Renee Bell v. Florida Highway Patrol , 589 F. App'x 473 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11147
Non-Argument Calendar
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D.C. Docket No. 6:05-cv-01806-GAP-DAB
RENEE BELL,
Plaintiff-Appellant,
versus
FLORIDA HIGHWAY PATROL,
LARRY COSTANZO,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 11, 2014)
Before MARTIN, ROSENBAUM and ANDERSON, Circuit Judges.
PER CURIAM:
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Renee Bell, proceeding pro se, appeals the district court’s denial of her
motion seeking leave to file a fourth amended complaint and her motion for
reconsideration of that order. Bell argues here that the district court erred in
deciding she had waived her right to file an amended pleading by appealing the
dismissal of her third amended complaint. After careful review, we affirm.
I.
Bell filed this action in December 2005 against her employer, the Florida
Highway Patrol (FHP), and supervisor, Larry Costanzo. She alleged that the FHP
and Costanzo had defamed her, retaliated against her for filing a worker’s
compensation claim, and violated her rights under the Family Medical Leave Act.
The district court dismissed Bell’s first and second amended complaints for failure
to comply with Federal Rules of Civil Procedure 8 and 10. In October 2009, the
district court found that Bell’s third amended complaint was similarly deficient and
dismissed her complaint with leave to amend within twenty days of that order.
Bell appealed, and this Court affirmed in May 2012. Bell v. Fla. Highway Patrol,
476 F. App’x 856, 857 (11th Cir. 2012) (per curiam).
In November 2013, the district court granted Bell leave to file a fourth
amended complaint. FHP moved for reconsideration of that order, arguing that
pursuant to Schuurman v. Motor Vessel Betty K V, 798 F.2d 442 (11th Cir. 1986)
(per curiam), Bell had waived the right to further amend her complaint by
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appealing the dismissal of her third amended complaint. The district court granted
FHP’s motion for reconsideration, vacating its earlier order and stating that it had
been unaware of Schuurman. It also denied Bell’s motion for reconsideration that
followed. Bell now asks us to reverse both the district court’s denial of her motion
seeking leave to file a fourth amended complaint and its denial of her motion for
reconsideration of that order.
II.
A district court’s decision to grant or deny leave to amend a pleading is
reviewed for abuse of discretion. Garfield v. NDC Health Corp., 466 F.3d 1255,
1270 (11th Cir. 2006). Similarly, a district court’s denial of a motion for
reconsideration is also reviewed for an abuse of discretion. Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000). The only grounds for
granting a motion for reconsideration are newly-discovered evidence or manifest
errors of law or fact. 1 Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per
curiam) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir.1999)) (applying
Fed. R. Civ. P. 59(e)).
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“A post-judgment motion may be treated as made pursuant to either Fed. R. Civ. P. 59 or 60—
regardless of how the motion is styled by the movant—depending on the type of relief sought.”
Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997) (per curiam). Because Bell’s motion
sought reconsideration of an order denying leave to amend, was made within 28 days of the
order, and argued that the order contained errors of law, it “is properly characterized as a Rule
59(e) motion to alter or amend the judgment, rather than a Rule 60 motion for relief from the
judgment.” See, e.g., id.; Finch v. City of Vernon, 845 F.2d 256, 258–59 (11th Cir. 1988) (per
curiam).
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Generally, leave to amend a complaint should be “freely given.” McKinley
v. Kaplan, 177 F.3d 1253, 1258 (11th Cir. 1999) (per curiam) (quotation omitted).
Additionally, an order dismissing a complaint is not final and appealable unless the
order dismisses the entire action or holds that the complaint could not be saved by
amendment. Briehler v. City of Miami, 926 F.2d 1001, 1002 (11th Cir. 1991) (per
curiam). However, in Schuurman, we explained that an order dismissing a
complaint with leave to amend becomes a final decision if the plaintiff elects to file
an appeal rather than an amended complaint. Schuurman, 798 F.2d at 445. Once a
plaintiff chooses to appeal, he also waives the right to later amend his complaint.
Id.; see also McKusick v. City of Melbourne, Fla., 96 F.3d 478, 482 n.2 (11th Cir.
1996). Such a rule both “protects the plaintiff by putting in his hands the decision
of whether or not to treat the dismissal of his complaint as final, and
simultaneously limits his ability to manipulate the rules.” Schuurman, 798 F.2d at445–46.
The district court did not abuse its discretion in granting FHP’s motion for
reconsideration and denying Bell leave to file a fourth amended complaint. Its
initial order granting Bell leave to file a fourth amended complaint overlooked the
fact that she had waived her right to amend when she appealed the dismissal of her
third amended complaint. Schuurman, 798 F.2d at 445; see also Briehler, 926 F.2d
at 1003 (“On the other hand, where a plaintiff chooses to waive the right to amend,
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there is nothing left for the district court to do and the order therefore becomes
final.”). Thus, the district court’s overlooking Schuurman constituted a “manifest
error of law,” justifying its decision to vacate its initial order. See Arthur, 500 F.3d
at 1343.
Neither did the district court abuse its discretion in denying Bell’s
subsequent motion for reconsideration, because she did not present any newly
discovered evidence or identify any errors of law or fact. See id.AFFIRMED.
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