489 F.2d 282
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Plaintiff-Appellant,
v.
AMBASSADOR CONCESSIONS, INC., Defendant-Appellee.
No. 73-1821.
United States Court of Appeals, Fifth Circuit.
Dec. 27, 1973.
Carl K. Hoffmann, J. Kirk Wood, Miami, Fla., for plaintiff-appellant.
Starr W. Horton, Jordan Bittel, Miami, Fla., for defendant-appellee.
Before WISDOM, AINSWORTH and GEE, Circuit Judges.
PER CURIAM:
In this diversity suit growing out of a written lease to operate a parking business and an automobile rental business on plaintiff's property in Miami, Florida, the defendant's motion to dismiss on the ground that the complaint failed to state 'a claim against the defendant upon which relief can be granted,' and that 'the Court lacks kurisdiction because the amount actually in controversy is less than ten thousand dollars,' was sustained by the district court.
Plaintiff then moved to file an amended complaint under Rule 15, Federal Rules of Civil Procedure, and attached a proposed amended complaint thereto. The court summarily denied the motion sua sponte. The action of the trial court was erroneous, however, since plaintiff had a right to amend its complaint once, no responsive pleading having been filed. Case v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1961, 294 F.2d 676, 678; Breier v. Northern California Bowling Proprietors' Ass'n, 9 Cir., 1963, 316 F.2d 787, 789. Leave to amend should be freely given by the district court, and under the circumstances here, plaintiff should be afforded an opportunity to amend its complaint as requested, and test its claim on the merits. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962).
Reversed and remanded.