Plaintiff says X in his original complaint. Plaintiff subsequently amends his complaint to say Y.
The district court thinks that Y (the allegation in the amended complaint) is inconsistent with X (an allegation in the original pleading), so dismisses the lawsuit.
The Ninth Circuit summarily reverses. Holding that factual allegation Y is not, in fact, inconsistent with factual allegation X.
But what if it was?
On that -- admittedly irrelevant (at least here) issue -- both Judge Canby and Judge Kozinski want you to know their views. (While Judge Schroeder, who was also on the motions panel, exercises her right to remain silent.)
There's a prior Ninth Circuit opinion (PAE) that says you can't dismiss an amended complaint merely because it contradicts an earlier complaint. But there's a different prior Ninth Circuit opinion (Reddy) that says that a complaint can be dismissed with prejudice -- i.e., without leave to amend -- if any amended complaint would (impermissibly) contradict the allegations of the original complaint.
Judge Canby thinks those two cases are inconsistent. Judge Kozinski, by contrast, thinks those two authorities are consistent.
So both of 'em write a concurrence that explains their respective views of precedent.
Despite the fact that everyone agrees that this dispute doesn't matter in the slightest in the present case. In which the competing allegations in the various complaints do not, in fact, contradict each other.
It's an interesting dispute. And since Judges Canby and Kozinski think it's valuable to express their views, I'll tell you mine.
Judge Kozinski's a little bit right that the cases are doctrinally distinguishable. He says -- correctly -- that the PAE line of cases holds that you're not allowed to dismiss a complaint on the ground that it contradicts an earlier complaint because there's simply no rule that authorizes such a dismissal. On this point, he's right. You can look at every page of the FRCP and you're not going to find such an express provision. Sure, you might be sanctioned under Rule 11 or the like. But there's no rule that expressly authorizes the actual dismissal of a complaint on the grounds of a factual contradiction.
By contrast, Judge Kozinski says, there is a rule that says that you're not required to grant leave to amend when an amendment would be "futile". That rule, Judge Kozinski says, is why a court is not only allowed to, but must look at the prior complaint to see if any future amendment would plausibly articulate a claim. 'Cause leave to amend is required unless amendments are futile, and amendments are futile if they will contradict a prior allegation. That explains the Reddy line of precedent.
Hence, Judge Kozinski says, the two situations are distinguishable.
And he has a point.
Judge Canby, by contrast, thinks those two lines of precedent aren't rationally distinguishable. And he has a pretty darn good point as well.
Let me articulate Judge Canby's point in a way that's a bit more expansive than the way he puts it. (A feat that's necessary in part because Judge Canby's four-paragraph concurrence doesn't really explain his conclusion apart from pointing out -- correctly -- that the two lines of cases seem darn similar and are facially contradictory.) Here's how I'd put it:
The best argument for inconsistency, in my view, is that it makes absolutely no sense to say that a court must accept an amended complaint that contradicts the original complaint -- i.e., isn't allowed to dismiss the amended complaint on grounds of inconsistency -- and yet is simultaneously allowed to stop the amended complaint from ever being filed in the first place on precisely such inconsistency grounds. Judge Kozinski admits that Ninth Circuit precedent (Reddy) says that a district court can prevent a party from contradicting itself by finding that an amended complaint would contradict the original complaint and hence be "futile" -- thereby dismissing the original complaint without leave to amend and with prejudice. Well, if it's permissible to stop the filing of a contradictory complaint in the first place, then why can't you dismiss that same complaint once it's filed?! A regime that said (1) we can -- and affirmatively want to -- stop people from filing contradictory complaints in the first place, and a district court can permissibly do that, but (2) once a contradictory complaint is filed, we have to let it go forward; well, such a regime would make no sense. It'd be intellectually incoherent. The justification for (1) would be inconsistent with the justification for (2).
It'd be -- ironically enough, given the topic -- inconsistent for the judiciary to so hold.
Now, Judge Kozinski might perhaps respond: "Hey, dude, I just enforce the rules, I don't make 'em. The FRCP says you can dismiss a lawsuit in (1), but doesn't say you can do it in (2). I'm not saying that necessarily makes any sense. But that's what it says, so that's what I'm doing. Your beef is with the Supreme Court and Congress if you want the FRCP as a whole to make sense."
That's a plausible response. But it only goes so far. For two reasons.
First, there are lots of procedural rules that we routinely apply that aren't in the FRCP. Judicial estoppel, for one. Tons of others. So I'm not at all sure you can't say that just like you apply those common law rules to authorize dismissal of complaints, a similar common law rule doesn't authorize dismissal in cases where the amended complaint contradicts the original. See, e.g., dismissals based on judicial estoppel. Oh, and, by the way, among the other common law requirements that we impose is the rule that Judge Kozinski applies regarding futility. Look in the entire FRCP. You won't find the word "futility" once. It's a common law gloss on what it means for "justice" to either allow or disallow amendments. It's a judge-made rule. If that's a judge-made rule against inconsistency in proposed amendments, and you're fine with that, it seems like we can be equally fine with a similar judge made rule against inconsistency in actual amendments as well.
Second, we are interpreting words here. Namely, in situation (1), the meaning of the word "futile" (albeit in the context of what that means for a judge-made doctrine). Because if you really thought that parties were allowed to actually file amend pleadings that contradicted their original complaint -- e.g., that a court was not allowed to dismiss such pleadings -- then it wouldn't be "futile" to allow such an amendment, now would it? And yet Reddy says that it is "futile" to allow amendments that would contradict the original pleading. It's "futile" only if that contradictory amendment would be dismissed. Yet PAE says that such a contradictory amendment cannot, in fact, be dismissed.
Doesn't make sense.
Plus, wholly apart from the logical, doctrinal, and policy-based inconsistencies, there's a practical one as well. Which rule applies when?
Judge Kozinski would say that Reddy applies when a court dismisses an original complaint and is "thinking" about a "hypothetical" amended complaint. That's when you can permissibly reject those complaints that would contain contradictory allegations. Whereas, according to Judge Kozinski, when the amended (contradictory) complaint has already been filed, there's nothing you can do about it (or at least, even if you can sanction it, you can't dismiss it).
But what about when -- as in the present case -- there's an existing original complaint and the plaintiff asks permission to file an amended complaint. Hasn't yet. Is asking (as often required by Rule 15) to file it. What rule? Presumably now there's a text (Rule 15) that says that a court can refuse to allow such an amendment, so those things get bounced, right? Yet doesn't it seem totally bizarre to say that an allegation filed on Day 21 (e.g., as a matter of right) goes forward, even though totally belied by the original pleading, and yet that same allegation filed on Day 22 (e.g., when leave of court is required) gets categorically bounced. As well as that an allegation filed on Day 22 can't be bounced if the adverse party has stipulated to it (e.g., no permission is required).
Not that Judge Canby's view doesn't have distinction problems of its own. For example, let's say that the original complaint says that a tort transpired on December 7, 1941 (a date outside the limitations period), but the amended complaint says it instead transpired on December 7, 2014 (which would be inside it). Absent a darn good explanation (e.g., a typo), a consistent view of inconsistency would say that the amended complaint gets bounced because it contradicts the first.
But what if the situation was reversed; e.g., the original complaint says December 7, 2014 but the amended complaint says 1941? Are we really going to say that the guy can't amend his complaint because it contradicts the first? And what's the remedy: Do we bounce the entire dispute, or do we simply let the first complaint go forward? (Assume that the guy here has an absolute right to amend, so permission isn't required, and the second "automatically" displaces the first. Is there dismissal of the second complaint on inconsistency grounds and then that's it? Seems like it. Even though what we'd really want to do, if justice is our goal (and it is), is to go back to the first.)
So here's where I come out:
Judge Kozinski is right that you can ostensibly distinguish the two cases. In the same way that you could distinguish the two cases by saying: "Well, in one case, the plaintiff's name was an acronym, and in the other case, he had an actual spelled-out name." In short, yeah, you could distinguish the two cases, but that distinguishing characteristic would make no sense. It wouldn't create a good or principled rule. The principle that motivates the one set of cases is intellectually inconsistent from the result in the second group of cases."
Which is a bit more like Judge Canby's position.
So, in the end, we have an interesting -- albeit entirely unnecessary (in the context of the present case, anyway) -- dispute.
One that may well matter in a ton of cases. And that we'll eventually have to, or at least should, get right.
