Ash v. Anderson Merchandisers

Linda Ash and Abbie Jewsome are sales representatives for a company alternatively calling itself “Anderson Merchandisers,” “ANConnect” and “West AM.” In April 2014, Ash and Jewsome sued their employer under the Fair Labor Standards Act for failing to pay them overtime, among other violations. In July 2014, the district court granted the defendants’ motion to dismiss, ruling that the complaint contained insufficient detail about the nature of the employer and dismissing the case without leave to amend the complaint. Nine days later, the plaintiffs sought reconsideration, seeking to amend their complaint, and they attached a proposed amended complaint containing additional details about the entities that constitute their employer. The district court denied the motion for reconsideration, saying that the plaintiffs should have sought amendment before the court ruled on the motion to dismiss.

In August 2015, the court of appeals affirmed, holding that, although leave to amend a complaint is normally given freely, the district court’s discretionary decision to dismiss without leave to amend turned plaintiffs’ request into a disfavored motion subject to a stricter standard. The court further held that plaintiffs unreasonably delayed asking for amendment by failing to do so before the motion to dismiss was granted – at the time that the plaintiffs were opposing the motion.

Representing the plaintiffs before the U.S. Supreme Court, we filed a petition for certiorari in October 2015. The petition pointed out that the courts of appeals are divided both on the standard for amending a complaint after dismissal and on whether a court may penalize plaintiffs for waiting to move for leave to amend until after the district court has ruled against them on a motion to dismiss. In January 2016, the Court denied certiorari.