[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-4947 06/14/99
_________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 97-3291-CIV-JLK
MARGARET MCKINLEY,
Plaintiff-Appellant,
versus
BRUCE KAPLAN, in his official capacity,
MIAMI-DADE COUNTY, a political
subdivision of the State of Florida,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the
for the Southern District of Florida
________________________
(June 14, 1999)
Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior
Circuit Judge.
*
Honorable Arthur L. Alarcón, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:
This is a First Amendment retaliation claim brought by Margaret McKinley
against Miami-Dade County (“County”) and former County Commissioner Bruce
Kaplan for the county’s removal of McKinley from the Miami-Dade County Film,
Print and Broadcast Advisory Board (“Film Board”). The Film Board was created by
the County for the purpose of advising it on policy issues concerning the
entertainment industry in the area. McKinley was originally appointed to the Film
Board by Commissioner Kaplan. In the fall of 1997, heated political debate arose in
the Miami area regarding the County’s policy of suspending persons or entities who
do business with Cuba from using the County’s public facilities. On September 23,
1997, the Miami Herald reported McKinley as criticizing existing policy by saying,
“While we respect and appreciate the concerns of Cuban Americans in the exile
community, allowing a few people’s political standpoint to dictate the potential
economic growth of the area is not for the benefit of the community as a whole.” That
same day, Commissioner Kaplan wrote McKinley to inform her that he was removing
her as his appointee to the Film Board because of these comments, which he viewed
as “inappropriate and insulting.” McKinley was then formally removed from her
position on the Film Board by a vote of the Board of County Commissioners.
2
On October 14, 1997, McKinley brought this action under 42 U.S.C. § 1983,
alleging that her removal from the Film Board violated her First Amendment right to
free speech, as incorporated against the states by the Fourteenth Amendment.
McKinley’s complaint sought only injunctive and declaratory relief – in effect,
reinstatement to the Film Board – as a remedy. However, while this action was
pending in the district court, on April 15, 1998, Commissioner Kaplan resigned from
the Board of County Commissioners.1 Under the ordinances of Miami-Dade County,
“when the Commissioner who appointed a board member leaves office, the terms of
his or her appointees to County boards shall expire.” Dade County Code § 2-
11.38.2(c). The parties agree that by operation of this section, McKinley’s entitlement
to her seat on the Film Board expired and she ceased to have any right to
reinstatement on the date Kaplan resigned.
The cessation of McKinley’s term of appointment created a mootness problem
with the instant litigation because she could no longer be reinstated and reinstatement
was the only type of relief sought. This mootness problem generated additional
pleadings from both sides the following week. The County moved to dismiss for lack
of subject matter jurisdiction, while McKinley filed a motion to amend her complaint
1
Mr. Kaplan resigned from his position as a county commissioner as part of a plea bargain
agreement regarding certain criminal charges brought against him by the State Attorney in Miami-
Dade County.
3
to add a claim for money damages under § 1983.2 See Adler v. Duval Cty. Sch. Bd.,
112 F.3d 1475, 1478 (11th Cir. 1997) (noting that while high school students’
Establishment Clause claims against school officials regarding policy allowing prayer
at graduation ceremony were mooted by students’ graduation, “[b]ecause the
[students’] claim for money damages does not depend on any threat future harm, this
claim remains a live controversy”). The district court denied leave to amend, and
dismissed McKinley’s lawsuit with prejudice. On appeal, McKinley contends that (i)
the district court erred in denying the motion to amend the complaint, and (ii) if
dismissal was proper, it should have been without prejudice.
We review the district court’s denial of leave to amend the complaint for abuse
of discretion. See Technical Resource Servs. Inc. v. Dornier Med. Sys., Inc., 134 F.3d
1458, 1463 (11th Cir. 1998). After a responsive pleading has been served, a plaintiff
may amend a complaint by leave of court, and “leave shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a). The district court based its denial of leave
to amend on three grounds. First, it cited Arizonans for Official English v. Arizona,
117 S. Ct. 1055 (1997), and several other lower court cases, in support of the
2
Without expressing any view as to the merits, for purposes of resolving the mootness and
procedural questions presented here we can assume arguendo that if she was removed from the Film
Board in retaliation for the exercise of her First Amendment rights, McKinley could be entitled to
damages under 42 U.S.C. § 1983 for the interval between September 23, 1997 and April 15, 1998
when she would otherwise have been entitled to her seat. See Carey v. Piphus, 435 U.S. 247, 258-59
(1978).
4
proposition that McKinley’s amendment was improper because it was “for the sole
purpose of avoiding dismissal for mootness.” District Court Order Dismissing Case,
at 5. In Arizonans for Official English, a state employee brought a § 1983 action
against the state and state officials alleging that their “English as an official language”
policy violated her First Amendment rights. During the pendency of the litigation,
however, the employee-plaintiff resigned from public sector employment to pursue
work in the private sector. In order to avoid mootness, the plaintiff, without actually
moving to amend, suggested that she might seek nominal damages a form of relief
against which the mootness bar would not apply. The Ninth Circuit accepted
plaintiff’s argument and allowed the litigation to proceed. On appeal, the Supreme
Court rejected the same reason, holding that “[a]t that stage of the litigation . . .
[plaintiff’s] plea for nominal damages was not the possibility the Ninth Circuit
imagined.” 117 S. Ct. at 1069. Plaintiff could not possibly recover nominal damages
because her cause of action was under § 1983, the only defendants were state officials
in their official capacity (which the Ninth Circuit construed as tantamount to suing the
state itself), and a § 1983 action cannot lie against a state. See id. (citing Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)). In other words, the reason
the plaintiff’s attempted addition of a damages claim could not obviate the mootness
problem in Arizonans for Official English was that such a damages claim would, as
5
a matter of law, be non-meritorious and futile. In the instant case, pursuant to well-
established precedent, the county is a proper defendant in a § 1983 action and can be
liable for money damages. See Owen v. City of Independence, 445 U.S. 622, 633,
650 (1980).
The same rationale distinguishing Arizonans for Official English also makes
Fox v. Board of Trustees of SUNY, 42 F.3d 135 (2d Cir. 1994), cert. denied, 515 U.S.
1169 (1995), inapplicable. There, students challenged a state university regulation on
First Amendment grounds, seeking solely injunctive relief. After the litigation
commenced but while it was pending, the plaintiffs completed their undergraduate
studies and none remained enrolled. The district court therefore concluded that their
claims were moot and dismissed. See id. at 139. Attempting to revive the lawsuit, the
plaintiffs unsuccessfully argued alternately that (i) a claim for nominal money
damages could be inferred from their complaint, and (ii) they should be allowed to
amend their complaint to add a count for money damages. The Second Circuit held
that a money damages claim would have been substantively without merit because the
state enjoyed Eleventh Amendment immunity, and the individual defendants would
be protected by qualified immunity. See id. at 141 (citing Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
6
Again, in the instant case, there is no such futility because no such substantive
obstacle to the merits of McKinley’s damages claim is apparent.
The other cases cited by the district court for the proposition that McKinley’s
attempted amendment was a ploy to circumvent mootness are not dispositive. In
Tucker v. Phyfer, 819 F.2d 1030 (11th Cir. 1987), a juvenile incarcerated in an
Alabama county jail sought damages, injunctive, and declaratory relief for alleged
unconstitutional conditions that he and other juveniles were made to suffer at the jail.
During the pendency of the lawsuit, he was released from the jail and attained the age
of majority, both of which events made his complaint moot insofar as it sought
injunctive and declaratory relief. The plaintiff moved for class action certification in
an apparent attempt to keep the lawsuit alive, but the district court denied certification,
noting that at the time he moved for certification his own claim for injunctive and
declaratory relief was moot and therefore he could not prosecute that claim on behalf
of those juveniles currently incarcerated. This Court affirmed, but its reasoning was
based on the principle that “[i]n a class action, the claim of the named plaintiff, who
seeks to represent the class, must be live both at the time he brings suit and when the
district court determines whether to certify the putative class.” Id. at 1033 (citing
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980)). Based as it
was on principles unique to the intersection of class action certification and the
7
mootness doctrine, Tucker is inapplicable to the instant case. Tucker means merely
that McKinley, following the April 15, 1998 expiration of her term on the Film Board,
would not have been entitled to seek class certification of her First Amendment
retaliatory discharge action.
The case of Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff’d mem.,
582 F.2d 1273 (3d Cir. 1978) (Table), is more on point than Tucker, but it is not
binding on this Court, and at any rate, its facts are distinguishable. In Danzy, a state
prison inmate sued under § 1983 for a declaratory judgment that a certain interstate
transfer agreement was unconstitutional. This claim was moot, however, because
“[n]o suggestion [was] made that plaintiff is in danger of being subjected to future
out-of-state transfers in violation of his constitutionally mandated rights.” Id. at 432.
Two years after the initial complaint was filed and over one year after the complaint
was first amended, the plaintiff moved to amend the complaint again, this time to add
a request for damages of $250.00 (lost wages during the time he was transferred out
of state). Id. at 430. The court characterized this motion as “nothing more than an
afterthought to avoid dismissal for mootness,” id. at 430, and held that the plaintiff
waived any damage claims.
The court’s holding in Danzy was simply an application of Rule 15(a) of the
Federal Rules of Civil procedure, and there were several salient factors there that
8
differ from the instant case. The damages claim presented “an entirely new and
questionable aspect to the suit.” Id. at 431. Under the initial complaint which sought
only declaratory relief, all of the contested issues were purely legal and could have
been resolved without any trial or taking of evidence. The delay in seeking
amendment–two years– was of a much greater duration. Even more importantly, in
Danzy, the reason why the plaintiff’s claim was moot (that there was no likelihood he
would be transferred again) existed continuously throughout the litigation. Here, by
contrast, mootness arose suddenly and unexpectedly when Commissioner Kaplan
resigned. McKinley acted promptly thereafter to add a damages claim.
The district court’s second rationale for denying leave to amend in this matter
was that the parties’ joint scheduling report and proposed scheduling order had
established an amendment deadline of February 15, 1998. However, the alleged joint
scheduling order apparently never was entered and therefore never became binding
as necessary to trigger the operation of Rule 16(b) of the Federal Rules of Civil
Procedure. The County has cited no authority for the proposition that a proposed, but
not entered, joint scheduling order is binding for purposes of Rule 16(b), and this
Court’s independent research has disclosed no such authority. In the absence of a
dispositive scheduling order, whether leave to amend should be granted is governed
by the more liberal standard set forth in Rule 15(a).
9
Third, the district court noted that “it is unlikely that Plaintiff’s Amended
Complaint could survive dismissal pursuant to Rules 12(b)(6) and 9 of the Federal
Rules of Civil Procedure.” District Court Order Dismissing Case, at 6. On the
contrary, Rule 9(b) which imposes heightened requirements of particularity on
complaints in certain types of case, has no application to civil rights actions under 42
U.S.C. § 1983. See Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993). In order to state a cause of action under
§ 1983, the plaintiff must allege only two things: (1) some person has deprived him
or her of a federal right; and (2) that he or she acted under color of state law. See
Gomez v. City of Toledo, 446 U.S. 635, 640 (1980). McKinley pleaded that the
County violated her First and Fourteenth Amendment rights, Amended complaint ¶
13, and that it acted under color of state law, Amended Complaint ¶ 3. Thus, the
amended complaint was not susceptible to dismissal under Rule 12(b)(6) and the
district court’s use of this ground to support denial of leave to amend was
unwarranted.3
3
The County argues that the district court’s denial of leave to amend was also supported by
McKinley’s assertion in her January 5, 1998 deposition that she was seeking only injunctive and
declaratory relief. We have reviewed the deposition transcript and we do not agree. McKinley
phrased her statement that she was seeking only injunctive and declaratory relief in tentative
language. More importantly, at the time of this deposition, she evidently felt that reinstatement to
the Film Board would make her whole; she was entitled to seek a different form of relief once
reinstatement was no longer possible. Furthermore, the County argues no legal theory whereby
McKinley’s deposition statement can foreclose her right to amend her complaint under Fed. R. Civ.
10
Under Rule 15(a), leave to amend shall be “freely given when justice so
requires.” Fed. R. Civ. P. 15(a). “In the absence of any apparent or declared reason
– such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.
– the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis,
371 U.S. 178, 182 (1962). None of the examples given in the Foman opinion justify
the denial of leave to amend in this case. The silent premise of the district court’s
opinion seems to be that McKinley’s claim for damages was disingenuous in light of
the fact that it was filed only after her existing claims were mooted. On the contrary,
however, we see nothing illegitimate about a plaintiff seeking a new type of relief
when intervening events occur during the pendency of litigation that makes the
originally sought relief impossible. The circumstances making injunctive relief moot
arose suddenly and unexpectedly when Commissioner Kaplan resigned as part of a
plea bargain in a criminal cause. They are not attributable to any negligence or fault
on the part of McKinley.
P. 15(c). Perhaps the County could rely on the doctrine of estoppel, but it has not shown that it
detrimentally relied on McKinley’s statement nor that granting leave to amend would cause it any
prejudice.
11
Also important to our decision is the absence of any significant prejudice to the
County. See Loggerhead Turtle v. Council of Volusia Cty., 148 F.3d 1231, 1257
(11th Cir. 1998) (noting that “[a]ny amendment to an original pleading necessarily
involves some additional expense to the opposing party,” but adding that this will not
justify denial of leave where the additional expense is “of nominal proportions”
(emphasis added)). McKinley’s amended complaint did not allege any new facts or
grounds for relief, and did not necessitate additional discovery or reformulation of the
County’s legal strategy. Substituting money damages for injunctive and declaratory
relief would not alter one bit the underlying legal analysis of whether McKinley’s
First and Fourteenth Amendment rights were violated. Therefore, permitting an
amendment would not have caused any undue hardship to the County. In sum, the
district court abused its discretion by not allowing McKinley to amend her complaint
to seek damages after Commissioner Kaplan resigned thereby rendering her claim for
reinstatement moot. Because we so hold, it is unnecessary for us to consider the
second question, i.e., whether the subsequent dismissal of McKinley’s complaint
should have been without prejudice.
VACATED AND REMANDED.
12