This piece explores a conflict between the Federal Rules of Civil Procedure (FRCP) and the Local Rules of Civil Procedure (LRCP) that occurs in many federal district courts. Specifically, FRCP 15(a)(1)(B) (Rule 15) grants the plaintiff an express right to “amend [her complaint] once as a matter of course within . . . 21 days after service of a motion under Rule 12(b)” (a motion to dismiss). However, many federal district courts’ LRCP give the plaintiff only fourteen days to respond to a defendant’s motion to dismiss before the court may dismiss her complaint without leave to amend. When taken together, these conflicting rules create what this piece dubs the “Twilight Zone”––that is, a period during which a plaintiff’s express FRCP right to amend her complaint collides with the trial court’s express LRCP power to dismiss it with prejudice.
This piece recommends that district courts eliminate their LRCP-created Twilight Zone to remain in compliance with FRCP 83, which states that all LRCP “must be consistent with [the FRCP].” Further, this piece suggests that as long as the Twilight Zone remains, trial courts should not grant a motion to dismiss without leave to amend until after FRCP 15’s twenty-one-day period has elapsed. Importantly, waiting twenty-two days before granting a motion to dismiss frees appellate courts from having to remand cases on Rule 15 procedural grounds and may obviate plaintiffs filing appeals. Either way, waiting twenty-two days reduces the burden on appellate courts’ judicial resources.
To reach this recommendation, this piece follows a three-part structure. Part I diagrams the LRCP-created Twilight Zone that exists in many jurisdictions. Part II explains an appellate court’s three options when met with an example complaint dismissed in the Twilight Zone. And Part III recommends that district courts amend their LRCP to remove the Twilight Zone—thereby ensuring consistency in the law, reducing uncertainty for litigants, and eliminating unnecessary appeals.
Part I: The “Twilight Zone”
Each district court’s LRCP specifies how many days a plaintiff has to respond to a motion to dismiss before the court can rule on it. Many district courts’ LRCP grant the plaintiff fourteen days to respond, but some district courts grant the plaintiff twenty-one days to respond. See Table 1.
|Court:||Local Rule:||Days Plaintiff has to Respond to a Motion to Dismiss:|
Table 1: Sampling of district courts’ LRCP days allotted to the plaintiff to respond to a defendant’s motion to dismiss.
However, FRCP 15 gives the plaintiff twenty-one days to amend the same complaint that many federal district courts can dismiss with prejudice after fourteen days. Thus, the Twilight Zone’s length is typically seven days. See Figure 1.
Part II: An Appellate Court’s Three Options Following a Twilight-Zone Dismissal
An example illustrates the superposition of FRCP 15 and many district courts’ LRCP for dismissal of a complaint that the plaintiff still has the statutory right to appeal.
Say the plaintiff, a local politician, sues the defendant, a journalist, for defamation in the U.S. District Court for the District of Massachusetts. To succeed on a defamation claim in Massachusetts, a plaintiff must prove “(1) the publication of (2) a false statement (3) of and concerning the plaintiff which was (4) capable of damaging his or her reputation in the community and which (5) either caused economic loss or is actionable without proof of economic loss” (alteration to original). If the plaintiff is a public figure, to succeed on such a claim he must plead the additional element of (6) actual malice as well.
Now suppose that in the complaint, the public-figure plaintiff failed to allege that the defendant published the libelous article about him “with malice.” Shortly thereafter, the defendant files his motion to dismiss, which argues that the trial court must dismiss the complaint because, as pled, it does not allege defamation’s required “malice” element. To correct this oversight, the plaintiff relies on FRCP 15 and decides to wait twenty days before filing his first amended complaint. However, in the Massachusetts federal district court, LRCP 7.1(b)(2) gives the plaintiff only fourteen days to respond to the defendant’s motion to dismiss before the trial court may grant the motion without leave to amend.
Suppose fifteen days after the defendant’s motion to dismiss, the trial court grants the motion without leave to amend (i.e., with prejudice). The plaintiff double checks Rule 15 and confirms that he still had six days to amend his complaint—the same complaint the trial court just dismissed with prejudice. To avoid an immediate appeal, the plaintiff files a FRCP 60(b) Motion for Relief from a Final Judgment (motion for relief), but to no avail. The trial court denies the plaintiff’s motion for relief, even though the plaintiff still had six days to amend his complaint per Rule 15. Now, the plaintiff’s only recourse is to file an appeal.
When faced with a case like the one posed in the foregoing hypothetical, the appellate court has three options: (i) affirm the dismissal; (ii) remand on substantive grounds; or (iii) remand on procedural grounds. See Figure 2.
Option 1, a dismissal, would uphold the trial court’s decision but deprive the plaintiff of his FRCP right to amend. Option 2, a substantive remand, would hold that the plaintiff’s original, unamended complaint did, in fact, state a claim upon which relief could be granted (e.g., if it was plausible that the plaintiff was not a public figure, making the element of actual malice unnecessary to prove). Option 3, a procedural remand, would honor two FRCPs. First, a procedural remand would honor Rule 15’s promise (i.e., the plaintiff has twenty-one days to amend his complaint following the defendant’s motion to dismiss). Second, a procedural remand would honor Rule 83’s promise (i.e., district courts can only promulgate LRCP if they are “consistent,” or at least applied in a way consistent, with the FRCP).
Putting aside substantive remands—which vary depending on how plausible the plaintiff’s allegations of unlawful conduct are—would a federal appellate court affirm a Twilight Zone dismissal or remand it on procedural grounds? Two questions guide the analysis:
- Was it reasonable for the plaintiff to rely on FRCP 15’s twenty-one-day window to amend his complaint?
- Was it within the trial court’s discretion to grant the defendant’s motion to dismiss after the plaintiff’s time to file a response had expired under its LRCP?
To answer question one, the plaintiff’s reliance on FRCP 15’s deadline was reasonable, which suggests that a procedural remand would be appropriate so as not to quash the plaintiff’s statutory right to amend her complaint once within the twenty-one days following a motion to dismiss.
To answer question two, at first glance, the trial court seemingly acted within its discretion by following its LRCP that governs deadlines for responding to a motion to dismiss. However, if that LRCP—for example, D. Mass. LRCP 7.1(b)(2) in the foregoing hypothetical—conflicts with a different FRCP, then FRCP 83 states that it was not within the trial court’s discretion to privilege its own LRCP over a FRCP. Specifically, FRCP 83 grants the district courts authority to promulgate LRCP only if those LRCP are “consistent” with the FRCP—which is not the case here. Since many district courts’ LRCP that govern when a trial court may dismiss a complaint with prejudice are not “consistent” with FRCP 15, all dismissals within twenty-one days of a defendant’s motion to dismiss should be reversible when this procedural defect is present.
To (i) avoid unnecessary appeals; (ii) conserve judicial resources; and (iii) remain in compliance with the FRCP, district courts should implement a small change in their LRCP to remedy this conflict and avoid procedural remands.
Part III: Removing the Twilight Zone
During the Twilight Zone period, plaintiffs are promised a right to amend that many trial courts can extinguish. A simple solution to this contradiction exists: district courts should revise their LRCP to ensure that a trial court cannot dismiss a complaint before the plaintiff’s time to amend it under FRCP 15 has expired. Concretely put, if each district court extended its applicable LRCP to be at least as long as Rule 15’s deadline, that would eliminate the Twilight Zone. (See, e.g., M.D. Fla. LRCP 3.01(c) in Table 1.) Removing the Twilight Zone would also decrease uncertainty for litigants, as plaintiffs would no longer have to guess as to whether a district court would prioritize FRCP 15 over its applicable LRCP or vice versa.
Of course, shortening Rule 15’s deadline to be one day less than the applicable LRCP deadline governing response times for motions to dismiss would also eliminate the Twilight Zone (and expedite trial courts’ dockets). However, this revision would be cumbersome because not all LRCP deadlines are the same. Therefore, such a revision depends on the relevant LRCP. For example, this revision could read that a plaintiff can amend her complaint up until the day before the relevant LRCP requires a response to the defendant’s motion to dismiss—meaning that in the District of Massachusetts, a plaintiff would have thirteen days to amend, whereas in the Middle District of Florida, a plaintiff would have twenty days to amend.
Not only does such a “solution” compound the differences in the LRCP among districts, but it also subordinates the FRCP to the LRCP. Because the FRCP take priority over the LRCP, the FRCP should not seek to accommodate the ninety-four federal district courts. Instead, the federal district courts, in accordance with FRCP 83, should seek to craft LRCP that complement— and will not conflict with—the FRCP. Finally, shortening the plaintiff’s time to amend her complaint would undermine the strong preference of deciding cases on their merits instead of procedural technicalities because one omitted element from a complaint—such as the failure of the public-figure plaintiff above to plead facts related to actual malice in his defamation case—could cause an otherwise meritorious lawsuit to be dismissed with prejudice on the pleadings. Thus, it is preferable that district courts extend their deadlines governing a plaintiff’s response to motions to dismiss to be at least twenty-one days.
However, as long as the LRCP-created Twilight Zone exists, it may be wise for a trial court to postpone any ruling until at least twenty-two days after a motion to dismiss so that the plaintiff has the full twenty-one days that FRCP 15 allows to amend. If district courts avoid ruling on complaints that fall into the Twilight Zone, appellate courts will be relieved from having to expend judicial resources issuing procedural remands based on this conflict of law.
At present, FRCP 15 and many LRCP stand in tension—which creates uncertainty for litigants and may result in avoidable appeals. This piece has identified the Twilight Zone that exists because of the discrepancy between these two sets of rules and has argued that the LRCP should, where necessary, be amended to eliminate this inconsistency.
Eric Clopper is a 2022 J.D. Candidate at Georgetown University.