In the

United States Court of Appeals

For the Seventh Circuit

No. 05-1491

STACIE FOSTER,

Plaintiff-Appellant,

v.

ANTHONY DELUCA and CITY OF CHICAGO HEIGHTS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 5220—Samuel Der-Yeghiayan, Judge.

ARGUED MAY 12, 2008—DECIDED SEPTEMBER 29, 2008

Before ROVNER, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Stacie Foster filed suit against

the defendants claiming that they violated her First

Amendment rights by terminating her because of her

political affiliation. The district court granted the defendants’ motion to dismiss and terminated the case on the

same day, and later denied Foster’s motion to amend her

complaint. Because the district court failed to articulate

a reason for denying Foster’s motion to amend her complaint, we reverse.
2 No. 05-1491

I. BACKGROUND

On August 6, 2004, Foster, who is a Democrat, filed suit

against Anthony DeLuca, the Republican mayor of the

City of Chicago Heights, and the City itself. She alleged

a violation of her First Amendment freedom of association rights under 42 U.S.C. § 1983 because her employment was terminated after DeLuca was elected. On October

22, 2004, the defendants filed a Rule 12(b)(6) motion to

dismiss the complaint. On January 6, 2005, the district

court granted the defendants’ motion to dismiss and

terminated the case on the same day. On January 14, 2005,

Foster filed a motion to alter the district court’s judgment

under Federal Rules of Civil Procedure 59(e) and 60(b), a

motion for leave to file an amended complaint, and an

amended complaint. On January 27, 2005, the district court

denied Foster’s motion for leave to amend and motions

to alter the judgment in a brief minute order. Foster

appeals.

II. ANALYSIS

We review a district court’s denial of a request for

leave to amend for an abuse of discretion. Indiana Funeral

Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th

Cir. 2003). Federal Rule of Civil Procedure 15(a) dictates

that leave to amend a pleading shall be freely given “when

justice so requires,” and the rule expressly grants a

plaintiff an opportunity to amend her complaint “once as

a matter of course before being served with a responsive

pleading.” Fed. R. Civ. P. 15(a); Camp v. Gregory, 67 F.3d

1286, 1289 (7th Cir. 1995). Here, Foster filed her com-
No. 05-1491 3

plaint and the defendants responded with a motion to

dismiss pursuant to Rule 12(b)(6). For purposes of

Rule 15(a), a motion to dismiss does not constitute a

responsive pleading, see id.; thus, “an order dismissing

the original complaint normally does not eliminate the

plaintiff’s right to amend once as a matter of right.”

Crestview Vill. Apartments v. United States HUD, 383 F.3d

552, 557 (7th Cir. 2004); Camp, 67 F.3d at 1289; Willhelm v.

Eastern Airlines, Inc., 927 F.2d 971, 972 (7th Cir. 1991).

The district court entered final judgment against Foster

at the same time that it granted the motion to dismiss, so

she lost her right to amend her complaint. See Camp, 67

F. 3d at 1289 (citing Car Carriers, Inc. v. Ford Motor Co., 745

F.2d 1101, 1111 (7th Cir. 1984)). Once final judgment has

been entered in a case, “the district court lacks jurisdiction to entertain a motion for leave to amend the complaint unless the plaintiff also moves for relief from the

judgment.” Id. at 1289-90. After the case was terminated,

Foster filed the requisite motions under Rules 59(e) and

60(b) as well as a motion for leave to file an amended

complaint and the amended complaint. The district court

construed all of Foster’s filings as a motion to reconsider

its earlier decision dismissing the case, which it summarily denied.

Relief under Rules 59(e) and 60(b) are extraordinary

remedies reserved for the exceptional case, Dickerson v.

Board of Education of Ford Heights, Ill., 32 F.3d 1114,

1116 (7th Cir. 1994), and “the mere desire to expand the

allegations of a dismissed complaint does not, by itself,

normally merit lifting the judgment.” Camp, 67 F.3d at
4 No. 05-1491

1290. Yet the district court left the plaintiff with little

recourse but to file a motion under Rules 59(e) and 60(b)

because it simultaneously granted the defendants’ motion

to dismiss and terminated the case. District courts routinely do not terminate a case at the same time that they

grant a defendant’s motion to dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice

and give the plaintiff at least one opportunity to amend

her complaint. See generally Furnace v. Bd. of Trs., 218 F.3d

666, 669 (7th Cir. 2000) (noting that “while this court has

not accorded talismanic importance to the fact that a

complaint . . . was dismissed ‘without prejudice,’ generally,

an order dismissing a complaint without prejudice ‘is not

appealable because the plaintiff may file an amended

complaint.’ ”) (internal citations and quotations omitted);

see also Kaplan v. Shure Bros., 153 F.3d 413, 417 (7th Cir.

1998) (same); Farrand v. Lutheran Bhd., 993 F.2d 1253, 1254

(7th Cir. 1993) (same).

While “the right to amend as a matter of course is not

absolute,” and a district court may deny a motion to

amend “if the proposed amendment fails to cure the

deficiencies in the original pleading, or could not survive

a second motion to dismiss,” Crestview Vill. Apartments,

383 F.3d at 558 (citing Perkins v. Silverstein, 939 F.2d 463,

471-72 (7th Cir. 1991) (internal quotations omitted)), there

is no indication that is what happened in this case. Other

than its summary denial of the plaintiff’s motions, the

district court made no determination regarding the sufficiency of the amended complaint nor did it provide any

explanation for why it denied the motion to amend. See

Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499
No. 05-1491 5

The parties also brief whether the amended complaint 1

would survive a Rule 12(b)(6) motion, but the district court

never reached this issue. We decline to resolve that issue here

as it is something that the district court should revisit on

remand.

9-29-08

F.3d 663, 666 (7th Cir. 2007) (“Reasons for finding that

leave should not be granted include ‘undue delay, bad

faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment.’ ”) (citing

Foman v. Davis, 371 U.S. 178, 182 (1962)); Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004) (same).

This omission is especially notable given the district

court’s action in dismissing the case and entering judgment on the same day. Accordingly, we find that the

district court abused its discretion by denying the plaintiff’s motion to amend without explanation.1

III. CONCLUSION

Accordingly, we REVERSE the decision of the district

court and REMAND this case for proceedings consistent

with this opinion. Circuit Rule 36 shall apply.