Kelvin Rance v. John Winn , 287 F. App'x 840 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 31, 2008
No. 08-10182 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-80139-CV-DTKH
KELVIN RANCE,
Plaintiff-Appellant,
versus
JOHN WINN, individually and as Commissioner
of the Florida Department of Education,
BILL PALMER, individually and as Director of the
Florida Division of Vocational Rehabilitation,
FLORIDA DEPARTMENT OF EDUCATION,
FLORIDA DIVISION OR VOCATIONAL REHABILITATION,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 31, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Kelvin Rance, proceeding pro se, appeals the district court’s failure to sua
sponte provide him with leave to amend his complaint before dismissing it with
prejudice. We AFFIRM the dismissal.
I.
On February 14, 2007 Rance filed a lawsuit against John Winn
individually and as the Commissioner of the Florida Department of Education; Bill
Palmer individually and as the Director of the Florida Division of Vocational
Rehabilitation; and the Florida Department of Education, Florida Division of
Vocational Rehabilitation. Rance’s complaint alleged that the Division had
improperly denied him vocational rehabilitation services. As a result, the
complaint alleged claims for breach of contract, fraud, negligent misrepresentation,
and violations of the Americans with Disabilities Act, 42 U.S.C. § 12132, and the
Rehabilitation Act of 1973, 29 U.S.C. § 794.
Instead of filing an answer to the complaint, the defendants moved for
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). After Rance
responded, the district court granted the defendants’ motion, dismissing Rance’s
claims with prejudice. Rance timely appealed.
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II.
The only issue that Rance raises on appeal is whether the district court erred
by dismissing his complaint without first granting him leave to amend pursuant to
Fed. R. Civ. P. 15(a). We review a district court’s decision to grant or deny leave
to amend only for an abuse of discretion. Forbus v. Sears Roebuck & Co., 30 F.3d
1402, 1404 (11th Cir. 1994).
Fed. R. Civ. P. 15(a) restricts the discretion of district courts to dismiss
complaints without providing an opportunity for amendment. See Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). That rule states that:
A party may amend the party’s pleading once as a matter of course at
any time before a responsive pleading is served . . . . Otherwise, a
party may amend the party’s pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely granted
when justice so requires.
Fed. R. Civ. P. 15(a). Interpreting the language of the rule, this Court has
recognized that “[w]here a more carefully drafted complaint might state a claim,”
plaintiffs must generally be given at least one chance to amend before their
complaints are dismissed with prejudice. Bryant, 252 F.3d at 1163 (internal
quotation marks and citation omitted) (alteration in original). However, district
courts need not permit amendment where it would be futile to do so. Id.
The proper method for requesting leave to amend a complaint is by filing a
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motion. See Fed. R. Civ. P. 7(b); see also Long v. Satz, 181 F.3d 1275, 1279 (11th
Cir. 1999). “A motion for leave to amend should either set forth the substance of
the proposed amendment or attach a copy of the proposed amendment.” Long, 181
F.3d at 1279. In Long, we held that a plaintiff who had failed to properly follow
this procedure, despite having had ample time to do so, was precluded from
arguing on appeal that the district court had abused its discretion by denying her
leave to amend her complaint. Id. at 1279–80; see also Doe v. Pryor, 344 F.3d
1282, 1288 (11th Cir. 2003) (holding that the district court did not abuse its
discretion by denying the plaintiffs’ motion for reconsideration or, in the
alternative, leave to amend because it “contained neither the proposed amendment
nor the substance of it”); Vanderberg v. Donaldson, 259 F.3d 1321, 1327 (11th Cir.
2001) (affirming the denial of a motion to amend where the plaintiff “presented no
reasons for why the district court should have granted [the motion]; nor did he give
any indication about what the substance of his proposed amendment would be”);
Bankers Ins. v. Fla. Residential Prop. & Cas. Joint Underwriting, 137 F.3d 1293,
1295 n.3 (11th Cir. 1998) (holding that the district court did not abuse its discretion
by failing to sua sponte invite amendment where the plaintiff “never sought to
amend its complaint during the months between the motion for judgment on the
pleadings and the district court’s order, or any time after that order”).
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Rance never filed a motion to amend his complaint, requested leave to
amend his complaint, or moved to vacate the dismissal of his complaint pursuant to
Rule 59(e). Instead, he argues that the district court should have sua sponte
granted him at least one opportunity to amend his complaint before dismissing it
with prejudice. In Wagner v. Daewood Heavy Industries America Corp., 314 F.3d
541 (11th Cir. 2002) (en banc), we held that “[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 before the district court.”
Id. at 542. However, it remains unsettled in this circuit whether the Wagner rule
applies to pro se plaintiffs. See id. at 542 n.1 (“In this opinion, we decide and
intimate nothing about a party proceeding pro se.”).
Under the circumstances of this case, we cannot say the district court abused
its discretion by dismissing Rance’s claims. In his brief to this Court, Rance
expressly waived any argument that he stated a valid claim in his complaint. The
exhibits that Rance attached to his complaint, moreover, support the conclusion
that any attempt to amend his complaint would be futile. And he has failed to offer
either to the district court or to this Court any indication of the substance of his
proposed amendment. In these circumstances, we are unable to say that the district
court abused its discretion by dismissing his complaint without sua sponte granting
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him leave to amend.
AFFIRMED.
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