United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Magistrate Judge
OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO
J. MICHELSON UNITED STATES DISTRICT JUDGE.
Monson brings this § 1983 suit against a number of
Detroit Police Officers. In the late 1990s, Monson was
convicted of second-degree murder. Monson says during the
investigation leading up to his trial, and, later, at his
trial, the Detroit police officers sued here violated a
number of Monson's constitutional rights. So Monson's
first amended complaint alleged federal and state law claims
against the City of Detroit, Detroit's then-police chief,
and the individual officers involved in this case.
time, all Defendants moved to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). (ECF No. 30.) Monson
responded. (ECF No. 33.) At no time did he seek leave to file
another amended complaint, nor did his response indicate how
he would cure the alleged pleading deficiencies.
(Id.) He simply opposed the motion on the merits and
gave no indication that he was able to plead additional
facts. The Court issued a lengthy opinion in which most of
Monson's claims against the individual officers survived,
but his federal claims against Detroit and its then-police
chief were dismissed. (ECF No. 43.) Three months later,
Monson moved for leave to amend a second time. (ECF No. 67.)
Armed with the flaws pointed out in the Court's opinion
and order, Monson thinks he can patch up the dismissed
true that Rule 15 codifies a liberal amendment policy.
See Moncier v. Jones, 557 Fed.Appx. 407, 410 (6th
Cir. 2014). But, at this point, quite a bit stands in the way
of granting Monson leave to amend. One, Rule 15 is not so
liberal as to require leave to amend following a dismissal
pursuant to Rule 12(b)(6). Two, Monson did not follow the
proper procedure for seeking leave to amend. Three, going
back to the drawing board at this stage prejudices the
Defendants. And, four, Monson's proposed amendments are
with the fact that Monson has amended once before. Defendants
have already tested the legal sufficiency of that amended
complaint. And justice does not require Monson have another
shot at amendment following a dismissal pursuant to 12(b)(6).
See Wysong Corp. v. APN, Inc., 889 F.3d 267, 273
(6th Cir. 2018) (citing United States ex rel. Ibanez v.
Bristol-Myers Squibb Co., 874 F.3d 905, 918 n.2 (6th
Cir. 2017) (“Where parties have fully argued the merits
of a 12(b)(6) motion to dismiss and the district court has
duly considered those arguments and issued an opinion
resolving the motion, it is a stretch to say justice requires
granting leave to cure the complaint's deficiencies as
identified in adversarial pleadings and the district
court's order[.]”). So Monson's motion is
subject to denial for this reason alone.
Monson failed to follow the proper procedure to seek leave to
amend. Monson never sought leave during the pendency of the
12(b)(6) motion, nor did he even offer a “bare
statement requesting leave to amend in [his] brief in
opposition to the defendants' motion to dismiss.”
Stambaugh v. Corrpro Cos., 116 Fed.Appx. 592, 598
(6th Cir. 2004) (citing PR Diamonds, Inc. v.
Chandler, 364 F.3d 671, 699 (6th Cir. 2004)). Only after
the Court issued an opinion dismissing some of Monson's
claims did Monson come forward with a better way to plead
those claims. Yet “[r]equiring the district court to
both state the reasons for its dismissal and then allow
[Monson] to amend the Complaint without [Monson] having asked
permission would be akin to mandating the district court to
issue an advisory opinion.” Winget v. JP Morgan
Chase Bank, N.A., 537 F.3d 565, 573 (6th Cir. 2008). So
once again, Monson's motion to amend is subject to
letting Monson replead, now, would prejudice the Defendants.
Monson wants to go back to square one for a second time, this
time with help from the Court's opinion. Under the
circumstances, Monson's motion is dilatory. See Dry
v. Methodist Medical Center, Inc., 893 F.2d 1334
(table), 1990 U.S. App. LEXIS 721, at *16-17 (6th Cir. Jan.
19, 1990). Defendants have already expended time and
resources testing the legal sufficiency of Monson's first
amended complaint. And further litigation on the pleadings
just serves to needlessly prolong this case. That is
especially so because Monson has pled some claims that live
to see discovery.
and briefly, Monson's proposed amendments are futile.
Having reviewed the amendments Monson proposes, and having
read the Defendants' response, the Court agrees that
Monson's amended claims would not survive a 12(b)(6)
motion. See SFS Check, LLC v. First Bank of Del.,
774 F.3d 351, 355 (6th Cir. 2014). So for the reasons stated
in the Defendants' response, Monson's second amended
complaint is futile and his motion for leave to amend is
subject to denial for that reason as well.
of these reasons, Monson's motion to amend ...