09-3921 Alioto v. Town of Lisbon

Listen to this article

Civil Procedure
Dismissal; waiver

Where a plaintiff did not respond to a motion to dismiss, but instead moved to amend the complaint, after the time for amendment had passed, the district court properly dismissed the action.

“Although Alioto cites two cases in support of his argument that ‘a motion for leave to amend [an] allegedly deficient complaint is an appropriate response to a motion to dismiss for failure to state a claim,’ the cases he cites do not support the proposition he advances. The case of Elliott v. Foufas, 867 F.2d 877, 883 (5th Cir. 1989), merely remanded a case and in the process directed a district court to consider a motion for leave to amend the complaint. And Mayes v. Leipziger, 729 F.2d 605, 607-08 (9th Cir. 1984), dealt with an amendment as a matter of right under Federal Rule of Civil Procedure 15(a)(1). Our case law, too, makes clear that a motion to dismiss under Rule 12(b)(6) is not a responsive pleading and so, if an answer has not been filed, a plaintiff ordinarily retains the ability to amend his complaint once as a matter of right, even after a court grants a motion to dismiss. Foster v. DeLuca, 545 F.3d 582, 583-84 (7th Cir. 2008). As we noted above, however, the defendants filed their motions to dismiss under Rule 12(c). Answers had been filed and the time for amending the complaint as a matter of right had long since passed. Mayes does not say that filing a non-responsive response brief along with a motion to amend is an ‘appropriate’ response to a motion to dismiss. Given that Alioto no longer retained the right to amend his complaint, the appropriate response to the motions to dismiss was to oppose the motions or risk abandoning the litigation.”

Affirmed.

09-3921 Alioto v. Town of Lisbon

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Flaum, J.

Full Text