Summit Office Park, Inc. v. United States Steel Corp.

WISDOM, Circuit Judge,

dissenting:

The Court’s holding, as stated in the majority opinion, is that “where a plaintiff never had standing to assert a claim against the defendants, it does not have standing to amend the complaint and control the litigation by substituting new plaintiffs, a new class, and a new cause of action”. This superficially persuasive argument rests on the conceptual — more accurately, the metaphysical — notion that “[sjince there was no plaintiff before the court with a valid cause of action, there was no proper party available to amend the complaint”. The logic of this ruling would forbid the addition of a new plaintiff, a new class, or new cause of action by amendment whenever a complaint is subject to dismissal. The change in the litigation, whether or not prejudicial to a defendant, would have to be effected by filing a new complaint. I respectfully disagree with this unwarranted judicial amendment to Rule 15(a).

It is important to realize what this case does and does not involve. No one doubts that the proposed amended complaint states a valid cause of action. There is no issue of whether the proposed amendment will relate back to the date of the original complaint, for the parties agree that the statute of limitations had not run at the time the proposed amendment was filed. Nor does this case involve a proposed amendment entered after dismissal of the original complaint.1 Although it is true that the defendants filed their summary judgment motion before Summit filed its proposed amendment, both issues were before the district court at the same time. The district court, therefore, was bound to consider the propriety of an amendment that would save the action if accepted before ruling on the summary judgment motion.2 The majority opinion does not, as I read it, depend on substantive antitrust law or on the peculiarities of class action procedure. Rather, it places generally applicable limits on the sort of amendment that may be made to pleadings under the Federal Rules of Civil Procedure — if for any reason the original complaint is faulty. That just cannot be the law.

Rule 15(a) governs amendments:

A party may amend his 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, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

Neither the text of the Rule nor the Advisory Committee’s Notes suggest that the words “party” or “amendment” are terms of art in Rule 15(a). Unless there is good reason to inject special meaning into those words — and I see none — any party who has not been dismissed from an action should be a Rule 15(a) “party” with the right to amend, and “amendment” should comprehend any statement of a valid claim or defense. The majority, however, in effect reads them as terms of art.

*1286One consequence of this holding at least is clear. If a proposed amendment, according to the majority, is not a Rule 15(a) “amendment”, it not only cannot be filed as a right, but it cannot be filed even with leave of court. The majority’s hint to the contrary, at 1284 n.13, appears to me to be inconsistent with its holding.

The full scope of the holding is difficult to discern. It is settled that a Rule 15(a) amendment can add new causes of action and new theories of recovery, even if the original complaint did not state a valid cause of action.3 In this Court, it is settled that an amendment can add parties to a lawsuit.4 It is also generally held that a plaintiff may drop claims or parties by amendment.5 Yet the majority rejects an amendment that does all three of these things at once. It is not clear to me whether the majority is implicitly overruling one of these three bits of settled law, or whether it holds that these three bits, harmless in themselves, reach critical mass and explode when applied in one amendment. The majority’s statement that “[sjince there was no plaintiff before the court with a valid cause of action, there was no proper party available to amend the complaint” and its approving citation of Schwartz v. The Olympic, Inc., D. Del. 1947, 74 F.Supp. 800, 801 to the effect that if a plaintiff “cannot maintain his own complaint, he has no right to amend it”, are ominous. Both seem to imply, contrary to all precedent, that a complaint not stating a cause of action may not be amended — a holding that eviscerates the primary function of Rule 15(a).

The Court’s justification for attempting to limit Rule 15(a) in this fashion is equally difficult to understand. “It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of ... mere technicalities.” Foman v. Davis, 1962, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222. This is not a “potential lawsuit searching for a sponsor”. The propose amendment brings an otherwise valid complaint by real, live plaintiffs before the district court. The manner in which the complaint came before the court should be irrelevant unless it prejudices someone in some articulable way. But since the amended complaint offered by Summit could have been filed as new action, it is not easy to see who would be prejudiced by accepting it as an amendment instead. Certainly not the defendants, who would be in the same position as they would have been had the amendment been brought as an original complaint. The only difference between the two situations is that the “new” suit inherits the docket number of the old under the amendment some route.6

The majority opinion suggests that this inheritance might have two undesirable side effects, but, with deference, I suggest that neither bears up under analysis. First, echoing the district court, the majority states that if the amendment were allowed, the plaintiff or plaintiff’s counsel would be able to exercise “undue control” over class action litigation. The majority does not, however, explain how this amendment would give Summit’s counsel more control over the action than he would have had if he had filed *1287a new complaint on behalf of White and Sanders. This suggestion seems to derive from the fact that similar class suits, since consolidated, were filed in the same district by other counsel after Summit’s original complaint was filed. By filing this new claim as an amendment rather than as an original complaint, Summit’s counsel might be able to argue that his client filed first, and so would enjoy priority for being chosen as lead counsel for the plaintiff class in the consolidated actions, if such a choice is necessary. But if a district court finds it advisable to appoint lead counsel, the selection should not be based on who filed suit first, but on the ability of the counsel to represent the class.7

Second, the majority suggests in a footnote that counsel having several cases pending trial on a court’s docket might amend the complaint in an advanced case to assert the claims made in one of his later filed actions. At 1284 n.13. But that tactic is built into the Federal Rules. An amendment may add a new claim by the same plaintiff against the same defendant; a new claim by the same plaintiff against a new defendant; a new claim by a new plaintiff against the same or a different defendant. All of these amendments give particular claims a docket advantage by being filed as amendments rather than as new complaints. Unless the majority is prepared to exclude all such amendments from Rule 15(a), there is no reason to single any for exclusion. In any case, the potential for abuse is trivial. Amendments may be made without the consent of the district court only until the opposing party files a responsive pleading — which, except in unusual situations, will be a relatively brief interval. Suits can be advanced on the docket by this tactic only if they are filed within that brief interval, and they would advance only by that interval.8

As I read the Federal Rules, an otherwise valid claim can properly be brought before the court through any procedure not violative of the letter of the Rules. It is well established, for example, that even if a court has no jurisdiction over a plaintiff’s claim, it may treat the pleading of an intervenor under Rule 24 as a separate action if there is a separate basis of jurisdiction as to the intervenor’s claim.9

In a footnote the Court disposes of a case virtually on all fours with this one, Hackner v. Guaranty Trust Co., 2 Cir. 1941, 117 F.2d 95, cert. denied, 1941, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520. In that case, Hackner, Bowman, and Ballinger jointly filed suit against Guaranty Trust on certain notes, with jurisdiction based on diversity. On the face of their complaint, however, none of the three parties plaintiff met the jurisdictional amount. They had less “standing”, it might be said, than Summit in this case. In an amended complaint filed as of right Bowman was dropped from the suit and York and Eastman were added as parties plaintiff. York did not meet the jurisdictional amount either, but Eastman did. *1288Suit was dismissed as to all of the plaintiffs except Eastman. In an opinion by Judge Charles E. Clark, who served as reporter for the Federal Rules Advisory Committee that drafted Rule 15, the court held that the amended complaint was a valid way of commencing suit between Eastman and the bank, even though all of the original plaintiffs had to be dismissed:

This disposes of the case as to all the plaintiffs except Eastman. Since she alleges grounds of suit in the federal court, the only question is whether or not she must begin a new suit again by herself. Defendants’ claim that one cannot amend a nonexistent action is purely formal, in the light of the wide and flexible content given to the concept of action under the new rules. Actually she has a claim for relief, an action in that sense; as the Supreme Court has pointed out, there is no particular magic in the way it is instituted. Chisholm v. Gilmer, 299 U.S. 99, 57 S.Ct. 65, 81 L.Ed. 458, upholding a suit instituted by mere motion for judgment. Cf. Fowler, Virginia Notice of Motion Procedure—A Case Study in Procedural Reform, 24 Va.L.Rev. 711. So long as a defendant has had service “reasonably calculated to give him actual notice of the proceedings,” the requirements of due process are satisfied. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 343, 85 L.Ed. 278, decided December 23, 1940. Hence no formidable obstacle to a continuance of the suit appears here, whether the matter is treated as one of amendment or of power of the court to add or substitute parties, Federal Rule 21, or of commencement of a new action by filing a complaint with the clerk, Rule 3. In any event we think this action can continue with respect to Eastman without the delay and expense of a new suit, which at long last will merely bring the parties to the point where they now are.
Now under the rules an action once commenced by the filing of a complaint — which is what Eastman’s “amendment” amounted to — remains pending until dismissed by the court under Rule 41(b) for lack of due diligence in prosecution.

Similar results have been reached by cases following Hackner.10 The majority offers no substantial reason for distinguishing this case from that. National Maritime Union of America, v. Curran, S.D.N.Y. 1949, 87 F.Supp. 423, cited by the majority, itself recognized that all the original plaintiffs in a suit can be dropped and new ones added by amendment. Id. at 425-26. Although the district court there chose not to permit the amendment, it did so only under the theory that amendments adding or dropping parties must meet Rule 21’s leave of court requirement as well as the requirements of Rule 15. That theory has been rejected by this Court. McLellan v. Mississippi Power & Light Co., 5 Cir. 1976, 526 F.2d 870, 872-73, modified on other grounds, 1977, 545 F.2d 919 (en banc). The two district court opinions upon which the majority chiefly relies, Turner v. First Wisconsin Mortgage Trust, E.D.Wis. 1978, 454 F.Supp. 899, 913, and Schwartz v. The Olympic, Inc., D.Del. 1947, 74 F.Supp. 800, 801, were both brief ex cathedra rulings *1289unsupported by analysis or citation of precedent.

In summary, the majority does not show that the Rule 15(a) was designed to place implicit restrictions on amendments that may be made to pleadings, and it does not identify a single way in which this amendment, or any similar amendment of right, would cause prejudice to any litigant or would complicate case management. If I may say so, with deference, the ill-defined rule through which it proposes to distinguish between allowable and unallowable amendments furthers no ascertainable goal, and promises to promote dilatory contests over whether a particular amendment is allowable as an amendment or must be filed as a new complaint.11

I respectfully dissent.

. Cf. In re Beef Industry Antitrust Litigation, 5 Cir. 1979, 600 F.2d 1148, 1161-62, cert. denied, 1980, — U.S. —, 101 S.Ct. 280, 66 L.Ed.2d 137.

. A motion for summary judgment is not a “responsive pleading” for purpose of Rule 15(a). McLellan v. Mississippi Power & Light Co., 5 Cir. 1976, 526 F.2d 870, 872 n.2, modified on other grounds, 1977, 545 F.2d 919 (en banc); McDonald v. Hall, 1 Cir. 1978, 579 F.2d 120, 121. See generally 6 Moore’s Federal Practice ¶ 56.10 (2 ed. 1976); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2722, at 478 (1973).

. McLellan v. Mississippi Power & Light Co., 5 Cir. 1976, 526 F.2d 870, 873, modified on other grounds, 1977, 545 F.2d 919 (en banc). See generally 3 Moore’s Federal Practice ¶ 15.08[2], at 15-68 to -71 (2 ed. 1980); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1474, at 379-85 (1971).

. McLellan v. Mississippi Power & Light Co., 5 Cir. 1976, 526 F.2d 870, 872-73, modified on other grounds, 1977, 545 F.2d 919 (en banc). Although McLellan involved an attempt to add defendants rather than plaintiffs, there is no reason to distinguish the two situations. See generally 3 Moore’s Federal Practice ¶ 15.07[2] at 15-54, ¶ 15.07[3], ¶ 15.08[5] (2 ed. 1980); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1479, at 400-402 (1971).

. E. g., Johnston v. Cartwright, 8 Cir. 1966, 355 F.2d 32, 39. But see Neifeld v. Steinberg, 3 Cir. 1971, 438 F.2d 423, 430. See generally 3 Moore’s Federal Practice ¶ 15.07[3], at 15-58 (2 ed. 1980); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1479, at 400 (1971).

. The court also loses an extra filing fee, of course, but that is trivial. Cf. Morrow v. Spiess, 10 Cir. 1965, 349 F.2d 931, 933.

. E. g., Amos v. Board of School Directors, E.D.Wis. 1976, 408 F.Supp. 767, 771-76, aff’d, 7 Cir. 1976, 539 F.2d 625, vacated on other grounds, 1977, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044; Feldman v. Hanley, S.D.N.Y. 1970, 49 F.R.D. 48, 50-51. See Manual for Complex Litigation § 1.44 (1978). See generally 3 H. Newberg, Class Actions § 3700 (1977).

. The appellees’ counsel suggested in oral argument that the defendants might have been prejudiced if the statute of limitations ran between the time the original complaint was filed and the time the amendment was filed. But Rule 15(c) expressly provides that not all amendments relate back to the date of the original complaint; only amendments relating to the same “transaction or occurrence” as the original complaint.

. McKay v. Heyison, 3 Cir. 1980, 614 F.2d 899, 906-07; Miller & Miller Auctioneers, Inc. v. G. W. Murphy Industries, Inc., 10 Cir. 1973, 472 F.2d 893, 895; Atkins v. State Board of Education, 4 Cir. 1969, 418 F.2d 874; Fuller v. Volk, 3 Cir. 1965, 351 F.2d 323, 328-29; Corporacion Venezolana de Fomento v. Vintero Sales Corp., S.D.N.Y. 1979, 477 F.Supp. 615, 622; 7A C. Wright & A. Miller, Federal Practice and Procedure § 1917, at 584-86 (1972). Some of these cases say that the district court has “discretion” to treat an intervenor’s pleadings as a separate action, but that is because intervention in these cases was not possible as of right under Rule 24(a), but only by leave of court under Rule 24(b). See McKay v. Heyison, 3 Cir. 1980, 614 F.2d at 906-07.

. E. g., Health Research Group v. Kennedy, D.D.C. 1979, 8 F.R.D. 21, 29-30; Board of Elections v. Lomenzo, S.D.N.Y. 1973, 365 F.Supp. 50, 53; Morrow v. Spiess, 10 Cir. 1965, 349 F.2d 931, 933; Pioche Mines Consolidated, Inc. v. Dolman, 9 Cir. 1964, 333 F.2d 257, 265, cert. denied, 1965, 380 U.S. 956, 85 S.Ct. 1081, 13 L.Ed.2d 972; Moore v. Coats Co., 3 Cir. 1959, 270 F.2d 410. It is true that this case involves an amendment to change plaintiffs and Moore, for example, involved a change of defendant, but the majority does not explain what practical difference that distinction makes. At 1283 n.11. See also Technical Tape Corp. v. Minnesota Mining & Mfg. Co., 2 Cir. 1952, 200 F.2d 876, 879 (Clark, J., concurring). (“The only suggested bar is a judicial gloss on the broad terms of the rule to the effect that only a ‘good’ complaint may be amended. But to such a suggestion we gave the proper answer in the early days of the rules: [quoting Hackner ] ... [I]f there is a real reason in the particular case why later matter should not be considered, that reason should be adduced and decision rest upon it, not on some formal generalization read into the rules contrary to their spirit.”).

. Because it holds that the amendment offered by Summit was not a Rule 15(a) “amendment”, the Court does not to reach the questions: (a) whether the filing of answers by four of the thirty-one defendants cut off Summit’s right to amend its complaint without leave of court; and (b) if so, whether the district court abused its discretion in denying leave. I would follow Pallant v. Sinatra, S.D.N.Y. 1945, 7 F.R.D. 293, 300, and rule that as to claims for which defendants are alleged to be jointly liable, amendment of right should be permitted until all of the defendants have answered. But cf. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1481 (1971).