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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-9536
Summary Calendar
LEWIS E. JOHNSON,
Plaintiff-Appellant,
versus
PHELPS DUNBAR, ET AL.,
Defendants,
WILLIAM GUSTE, JR., in his capacity
as Attorney General of the State of
Louisiana, JOHN MAMOULIDES, District
Attorney for Jefferson Parish, and
RESOLUTION TRUST CORPORATION, as
Receiver for Oak Tree Savings Bank,
S.S.B., ET AL.,
Defendants-Appellees.
*************************************************************
LEWIS E. JOHNSON,
Plaintiff-Appellant,
versus
DUTEL & DUTEL, ET AL.,
Defendants,
RESOLUTION TRUST CORPORATION, as
Receiver for Oak Tree Savings Bank,
S.S.B., ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA 92 217 c/w 665 B)
(January 27, 1994)

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* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
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Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
In March 1991, Lewis E. Johnson, proceeding pro se, sued Dutel
& Dutel and Dixie Savings & Loan (later Oak Tree Savings Bank) in
state court for fraud, misrepresentation, forgery, and breach of
contract. Johnson's "petition for damages" was vague, brief, and
conclusory. According to the petition for damages, the two
individual Dutels executed fraudulent acts of sale in 1975 for
various parcels of property in Jefferson Parish, Louisiana.
Johnson alleged that Dutel & Dutel and Dixie Savings & Loan
appropriated the proceeds from the sale of the lots and that the
"`Johnsons'" never received any accounting for these "unauthorized
sales and mortgages." Johnson never claimed ownership of these
lots in his petition or explained who they belonged to, or how they
came under the control of the defendants. Johnson asserted that he
was entitled to $10 million damages.
Johnson amended his state court petition in June 1991. The
amendment does not clarify Johnson's complaint. In the "amended
petition" Johnson claimed that "I Lewis E. Johnson and Park Manor
Homes et al have been by `fraud' swindled out of millions of
dollars by the below named `Dishonest Men' and their `Dishonest

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Act'." It is not evident how Johnson was related to Park Manor
Homes. According to the amended petition Johnson sought to protect
the investors of Oak Tree Savings from the unspecified fraud of the
defendants.
In a separate state court action in December 1991, Johnson
sued Phelps Dunbar, Brent B. Barriere, Harry Rosenberg, Robert S.
Eitel and H. Moity, Dixie Savings (Oak Tree and RTC), Dutel &
Dutel, First Commerce Corp., First Money Inc., First Commerce
Realty (Eastover Corp.), Edwin Edwards, William Guste, John
"Monoulidis" (Mamoulides), Judge Lawrence Chehardy, and Louis
Shushan. This action contained far-fetched and unsupported
allegations that the defendants caused his attorney in another case
in the Eastern District of Louisiana, Johnson v. New England
Insurance Co., No. 90-1556, to be "recalled as a parole violator
(and/or fugitive)" to Missouri and that the defendants, in
violation of an unspecified obligation to Johnson, failed to notify
him that his other attorney was in the hospital. According to
Johnson, the defendants took advantage of his situation and
obtained a judgment in their favor without his being present.
Johnson alluded to other various and unspecified "illegal acts" by
the defendants. Johnson concluded his complaint by stating "I fear
for my life because I have no protection from local, state or
federal authorities."
In January 1992, Phelps Dunbar, Barriere, Rosenberg, Eitel,
and Moity moved the district court to remove Johnson's action from
the civil district court for the Parish of Orleans to the federal

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district court. The Resolution Trust Corporation (RTC) is the
receiver for Oak Tree Savings Bank which was declared insolvent by
the Office of Thrift Supervision. The RTC filed the most
comprehensive brief and refers to Johnson v. Phelps Dunbar as
Johnson's second suit. Id. Johnson filed a third complaint, Lewis
E. Johnson v. Resolution Trust Corporation in federal court on June
2, 1992. This complaint does not appear to be part of the record.
In March 1992 the district court consolidated Johnson's
actions against Dutel & Dutel with his action against Phelps
Dunbar. The former suit was removed by the RTC to the District
Court for the District of Columbia in December 1991 after Oak Tree
Savings Bank, formerly Dixie Savings & Loan, went into
receivership. This case was transferred from the District of
Columbia to the Eastern District of Louisiana in January 1992. In
June 1992 the District Court for the Eastern District of Louisiana
consolidated Johnson's action against Phelps Dunbar with his action
against the RTC. Thus all three cases were consolidated.
Johnson's March 1992 "motion to amend and supplement the
complaint and to add defendants" was purportedly filed by several
plaintiffs and consisted of a document naming over 100 defendants
and containing 32 pages of allegations. The Clerk of Court struck
the amended complaint for not being signed by each of the
plaintiffs, because the plaintiffs had not obtained leave of the
court to file the amended complaint, and because non-pro-se parties
were not represented by counsel. The Clerk of Court noted that

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Johnson's motion to amend the original complaint remained scheduled
for hearing before the magistrate judge.
The magistrate judge denied Johnson's motion to amend in April
1992. According to the magistrate judge, Johnson's motion violated
Fed. R. Civ. P. 8(a) and 8(e)(1) for failing to provide a short and
plain statement of the claim showing that the pleader was entitled
to relief and for failing to have simple, concise, and direct
averments in each pleading. The magistrate judge also determined
that the motion violated Fed. R. Civ. P. 15(a) because it was
"highly unlikely that [Johnson] omitted some 90 or so additional
defendants or the numerous allegations arising from plaintiff's
dealings with these defendants over the past two decades."
Finally, the magistrate judge found that Johnson failed to comply
with a statutory requirement that corporate plaintiffs "must
demonstrate representation by an attorney qualified to practice
before this court."
Johnson filed a "notice of appeal and/or objection" to the
magistrate's ruling on his motion to amend. The district court
held a hearing to consider the matter, but Johnson failed to
appear. The court affirmed the magistrate's ruling denying
Johnson's motion to amend.
The district court, in a Fed. R. Civ. P. 54(b) judgment filed
in December 1992, granted the motion by RTC as receiver for Oak
Tree Savings Bank to dismiss Johnson's complaint. The court stated
that "[i]t is expressly determined by this Court that there is no
just reason to delay in the entry of this judgment until final

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1The district court also ordered Johnson to submit an amended
complaint within 15 days in what appears to have been a separate
action by Johnson against Guste in civil action no. 92-2425.
Johnson apparently did not reply. The district court granted
Guste's motion to dismiss for failure to state a claim. Id. at
634.
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determination of all the issues involved in the above-entitled
action." The court issued similar Rule 54(b) judgments in favor of
John M. Mamoulides, William Guste, Jr.,1 and Lawrence A. Chehardy.
Johnson appealed the Rule 54(b) motions granted in favor of
Chehardy and Guste. This Court granted Guste's unopposed motion to
dismiss as moot Johnson's appeal on November 18, 1992. Chehardy
indicates that he was an appellee in case number 92-3879 and that
this Court dismissed the appeal as frivolous on or about February
24, 1993. Chehardy believes that he is not a party to the current
appeal.
On December 8, 1992, Johnson filed a notice of appeal from the
Rule 54(b) judgment entered in favor of Guste, Mamoulides, and the
RTC which appears to be timely only as to the RTC. It is not clear
if this was an oversight on Johnson's part and he was attempting to
appeal the judgment entered in the separate action, 92-2425, in
favor of Guste on November 5, 1992. In his brief, Johnson attacks
the judgments in favor of Mamoulides, Guste, Chehardy, and RTC as
receiver for Oak Tree Savings. Mamoulides, Guste, and RTC have
filed briefs; Chehardy has declined to do so.
OPINION
Johnson's appeal is limited to his argument that the district
court abused its discretion by denying him the right to amend his

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original complaint. Analysis of this appeal is severely compli-
cated by the plaintiff/appellant's inadequate pro se pleadings and
brief. Although Johnson's notice of appeal appears to be untimely
as to several of the parties, the Court has jurisdiction over this
appeal because Johnson's notice of appeal was timely as to the RTC.
It is possible that Johnson, by amending his initial action
against Dutel & Dutel in the state court, has already utilized his
right to amend once, as of course, for purposes of Fed. R. Civ. P.
15(a). However, because this amendment was filed in the state
court and before Johnson's actions were consolidated in federal
court, we assume arguendo that Johnson still enjoyed a right to
amend his action.
Johnson attempted to amend his complaint in March 1992. Under
the Federal Rules of Civil Procedure:
A party may amend the party's pleading once as
a matter of course at any time before a
responsive pleading is served or, if the
pleading is one to which no responsive
pleading is permitted and the action has not
been placed upon the trial calendar, the party
may so amend it at any time within 20 days
after it is served. Otherwise a party may
amend the party's pleading only by leave of
court or by written consent of the adverse
party; and leave shall be freely given when
justice so requires.
Fed. R. Civ. P. 15(a). The original defendants in 92-0217 were
Phelps Dunbar, Brent B. Barriere, Harry Rosenberg, Robert S. Eitel
and H. Moity, Dixie Savings (Now Oak Tree and RTC), Dutel & Dutel,
First Commerce Corp., First Money Inc., First Commerce Realty
(Eastover Corp.), Edwin Edwards, William Guste, John "Monoulidis,"
Judge Lawrence Chehardy, and Louis Shushan.

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A responsive pleading is "`a complaint, an answer, a reply to
a counter-claim, an answer to a cross-claim, a third-party
complaint, a third-party answer, and, pursuant to court order, a
reply to an answer or third-party answer.'" Albany Ins. Co. v.
Almacenadora Somex, S.A., 5 F.3d 907, 910 (5th Cir. 1993). The
record is silent as to which of the parties, or whether any of
them, filed responsive pleadings. Contained in the record are
motions by William Dutel, Louis Dutel, Dutel & Dutel, Chehardy,
Guste, Phelps Dunbar, Barriere, Rosenberg, Eitel, Moity, RTC,
Shushan, and First Commerce Realty (Eastover Corp.) to dismiss
Johnson's complaint for failure to state a claim or lack of subject
matter jurisdiction. Johnson correctly points out that a motion to
dismiss is not a responsive pleading. Albany Ins. Co., 5 F.3d at
911.
There is no record support indicating that any of the
defendants answered Johnson's complaint and we assume for purposes
of this appeal that none of the defendants did so. Thus, we
further assume that Johnson's motion to amend was "as a matter of
course" rather than "by leave of the court." See Whitaker v. City
of Houston, 963 F.2d 831, 834 (5th Cir. 1992).
The denial of leave to amend a plaintiff's complaint is
reviewed for abuse of discretion. See Resolution Trust Corp. v.
Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403 n.8 (5th Cir.
1993). In ruling upon a permissive pleading, the district court
may consider "`undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by

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amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility of
amendment.'" Whitaker, 963 F.2d at 836 (quoting Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).
In Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d
314, 315-17, 320-21 (5th Cir. 1991), this Court affirmed the
district court's denial of a Rule 15(a) motion that was filed in
response to a motion for summary judgment. "We . . . affirm
denials of motions to amend when amendment would be futile." Id.
at 321. Thus it appears that Rule 15(a) motions, even when "of
course" may be denied as futile.
In Overseas Inns, S.A. P.A. v. United States, 911 F.2d 1146,
1150 (5th Cir. 1990), the Court upheld the denial of leave to amend
under Rule 15(a) and applied the permissive pleading standard in a
case where extensive prelawsuit and pretrial proceedings had taken
place, the Government had filed a motion for summary judgment, and
the plaintiff had not attempted to amend until about two-and-a-half
years after filing its complaint. The Court also noted that the
plaintiff had filed a motion for summary judgment prior to seeking
to amend. Id. The Court ruled that the district court did not
abuse its discretion by denying the plaintiff's motion to amend.
The Tenth Circuit has also held that the district court's
decision to grant a plaintiff's motion to amend after the defendant
had filed a motion for summary judgment was discretionary. Drake
v. City of Fort Collins, 927 F.2d 1156, 1163 (10th Cir. 1991). In
Drake the court ruled that it was proper to deny such a motion

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where it was "apparent from plaintiff's motions that the requested
amendments could not cure the defects in his complaint." Id.
Johnson's amended complaint contained the same allegations
found in his action against Phelps Dunbar concerning the
defendants' responsibility for having his attorney in an apparently
unrelated case recalled as a parole violator and failing to notify
him that his other attorney was in the hospital. The rest of
Johnson's amended complaint contains allegations of pervasive and
undocumented conspiracies among the defendants including extensive
descriptions of the manner in which the defendants had stolen
various property and financial instruments from the purported
plaintiffs. According to Johnson, the plaintiffs had incurred
damages exceeding $1 billion, including losses of $43 million of
real property and $12 million of revenue. The pleadings in the
amended complaint are vague, conclusory, unsubstantiated, and
ultimately impenetrable.
The magistrate judge's ruling concerning Johnson's amended
complaint, adopted by the district court, is instructive. As noted
by the magistrate judge, the amended complaint is not in conformity
with Rule 8(a)(2)'s requirement that the pleading contains "a short
and plain statement of the claim showing that the pleader is
entitled to relief." The magistrate judge also point out, that
contrary to the instruction of Rule 8(e)(1), the pleadings in the
amended complaint are neither concise, nor direct. Further, John-
son failed to state "the circumstances constituting fraud . . .
with particularity." Rule 9(b). There is no support by affidavit

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or document for any of his allegations. It is evident that
Johnson's amended complaint could not cure the defects in his
original complaint. The district court did not abuse its
discretion by denying Johnson's amended complaint.
We AFFIRM the judgment of the Trial Court.

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