It is not uncommon for a party to seek leave to amend as an alternative form of relief in response to a motion to dismiss or for summary judgment. But it may not be enough to just say that if the court is inclined to grant the motion to dismiss or for summary judgment, then the court should instead grant leave to amend; rather it may be necessary to specify how the pleading may be amended. If this is not done, an appellate court has no basis for determining whether a lower court abused its discretion in dismissing a claim or affirmative defense without providing leave to amend. A recent decision out of the Eighth Circuit illustrates this point.

In Glickert v. The Loop Trolley Transportation Development District, 2015 WL 4035288 (8th Cir. July 1, 2015), the plaintiffs’ complaint sought declaratory and injunctive relief from the organization and operation of the Loop Trolley Transportation Development District in University City, Missouri. The defendant filed a motion to dismiss and for summary judgment.

In their memorandum of law in opposition to the motion to dismiss, the plaintiffs included a brief section noting that “[b]ecause [the defendant] combined its motion to dismiss with a motion for summary judgment, filed very early in the course of this suit, it was not practical for Plaintiffs to avail themselves of their right to amend their Complaint as a matter of course,” and requested “permission to amend their Complaint should this Court find any insufficiencies in its allegations.”

The lower court dismissed the case for lack of standing without leave to amend.

On appeal, the plaintiffs argued that the lower court abused its discretion in dismissing their claims without giving them an opportunity to amend to include more particularized allegations to establish their standing. The Eight Circuit rejected their argument, because the plaintiffs had not filed a motion to amend or a proposed amendment, nor did they indicate what a proposed amended pleading might have contained.

The Eighth Circuit made clear that under its precedent—to preserve the right to amend—a party must submit a proposed amendment along with a motion to amend.

Preservation Issue: When preserving the right to amend a pleading as an alternative form of relief in opposition to a motion to dismiss or for summary judgment, some jurisdictions require that you specify how the pleading may be amended or how an alleged pleading deficiency may be cured.

Tips: Oftentimes, clients are sensitive to the costs associated with fully fleshing out legal arguments that are made to preserve alternative relief. Trial counsel are then placed in the difficult position of balancing the need to focus on the defense to a motion to dismiss or for summary judgment, with the need to prepare an alternate strategy for preserving claims and defenses should the trial court determine there is a pleading deficiency. Clients and counsel are often inclined to tackle legal issues as they arise, assuming that more specific alternative relief can be pursued down the line.

This case illustrates the importance of addressing potential pleading deficiencies early on and of providing the trial court with a proposed amended pleading, even when leave to amend is sought as an alternative form of relief.

If you find it impractical to draft a proposed amended pleading, at least proffer on the record how the amended pleading would differ from the operative pleading or how an alleged pleading deficiency might be cured. Failing to provide the trial court with such specificity prevents the court from determining whether a deficiency can be cured, and it prevents the appellate court from determining whether the trial court abused its discretion in not granting leave to amend. Of course, it’s also always important to be familiar and comply with your jurisdiction’s pleading requirements.