georgia this case has a rather lengthy and complex history with the underpinning criminal case going back to the year two thousand that history was necessarily set forth in the first amended complaint including this court's reversal of all conviction counts and then subsequently on september twelfth two thousand and fourteen the honorable judge batten dismissed with prejudice the remaining retrial counts against mr marshall  marshall in a timely filed his federal civil rights lawsuit on september eleventh two thousand and fourteen and we're actually up on that if you have to judge get to the issues and particularly what i'd be interested in hearing near  explanation walk kelly be courteous doesn't bar your claims against the what we'll call the investigative defendants yes the first amended complaint was dismissed a first time shot completing grounds alternatively  district court found that after identifying an allegation in the first of many complaints which i refer to as the fact that the prosecutors knew about in ninety one thirty one form which is a request for grand jury investigation that and it's not clear from the about it you can't suppress that which you don't know about yes so if the prosecutors knew about it that's the pause and pale and pale wonder kelly be cardus for the investigative defendants congress specter those two documents alone respecting the immunity agreement for george dohrmann and with respect to the ninety one thirty one four but it is not illogical or a favorable inference to conclude that the thousands of other pages of suppressed documents which were material  concealment and suppression of material evidence in favor of the defendant that would favor the dissent tresham requires that you suppress yes if you don't know about it you can't suppress it you allege any suppressed it therefore you allege they knew about it yes curtis says no you allege the brady claimed by deval ation claims against all the prosecutors yes on all the documents we identified two documents in the first minute complaint that they knew about ok the only well you you said that you did not make a brady claim against the investigative defendants that wasn't also made against the  me let me get to question because you haven't answered it yet yes if you made all the suppression climbs up against both categories of defendants everything that you said the investigators suppressed you said the prosecutors suppressed that necessarily alleges the prosecutors knew about it and under kelly that destroys your claim against the investigators yes for speculate disagree with the court's interpretation of kelly application  this case here's the direct answer we have a brady claim we cannot be required to plead that which we cannot know there are three possibilities did plead that the prosecutors suppressed you pleaded that you wanted you knew it or not well therefore knew about that evidence yes respecting the two documents are out of that's the fair or even known it why do we keep doing this you've already told me that you made no brady claims against the investigative defendants that you didn't make against the prosecutorial defendants it's a mixed liability claim your honor there's three possibilities the special agents could have given none of the disclosable documents to the prosecutors the president could have given all of them to the prosecutors which is their defense under qualified immunity they're not liable under brady if they disclose all the documents to the prosecutors or it could be a mix situation where the agents disclosed some of the documents and not all of the diode and then on to you pleading that the prosecutors suppressed all of the documents well what we said is the prosecutors did not disclose any of these documents to the defense the late now i have read your complaint that they suppressed the documents yes they did not disclose a of these documents then you've pleaded that they knew about of the documents two of the documents you know you pleaded that they suppressed all the documents you didn't make a claim against the investigators that you didn't make the against the prosecutors in regard to suppression of evidence we did that under a until you lost the way you pleaded in the nominal terms and then you came back and tried to man after judgment to plead it in the alternative and we've said you can't do that well of the rule th in the proposed second and then a complaint the police act we responded in good faith trying to meet the district court concerns over the shock and pleading allegation and those issues and if you look at the forty's in this circuit regarding the fifty nin rule fifteen applies foemen v davis and amendment should be granted freely when justice requires this is a important meritorious federal civil rights suit and the decision not to allow the filing of the second ame complaint cannot be sustained i would point out that the cases relied upon by the district court in finding undue delay in bad faith we cannot locate any reported decisions where on this procedural posture at the premium answer motion to dismiss pleading face were either a bad faith or undue lays been to applied evergreen complex multi district litigation twenty eight complaints filed around the country in the late ninety's five years later after they lose on summary judgment they try and the mend that was an example of pleading sorry adamant tactical bad faith addington was post discovery post summary judgment when there's prejudice to the defendants they conduct discovery they spend lots of time and money they develop their defenses and then after summary judgment is granted then somebody tries to commit an amended complaint the peel versus tobacco company that was a motion for leave to file a second amended complaint the court imposed a deadline to do so and they were five months after the deadline that appears to be undue delay and pharmacies three years after the original complaint was filed there were a number of experience litigators who looked at that first minute complaint your honor we did not detect any defects in it and my question yes i mean people looked at it that's not my question yes i said is why did everybody pleads in the alternative ye regular practice when you plead this in the old term because we felt that there were so numerous good faith interpretations of the set of facts that to plead in the double and triple alternative regarding who knew defendants knew that it's it we felt that would weaken the thrust of our complaint by pleading in multiple alternatives you mean the district court says i'm going to hold it against them they pleaded alternatif there's he could you get it dismissed and then later on down the road you put the third one in an amended complaint a second amend complaint and get it dismissed you've got to put them in one compliant your honor respectfully we did not read our first amended complaint that way we made strategic decisions in good faith to plead a meritorious civil rights suit i appreciate the court's concerns about multiple pleading as in the alternatives we met the district court's concerns in good faith in the peace act there was no undue delay there was no bad faith if the court is concerned about the legal sufficiency of the first of many complaints then we believe the district court misapprehended the legal standards regarding accepting a proposed second amended complaint on a fifty nine e at the pleading stage jonathan good morning may please the court my name is gabriel mendell i'm here on behalf of the prosecutors and the law enforcement agents for athletes in this case the court the district court's orders in this case should be affirmed for numerous independent reasons the plaintiff first amended complaint was properly dismissed as an impermissible shot completing failed to comply with twamley in a ball and failed to overcome the vital absolute and qualified immunities that attach to these defendants i think it's important for the panel to keep in mind as the district court had to do in this case what is actually played in the complaint as opposed to the rhetoric found in plaintiff's brief cometh from plenty of the him and one proposed amended complying with the first amended complaint around i'd like to turn first deficiencies as opposed and second when i understand yes or no because what remains on this pos actually quite narrow there's really only two claims to which the plaintiff has attributed any legal error one against the prosecutors want to get to the law enforcement agents with respect to the prosecutors it's this alleged alteration of a customs report that was produced in pretrial discovery was back to the law enforcement agents it's the broader failure to disclose brady evidence kind of has abandoned his appeal over all other claims and his reply brief doesn't take issue with that i thought it was a peeling the non composite issue against the prosecutor's own suppression theory he was appealing the dismissal of that or at least the failure to permit him to amend and i'm wrong i think that's correct your honor it's i don't know how to do that there's an another of different characterizations of this issue it's sometimes called an alteration a composite a forgery but this a a great point for the court to actually look at the complaint because it's paragraph twenty three and all he actually alleges is he received authentic pages from two different reports and pretrial discovery but didn't receive the allegation of of the partial withholding of brady material which puts this factual allegations squarely within prosecutorial munity going back to the supreme court's unanimous decision and ambler and their conclusion the labels of alteration or fabrication in addition to being unsupported by any factual allegations are not controlling in jones the can in this court made clear that it's whether the activities a car in the role as an advocate which these undeniably did of this document and as the district more properly found this is the type of veg conclusory allegation which is insufficient to state a constitutional violation against these three prosecutors one of whom only joined the team three weeks before trial  addition to absolute immunity and tommy netball the prosecutors are still protected by qualified immunity as well and in their brief plaintiff really takes no issue with this there's a footnote that quote acknowledges that qualified immunity may be a different matter but there's no effort to overcome that immunity which is a separate and independent bar to their claims ultimately all plaintiff is trying to do is to circumvent the well established of the unity for prosecutors for failing to disclose brady material and you can imagine the consequences if prosecutors could be subject to  personal liability suit years after the fact for failing to disclose a single document out of thirty five thousand pages during criminal discovery this is exactly the type of situation absolute immunity was created to prevent  turning to the law enforcement agents they had absolute immunity from any of the waived claims with respect to the sole remaining crime as the panel has already noted to state a brady claim against law enforcement requires allegations of intentional concealment from the prosecutors because the brady obligation ultimately rest of the prosecutor's to so to state a claim against the agents they needed to out allege the agents had the documents and intentionally concealed them from the prosecutors judge barnes as you've as you've already identified in your questions nowhere in the complaint to they allege this instead they allege the opposite every single allegation of the withholding of brady materials is made against quote call of the defendants or the quote prosecution team and therefore there is no allegation anywhere in the complaint of intentional concealment now in their brief they falsely assert that their complaint is silent as to whether any of the individual prosecutors knew it's the same effort they've attempted argument today and it's just wrong for the reasons the district court has identified and stead he offers this extraordinary argument that the district court had to construe an allegation that all of the defendants knew to instead be an allegation that only the law enforcement agents knew and the prosecutors i had no knowledge at all this is absurd the district court could not construe these allegations to mean the opposite of what they've alleged the court asked point of numerous times during this argument why didn't you plead in the alternative there's a simple answer for that your honor they don't have any facts to support any of their theories let alone alternative theories because you find here not a single factual allegation that would support well that they played tend to play in the alternative after judge they put attempt to deplete the alternative that is the prosecutors didn't go after judgement did they not they did your honor but for the reasons we've stated we stated on our motion in our brief that was a futile effort because the the prosecutor's now it is a defense for the law enforcement agents but that issue is not enough for them to state the elements of the claim which is concealment and that concealment is intentional and knowing so even if the district court gave them this favorable reading that they now claim and that these allegations are construed to just allege that only the law enforcement agents knew about these materials it's still not enough because you have to allege that they knowingly concealed them from the prosecutors and nowhere in the fifty plus pages in this complaint when you find a single fact that would support such  finally i'd like to move to the motion to amend the district court did not abuse its discretion and denying this motion there is some dispute between the parties about what standard applies to a post judgment motion to amend we filed a notice of supplemental authority for a decision from this court back in january a case involving the exact procedural posture we have here where to the plaintiff had attempted post judgment to file a motion to amend this was david johnson construction company versus cleary consulting and the trial court in that case even though it was a motion for leave to amend applied the rule fifty ninety standard not just rule fifteen and now but your problem is there's a pre split  denied in this case there were two independent reasons there's the good faith and there's the undo a delay turning to the undue delay first this court has routinely upheld district courts found they do not abuse their discretion when they deny an effort with no good cause shown to follow another amended complaint in this case eighteen months after the action was initiated not just eighteen months later but after the district court had decided a thoroughly brief dispositive motion over four hundred pages of briefing at the district court level plaintiff's own complaint alleges he's been in possession of all the evidence all the information he needed since two thousand and eleven files his complaint in two thousand and fourteen and then waits eighteen months without any cause shown to try again the district court didn't abused its discretion finding there was no cause for this under de lay just bad faith is an independent sufficient basis for to now as well again there's been no allegation of any discovery of additional facts and yet pla s reversed multiple factual theories not just a single fact is they continue to claim multiple factual theories to circumvent the district court's reason to order our brief cites the two most egregious examples the first as the as the  identified is the claim in the first amended complaint that the prosecutors were aware of all of the brady material which magically transforms to the opposite allegation in the second amended complaint that the prosecutors did or didn't know we don't we don't have an allegation one way or the other they may not it's now that's not enough it's still futile for the reasons we identify but it also shows bad faith perhaps more egregious is the allegation in the first complaint that three federal prosecutors knew about an f informant status and lied to the district court about it which in order to get around the law enforcement agents qualified immunity they transform in their new proposed complaint to be an allegation that actually the f b i agent concealed that from the prosecutors theories under rule eight which first of all is not what they did but even that analogy is defective for it not what they do please any ideas about it ludden open court they didn't know about it didn't line open court investigators lied to them sounds alternative to me but they didn't plead that in a single complaint which is what roy it allows you to do what roy does not allow you to do is what they've done but that doesn't mean they're not alternative theories you're just saying their alternative theories brought forward an alternative compl alternative theories what they but they tend to play to diametrically contradictory facts and they're they're the essential elements of the claim and they're not supported either way by any  correct run but pleading alternatively like that and a single complaint is different both in intent and effect clearly don't get back to single complaint but what i'm questioning and maybe it's an academic matter is you keep saying you the question which i understood to be for example if the allegations in the first of many complaints and the second amended complaint had both been in the same complaint were that avoid the problem if the answer is no they're still subject to dismissal for all the other reasons and well it would have the awarded the problem you argued and the district court found a bad thing yes or they would have a us a second american playing it well it would have all been dismissed in the first place your honor that that is correct and for the reasons we identify in our futility argument the amended complaint still has all the same defects but the cases cited by by the panel in plaintiff's argument make clear it is not the same thing to plead them in one complaint versus filing one complain it to the hilt four hundred pages years of briefing waiting until the district court disposes of it and a forty plus page reason opinion and then saying we actually meant to plead all of the things that would get around that minutes my learned friend mr mendel continues to assert on brief in an oral argument that intentional concealment by the special agents from the prosecutors is a required pleading element and it's not the eleventh circuit has never articulated the precise elements that must be pled at the pleading stage if you look at the seven circuits decision to extend a brady viable defense cost of action and will be buchan judge sykes highly respected jurist we rely upon that for this court to allow brady claim in this jurisdiction and if you look at it as we pointed out in a footnote in our briefing the plaintiffs in engle did not plead any intentional concealment and that wasn't effective according to the seven circuits decision what these defendant napoli's are attempting to do it's the old prove it at the pleading stage we're not work hard to plead that our version of events is more likely than not we're required to plead plausibility it you know speaking of bad faith in egregiousness this is a meritorious civil rights case and let's agree just as the fraud that was perpetrated on martha marshall and his company has been going on for a long time i appreciate the advocacy for my learned friend mr mendel but continuing to insist that there's a pleading element required or it's twelve b six to says dismissible is not a sound argument you know you have asked us as the eleventh circuit to expand here because the convictions were vacated how can you allege prejudice yes marshall if you will was prejudiced in his defense brady violations are almost never detected most often they are detect well prejudice in the defense doesn't count it has to show reasonable probability of a different result to be a valid brady klein yes that is call materiality but it has to be it's a probability of different result he got acquitted exonerated you put it not think that's fair statement ultimately and the such was the case in any of the bucket the court didn't have a problem deciding the materiality prejudice issue and marshall it was prejudice with eleven twelve years of litigation and has to go through that to get vindicated exonerated your argument which i guess is fairly persuasive is that it would the reasonable probability of a different result the different result would have been acquittal at the jury stage as opposed to later yes honor and marshall that i had to invest significant resources to under these documents but you know when when you say and i appreciate the argument you ought to extend brady the way the seven circuit head and that's your documents to the prosecutor's special agents do not i'm sorry any time you ask us to extend existing law to cover the defendants you've sued yes who are officer or fish or defend lose on qualified immunity ground because the law has to be clearly established at the time they acted and if it was clearly established at the time they acted there's no need to extend it it's just that is to cover this situation qualified immunity protects officers against extensions of the law yes after they act therefore your argument loses now what's wrong with that which a reasonable officer would know is different from the question of what remedy will redress it that those are two completely different questions but if the officer has qualified immunity there is no remedy that can be special protection against from civil suit than state officers did know they have the same protections in more immunity as the nine hundred eighty three defendants that's what the case law says if could i briefly address the layer under  and just a one minute thank you on this idea the idea that years have passed by before we filed our piece act is simply unsustainable we consented to very lengthy extensions for these defendants applebee's to file their paperwork we know district court judges are busy and these decisions took seven or eight months to render me to suggest that which piper worked talking about for them to follow all of their there will consolidate motions to dismiss we had numerous times he's talking about the light after the motions to dismiss and he's talking about eighteen months the case was not on the docket that long how long was there between the dismissal of the second ended compliant and i'm sorry first time in the complaint and the falling of the sack well we filed it within the time limits of fifty nine he it was filed very shortly after the court's order on i misunderstood his argument i think i understood it it's incorrect and it's wrong i think you're right is for your consideration thank you appreciate your argument counsel