FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 27, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11406

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D. C. Docket No. 06-22186-CV-JLK

KALOE SHIPPING CO. LTD.,

Plaintiff-CounterDefendant-Appellant,

versus

GOLTENS SERVICE COMPANY, INC.,

Defendant-CounterClaimant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 27, 2009)

Before HULL, WILSON and HILL, Circuit Judges.

PER CURIAM:

Kaloe Shipping Company appeals the district court’s dismissal with
prejudice of its amended complaint against Goltens Service Company. Goltens

performed repair work on the M/V Inzenieris Neciporenko (“vessel”), a commercial

vessel owned by Kaloe. The district court determined, in granting Goltens’ motion

to dismiss with prejudice, that Kaloe’s amended complaint failed to cure the

deficiencies in the original complaint and that further amendment would be futile.

After review and oral argument, we find that, with an opportunity to amend, Kaloe

may be able to state claims against Goltens. Accordingly, we vacate the district

court’s grant of Goltens’ motion to dismiss with prejudice, and we remand for

further proceedings.

I. BACKGROUND

Between late 2005 and early 2006, Goltens contracted with ADG

Shipmanagement to install a remanufactured crankshaft in the vessel’s main engine

while the vessel was in Freeport, Bahamas. After Goltens finished the installation,

the vessel sailed to Rio Haina, Dominican Republic, and then to San Juan, Puerto

Rico. En route from Rio Haina to San Juan, the vessel’s engine overheated, and it

was towed back to Rio Haina. The vessel underwent a second set of repairs by

Wartsilla, a repair company unaffiliated with Goltens.

Goltens had the vessel arrested in Rio Haina based on outstanding invoices

for repairs done in Freeport. After Wartsilla finished repairing the vessel in Rio

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Haina and the vessel was released from arrest, she sailed for St. Eustatius. The

vessel’s engine again overheated en route. The vessel was towed to St. Maarten,

where she was again repaired by Wartsilla and arrested by Goltens for unpaid

invoices. Following the repairs in St. Maarten and another negotiated release of

the vessel from arrest, the vessel departed and was soon thereafter sold for scrap.

On August 31, 2006, Kaloe filed its original complaint against Goltens,

alleging (1) breach of contract, (2) negligence, and (3) wrongful arrest of the

vessel. Goltens did not move to dismiss Kaloe’s original complaint. Instead, it

answered and filed counterclaims against Kaloe for (1) breach of contract, (2)

unpaid invoices, and alternatively (3) quantum meruit for the reasonable market

value of the work performed on the vessel.

After the parties had completed a year-long discovery and the deadline for

filing motions had passed, the district court held a final pretrial conference on

September 14, 2007. Kaloe’s attorney did not attend the conference because he

was observing a religious holiday that day. The attorney sent a substitute from his

law firm, who was admittedly unfamiliar with the case and, thus, had only a

limited ability to participate in the discussion. During the conference, the district

court determined that neither party’s pleadings contained sufficient facts to state

claims that could proceed to trial. The court sua sponte dismissed the parties’

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claims without prejudice, allowing them to amend.

Kaloe timely filed an amended complaint. Goltens moved to dismiss the

amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief can be granted and under Rule

12(b)(7) for failure to join ADG as a party. The district court found that Kaloe’s

amended complaint simply incorporated the original complaint’s allegations and

added conclusory statements of law. Concluding that further amendment would be

futile, the court granted Goltens’ motion to dismiss with prejudice. Kaloe appeals.

II. STANDARDS OF REVIEW

Two standards of review govern this appeal. “We review de novo the

dismissal of a complaint pursuant to [Rule] 12(b)(6). The plaintiff's factual

allegations are accepted as true. Dismissal is not appropriate unless it is plain that

the plaintiff can prove no set of facts that would support the claims in the

complaint.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)

(internal citations omitted). We review for an abuse of discretion “[a] district

court's decision to grant or deny leave to amend” a complaint. Jennings v. BIC

Corp., 181 F.3d 1250, 1254 (11th Cir. 1999).

III. DISCUSSION

Kaloe argues that the district court erred by finding that its amended

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complaint failed to state claims for breach of contract, negligence, and wrongful

arrest of the vessel. Alternatively, Kaloe argues that the district court abused its

discretion by denying leave to amend its amended complaint.

When ruling on a Rule 12(b)(6) motion to dismiss, the court considers

whether the complaint contains “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, ___, 127 S.

Ct. 1955, 1974 (2007). “When reviewing an order granting a motion to dismiss for

failure to state a claim, this court must accept the facts as pleaded to be true and

resolve them in the light most favorable to the plaintiff.” Ancata v. Prison Health

Servs., Inc., 769 F.2d 700, 702 (11th Cir. 1985).

“An amended pleading supersedes the former pleading; the original pleading

is abandoned by the amendment, and is no longer a part of the pleader's averments

against his adversary.” Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d

1210, 1215 (11th Cir. 2006) (quotation omitted). “A copy of a written instrument

that is an exhibit to a pleading is a part of the pleading for all purposes.” FED. R.

CIV. P. 10(c). “[U]nless there is a substantial reason to deny leave to amend, the

discretion of the district court is not broad enough to permit denial.” Thomas v.

Town of Davie, 847 F.2d 771, 773 (11th Cir. 1988) (quotation omitted) (alteration

in original).

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A. Kaloe’s Standing

A party must have standing to maintain a claim. “[T]he question of standing

is whether the litigant is entitled to have the court decide the merits of the dispute

or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205

(1975). Kaloe would have standing to maintain a breach of contract claim against

Goltens on ADG and Goltens’ contracts if Kaloe had an agency relationship with

ADG. See Ford v. Williams, 62 U.S. (21 How.) 287, 289 (1858) (“The contract of

the agent is the contract of the principal, and he may sue or be sued thereon, though

not named therein.”).

Kaloe argues that its amended complaint sufficiently alleges an agency

relationship between Kaloe and ADG. The amended complaint alleges that “[t]he

parties [Kaloe and Goltens] entered a series of written contracts for the repairs to

the [vessel’s] engine’s component parts.” (Amended Compl. ¶ 12). It further

alleges that “[e]ach of these agreements w[as] reduced to writing and executed by

the parties or their respective agents.” (Amended Compl. ¶ 13) (emphasis added).

It includes as attachments copies of the contracts between ADG and Goltens on

which Kaloe has filed suit. The contracts state that ADG signed on behalf of the

vessel’s owner.

Although the amended complaint alleges that Kaloe is the vessel’s owner,

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but fails to identify who the parties’ agents are or even mention ADG by name,

Kaloe nonetheless has pleaded enough facts, the amendment of which could allege

that ADG was Kaloe’s agent. Since Kaloe may be able to allege an agency

relationship with ADG, and thus have standing to sue on ADG and Goltens’

contracts, we conclude that the district court abused its discretion by finding that

amendment would be futile.

B. Breach of Contract Claim

Since we conclude that amendment would not be futile, we also conclude

that Kaloe may be able to state a breach of contract claim. “The elements of a

breach of contract action are (1) a valid contract; (2) a material breach; and (3)

damages.” Beck v. Lazard Freres & Co., 175 F.3d 913, 914 (11th Cir. 1999) (per

curiam).

In addition to alleging the contracts’ existence, Kaloe alleges that “Goltens

materially breached this contract . . . when it failed to properly perform the work

contracted for and the Vessel failed as a result of their shoddy work . . . .”

(Amended Compl. ¶ 51); and that “Kaloe has been damaged from this breach and

is entitled to recover the damages resulting therefrom . . . .” (Amended Compl. ¶

52).

Goltens argues that Kaloe’s allegations fail to state a breach of contract

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claim. In so arguing, Goltens seems to focus primarily on the valid-contract

element. First, Goltens argues that the contracts are not susceptible to

interpretation. Second, Goltens argues that Kaloe failed to join ADG, the party

with whom Goltens signed the contracts, as an indispensable party to the claim.

Finally, Goltens argues that further amendment would be futile because the

contracts insufficiently give rise to a claim, the parties have completed discovery,

and there are no more contracts to be discovered that could give rise to a breach of

contract claim. All three arguments fail. We address each in turn.

1. Are the Contracts Susceptible to Interpretation?

In suggesting that the contracts are not susceptible to interpretation, Goltens

appears to rely on the district court’s doubts expressed at the pre-trial conference.

But in so doing, Goltens overlooks the scope of our review here. In stating during

the pre-trial conference that “I am not sure you all have a contract that is

susceptible of interpretation,” (R:82:26), the district court was not considering only

the plausibility of the amended complaint’s allegations. The court was also

considering the parties’ pre-trial stipulations and preparing the case for trial. The

court explained:

But now we are off into not a question of whether or not

the drive shaft got repaired properly, which was the basis

of the contract. We are off into all this Mickey Mouse

stuff about whether or not people had qualified people or

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not. . . .

The basic issue here is whether or not the drive

shaft got installed properly and the boat steamed off and

it worked. That is why all this stuff you have in here in

one of your pretrial stips about whether or not they got

fed, and if so how much, and how much they paid for it

. . . .

(R:82:25-26).

Since Kaloe appeals the district court’s Rule 12(b)(6) dismissal for failure to

state a claim, we focus only on the legal sufficiency of Kaloe’s amended complaint

and the exhibits attached to it. See Twombly, 127 S. Ct. at 1974; FED. R. CIV. P. 10

(c). The contracts attached to Kaloe’s amended complaint list the repair services

that Goltens promised to render. They specify the amounts of compensation that

ADG promised to pay for those services. They are also signed by representatives

from both ADG and Goltens.

The susceptibility of these contracts to interpretation does not, contrary to

Goltens’ suggestion at oral argument, require that they contain specific remedies

for breach. Contract law provides those. See RESTATEMENT (SECOND) OF

CONTRACTS § 1 (1981) (defining “contract” as “a promise or set of promises for

the breach of which the law gives a remedy, or the performance of which the law in

some way recognizes as a duty”) (emphasis added). We conclude, in light of the

foregoing, that these contracts are valid and susceptible to interpretation.

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2. Is ADG an Indispensable Party?

Goltens prematurely asserts that ADG is an indispensable party whose

absence would subject Kaloe’s amended complaint to dismissal. The term

“indispensable” is not an a priori classification. Rather, a court determines

whether a party is “indispensable” by applying Rule 19(b). Under Rule 19(b),

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“[i]f a person who is required to be joined if feasible cannot be joined, the court

must determine whether, in equity and good conscience, the action should proceed

among the existing parties or should be dismissed.” FED. R. CIV. P. 19(b). An

involuntary dismissal for a party’s failure to join a party under Rule 19 is not an

adjudication on the merits. FED. R. CIV. P. 41(b). The dismissal is reviewed on

appeal for an abuse of discretion. See W. Peninsular Title Co. v. Palm Beach

County, 41 F.3d 1490, 1492 (11th Cir. 1995) (per curiam).

Goltens moved to dismiss Kaloe’s amended complaint not only under Rule

12(b)(6) for failing to state a claim but also under Rule 12(b)(7) for failing to join a

party. The district court appears to have granted Goltens’ motion to dismiss under

“Former Rule 19(b) described the conclusion that an action should be dismissed for 1

inability to join a Rule 19(a) party by carrying forward traditional terminology: ‘the absent

person being thus regarded as indispensable.’ ‘Indispensable’ was used only to express a

conclusion reached by applying the tests of Rule 19(b). It has been discarded as redundant.” 

FED. R. CIV. P. 19 advisory committee’s note (2007). 

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Rule 12(b)(6) without considering Goltens’ Rule 12(b)(7) argument and engaging

in a Rule 19(b) analysis. The court concluded that Kaloe’s amended complaint,

like its original complaint:

has . . . failed to allege necessary factual allegations to

support its breach of contract, negligence, and wrongful

arrest claims. [Kaloe] has failed to cure any of the

deficiencies contained in his [sic] original Complaint and

discussed at the Pretrial Conference. It has instead

simply incorporated the allegations from its original

Complaint into its Amended Complaint and added

thereto more conclusory statements of law. As such,

[Kaloe’s] Amended Complaint fails to allege a valid

cause of action by setting forth facts sufficient to support

a case against [Goltens]. The Court concludes that

permitting further amendment would be futile.

Kaloe v. Goltens, No. 06-22186-CIV-KING, slip. op. at 4-5 (S.D. Fla. Feb. 29,

2008).

In granting Goltens’ Rule 12(b)(6) motion to dismiss with prejudice, the

district court appears not to have reached the issue whether Kaloe’s amended

complaint should be dismissed for failing to join ADG as a party. Consequently,

we have no district court decision on Goltens’ Rule 12(b)(7) motion to review for

an abuse of discretion.

3. Would Further Amendment Be Futile?

Further amendment would not be futile. Kaloe’s amended complaint alleges

that it executed the contracts either on its own or through an agent. (Amended

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Compl. ¶ 13). The attached contracts indicate that ADG signed on behalf of the

vessel’s unidentified owner. After taking the pleaded facts as true, resolving those

facts in the light most favorable to Kaloe, and considering that Kaloe and Goltens

engaged in a year-long discovery before the court dismissed Kaloe’s amended

complaint with prejudice, we find no “substantial reason to deny leave to amend.”

Thomas, 847 F.2d at 773 (quotation omitted). Thus, we conclude that the district

court abused its discretion by finding that further amendment would be futile.

C. Negligence and Wrongful Arrest Claims

Since we are remanding this case to the district court to allow Kaloe a

second opportunity to amend its complaint, we decline at this juncture to address

the legal sufficiency of its negligence and wrongful arrest claims.

IV. CONCLUSION

We VACATE the district court’s order dismissing Kaloe’s amended

complaint with prejudice. We REMAND for further proceedings consistent with

this opinion. We leave it to the district court to decide in the first instance whether

Kaloe’s second amended complaint, if Kaloe files one, properly states any claims.

VACATED and REMANDED.

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