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11th Circuit Says No Right to Amend Complaint If You Never Sought Leave

You know how after Judge Middlebrooks grants a motion to dismiss or for sj he just immediately closes the case?

Well, here's an order today from the 11th Circuit in a qui tam case that says this is hunky-dory:

We reject Sanchez?s argument that the district court should have allowed her to amend her complaint before dismissing these claims. ?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 []or requested leave to amend before the district court.? Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Sanchez was represented by counsel but did not move for leave to amend, and we cannot conclude that the district court abused its discretion by failing to grant leave that was never requested. Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir. 1999).

So the respondent should ask in the response brief for leave to replead, as an alternative, if the motion to dismiss is granted?

Or I suppose the lawyer could have moved to reopen the case, seek leave to amend and attach a proposed amended complaint?

Full post as published by South Florida Lawyers on February 18, 2010 (boomark / email).