UNITED STATES of America ex rel. Jeffrey D‘AGOSTINO, Plaintiff, Appellant, v. EV3, INC., John Hardin, Microtherapeutics, Inc., and Brett Wall, Defendants, Appellees.
No. 14-2145.
United States Court of Appeals, First Circuit.
Sept. 30, 2015.
We understand appellant‘s concern. It would indeed be inappropriate for a district court to impose a variant sentence on a defendant because the district court regarded the manner in which the local courts generally sentenced other persons to be too lenient. It is also true that a sentencing court may abuse its discretion by focusing “too much on the community and too little on the individual.” Flores-Machicote, 706 F.3d at 24. However, the fact that the court noted its perception that the local criminal justice system is too lenient does not in and of itself render its sentence procedurally unreasonable. The question is whether the court properly focused on the defendant‘s particular circumstances. Id. at 23-24 (holding that a district court did not abuse its discretion by stating that “local courts are incapable of managing [gun-related cases]” and “[t]he word has to spread that this Court is going to be extremely harsh with defendants who conduct and carry out gun-related crimes” because it gave “individualized attention to the defendant‘s case“). As evident from the language quoted in section B.1, supra, where the court detailed the appellant‘s convictions in the Commonwealth court and the sentences he received, the court was simply saying that it viewed appellant‘s own criminal history as more serious than the actual sentences received might imply given the crimes committed. Although the court viewed the history of sentences that appellant received in that system as emblematic of an overall laxity in the system, the upward variance it imposed on appellant was in response to appellant‘s particular sentencing history and not the court‘s perception of the local system‘s laxity generally. The court imposed the sentence it felt appellant‘s criminal conduct merited. Accordingly, it did not abuse its discretion.
Affirmed.
Joshua S. Levy, with whom Mitchell Stromberg, Bryan Pennington, and Ropes & Gray LLP were on brief, for appellees ev3, Inc. and Microtherapeutics, Inc.
Stephen G. Huggard, with whom Elizabeth H. Kelly and Locke Lord LLP were on brief, for appellee John Hardin.
Martin F. Murphy, Amanda S. Hainsworth, and Foley Hoag LLP on brief for appellee Brett Wall.
Before HOWARD, Chief Judge, SELYA and LIPEZ, Circuit Judges.
SELYA, Circuit Judge.
Plaintiff-appellant Jeffrey D‘Agostino (the relator) challenges both the dismissal of his qui tam action and the antecedent denial of leave to further amend his complaint. For obvious reasons, we consider the second challenge first. That challenge rests in part on a novel interpretation of the 2009 amendments to Rule 15 of the Federal Rules of Civil Procedure. While we reject that novel interpretation, we nonetheless conclude that the district court appraised the relator‘s request for leave to amend under the wrong legal standard. Consequently, we vacate the judgment below and remand for further proceedings.
I. BACKGROUND
In October of 2010, the relator filed a qui tam action on behalf of the United States, twenty-five states, and the District of Columbia. His complaint named his former employer—ev3, Inc.—as the sole defendant and asserted a golconda of claims under the False Claims Act (FCA),
The complaint was filed under seal and service was initially suspended. See
The action remained under seal while the United States looked into the relator‘s charges. In October of 2013, the United States decided not to intervene. See
The defendants timely filed their motions to dismiss. They argued that the court lacked jurisdiction by reason of the FCA‘s public disclosure bar, see
Four days before his opposition to the motions to dismiss was due, the relator filed a fourth amended complaint. This edition of the complaint dropped claims against two defendants, abandoned certain legal theories, and added factual allegations responsive to the motions to dismiss. Instead of requesting leave to amend, the relator filed an accompanying motion asserting that he had an absolute right to amend his complaint under
The defendants moved to strike the fourth amended complaint, arguing that the relator had already exhausted his one amendment as of course. They added that the court should not treat his motion as a request for leave to amend. The court agreed that the relator had used up his one-time right to amend as a matter of course. But the court construed the relator‘s filings liberally as a request for leave to amend, concluded that
The relator subsequently filed his opposition to the motions to dismiss,1 which included a short section conditionally requesting leave to amend the complaint further should the court determine that any claims were subject to dismissal. Counsel reiterated that request several times at the ensuing hearing on the motions to dismiss. The district court reserved decision and subsequently dismissed the case with prejudice. In its written rescript, the court concluded that the FCA‘s public disclosure bar deprived it of jurisdiction over certain allegations. See United States ex rel. D‘Agostino v. EV3, Inc., No. 10-11822, 2014 WL 4926369, at *5-6 (D.Mass. Sept. 30, 2014). As to the remaining allegations, the court ruled that the third amended complaint failed to identify any false claims with the specificity demanded by
II. ANALYSIS
On appeal, the relator advances two basic claims of error. First, he contends that the district court improperly thwarted his efforts to amend his complaint. Second, he challenges the court‘s dismissal of his complaint and the subsidiary legal determinations undergirding that dismissal. We start—and end—with the first claim of error.
We review the grant or denial of leave to amend for abuse of discretion. See Nikitine v. Wilmington Trust Co., 715 F.3d 388, 389 (1st Cir. 2013). In conducting this tamisage, we defer in substantial
To put the relator‘s assignment of error in perspective, we rehearse the applicable procedural framework. Requests to amend a complaint are typically evaluated under Rule 15, which provides that
[a] party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
At a certain point, this amendment-friendly regime may cease to govern. Rule 16 directs a district court to issue a scheduling order charting the anticipated course of the litigation. See
Against this backdrop, we turn to the relator‘s assignment of error. To begin, he hypothesizes that Rule 15(a)(1) granted him an absolute right to file the fourth amended complaint without first obtaining leave of court. This hypothesis is nothing more than wishful thinking.
Rule 15(a)(1) explicitly states that a party is entitled to amend “once as a matter of course.”
The relator demurs. He reasons that, pursuant to the 2009 revisions to Rule 15, amendment as a matter of course may be made “within ... 21 days after service of” a defendant‘s answer or responsive motion,
A party may amend its pleading once as a matter of course:
(A) before being served with a responsive pleading; or
(B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.
Two of these changes are arguably relevant here.3 The Rule was revised so that “the right to amend once as a matter of course [now] terminates 21 days after service of a motion under Rule 12(b)” and “is no longer terminated by service of a responsive pleading.” Id. The advisory committee‘s focus on the time at which the right to amend terminates and its concomitant silence concerning changes to when such an amendment may first be made makes abundantly clear that, in this context, the word “within” merely specifies the point at which the right expires.
Nothing else in either the text of Rule 15 or in the advisory committee‘s notes evinces an intent to confine amendments as a matter of course under Rule 15(a)(1)(B) to a narrow window following service of an answer or responsive motion. Nor do these materials evince any intent to rescind the historic limitation of amendment as a matter of course to one such amendment per plaintiff per case. The Rule‘s traditional restriction of amendments as a matter of course to one per plaintiff per case was not modified. Had the drafters intended so dramatic a change in long-settled procedure, they surely would have chosen language indicating as much and explained this change in the commentary. Here, however, the advisory committee‘s notes imply the contrary; they discuss changes only to the time at which the right to amend as a matter of course terminates.
To say more on this point would be supererogatory. We hold, without serious question, that a plaintiff may amend a complaint only once as a matter of course under
This brings us to the relator‘s claim that even if he did not have an unfettered
Having decided that the question of leave to amend was properly before it, the court proceeded to answer that question by applying Rule 16(b)‘s good cause standard. In the circumstances of this case, that was error. Cf. Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013) (per curiam) (holding that the good cause standard, rather than the leave freely given standard, applies when a scheduling order sets a deadline for amending the pleadings).
As we previously explained, requests for leave to amend are normally evaluated under Rule 15(a)‘s leave freely given standard. When made in derogation of a scheduling order, however, Rule 16(b)‘s more stringent good cause standard takes precedence. See id. But in this case the district court‘s scheduling order did not specify any deadline for amending the pleadings and, thus, the gears of Rule 16(b) were not engaged.
Notwithstanding this omission in the scheduling order, the court applied
When a litigant seeks leave to amend in defiance of a deadline delineated in a scheduling order, the rationale for applying an elevated good cause standard is both obvious and pragmatic. Were a district court powerless to enforce such deadlines, scheduling orders would be little more than aspirational statements, to be disregarded by the parties whenever compliance proves inconvenient. See O‘Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir. 2004). Properly deployed, the elevated good cause standard puts teeth into Rule 16(b) scheduling orders and “preserves the integrity and effectiveness of [such] scheduling orders.” Id. In other words, the specter of Rule 16(b)‘s less amendment-friendly standard acts as one of the sticks through which compliance with a scheduling order is enforced.
Deployment of the good cause standard was not warranted here. Since the scheduling order in this case did not even mention amendments to the pleadings, let alone impose any deadlines for the filing of amended pleadings, moving to amend did not show any disrespect for court orders. Moreover, the relator had neither notice that an elevated standard would be applied to his motion nor any reason to expect that it would. Basic notions of due process counsel that litigants are entitled to rely on established procedural rules—and those rules cannot be altered at a court‘s whim. Cf. Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.“).
The fact that the relator sought to amend only a few days before his opposition
The defendants contend that the court‘s failure to specify a deadline for amending the pleadings is irrelevant because the court must have thought—based on the travel of the case—that there would be no further amendments to the complaint when it issued its scheduling order. But nothing of this sort is apparent from the record, and the relator could not be expected to divine from the district court‘s silence that future amendments were either off limits or would be subjected to a more stringent standard of review. See Weisburgh v. Fidelity Magellan Fund (In re Fidelity/Micron Sec. Litig.), 167 F.3d 735, 737 n. 1 (1st Cir. 1999). We hold, therefore, that the district court erred in applying Rule 16(b)‘s good cause standard to the relator‘s proposed fourth amended complaint.
The matter of remedy remains. Ordinarily, a district court‘s application of an erroneous legal standard is a per se abuse of discretion, which necessitates remand. See In re Grand Jury Subpoena, 138 F.3d 442, 444, 445-46 (1st Cir. 1998). There is, however, a narrow exception for instances in which application of the correct legal standard can lead to only one result. See id. at 446. Where uncertainty lurks, remand is the appropriate course. See United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 733-34 (1st Cir. 2007).
We cannot say with certainty that the district court would not have allowed the fourth amended complaint if it had applied the appropriate legal standard. Rules 15(a) and 16(b) engender different inquiries. See O‘Connell, 357 F.3d at 155. Here, the district court made no findings sufficient to permit us to predict confidently how it would have ruled under the
Let us be perfectly clear. We do not suggest that the district court will be compelled to grant the motion to amend on remand. After all, there are myriad reasons that might justify the denial of a motion for leave to amend, including undue delay, repeated failure to cure deficiencies, or futility. See Foman v. Davis, 371 U.S. 178, 182 (1962). “The number and nature of prior amendments to a complaint” are also relevant considerations. ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 56 (1st Cir. 2008). The rub, however, is that the district court did not address these factors in any meaningful way, and none of them appears to mandate the denial of leave to amend. In the last analysis, the matter is one committed to the sound discretion of the district court, and the relator is entitled to have the district court exercise that discretion under the proper legal standard.
III. CONCLUSION
We need go no further.5 For the rea-
Vacated and remanded.
SELYA
CIRCUIT JUDGE