CMR Construction and Roofing, LLC v. UCMS, LLC

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11183
Non-Argument Calendar
____________________
CMR CONSTRUCTION AND ROOFING, LLC,
Plaintiff-Appellant,
versus
UCMS, LLC,
d.b.a. Universal Contracting Florida,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00867-JLB-MRM
____________________
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2 Opinion of the Court 21-11183
Before J ORDAN, LAGOA , and BRASHER , Circuit Judges.
L AGOA , Circuit Judge:
CMR Construction and Roofing, LLC (“CMR”), appeals
from the district court’s order dismissing its suit against UCMS,
LLC (“UCMS”), for tortious interference and for violating Florida’s
Deceptive and Unfair Trade Practices Act (“FDUTPA”). The dis-
trict court dismissed CMR’s complaint for failing to plausibly plead
its causes of action. After its complaint was dismissed, CMR filed
two motions for reconsideration and a motion to amend its com-
plaint. The district court denied those motions after determining
that amending the complaint was futile.
On appeal, CMR contends that the district court erred in dis-
missing CMR’s complaint and in denying CMR’s subsequent mo-
tions. After careful review, we affirm the district court’s orders.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April 2018, CMR contracted with the Orchards Condo-
minium Association, Inc. (the “Association”), a residential condo-
minium association in Naples, Florida, to repair damage to the As-
sociation’s property related to Hurricane Irma and to perform roof-
ing services. In exchange for performing this work, the Association
directed its insurer, Empire Indemnity Insurance Company (“Em-
pire”), to pay CMR for its services.
According to CMR, it performed under the contract and pur-
sued payment from Empire. But, in May 2020, the Association
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21-11183 Opinion of the Court 3
negotiated with a different construction company, UCMS, to per-
form the same work that CMR had a pre-existing contract to per-
form. The Association demanded that CMR cease and desist all
work and entered into an agreement with UCMS.
CMR filed separate lawsuits against the Association and
UCMS. This appeal concerns the suit CMR filed against UCMS for:
(1) tortious interference with contract; (2) tortious interference
with an advantageous business relationship; and (3) violating
FDUTPA.
In support of CMR’s tortious interference claims, CMR al-
leged that UCMS submitted a bid, as part of “a competitive bidding
process,” to perform the same construction work CMR had a pre-
existing contract to perform. But, according to CMR, UCMS knew
of CMR’s contractual and business relationships with the Associa-
tion. And, despite that knowledge, UCMS negotiated and con-
tracted with the Association to perform, and submitted building
applications for, the same construction repair work that CMR had
a pre-existing contract to perform. CMR further alleged that
UCMS “did not have [a] justification or privilege in procuring” the
Association to breach its contract with CMR. But CMR did not
allege facts in support of UCMS’s alleged knowledge or lack of jus-
tification.
In support of CMR’s FDUTPA claim, CMR alleged that
UCMS “wrongfully and unjustifiably interfere[d] with and pro-
cure[d] the breach” of CMR’s contractual and business relation-
ships with the Association. In so doing, CMR relied on similar
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4 Opinion of the Court 21-11183
allegations to the ones supporting its claims for tortious interfer-
ence—i.e., that UCMS negotiated and contracted with the Associ-
ation to perform work that CMR had a pre-existing contract to per-
form. CMR further alleged that UCMS’s conduct harmed CMR
because CMR expended money and resources to perform its con-
tractual obligations. As remedies for its FDUTPA claim, CMR
sought both monetary damages and injunctive relief. CMR also
asserted a separate “cause of action” for temporary and permanent
injunctions to prohibit UCMS from performing any of the work
that CMR was contracted to perform.
UCMS moved to dismiss CMR’s complaint for failure to
state a claim. UCMS argued that CMR’s complaint lacked suffi-
cient factual allegations to support claims for tortious interference
and for a violation of FDUTPA, and that CMR was not entitled to
injunctive relief.
The district court granted UCMS’s motion to dismiss be-
cause CMS failed to plausibly plead its causes of action. As to
CMR’s tortious interference claims, the district court held that
CMR failed to allege facts to support its allegations that UCMS
lacked justification or privilege to interfere with CMR’s contractual
and business relationships with the Association. The district court
further held that “CMR has not plausibly pled how [UCMS] should
have known that CMR was allegedly still contracted to perform
roofing repairs more than two and one-half years after the damage
occurred.” As to CMR’s FDUTPA claim, the district court held that
“CMR has not pled, and cannot plausibly plead, the requisite
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21-11183 Opinion of the Court 5
consumer injury here.” The district court also dismissed CMR’s
“cause of action” for injunctive relief because injunctive relief is a
remedy and not a cause of action.
CMR moved for reconsideration and to reopen its suit
against UCMS under Federal Rules of Civil Procedure 59 and 60
(“CMR’s first motion for reconsideration”). CMR’s first motion for
reconsideration was specific to CMR’s tortious interference claims;
CMR did not address its FDUTPA claim in this motion. In support
of its motion, CMR identified new evidence: a construction pro-
posal UCMS sent to the Association in connection with its bid to
perform the Association’s repair work. CMR asserted that UCMS’s
proposal was substantially similar to an April 2020 construction
proposal that CMR had sent to the Association. CMR also asserted
that UCMS’s proposal agreed to assist the Association in litigation,
which CMR was also involved in, against Empire. According to
CMR, this new evidence demonstrated that UCMS should have
known that CMR had a contract with the Association and that
UCMS colluded with the Association to breach the contract be-
tween CMR and the Association. CMR further stated that this new
evidence was not previously available because CMR received
UCMS’s proposal through discovery in its separate suit against the
Association. While the Association had previously responded to
CMR’s requests for production, the Association had not previously
produced UCMS’s proposal.
The district court denied CMR’s first motion for reconsider-
ation because “[t]he mere existence of a proposal or contract” did
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6 Opinion of the Court 21-11183
not render CMR’s “claims any more plausible.” The district court
also clarified that it dismissed CMR’s complaint, with prejudice, be-
cause amendment was futile.
CMR then filed a second motion for reconsideration based
on the same evidence, i.e., UCMS’s construction proposal, under
Rule 59. In its second motion for reconsideration, CMR clarified
that the proposal UCMS “plagiarized” was a proposal CMR submit-
ted in furtherance of the work CMR was under contract to per-
form—i.e., it was not a proposal in support of a bid for CMR to
perform new work.
CMR also filed a motion seeking leave to file a first amended
complaint under Federal Rule of Civil Procedure 15.1 In its motion
seeking leave to amend, CMR asserted that it could “plausibly al-
lege” that a “member and owner of [UCMS], admitted in a text
message . . . that he knew that (i) [the Association was] not moving
forward with CMR . . . and (ii) Empire informed [the Association
that] they refused to settle the [l]oss with CMR and [that the Asso-
ciation] needed a new contractor.” Like CMR’s first motion for
reconsideration, CMR’s subsequent motions were specific to
CMR’s tortious interference claims.
1 CMR also brought its motion to amend under Federal Rule of Civil Proce-
dure 7(b), but that rule concerns the general requirements for all motions.
CMR was seeking to amend its complaint pursuant to Rule 15(a)(2), which
applies to motions to amend a complaint “with the opposing party’s written
consent or the court’s leave.”
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21-11183 Opinion of the Court 7
The district court denied CMR’s motions. In so doing, the
district court held that the new allegations, and CMR’s evidence,
did “not establish that [UCMS] somehow knew of the still-existing
contract and conspired to interfere with that contract.” This appeal
ensued.
II. STANDARD OF REVIEW
“We review
de novo the district court’s order dismissing
[plaintiff’s] complaint pursuant to Rule 12(b)(6).”
Duty Free Ams.,
Inc. v. Estee Lauder Cos., 797 F.3d 1248, 1262 (11th Cir. 2015). “We
accept the allegations in the complaint as true and construe them
in the light most favorable to the plaintiff,” but “we afford no pre-
sumption of truth to legal conclusions and recitations of the basic
elements of a cause of action.”
Id. (quoting
Franklin v. Curry, 738
F.3d 1246, 1248 n.1 (11th Cir.2013)).
We generally “review both the denial of a motion for leave
to amend a pleading and a motion for reconsideration for abuse of
discretion.”
Blackburn v. Shire US Inc., 18 F.4th 1310, 1316 (11th
Cir. 2021);
see also Jenkins v. Anton, 922 F.3d 1257, 1263–64, 1270
(11th Cir. 2019) (reviewing Rule 59(e) and 60(b) motions for abuse
of discretion). But “we exercise
de novo review as to the underly-
ing legal conclusion that an amendment to the complaint would be
futile.”
SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d
1334, 1336 (11th Cir. 2010).
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8 Opinion of the Court 21-11183
III. ANALYSIS
CMR asserts that the district court erred in dismissing its
claims and in denying its motions for reconsideration and to amend
its complaint. Our analysis of CMR’s arguments is divided into
three parts. First, we discuss whether the district court erred in
dismissing CMR’s FDUTPA claim. Then, we discuss whether the
district court erred in dismissing CMR’s tortious interference
claims. Finally, we discuss whether the district court erred in deny-
ing CMR’s two motions for reconsideration and CMR’s post-judg-
ment motion to amend its complaint.
A. CMR’s FDUTPA Claim
“FDUTPA prohibits ‘[u]nfair methods of competition, un-
conscionable acts or practices, and unfair or deceptive acts or prac-
tices in the conduct of any trade or commerce.’”
Carriuolo v. Gen.
Motors Co., 823 F.3d 977, 983 (11th Cir. 2016) (alteration in origi-
nal) (quoting Fla. Stat. § 501.204(1)). To state a claim for injunctive
relief under FDUTPA, a plaintiff must allege: (1) “a deceptive [or
unfair] act or practice in trade”; and (2) “that [p]laintiff is a person
‘aggrieved’ by the deceptive act or practice.”
Caribbean Cruise
Line, Inc. v. Better Bus. Bureau of Palm Beach Cnty., Inc., 169 So.
3d 164, 167 (Fla. Dist. Ct. App. 2015) (quoting
Kertesz v. Net Trans-
actions, Ltd., 635 F. Supp. 2d 1339, 1348 (S.D. Fla. 2009)). And to
state a claim for damages under FDUTPA, a plaintiff must allege:
“(1) a deceptive act or unfair practice; (2) causation; and (3) actual
damages.”
Carriulo, 823 F.3d at 983 (citing
City First Mortg. Corp.
v. Barton, 988 So.2d 82, 86 (Fla. Dist. Ct. App. 2008)).
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21-11183 Opinion of the Court 9
Florida’s district courts of appeal have held that non-con-
sumers may bring FDUTPA claims for damages under Fla. Stat.
§ 501.211(2).2
See Caribbean Cruise Line, 169 So. 3d at 169;
Bailey
v. St. Louis, 196 So. 3d 375, 383 (Fla. Dist. Ct. App. 2016);
Off Lease
Only, Inc. v. LeJeune Auto Wholesale, Inc., 187 So. 3d 868, 869 n.2
(Fla. Dist. Ct. App. 2016). But in order to satisfy the first element
for a claim for both damages and injunctive relief under
FDUTPA—i.e., a deceptive act or unfair practice—the plaintiff
must allege that the relevant act or practice was harmful to a con-
sumer.
See Caribbean Cruise Line, 169 So.3d at 169 (“[W]hile the
claimant would have to prove that
there was an injury or detri-
ment to consumers in order to satisfy all of the elements of a
FDUTPA claim, the claimant
does not have to be a consumer to
bring the claim. (emphasis in original).”).
2 We recognize that district courts in this circuit have interpreted Fla. Stat.
§ 501.211(2) inconsistently.
Compare, e.g.,
Crmsuite Corp. v. Gen. Motors
Co., No. 8:20-cv-762-T-02-WFJ-AAS, 2020 WL 5898970, at *5–6 (M.D. Fla. Oct.
5, 2020) (“The replacement of ‘consumer’ with ‘person’ in [§] 501.211(2) is sig-
nificant and signals the legislature's desire to expand the damages remedy” to
non-consumers),
with Taylor v. Trapeze Mgmt., LLC, No. 0:17-cv-62262-
KMM, 2018 WL 9708619, at *6–7 (S.D. Fla. Mar. 26, 2018) (‘“[P]erson’ under
the FDUTPA applies only to a consumer injured by an unfair or deceptive act
when buying or purchasing goods and services.”). But, in the absence of a
decision by the Florida Supreme Court, “[t]he decisions of the district courts
of appeal represent the law of Florida.”
Nunez v. Geico Gen. Ins. Co., 685
F.3d 1205, 1210 (11th Cir. 2012) (alteration in original) (quoting
McMahan v.
Toto, 311 F.3d 1077, 1080 (11th Cir. 2002)). Therefore, we follow Florida’s
district courts of appeal and find that non-consumers can also bring FDUTPA
claims.
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10 Opinion of the Court 21-11183
A deceptive act involves “a representation, omission, or
practice that is likely to mislead the consumer acting reasonably in
the circumstances, to the consumer’s detriment.”
Zlotnick v.
Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007) (quot-
ing
PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla.
2003)). And to establish an unfair practice, the plaintiff must show
that it is “one that ‘offends established public policy’ and one that
is ‘immoral, unethical, oppressive, unscrupulous or substantially
injurious to consumers.’”
Marrache v. Bacardi U.S.A., Inc., 17
F.4th 1084, 1098 (11th Cir. 2021) (quoting
PNR, 842 So. 2d at 777).
Here, CMR asserted a claim against UCMS under FDUTPA
for both damages and injunctive relief. In support of that claim,
CMR asserted that UCMS “engaged in unconscionable and unfair
acts or practices” by “wrongfully and unjustifiably interfering with”
CMR’s contractual and business relationships with the Association.
CMR identified the following conduct in support thereof: (i) UCMS
submitted “a bid[], or otherwise negotiat[ed]” with the Association;
(ii) UCMS submitted building permit applications to conduct repair
work at the Association; and (iii) UCMS agreed to, and performed,
work that CMR was already contracted to perform. And CMR al-
leged that UCMS’s conduct caused harm to CMR because CMR
expended money and resources in connection with the contract
UCMS interfered with.
The district court dismissed CMR’s FDUTPA claim because
the district court found that CMR failed to plead an injury to a con-
sumer. On appeal, CMR asserts that its allegations were sufficient
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21-11183 Opinion of the Court 11
at the motion to dismiss stage and that the district court erred be-
cause CMR acted as a consumer, and suffered a consumer harm,
by incurring expenses and expending resources. We reject CMR’s
argument for the following two reasons.
First, “as the Supreme Court has clarified . . . , [Rule 8’s]
pleading standard ‘demands more than an unadorned, the-defend-
ant-unlawfully-harmed-me accusation,’ and, ‘[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter, ac-
cepted as true, to state a claim to relief that is plausible on its face.’”
Id. at 1099 (second alteration in original) (quoting
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). And here, CMR’s allegations amounted
to “the defendant unlawfully-harmed-me accusation.”
Id. (quoting
Iqbal, 556 U.S. at 678).
The alleged conduct, as pled in CMR’s complaint, that CMR
complains of—UCMS negotiating with the Association to obtain a
bid for construction work, submitting building permit applications,
and performing the construction work for the Association—does
not rise to the level of a deceptive act or unfair practice as required
by FDUTPA.
See Zlotnick, 480 F.3d at 1284 (defining a deceptive
act);
Marrache, 17 F.4th at 1098 (defining an unfair practice). In-
stead, CMR’s complaint relied on conclusory allegations that
UCMS knowingly and willfully procured the Association to breach
its contract with CMR, even though CMR alleged that the Associ-
ation requested that other construction contractors submit work
proposal bids as part of “a competitive bid process.” These “thread-
bare recitals” of unfairness “supported by mere conclusory
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12 Opinion of the Court 21-11183
statements, do not suffice,”
Iqbal, 556 U.S. at 678, and are undercut
by its own admission that the Association solicited bids. Therefore,
we hold that CMR failed to meet the first element of a claim for
damages or injunctive relief under FDUTPA—i.e., a deceptive act
or unfair practice.
Cf. Molina v. Aurora Loan Servs., LLC, 635 F.
App’x 618, 627 (11th Cir. 2015) (holding that the plaintiff “failed to
properly allege the elements of a FDUTPA claim” where, “[o]ther
than alleging that Aurora and Nationstar denied her own loan
modification, Ms. Molina did not explain what was deceptive about
the websites.”).3
Second, as noted, the relevant deceptive act or unfair prac-
tice must be harmful to a consumer.
See Caribbean Cruise Line,
169 So. 3d at 169. Here, CMR and UCMS were service providers
that sought to provide, and provided, construction services to the
Association. And CMR alleged that it was harmed because UCMS
interfered with CMR’s ability to provide its services to the Associ-
ation, after CMR had already expended money and resources to
perform those services. Because CMR alleged harm solely to it-
self—in its capacity as the construction service provider, and not to
3 While the district court did not address whether the conduct CMR alleged
amounted to a deceptive act or unfair practice, below and on appeal UCMS
has contested CMR’s factual allegations in support of its claim that UCMS “en-
gaged in unfair or deceptive practices.” And “we ‘may affirm for any reason
supported by the record, even if not relied upon by the district court.’”
Mar-
rache, 17 F.4th at 1097 (quoting
Allen v. USAA Cas. Ins. Co., 790 F.3d 1274,
1278 (11th Cir. 2015)).
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21-11183 Opinion of the Court 13
the consumer of its services—CMR failed to allege a harm to a con-
sumer.
See id.
As the district court correctly determined, injunctive relief is
not a standalone cause of action. Instead, as relevant here, injunc-
tive relief is a remedy for a violation of FDUTPA. Because we hold
that CMR failed to satisfy the first element of a claim for both dam-
ages and injunctive relief under FDUTPA, we also conclude that
the district court did not err in finding that CMR was not entitled
to injunctive relief. Moreover, because CMR never sought leave
to amend its FDUTPA claim, the district court was not required to
grant CMR leave to amend its FDUTPA claim.
See Wagner v. Dae-
woo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).
Therefore, we conclude that the district court did not err in dis-
missing CMR’s FDUTPA claim.
B. CMR’s Tortious Interference Claims
To establish a claim for tortious interference with a business
relationship under Florida law, the plaintiff must establish the fol-
lowing elements: “(1) the existence of a business relationship[;] (2)
knowledge of the relationship on the part of the defendant; (3) an
intentional and unjustified interference with the relationship by the
defendant; and (4) damage to the plaintiff as a result of the breach
of the relationship’”
Duty Free Ams., 797 F.3d at 1279 (alterations
in original) (quoting
Ethan Allen, Inc. v. Georgetown Manor, Inc.,
647 So.2d 812, 814 (Fla. 1994)). And the elements of a cause of ac-
tion for tortious interference with a contractual relationship under
Florida law are: “(1) [t]he existence of a contract, (2) [t]he
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14 Opinion of the Court 21-11183
defendant’s knowledge of the contract, (3) [t]he defendant’s inten-
tional procurement of the contract’s breach, (4) [a]bsence of any
justification or privilege, [and] (5) [d]amages resulting from the
breach.”
Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162
F.3d 1290, 1322 (11th Cir. 1998) (one alteration in original) (quoting
Fla. Tel. Corp. v. Essig, 468 So. 2d 543, 544 (Fla. Dist. Ct. App.
1985)).
To support either claim, CMR was required to allege that
UCMS had knowledge of, and intentionally and unjustifiably inter-
fered with, CMR’s relationship (either contractual or business)
with the Association. As to the element of intentional and unjusti-
fiable interference, if “a defendant interferes with a contract [or
business relationship] in order to safeguard a preexisting economic
interest of his own, the defendant’s right to protect his own estab-
lished economic interest outweighs the plaintiff’s right to be free of
interference, and his actions are usually recognized as privileged
and nonactionable.”
Duty Free Ams. 797 F.3d at 1280. But the
defendant cannot do so by improper means.
Johnson Enters. of
Jacksonville, 162 F.3d at 1322. “In other words, the privilege [to
interfere] does not encompass the purposeful causing of a breach
of contract” or business relationship.
McCurdy v. Collis, 508 So.2d
380, 384 (Fla. Dist. Ct. App. 1987).
Florida courts arguably recognize colluding to interfere with
a contract or business relationship as an improper means of inter-
ference.
See Ellis Rubin, P.A. v. Alarcon, 892 So. 2d 501, 503 (Fla.
Dist. Ct. App. 2004) (“What the parties may not do, however, is
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21-11183 Opinion of the Court 15
engage in intentional and unjustified interference by engaging in
fraud or collusion.”);
Morsani v. Major League Baseball, 663 So. 2d
653, 657 (Fla. Dist. Ct. App. 1995) (finding that the appellants stated
a cause of action for tortious interference because “appellants have
alleged the use of threats, intimidation and conspiratorial con-
duct”). And in “[i]nterpreting Florida law, we have said that ‘when
there is room for different views’ about the propriety of a defend-
ant’s interference with a plaintiff’s business relationships, ‘the de-
termination of whether the interference was improper or not is or-
dinarily left to the jury.’”
Duty Free Ams., 797 F.3d at 1280 (quot-
ing
Mfg. Rsch. Corp. v. Greenlee Tool Co., 693 F.2d 1037, 1040
(11th Cir. 1982)).
In its complaint, CMR alleged that the Association “offered
the same exterior construction and roofing services” to other con-
tractors “via a competitive bid process,” but that UCMS knew that
the Association had already contracted with CMR and therefore
UCMS’s conduct was improper. The district court dismissed
CMR’s tortious interference claims because CMR failed to plead
how UCMS knew of CMR’s pre-existing contractual and business
relationships with the Association and because CMR failed to plead
facts to “establish UCMS’s lack of justification . . . to interfere.”
On appeal, CMR asserts that its allegations in support of its
tortious interference claims were sufficient and that the district
court erred by imposing a heightened pleading standard. We disa-
gree.
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16 Opinion of the Court 21-11183
CMR relied on assertions that UCMS “knew, and was
aware” of, and that UCMS “purposefully and intentionally” inter-
fered with, CMR’s contractual and business relationships with the
Association to support its claims. But CMR failed to allege facts to
support those otherwise conclusory assertions. Instead, as the dis-
trict court held, the conduct CMR alleged—i.e., that UCMS nego-
tiated with the Association, submitted building permit applica-
tions, and performed the work that CMR had also agreed to per-
form—were consistent with the Association selecting UCMS as
part of a competitive bidding process. And, under Federal Rule of
Civil Procedure, “conclusory statements” that UCMS’s conduct
was unjustified and undertaken with knowledge of CMR’s pre-ex-
isting relationships with the Association are insufficient.
Iqbal, 556
U.S. at 678. Because CMR failed to support its tortious interference
claims with “
facts from which a reasonable trier of fact could infer”
that CMR’s claims were plausible, the district court did not err in
dismissing CMR’s tortious interference claims.4
See Duty Free
Ams., 797 F.3d at 1281 (emphasis in original).
4 On appeal, CMR also asserts that the district court erred by dismissing CMR’s
tortious interference claims without giving CMR leave to amend. Because
CMR did not seek leave to amend its tortious interference claims before the
district court dismissed those claims, the “district court [was] not required to
grant [CMR] leave to amend [its] complaint
sua sponte when the plaintiff, who
is represented by counsel, never filed a motion to amend nor requested leave
to amend.”
Daewoo, 314 F.3d at 542. But CMR properly sought leave to
amend its complaint under Rules 59 and 60 after its complaint was dismissed.
See, e.g., DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1303 (11th Cir.
2008) (“[A] plaintiff may seek to amend his complaint pursuant to Federal
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21-11183 Opinion of the Court 17
C. CMR’s Motions for Reconsideration and to Amend
After CMR’s complaint was dismissed and judgment was en-
tered in favor of UCMS, CMR sought to amend its tortious inter-
ference claims by filing two motions for reconsideration and a sep-
arate motion to amend it complaint. CMR’s first motion for recon-
sideration sought relief under Rules 59(e) and 60(b) based on new
evidence. And CMR’s second motion for reconsideration, and its
motion to amend, sought relief under Rules 59(e) and 15(a)(2). But
the district court found that amending the complaint was futile and
denied CMR’s motions.
On appeal, we must determine whether CMR’s complaint,
inclusive of CMR’s proposed amendments, “would still be subject
to dismissal.”
Boyd v. Warden, Holman Corr. Facility, 856 F.3d
853, 864 (11th Cir. 2017) (“An amendment is considered futile when
the claim, as amended, would still be subject to dismissal.”). And
we must ensure that CMR adhered to the relevant procedural re-
quirements governing CMR’s motions.
See Weatherly v. Ala. State
Univ., 728 F.3d 1263, 1269 (11th Cir. 2013) (“[The plaintiff’s] failure
to adhere to the Federal Rules of Civil Procedure and the Federal
Rules of Appellate Procedure . . . greatly limits our ability to review
these alleged errors.”).
Rules of Civil Procedure 15(a)(2), 59(e), or 60(b)(6) . . . .” (emphasis omitted)).
Therefore, on appeal, we must address CMR’s arguments that the district
court erred in denying its motions for reconsideration and in finding that
amendment was futile.
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18 Opinion of the Court 21-11183
1. CMR’s First Motion for Reconsideration
CMR’s first motion for reconsideration sought leave, under
Rules 59(e) and 60(b), to reopen its suit and amend CMR’s tortious
interference claims based on new evidence, i.e., the 2020 construc-
tion proposal UCMS sent to the Association. Under Rules 59 and
60 “where a party attempts to introduce previously unsubmitted
evidence on a motion to reconsider, the court should not grant the
motion absent some showing that the evidence was not available
during the pendency of the motion.”
Mays v. U.S. Postal Serv., 122
F.3d 43, 46 (11th Cir. 1997).
Here, CMR asserted that it did not have access to UCMS’s
2020 construction proposal because, despite requesting it during
discovery, the Association did not produce the proposal. And
UCMS does not dispute that its proposal was not available to CMR
during the pendency of UCMS’s motion to dismiss. Therefore,
CMR sufficiently demonstrated that UCMS’s construction pro-
posal was not available.
Based on this new evidence, CMR alleged that UCMS know-
ingly colluded with the Association. Specifically, CMR asserted
that UCMS’s proposal was “nearly identical” to CMR’s 2020 pro-
posal—implying that UCMS improperly obtained access to CMR’s
proposal—and that UCMS proposed to assist the Association in its
dispute with Empire, which also involved CMR.
Crediting CMR’s factual assertions, and assuming that an al-
legation of collusion is sufficient to support the element of
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21-11183 Opinion of the Court 19
intentional and unjustified interference, CMR’s new evidence and
allegations still did not plausibly suggest that UCMS had
knowledge of CMR’s pre-existing relationships with the Associa-
tion. First, the document UCMS allegedly plagiarized was CMR’s
April 2020 proposal—CMR did not assert that UCMS had access to,
or plagiarized, CMR’s 2018 contract with the Association—which
did not refer to a pre-existing contractual or business relationship.
Second, while CMR alleged that UCMS proposed to assist the As-
sociation in its dispute with Empire, CMR failed to assert any facts
to plausibly suggest that UCMS knew that the dispute with Empire
also involved CMR or that the dispute involved CMR because
CMR had a pre-existing contract with the Association.
Because CMR’s new evidence and allegations failed to allege
that UCMS had knowledge of CMR’s contractual and business re-
lationships with the Association, CMR’s tortious interference
claims, as proposed to be “amended, would still subject to dismis-
sal.”
Boyd, 856 F.3d at 864. Therefore, the district court did not
err in holding that amendment was futile or in denying CMR’s first
motion for reconsideration.
2. CMR’s Second Motion for Reconsideration
CMR’s second motion for reconsideration also sought leave
under Rules 59(e). And, in support of its second motion for recon-
sideration, CMR once again relied on UCMS’s 2020 construction
proposal to support its allegation that UCMS improperly interfered
with CMR’s contractual and business relationship.
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20 Opinion of the Court 21-11183
But this evidence was no longer new, and we have already
found that this evidence was insufficient to plausibly suggest that
UCMS had knowledge of CMR’s pre-existing contractual and busi-
ness relationships with the Association. Therefore, the district
court did not err in dismissing CMR’s second motion for reconsid-
eration.
3. CMR’s Motion to Amend
In its separate motion to amend its complaint under Rule
15(a)(2), CMR asserted for the first time that text messages from
the owner of UCMS demonstrated that UCMS was aware that the
Association had a pre-existing contract with CMR. But, as UCMS
correctly asserts, Rule 15, “by its plain language, governs amend-
ment of pleadings
before judgment is entered; it has no application
after judgment is entered.”
Jacobs v. Tempur-Pedic Int’l, Inc., 626
F.3d 1327, 1344 (11th Cir. 2010). CMR therefore could not have
amended its complaint under Rule 15 after the district court dis-
missed CMR’s suit.
Even after a complaint is dismissed, and the plaintiff’s right
to amend under Rule 15(a) is terminated, the plaintiff “may still
move the court for leave to amend, and such amendments should
be granted liberally.”
Czeremcha v. Int’l Ass’n of Machinists & Aer-
ospace Workers, AFL-CIO, 724 F.2d 1552, 1556 (11th Cir. 1984)
(footnote omitted). We could therefore construe CMR’s motions
as a third Rule 59(e) motion, which is the rule that corresponds to
a post-judgment motion for leave to amend.
See Jacobs, 626 F.3d
at 1344–45 (“Post-judgment, the plaintiff may seek leave to amend
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21-11183 Opinion of the Court 21
if he is granted relief under Rule 59(e) . . . .” (quoting
United States
ex rel. Atkins v. McInteer, 470 F.3d 1350, 1361 n.22 (11th Cir.
2006))). But a motion for reconsideration that relies on “previously
unsubmitted evidence . . . should not [be] grant[ed] . . . absent some
showing that the evidence was not available during the pendency
of the motion.”
Mays, 122 F.3d at 46 (11th Cir. 1997). And because
CMR “has not shown that [the text message] evidence [CMR] be-
latedly wishe[d] to present was newly discovered,” CMR could not
rely on those text messages in a third motion for reconsideration.
See In re Kellogg, 197 F.3d 1116, 1120 (11th Cir. 1999).
As discussed, the district court properly denied CMR’s other
motions for reconsideration for failing to plausibly allege UCMS’s
knowledge of CMR’s contractual and business relationship with
the Association. And the only new allegations concerning UCMS’s
knowledge could not be considered in a “third” motion for recon-
sideration under Rule 59(e). Thus, the district court did not err in
denying CMR leave to amend its complaint post-judgment.
IV. CONCLUSION
For the foregoing reasons, we conclude that the district
court did not err in dismissing CMR’s claims and in denying CMR’s
motions for reconsideration and to amend its complaint post-judg-
ment. Accordingly, we affirm the district court’s dismissal of
CMR’s suit against UCMS.
AFFIRMED.
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