The plaintiff in Law v. Ocwen Loan Servicing, L.L.C., a mortgage servicing case, asked the Fifth Circuit for leave to amend if it affirmed the dismissal of the complaint under Rule 12. No. 14-20019 (Oct. 16, 2014, unpublished). The Court affirmed on the merits and as to the denial of leave to amend, noting these basic and important principles on the point:
* “A party who neglects to ask the district court for leave to amend cannot expect to receive such dispensation from the court of appeals.”
* A district court’s sua sponte discussion of amendment is not a request, and neither is this language in a response: “[T]he only relief possibly available to [the defendant] at this stage of the case is that [the plaintiff] replead.”
* While new factual allegations in response to a summary judgment motion can be construed as a request for leave to amend, that does not hold for a response to a Rule 12 motion.