with prejudice on rule a grounds alone without some with after a single chance to ripley and without something more wait a minute you didn't read our very well written on bank opinion after the first amendment complaint right i just think it's in conflict with some of the other authority in the circuit so for example with betty kay and while and this court has held that unless there's a dismissal of prejudice is not the appropriate remedy unless there's a clear pattern of delay or willful contempt and that lesser sanctions would not suffice that i think in all cases if it's a rule eight dismissal it should be  asked to read order to read plead or some other source of authority how many times how many bites at the apple do you get before the work dismissed without abusing its discretion without i think theoretically your honor it once would be enough if there were additional findings for example of a contemptuous pattern of delay or willful contempt or that lesser sanctions would not suffice maybe a very explicit warning but again and in those cases i would think that what about when the court pretty much give you a roadmap on how to draft a complaint that would comply with the rule you still go and do it the second time around well i think that and then i would go to the fact that meaningful modifications were made and as long as you know the patients were made dismissal with prejudice is inappropriate and that's also a while and be any different that it's a failure to say to claim because you didn't comply with a rule or you didn't alleges the elements of the torture or crime or whatever the case may be why why does it make any difference that the deficiency of the complaint is premised upon really well i think again that circuit has specific rules about shock and pleadings and so it's taken on sort of its own subspecies of disposition of cases at the you know at the pleading stage and i think there is a distinction here between in a drawn distinction in terms of the cases between a rule eight dismissal or asked to repleat and a rule twell its missile on the merits but let me ask you this two thousand and nine rule fifteen was amended and i'm looking at the comments of the rules committee about that change and it indicated the rule fifteen i was change in two ways first the right opposing counsel told me there are some problems with it and that the rules committee said will force the player to consider carefully and promptly the wisdom of amending to make the arguments in the motion that wasn't done here it wasn't done here and no request for leave to a man was made and you're relying upon solely a routine prayer at the end of an oppositional motion dealing with such other relief and saying that was a request for amendment  well i believe that it follows in line with this circuit's authority so you know if it's a rule eight and that's what the court is relying on the cases say there's two two options order to reple dismissal with prejudice if you find this clear pattern of misconduct of delay or willful contempt or that lesser sanctions would not suffice and in this case you're trying to  into the sanctions law as opposed to the then whether recorded some point can say enough is enough you've had multiple chances of playing this correctly and you haven't got it done even though i gave you an instruction get on how to correct it and i would just say in this case i think meeting full modifications were made there was a single opportunity to repleat based on the court's instructions again we've conceded that it still has the pleading still has rule eight problems but we believe  had really problems why was not an opportunity undertaken to correct it well i'm saying that meaningful modifications were made in this case your honor whether those those judge decided those weren't sufficient and we agreed but that there was still a good faith attempt to do it and so i would say that at least one more opportunity to repleat is called for here if you have a work which you didn't ask for or took to me is critical based on our precedent and again i just i  would say that i think i don't think this court has had occasion to delineate whether wagner applies in a pure rule eight context versus a twelve b six context the case law on rule eight says that if the amended pleading fails then the court may dismiss under rule forty one or in its inherent power neither of those bases were in our in the record this is a pure rule eight pleading dismissal and if that's the case then we apply an abuse of discretion standard of review rather than oprah i think that's that's probably fair your honor that's a tougher burden for you to overcome i did you know it is but i gan under the authority i don't think there's precedent in this for what's gone on here which is a single opportunity to ripley well if there's no precedent that would support their argument that the court in the views its discretion when i think there's there's no precedent meaning there's precedent the other way that you need it without those findings you need at least one more opportunity to replayed and that's what we request here in addition i'd like to just say in our many opportunities which you get let's say i mean just i understand your argument to be there are dismissals but there are dismissals on the merits and there are dismissals before we ever get to the merits and your position is in this case it was dismissal before anybody looked at the merits and if you're talking about a dismissal that is before we get to the merits they're governed by betty k and you can dismiss it only if you have a finding of   panel but september but assuming that that's your position then how many times would would a plaintiff be entitled to replace the case under that theory provided that you know neither that the court was not able to make a finding of willfulness well i think there's two things i would say the first is that as long as they're making meaningful modifications to the complaint in compliance or intending to comply with the court's order alone that would mean that you could continue to read so there would be no limit ever in theory but of course we could also then say here's a specific warning if you're not if this doesn't meet that expectation you're getting dismissed with prejudice you've got one final opportunity how could you do that consistent with betty kagan if your position is that the only way you could do it is if there is a finding of wealth in history and that's narrow there wouldn't be well there in my mind there would because if the court posits that this is this would be a violation of this court's order for you not to file a compliant pleading then i have authority and that's what the case is and a rule forty one of my inherent authority to deport you out so to be clear your position is that there would have to be a warning and because there wasn't a warning here that betty kaye governs and we should send it back for the district court to make findings as to whether or not i mean that's certainly one option again i think that the rule eleven order pretty much makes clear that that's not the case and also that the fact that there were meaning from modifications to the complaint that are apparent in the record and just like to say quickly in all cases the only instructions on the state claims were fully complied with in the second amended complain and there's simply no basis for those claims to have been dismissed with prejudice both for reasons of comedy and again also because there's there's simply no inquiry into the merits of those thank i thank you would you say that this was a dismissal on the merits or not on the merits your honor we would concede that it's actually both because rule eight both has a substantive component you have to provide your allegations and more in a more than a conclusory manner and additionally chuckin pleadings grounds they didn't comply with this court's longstanding precedent related to just providing a coherent statement that even allows the defendants the opportunity to fashion some sort of defense if it were viewed as a dismissal without reaching the merits can you k with this yes your honor ok the wagner case the judge wilson referenced earlier has been applied in the rule eight context both with respect to shotgun pleadings and with respect to other rule eight violations in the bailey vs janssen pharmaceuticals case the district court in its first dismissal first and only initial dismissal order held that the complaint was a shotgun pleading that required the  was constrained by the plaintiff's failure to seek leave to amend for the district court and it noted that before in allies in the rule eight issue it then subsequently up held the dismissal account to a negligence claim in that complaint on the basis that they had failed to meet the standard for revising the shot completing issues and the court made no finding a bad faith the court didn't indicate that there was any willful or intentional failure to comply the district court sixteen dismissal order and they failed to file a rule fifty nine or sixty motion following the entry of the order attaching a third proposed amending complaint they haven't provided judge middlebrooks with the opportunity in the first instance to decide for himself whether they can state a claim and the assertion that this court has never held that a dismissal on rule grounds alone after one amendment is simply incorrect as i said before the bailey case this court affirmed the dismissal of a claim just on shotgun pleadings grounds and the nettles case on a broader rule eight grounds of a failure to state a claim and did novo review held that the complaint did not state brought which is that the state claims should not have been dismissed with prejudice because i did not really see any it didn't seem to me anyway like there was a separate response to that in your brief maybe i just misunderstood the briefs so if you want to address that are you conceding that and if you haven't if you have argued in your briefs if you could maybe direct me to where that ends your honor snellen wilmar specifically  are not directed to snelling member so there was no state claim but i will say this they have conceded that rule that the the complaint was properly dismissed on really grounds their only argument is that they should have been afforded a further opportunity to learn they don't argue in their initial brief but the district court correctly found that it didn't comply with really nowhere in their initial brief nowhere in there in their reply br they have conceded on appeal and again an oral argument today that it doesn't comply with relate and therefore their failure to seek leave to amend combined with that concession means that that count also be dismissed what if i agree with you with regard to the  claims washington the court have dismissed those without prejudice to give them an opportunity to go to state court in order to litigate those claims when the supreme court has said that if federal claims are dismiss was presented with an entire complaint that plug both state and federal claims the court found it didn't comply with really they have a challenge that the entire complaint in its entirety state law claims and federal claims do not comply with complicated statute hard to frame a cause of action under a girl and this missile with prejudice you would agree with me is a pretty extreme sanction wouldn't lesser sanctions  applied i mean one more shot no your honor these parties were represented at all times by experienced counsel they filed three separate complaints they filed in this whole complaint all of the parties filed motions to dismiss they filed a first amended complaint the defendants filed virtually identical motions to dismiss the district court provided them with specific direction both as sort of a rule eight issues and the substantive yuko issues as to why their plate was defective they filed a second and then complain the defendant's filed motions to dismiss that were virtually identical and they again failed to heed those directives  and ferment on shotgun pleading grounds one party has been notified of the defects in the claim is all that's required the district court in that case never said this is your only chance never said lesser sanctions won't suffice never said there was willful and intentional failure to comply with the rule the court simply found i have given you directives on how to resolve these issues and you haven't done so and i would also add that there are cases where the eleventh circuit has affirmed a dismiss with prejudice of a complaint on the very first try in a pro se case in the lacroix versus western kentucky case which the district court cited in its second dismissal order the eleventh circuit up held dismissal of a first complaint with no opportunity to replete of a pro se complaint on the basis that the pro se can defend plaintive couldn't satisfy rule eight and here again plaintiffs represented by competent experienced counsel were given multiple opportunities to satisfy the rule and there is no requirement that the court find a willful failure to to meet the court's order and again they concede before this court that the complaint doesn't comply with the rules and they failed to seek leave to amend and provide judge middlebrooks in the first instance the opportunity to decide whether they can meet the standard of the rule eight and mr lewis's suggestion that their spirit a cli and open ended infinite number of opportunities to plead is completely contrary to this court's or the federal rule of civil procedure ones requirement of a just speedy and inexpensive litigation process to allow unlimited replating particularly on shock and pleadings related issues for this court and many cases mag luda burn and others has described in great detail the havoc that it wreaks on the litigation system of the courts that are already overburdened just makes no sense  furthermore with respect to the rico claims specifically this court could also alternatively affirm on the basis that it the whatever the allegations are in the complaint they don't claim to rico under the statu all that the plaintiffs have alleged here is an eleven month at most internal corporate dispute between a small number of shareholders over the struggle for control of a company and this court has held in the this court is held in cases like feral versus bird durban that a business dispute has an inherent terminating point and in that case it was a struggle for control over a hotel chain and the court  that that cannot meet the open and a continuity requirement because the rico statute is not for internal business disputes between a small number of individuals it's related to ongoing criminal enterprises and there are no allegations in the complaint anywhere as far as can be discerned from the complaint that a claim for rico has been satisfied and again your honor the for the panel the key points in this case are only two points and that is that they have conceded the complaint does not satisfy relate not come close it doesn't satisfy it the district court was within its rights to dismiss it and their failure to seek leave to amend to provide judge middlebrooks in the first instance with an opportunity to review a proposed third amended complaint is dispositive he couldn't have abused his discretion when they can see that the complaint was subject to dismissal and so for those reasons we asked this court to affirm the entire judgment good morning christopher hopkins on here on behalf of five of the app title card platform pelleas i can't add anything to the argument that you just heard so unless the panel has questions for me  one of the best arguments that i've heard thank your honor i just like to start with going back to the dismissal with prejudice of the state claims again and there's really to me it's sort of no question that those those claims should have been dismissed with without that case the plaintiff had three opportunities to to reclean here and i just want to be clear again counsel and their briefing and now at oral argument are saying that the first amendment the first the first amendment as of right counted in this calculus it doesn't and that's clearly the case going back to nettles the plane has failed to actually even respond to the motion to dismiss case they submitted the identical document  and the court made a finding of confirmation of conduct so it's just a totally different case and it doesn't support dismissal with prejudice of the state crimes again apple and maybe it's ambiguous but it's a slim read finally we are not conceded the dismissal was appropriate even with out prejudice we've simply said that there is a rule a problems here and that the law in this circuit is order to replete unless you make these additional findings those findings are not apparent on the record they're actually against the weight of what's in the record which is the judge's denial of the apple e's motions for sanctions and also the fact that meaningful modifications made in all cases i would ask the court to reverse the judgment and with instructions to give five michael and mr mandela one more opportunity to replete with whatever threat of sanctions or penalty is deemed appropriate