It's not uncommon to seek leave to amend as an alternative form of relief in opposition to a motion to dismiss or for summary judgment. But to preserve that right to amend for appellate review, some jurisdictions require that you specify how the pleading would be amended or how an alleged pleading deficiency may be cured.
When it comes to proposed amended pleadings, oftentimes, the need for appellate preservation is balanced against the need for brevity. This is not surprising given that clients are sensitive to the costs associated with fully fleshing out legal arguments that are made to preserve alternative relief. Trial counsel are then placed in the difficult position of balancing the need to focus on the defense to a motion to dismiss or for summary judgment, with the need to prepare an alternate strategy for preserving claims and defenses should the trial court determine there is a pleading deficiency. Clients and counsel are often inclined to tackle legal issues as they arise, assuming that more specific alternative relief can be pursued down the line.
A decision from the Eighth Circuit illustrates the importance of addressing potential pleading deficiencies early on and of providing the trial court with a proposed amended pleading, even when leave to amend is sought as an alternative form of relief. In Glickert v. The Loop Trolley Transportation Development District, 2015 WL 4035288 (8th Cir. July 1, 2015), the plaintiffs’ complaint sought declaratory and injunctive relief from the organization and operation of the Loop Trolley Transportation Development District in University City, Missouri. The defendant filed a motion to dismiss and for summary judgment.
In their memorandum of law in opposition to the motion to dismiss, the plaintiffs noted that “[b]ecause [the defendant] combined its motion to dismiss with a motion for summary judgment, filed very early in the course of this suit, it was not practical for Plaintiffs to avail themselves of their right to amend their Complaint as a matter of course,” and requested “permission to amend their Complaint should this Court find any insufficiencies in its allegations."
The trial court dismissed the case for lack of standing without leave to amend. On appeal, the plaintiffs argued the trial court abused its discretion in dismissing their claims without giving them an opportunity to amend to include more particularized allegations to establish their standing.
The Eight Circuit rejected the plaintiffs' argument, because the plaintiffs had not filed a motion to amend or a proposed amendment, nor had they indicated what a proposed amended pleading might have contained. The Eighth Circuit held that under its precedent—to preserve the right to amend—a party must submit a proposed amendment along with a motion to amend.
The safest preservation strategy is to provide the court with the proposed amended pleading. If you find it impractical to draft a proposed amended pleading, at least proffer on the record how the amended pleading would differ from the operative pleading or how an alleged pleading deficiency might be cured.
Failing to provide the trial court with such specificity prevents the court from determining whether a deficiency can be cured, and it prevents the appellate court from determining whether the trial court abused its discretion in not granting leave to amend. Of course, it’s also always important to be familiar and comply with your jurisdiction’s pleading requirements.
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