Affordable Communities of Missouri, LP v. EF&A Capital Corporation et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff Affordable Communities of Missouris Motion for Leave to File First Amended Complaint is DENIED. Doc. 91 . Signed by District Judge Charles A. Shaw on 8/13/2013. (RAK)
Affordable Communities of Missouri, LP v. EF&A Capital Corporation et al
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
AFFORDABLE COMMUNITIES OF
FEDERAL NATIONAL MORTGAGE
No. 4:11-CV-555 CAS
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Affordable Communities of Missouri’s (“ACM”)
Motion for Leave to File First Amended Complaint. Defendant Federal National Mortgage
Association (“FNMA”) opposes the motion and it is fully briefed. For the following reasons, the
motion will be denied.
ACM originally filed this action in state court against a mortgage lender and FNMA, which
purchased ACM’s loan from the mortgage lender, asserting claims for negligent misrepresentation,
breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment in
connection with the lender’s demand that ACM pay a prepayment penalty. The case was removed
to this Court and FNMA filed a motion to dismiss. The Court granted the motion to dismiss on
August 22, 2011, and dismissed all of ACM’s claims against FNMA with prejudice. The Court
subsequently granted the lender’s motion to dismiss some but not all of the claims against it. ACM
and the lender later settled and submitted a Stipulation for Dismissal in May 2012. ACM then
appealed the dismissal of its claims against FNMA in June 2012.
The Eighth Circuit Court of Appeals affirmed in part and reversed in part this Court’s
dismissal of ACM’s claims against FNMA. The Eighth Circuit affirmed the dismissal of ACM’s
claims for negligent misrepresentation, breach of the covenant of good faith and fair dealing, and
unjust enrichment, and reversed the dismissal of ACM’s breach of contract claim. Affordable
Communities of Mo. v. Federal Nat’l Mortgage Ass’n, 714 F.3d 1069, 1077 (8th Cir. 2013). The
Eighth Circuit remanded for further proceedings consistent with its opinion. Id.
The Eighth Circuit affirmed the dismissal of ACM’s negligent misrepresentation claim in
Count I, finding that ACM failed to plead facts demonstrating that the lender had the power to alter
the relationship between FNMA and ACM when the alleged misrepresentation occurred, and that
ACM failed to plead facts demonstrating the first element of an agency relationship under Missouri
law. Id. at 1075. As a result, the Eighth Circuit did not need to consider this Court’s holding that
ACM also failed to plead facts demonstrate the second and third elements of an agency relationship
under Missouri law. Id.
The Eighth Circuit affirmed dismissal of the breach of implied covenant of good faith and
fair dealing claims in Count III, because ACM failed to plead facts showing that FNMA acted in bad
faith and plead only conclusory statements. Id. at 1077. Finally, the Eighth Circuit affirmed
dismissal of the unjust enrichment claim in Count IV on the basis that ACM’s rights were based on
contract, and ACM could not recover under both an express contract and the equitable remedy of
unjust enrichment. Id.
Following remand, ACM filed the instant motion for leave to file an amended complaint.
ACM seeks to amend its dismissed claims of negligent misrepresentation and breach of the implied
covenant of good faith and fair dealing, and asserts that its proposed amended complaint “addresses
the pleading concerns set forth by this Court and the Eighth Circuit” on those claims. ACM’s Mot.
for Leave at 4, ¶ 12. ACM asserts that “through preliminary discovery with [the lender, ACM] came
into possession of facts that substantially supports its claims for negligent misrepresentation and
breach of the implied covenant of good faith and fair dealing.” ACM’s Mem. Supp. Mot. for Leave
at 4. ACM asserts that because FNMA responded to its original complaint with a motion to dismiss,
it is entitled to amend its complaint as of right under Rule 15(a)(1) or, alternatively, by leave of
Court under Rule 15(a)(2). ACM contends that the Eighth Circuit did not direct the entry of
judgment on Counts I and III and did not opine on whether an amendment to the complaint to cure
the alleged pleading deficiencies would be appropriate.
FNMA responds that ACM cannot amend its complaint following a dismissal with prejudice
and the affirmance of that dismissal, because the causes of action in those counts have been rejected
as a matter of law in a final judgment. Specifically, FNMA asserts that Counts I and III have been
dismissed and finally resolved with prejudice as a matter of law; that Rule 15 does not allow
amendment as a matter of right under Rule 15(a)(1) or freely given when justice requires under Rule
15(a)(2) following a dismissal with prejudice and appellate affirmance of that decision; and that
once ACM chose to appeal this Court’s dismissal with prejudice of Counts I and III, any possible
right to amend those counts, by leave of Court or otherwise, was waived by ACM.
ACM’s motion for leave to amend its complaint post appeal is based solely on Rule 15 of
the Federal Rules of Civil Procedure, which governs amended and supplemental pleadings. Under
Rule 15, service of either a responsive pleading or a Rule 12 motion, whichever is earlier, starts a
twenty-one day period for exercising the right to amend “as a matter of course.” Rule 15(a)(1)(B),
Fed. R. Civ. P. Because a motion to dismiss under Rule 12(b)(6) was filed in this case on May 2,
2011, and ACM did not file an amended complaint within twenty-one days of that filing, its right
to amend as a matter of course expired more than two years ago. Rule 15(a)(2) provides that in all
other cases, leave of Court or the opposing party’s written consent is required for amendments, and
that leave should be freely given “when justice so requires.” Rule 15(a)(2), Fed. R. Civ. P. ACM
moves, in the alternative, for leave under Rule 15(a)(2).
The law in this circuit is that “after a court dismisses a complaint, a party’s right to amend
under Rule 15 terminates.” Geier v. Missouri Ethics Comm’n, 715 F.3d 674, 677 (8th Cir. 2013)
(cited case omitted). A party may still file a motion for leave to amend its complaint, however, even
though it has lost its right to amend. Id. “Post-dismissal motions to amend are disfavored.” In re
Medtronic, Inc., Sprint Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1208 (8th Cir. 2010).
“Different considerations” apply to motions filed after dismissal, including “interests of finality,”
but courts “may not ignore the Rule 15(a)(2) considerations that favor affording parties an
opportunity to test their claims on the merits[.]” United States ex rel. Roop v. Hypoguard USA, Inc.,
559 F.3d 818, 823-24 (8th Cir. 2009).
Nonetheless, it is well established that granting a post-dismissal “motion for leave to amend
is inappropriate . . . if the district court has indicated either that no amendment is possible or that
dismissal of the complaint also constitutes dismissal of the action.” Geier, 715 F.3d at 677 (internal
quotation marks and quoted case omitted). Dismissing a complaint constitutes dismissal of the
action when a court “states or clearly indicates that no amendment is possible–e.g., when the
complaint is dismissed with prejudice[.]” Id. (quoted case omitted). Here, because the Court
dismissed ACM’s claims against FNMA with prejudice, granting a post-dismissal motion to amend
would be inappropriate. ACM’s assertion that this “Court has not ‘clearly indicated’ that no
amendment is possible,” Reply Mem. at 8, is incorrect because the dismissal was made with
prejudice. See Geier, 715 F.3d at 677.
Even if Rule 15(a)(2)’s considerations were applicable to ACM’s motion, the determining
factor here is that ACM’s motion for leave to amend its complaint was filed not only post dismissal,
but post affirmance of the dismissal on appeal. As a result, the motion implicates the “law of the
case” doctrine and its close relation, the mandate rule. See United States v. Bartsh, 69 F.3d 864, 866
(8th Cir. 1995). “On remand, a district court is bound to obey strictly an appellate mandate.”
Bethea v. Levi Strauss and Co., 916 F.2d 453, 456-57 (8th Cir. 1990). “The law of the case doctrine
prevents the relitigation of a settled issue in a case and requires courts to adhere to decisions made
in earlier proceedings in order to ensure uniformity of decisions, protect the expectations of the
parties, and promote judicial economy.” Bartsh, 69 F.3d at 866 (citing Bethea, 916 F.2d at 456-57).
“Law of the case terminology is often employed to express the principle that inferior
tribunals are bound to honor the mandate of superior courts within a single judicial system.” Bartsh,
id. (quoted source omitted). When an appellate court remands a case to the district court, “All issues
decided by an appellate court become the law of the case. This rule extends not only to actual
holdings but also to all issues implicitly settled in prior rulings. On remand, a district court is bound
by all such determinations.” Jones v. United States, 255 F.3d 507, 510 (8th Cir. 2001) (internal
citations omitted). “If there are no explicit or implicit instructions to hold further proceedings [on
remand], a district court has no authority to re-examine an issue settled by a higher court.” Bethea,
916 F.2d at 456 (cited cases omitted).
The Court concludes that the mandate rule and the law of the case doctrine require the denial
of ACM’s post-appeal motion for leave to file an amended complaint. The Order of Partial
Dismissal expressly dismissed ACM’s claims with prejudice. See Order of Partial Dismissal (Doc.
38). ACM’s Notice of Appeal states that Counts I - IV of its Petition were dismissed with prejudice
(Doc. 81); thus, the Eighth Circuit was aware that the dismissal was with prejudice. ACM could
have asked the Eighth Circuit to order this Court to permit it to amend its complaint, but there is no
indication it did so. The Eighth Circuit affirmed this Court’s dismissal with prejudice of Counts I,
III and IV and entered its judgment accordingly, making the dismissal with prejudice a final
judgment.1 The Eighth Circuit could have modified the dismissal to be without prejudice, or ordered
this Court to allow ACM to file an amended complaint following remand, but it did not do so.
Although the Eighth Circuit’s opinion does not expressly state that ACM may not amend its
complaint on remand, its affirmance of the dismissal of Counts I, III and IV with prejudice is a final
determination of those claims that is the law of the case. The Eighth Circuit gave no explicit or
implicit instructions to hold further proceedings on the dismissed counts on remand, and therefore
under the mandate rule this Court has no authority to reexamine the issues the appellate court settled.
“[A] mandate is controlling as to matters within its compass[.]” Sprague v. Ticonic National Bank,
307 U.S. 161, 168 (1939) (cited case omitted). The fact that the Eighth Circuit did not direct this
Court to enter judgment on the dismissed counts does not mean that ACM may amend post appeal.
The Order of Partial Dismissal with prejudice was a final order. By affirming the dismissal of
Counts I, III and IV and entering its judgment, the Eighth Circuit left that final order in place as to
those counts. The Court therefore concludes the Eighth Circuit’s mandate implies that post-appeal
amendment of the dismissed counts is precluded, and that reassertion of the claims is barred.
Finally, ACM asserts in its reply memorandum that to the extent this Court determines Rule
15(a)(2)’s standard does not apply to its motion for leave to amend, the Court could consider the
motion under the Rule 60(b) standard for granting relief from a prior judgment. ACM invokes Rule
60(b)(2), which permits a court to relieve a party from judgment where there is “newly discovered
The Eighth Circuit’s affirmance of the dismissal of Count III was on different grounds than
articulated by this Court.
evidence that, with reasonable diligence, could not have been discovered in time to move for a new
trial under Rule 59(b).” Rule 60(b)(2), Fed. R. Civ. P.
A leading federal practice treatise states that a party seeking to amend following entry of a
final judgment must proceed under Rule 59(e) or Rule 60:
After a court dismisses an action and enters a final judgment, a
plaintiff’s ability to amend, whether “as a matter of course” or even by leave
of court, is subject to limitations on the remedies available after judgment.
Once a final judgment has been entered, the district court lacks power to rule
on a motion to amend unless the party seeking leave first obtains relief under
Rule 59(e) or 60. Therefore, a plaintiff may be granted leave to amend by the
district court only if that court agrees to alter or reopen the judgment under
Rule 59, that court agrees to set it aside under Rule 60, or there is a timely
appeal and the judgment is set aside on appeal.
3 James Wm. Moore, et al., Moore’s Federal Practice § 15.13 (3d ed. 2013). The Court will
therefore consider ACM’s motion as having been made under Rule 60(b), despite its belated
reference to that rule.
ACM states that after its claims against FNMA were dismissed, it proceeded to preliminary
discovery with now-dismissed defendants EF&A Capital Corporation and EF&A Funding, LLC
(collectively “EFA”), FNMA’s “lender partner,” and obtained evidence that “directly challenges the
Court’s original basis for dismissal and the Eighth Circuit’s rationale for affirmance that the
[petition’s] factual allegations did not reflect a principal-agent relationship prior to EFA assigning
to loan to Fannie Mae.” Reply at 11-12. ACM asserts that it was not “able to complete its
investigation or gain access to all relevant evidence until after this Court entered final judgment of
dismissal,” and therefore relief under Rule 60(b) is appropriate. Id.
This argument is unavailing. While an appellate court’s final order does not strip a district
court of post-judgment authority to entertain the merits of a motion under Rule 60(b), the rule cannot
be used to ignore or reverse a mandate. Jones v. United States, 255 F.3d 507, 510-11 (8th Cir. 2001)
(internal citations omitted). Because the Court has concluded that the Eighth Circuit’s mandate is
a final judgment on Counts I and III that does not permit post-appeal amendment of those counts,
ACM’s Rule 60(b) motion must be denied.
Even if the Eighth Circuit’s mandate did not preclude the Court from considering ACM’s
motion for post-appeal amendment, the motion must still be denied. “Motions under Rule 60(b)(2)
on the ground of newly discovered evidence are viewed with disfavor.” U.S. Xpress Enters., Inc.
v. J.B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003). “To prevail on a . . . Rule 60(b)(2)
motion, a party must show that (1) the evidence was discovered after trial; (2) the movant exercised
due diligence to discover it before the end of trial; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence would probably produce a different result.”
Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1036 (8th Cir. 2007) (cited cases omitted). Motions
under Rule 60(b) must be made “within a reasonable time,”and motions under subparts (1), (2) and
(3) of the Rule must be made “no more than a year after the entry of the judgment or order or the
date of proceeding.” Rule 60(c)(1), Fed. R. Civ. P.
ACM’s motion for leave to amend was filed on June 17, 2013, twenty-two months after the
dismissal of its claims against FNMA and more than a year after this case was closed on May 10,
2012. ACM could have filed a Rule 60(b) motion with this Court after its discovery of the claimed
new evidence, but it did not do so and instead filed its appeal. It is well established that the
pendency of an appeal does not toll the one-year period for filing motions under Rule 60(b)(1)-(3).
Federal Land Bank of St. Louis v. Cupples Bros., 889 F.2d 764, 766 (8th Cir. 1989). Therefore,
ACM’s Rule 60(b)(2) motion is untimely. See Rule 60(c)(1).
For the foregoing reasons, the Court finds that ACM’s Motion for Leave to File First
Amended Complaint must be denied.
IT IS HEREBY ORDERED that plaintiff Affordable Communities of Missouri’s Motion
for Leave to File First Amended Complaint is DENIED. [Doc. 91]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 13th day of August, 2013.
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