            Case: 14-15586    Date Filed: 10/22/2015   Page: 1 of 21


                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-15586
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 6:10-cv-408-PGB-KRS


RICHARD L. GOBLE,

                                                              Plaintiff–Appellant,

                                     versus

TIMOTHY WARD, et al.,

                                                           Defendants–Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (October 22, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

     Plaintiff–Appellant Richard L. Goble was the target of a previous civil

enforcement action brought by the Securities and Exchange Commission (SEC).
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During the enforcement action, the SEC liquidated Goble’s company and

ultimately the district court found Goble liable for securities fraud and for aiding

and abetting violations of securities law. It also enjoined Goble from future

violations of securities laws and permanently restrained him from seeking a

securities license or engaging in securities business. Goble appealed the district

court’s finding, and in SEC v. Goble, 682 F.3d 934 (11th Cir. 2012), we affirmed

the district court’s judgment on the aiding and abetting claims, but reversed the

district court’s judgment on the securities fraud claim. We also vacated several

portions of the district court’s injunction, including portions “that bar[red] Goble

from procuring a securities license, engaging in the securities business, or violating

[securities law].” Id. at 953.

      Following this partial vindication, and alleging wrongdoing and negligence

committed by governmental entities and private individuals, Goble sued ten

defendants involved in the liquidation of his company. The district court dismissed

each claim. Goble appeals these dismissals and the three orders that denied his

motions to amend. We affirm.




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                                     I. BACKGROUND

A.       Facts 1
         At the beginning of 2008, Goble was the director of North American

Clearing Corporation (North American). On May 27, 2008, Defendant Securities

and Exchange Commission (SEC) sued North American for improperly liquidating

customer accounts. Relying “almost entirely” on statements from North

American’s president (Defendant Bruce Blatman) and North American’s chief

financial officer (Defendant Timothy Ward), the SEC brought a civil enforcement

action against Goble alleging that he had liquidated customer accounts to avoid

insolvency. No investigator spoke to Goble before the SEC filed the civil

enforcement action.

         The SEC’s complaint included a false allegation that North American’s

customer accounts lacked the amount of money required under federal securities

law. The false allegation arose from the SEC’s use of a formula that differed from

Goble’s, yet the SEC never spoke to Goble, who could have corrected the SEC’s

misunderstanding. In reliance on Blatman and Ward, the complaint also falsely

alleged that North American had unlawfully “swept” customer money market

accounts and moved the money from those accounts into North American’s

operating accounts. Although the SEC doubted the truth of this allegation, it never


1
    The following facts come from the operative complaint.
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bothered to speak to Goble, who again could have corrected the error. In reality,

each “sweep” and transfer had occurred with customer consent; no sweep was

made to prevent North American from failing; and no sweep offset North

American’s basic operating expenses. The SEC could have discovered all of the

above simply by questioning Goble, but it chose not to do so.

      In the SEC’s civil enforcement action against Goble, the SEC requested an

ex parte temporary restraining order and a receiver for North American; the court

issued an order granting both requests. Two months later, Defendant Securities

Investor Protection Corporation (SIPC) (acting through Defendant Josephine Wang

and Defendant Christopher Larosa) began liquidation of North American. The

judge overseeing the SEC’s action transferred the case to bankruptcy court.

Throughout the receivership and the bankruptcy litigation, SIPC and the SEC

misrepresented “financials” to the bankruptcy court. Relying on the

misrepresentations, the bankruptcy court “destroy[ed]” North American. During

the receivership, the SEC paid Ward and Blatman more than the wages they had

received when employed by North American. Under 15 U.S.C. § 78eee, SIPC

applied for and received a protective decree, but because an inexperienced

employee completed the application, it contained inaccurate information. The

application estimated that North American was insolvent by $2.5 million, but

North American was actually solvent by $3 million. Soon after the bankruptcy

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court entered the protective order, the bankruptcy trustee discovered that SIPC had

miscalculated North American’s solvency. Nonetheless, the bankruptcy trustee

continued the liquidation of North American.

      Defendant Financial Industry Technical Services Inc. (FITS), which

“provide[s] operational support and project management services to the financial

industry,” employed Defendant Henry Lange as chief executive officer. Lange

“worked with” the bankruptcy trustee and SIPC to liquate North American. Lange

misrepresented “key financial information at stages of the receivership and

bankruptcy.” Further, Lange “was involved in covering up the true healthy

financial condition of [North American] and shredding key financial documents.”

Similarly, FITS employed Defendant John Rizzo, who “worked with . . . SIPC in

the dismantling of [North American], misrepresenting [North American’s]

financial information, and shredding and hiding important financial documents.”

      As noted, in the SEC’s enforcement action, the district court found Goble

liable for securities fraud and aiding and abetting security law violations. We

affirmed in part and reversed in part. Thereafter, Goble initiated the district court

proceedings that are the subject of this present appeal.

B.    District Court Proceedings
      Instituting two actions, Goble sued almost everyone involved in liquidating

North American. Thereafter, he moved to consolidate the two cases and to amend


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the complaint. The district judge granted the motion to consolidate and referred

for report and recommendation the motion to amend the complaint. In accord with

the magistrate judge’s recommendation, the district judge denied Goble’s motion

to amend because (among other reasons) the attached, proposed complaint 2

contained futile claims. The order directed Goble to remove the futile claims and

to move again to amend the complaint. Specifically, the order directed Goble to

correct the following errors:

       Based on the facts asserted in the proposed . . . Complaint, Goble is
       hereby PROHIBITED from naming any of the following defendants
       in the proposed amended complaint: (1) the SEC and its employees,
       as to [Federal Tort Claims Act] claims; (2) [the receiver], his law firm,
       and his attorneys and other agents; and (3) [the trustee], his law firm,
       and his attorneys and other agents. Based on the facts asserted in the
       proposed . . . Complaint, Goble is hereby PROHIBITED from
       asserting causes of action for: (1) bankruptcy fraud; (2) aiding and
       abetting bankruptcy fraud; (3) violation of 11 U.S.C. Section 523; and
       (4) legal malpractice against any Defendant with whom there is no
       privity of contract. Goble may assert tort claims against the United
       States only to the extent it has waived sovereign immunity. The
       proposed amended complaint must identify what each defendant did
       that could plausibly make it liable for the corresponding claim, and
       each count must clearly identify a cause of action recognized under
       governing law.

       Goble appealed the order denying his motion to amend and moved to stay

the case. The district judge denied the motion to stay because the appeal was



2
  Goble named the proposed complaint the “fourth amended complaint.” Presumably, he used
“fourth” because his first action contained a complaint and his second action contained both a
complaint and an amended complaint. This opinion refers to the “fourth amended complaint” as
the “first proposed complaint.”
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frivolous 3 and directed Goble to move within fourteen days to amend the

complaint. The district judge stated, “Failure to file a renewed motion for leave to

file an amended complaint, accompanied by a proposed amended complaint,

within the time provided in this Order will result in this case proceeding on the

Amended Complaint.” Goble timely moved to amend the complaint and attached a

second proposed complaint. The district judge referred the motion for disposition,

and the magistrate judge denied the motion. The denial explained that the second

proposed complaint ignored the district judge’s order by, for example, (1) suing the

SEC and two SEC employees, (2) suing agents of the trustee, (3) failing to

“identif[y] what each defendant did that could plausibly make it liable for the

corresponding claim against it,” and (4) suing for unrecognized causes of action

(e.g., “corruption” and “obstruction”). The order did not invite Goble to move

again to amend the complaint.

       Forty-five days later, Goble again moved to amend the complaint and

attached a third proposed complaint. The district judge referred the motion to the

magistrate judge for disposition, and the latter denied the motion because it was

untimely and because Goble failed to show “good cause” for amending the

complaint. Thus, the parties proceeded under the amended complaint filed in the

second action. In that complaint, Goble had sued ten defendants—the United

3
  Approximately four months later, the Eleventh Circuit sua sponte dismissed the appeal for lack
of jurisdiction.
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States, the SEC, SIPC, Blatman, Ward, Lange, FITS, Rizzo, Wang, and Larosa—

each for negligence, gross negligence, abuse of process, civil conspiracy, and

conversion.

      Each Defendant moved to dismiss the complaint, and Goble responded. The

district judge referred each motion for report and recommendation. Adopting the

magistrate judge’s reports and recommendations, the district judge granted (or

granted in part) each motion and dismissed each claim. The district judge

(1) dismissed with prejudice each claim against FITS, Lange, and Rizzo (whom the

bankruptcy trustee had hired) for lack of subject matter jurisdiction because Goble

had failed to obtain leave to sue the bankruptcy trustee; (2) dismissed with

prejudice each claim against the United States and the SEC because neither party

had waived sovereign immunity; (3) dismissed with prejudice each claim against

SIPC, Wang, and Larosa because Florida’s litigation privilege conferred them

absolute immunity from the first four counts and the only remaining claim failed to

state a claim against them; and (4) dismissed without prejudice the claims against

Ward and Blatman because Goble failed to plead an independent basis for

jurisdiction and the court declined to exercise supplemental jurisdiction.

                    II. APPEAL AND SCOPE OF REVIEW
      Although Goble appeals twelve orders, his initial brief, even when liberally

construed, disputes only four orders: the three orders denying Goble’s motions to


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amend the complaint and the order dismissing each claim. Further, as to the

dismissal order, Goble’s initial brief disputes only the dismissal of the claims

against the United States and the SEC.

       Arguably, Goble raises additional issues arising out of the district court’s

orders in a reply brief that is very difficult to decipher. But we do not consider

those issues because “[a]rguments not properly presented in a party’s initial brief

or raised for the first time in a reply brief are deemed waived.” Egidi v. Mukamai,

571 F.3d 1156, 1163 (11th Cir. 2009); accord Holland v. Gee, 677 F.3d 1047,

1066 (11th Cir. 2012) (“The law is by now well settled in this Circuit that a legal

claim or argument that has not been briefed before the court is deemed abandoned

and its merits will not be addressed.”). Even a pro se litigant is not forgiven for

failing to raise an issue in the initial brief. Timson v. Sampson, 518 F.3d 870, 874

(11th Cir. 2008) (“While we read briefs filed by pro se litigants liberally, issues not

briefed on appeal by a pro se litigant are deemed abandoned. Moreover, we do not

address arguments raised for the first time in a pro se litigant’s reply brief.”

(citations omitted)). Accordingly, we address only the arguments raised in the

initial brief: that is, Goble’s arguments that the district court erred when it denied

his motions to amend and dismissed the claims against the United States and the

SEC.




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                         III. STANDARD OF REVIEW
      “We review the denial of a motion to amend a complaint for an abuse of

discretion. ‘However, when the district court denies the plaintiff leave to amend

due to futility, we review the denial de novo because it is concluding that as a

matter of law an amended complaint would necessarily fail.’” Fla. Evergreen

Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d 1036, 1040 (11th Cir. 2006)

(citation omitted). “Sovereign immunity is a question of law that we review de

novo.” Johnson v. Conner, 720 F.3d 1311, 1313 (11th Cir. 2013).

                                  IV. ANALYSIS
      We first review the dismissal of the five counts in the operative complaint

and then review the denial of Goble’s motions to amend the complaint.

A.    Dismissal of the Claims Against the United States and the SEC
      Goble alleged five claims against the United States and the SEC—

negligence, gross negligence, abuse of process, civil conspiracy, and conversion.

Relying on sovereign immunity, the district judge dismissed each claim. “[A]bsent

a waiver, sovereign immunity shields the Federal Government and its agencies

from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Arguing that the Federal

Tort Claims Act (FTCA) does constitute a waiver of sovereign immunity, Goble

contends that his claims against the United States and the SEC should not have

been dismissed. See Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015)


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(“Through the enactment of the FTCA, the federal government has, as a general

matter, waived its immunity from tort suits based on state law tort claims.”).

      1.     Claims Against the SEC
      The FTCA’s waiver applies only to the federal government and not to

agencies within the federal government. FDIC v. Craft, 157 F.3d 697, 706

(9th Cir. 1998) (“[A]n agency itself cannot be sued under the FTCA.”); Galvin v.

Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988) (“In view

of this explicit statutory language, the courts have consistently held that an agency

or government employee cannot be sued eo nomine under the Federal Tort Claims

Act. Thus, an FTCA claim against a federal agency or employee as opposed to the

United States itself must be dismissed for want of jurisdiction.” (citation

omitted)). For this reason, the district judge correctly dismissed the claims against

the SEC. But even if the SEC could be sued, it would be immune for the same

reasons (discussed below) as the United States.

      Goble’s brief argues that, leaving aside the waiver found in the FTCA, the

SEC also waived sovereign immunity in a letter it wrote to Goble. The magistrate

judge and the district judge persuasively explain that Goble misconstrued the

substance of the SEC’s letter. However, even if the letter had unequivocally

purported to waive the SEC’s sovereign immunity, the latter would still retain that

immunity because only Congress can waive an agency’s sovereign immunity.


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Tobar v. United States, 639 F.3d 1191, 1195 (9th Cir. 2011) (“[A] letter [from a

United States embassy is] not [an] act[] of Congress, so [it] cannot effect a waiver

of sovereign immunity.”); 14 Charles Alan Wright et al., Federal Practice and

Procedure § 3655 (3d ed. 2015) (“[An] agency may be sued only if Congress has

consented to the action, the reason being that the United States is the real party in

interest in the litigation.” (footnote omitted)); see also 14 Charles Alan Wright et

al., Federal Practice and Procedure § 3654 (3d ed. 2015) (“It is a well-settled and

logical principle that only Congress can waive the United States’ right to assert the

defense of sovereign immunity, and it must do so explicitly.”).

      2.     Claims Against the United States
      The United States argues that the FTCA’s broad waiver applies to Goble’s

tort claims against the United States. However, “that which the Sovereign gives, it

may also take away, and the Government has done so through statutory

exceptions.” Zelaya, 781 F.3d at 1322. Thus the question here is whether

statutory exceptions to sovereign immunity apply to Goble’s claims against the

federal government. We conclude that two exceptions—28 U.S.C. §§ 2680(a) and

(h)—apply and confer sovereign immunity against each of Goble’s claims against

the United States.

      Count I alleges negligence against the United States because it “negligently

represented false corporate financial and operational information to the Courts,


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which resulted in a needless Temporary Restraining Order, liquidation, and

destruction of [North American] as an operating firm.” In other words, Count I

alleges negligent misrepresentation against the United States. But under 28 U.S.C.

§ 2680(h), the United States retains sovereign immunity against “[a]ny claim

arising out of . . . misrepresentation.” And that “exception covers actions for

negligence when the basis for the negligence action is an underlying claim for

misrepresentation.” JBP Acquisitions, LP v. U.S. ex rel. FDIC, 224 F.3d 1260,

1264 (11th Cir. 2000). Accordingly, § 2680(h) bars Count I.

      Count II alleges nearly the same claim against the United States. The

primary difference is that Count II alleges gross negligence, not negligence.

However, that difference is insufficient for Count II to escape § 2680(h). See

United States v. Neustadt, 366 U.S. 696, 702 (1961) (“[Section] 2680(h)

comprehends claims arising out of negligent, as well as willful,

misrepresentation.”); Lawrence v. United States, 340 F.3d 952, 958 (9th Cir. 2003)

(“The misrepresentation exception shields government employees from tort

liability for failure to communicate information, whether negligent, or

intentional.”), cited with approval in Zelaya v. United States, 781 F.3d 1315, 1335

(11th Cir. 2015). Accordingly, § 2680(h) bars Count II.




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      Count III alleges abuse of process against the United States. However,

Section 2680(h) retains the United States’ sovereign immunity against “[a]ny claim

arising out of . . . abuse of process.” Accordingly, § 2680(h) bars Count III.

      Count IV alleges civil conspiracy against the United States because it “acted

[along with others] with a common purpose to falsely report [North American]’s

financial information and operational information to the Court in cases against

[North American], using doctored and false financial statements.” Although Count

IV alleges civil conspiracy, not misrepresentation, § 2680(h)’s clause forbidding

“[a]ny claim arising out of . . . misrepresentation[ or] deceit” applies to Count IV.

“‘It is the substance of the claim and not the language used in stating it which

controls’ whether the claim is barred by an FTCA exception. Thus, a plaintiff

cannot circumvent the misrepresentation exception simply through the artful

pleading of its claims.” JBP Acquisitions, 224 F.3d at 1264 (citation omitted).

Because Count IV relies on the United States’ “falsely report[ing]” information to

a court, Count IV is a claim “arising out of . . . misrepresentation[ or] deceit.”

Thus, §2680(h) bars Count IV.

      Count V alleges conversion against the United States because it

“intentionally stole and appropriated . . . computer equipment, office supplies, and

proprietary and confidential information.” Conversion is not excluded under

§ 2680(h) (unless the substance of the conversion claim alleges a tort otherwise

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named in § 2680(h)). Levin v. United States, 133 S. Ct. 1224, 1228 n.1 (2013)

(“Section 2680(h) does not remove from the FTCA’s waiver all intentional torts,

e.g., conversion . . . .”); CHoPP Computer Corp. v. United States, 5 F.3d 1344,

1347 (9th Cir. 1993) (“[The plaintiff]’s conversion claim can be brought under the

FTCA.”). Nonetheless, § 2680(a) bars Count V because § 2680(a) retains

sovereign immunity against:

      [a]ny claim based upon an act or omission of an employee of the
      Government, exercising due care, in the execution of a statute or
      regulation, whether or not such statute or regulation be valid, or based
      upon the exercise or performance or the failure to exercise or perform
      a discretionary function or duty on the part of a federal agency or an
      employee of the Government, whether or not the discretion involved
      be abused.

      Section 2680(a) applies if two requirements are satisfied. Under the first

requirement, “the conduct that forms the basis of the suit must involve an element

of judgment or choice by the employee.” Zelaya, 781 F.3d at 1329. More

specifically, “the controlling statute or regulation [must not] mandate[] that a

government agent perform his or her function in a specific manner.” Id. Under the

second requirement, the judgment or choice must “be inherently grounded in

considerations of policy.” Id. at 1330. But “it must be presumed that the agent’s

acts are grounded in policy.” Id. at 1330.

      Count V fails to explain the circumstances under which the United States

converted property, but the United States reasonably infers Count V to allege that


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the United States took property of his as part of the SEC’s investigation. Federal

statutes and regulations empower SEC investigators with discretion in

investigating violations of securities law. 15 U.S.C. § 78u(a)(1) (“The

Commission may, in its discretion, make such investigations as it deems necessary

to determine whether any person has violated, is violating, or is about to violate

[securities laws].”); 15 U.S.C. § 78u(b) (“For the purpose of any [securities]

investigation . . . , any member of the [SEC] . . . is empowered to . . . take

evidence[] and require the production of any books, papers, correspondence,

memoranda, or other records which the Commission deems relevant or material to

the inquiry.”); Zelaya, 781 F.3d at 1328 (“[T]he SEC has discretionary authority to

pursue violations of the securities laws under . . . statutory provisions and

regulations.”); 17 C.F.R. § 202.5(a) (“The Commission may, in its discretion,

make such formal investigations . . . as it deems necessary to determine whether

any person has violated, is violating, or is about to violate . . . the federal securities

laws . . . .”). Thus, the SEC’s acquisition of business property during the

investigation satisfies § 2680(a)’s first requirement.

      Because federal law empowers the SEC with discretion as to how it handles

an investigation, we reasonably assume that the SEC investigators ground their

investigative decisions on policy considerations. Goble’s initial brief ignores this

second requirement of § 2680(a), however. Further, Count V (which contains only

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three paragraphs) offers no allegation suggesting that the SEC investigators

exercised their discretion on grounds other than policy when they took for

inspection the business property.

      We recognize that Count V states that the United States “intentionally stole

and appropriated . . . computer equipment, office supplies, and proprietary and

confidential information.” However, “in examining whether an employee’s

discretion is of the type grounded in public policy, one uses an objective test, and

the employee’s subjective intent is irrelevant.” Zelaya, 781 F.3d at 1330. As

Cohen v. United States explains:

      “In [applying § 2680(a)’s second requirement], we do not focus on the
      subjective intent of the government employee or inquire whether the
      employee actually weighed social, economic, and political policy
      considerations before acting.” Instead, we “focus on the nature of the
      actions taken and on whether they are susceptible to policy analysis.”

151 F.3d 1338, 1341 (11th Cir. 1998) (citation omitted). Under Cohen, Count V’s

intent allegations are irrelevant to determining whether § 2680(a)’s second

requirement applies to the SEC’s conversion, and the SEC’s investigation

decisions are “susceptible to policy analysis.” Thus, the SEC’s removal of

business property during the investigation satisfies § 2680(a)’s second

requirement.

      In sum, federal statutes and regulations empower SEC investigators with

discretion in investigating violations of securities law. Thus, we presume that


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investigative decisions are grounded in policy because they are “susceptible to

policy analysis.” Neither Count V nor Goble’s briefs overcome that presumption.

Thus, both of § 2680(a)’s requirements are satisfied, and § 2680(a) bars Count V.

B.    Denial of the Motions to Amend the Complaint
      On three occasions, Goble moved to amend the complaint. The district court

denied each motion. The district court denied the first two motions because each

included a proposed complaint that alleged futile claims. The district court denied

the third motion as untimely and unsupported by good cause.

      1.     Goble’s First and Second Motions to Amend

      Goble’s initial brief argues generally that the claims in his first and second

proposed complaints were not “frivolous.” However, Goble’s initial brief fails to

explain why any claim specific to the first or second proposed complaint is not

futile, and indeed each claim is futile.

      Together, the first and second complaint allege twenty claims against the

SEC and seventeen claims against the United States. As discussed above, the

FTCA permits no claim against the SEC and thus each of the twenty claims against

the SEC is futile. As to the claims against the United States, we (like Goble) avoid

discussing each claim individually, but a review of the seventeen claims confirms

that each is futile. Eight of the claims are near-copies of claims from the operative

complaint, which (as discussed above) alleges against the United States only futile


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claims. The remaining nine claims are futile for the same or similar reasons. For

example, Count XI of the first proposed complaint alleges defamation against the

United States, but 28 U.S.C. § 2680(h) reserves the United States’ sovereign

immunity against “[a]ny claim arising out of . . . libel[ or] slander.” Accordingly,

the district court correctly denied as futile Goble’s first two motions to amend.

Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ. ex rel. Univ. of

S. Fla., 342 F.3d 1281, 1287 (11th Cir. 2003) (“Although ‘leave to amend shall be

freely given when justice so requires,’ a motion to amend may be denied on

‘numerous grounds’ such as ‘. . . futility of the amendment.’”). 4

       2.      Goble’s Third Motion to Amend
       First, the magistrate judge denied Goble’s third motion to amend because the

motion was untimely. For support, the magistrate judge cited a November 19,

2013 order that stated, “Failure to file a renewed motion for leave to file an

amended complaint . . . within [fourteen days] will result in this case proceeding on

the Amended Complaint.” We think that the magistrate judge was hypertechnical

4
  Also, the district court denied the first motion to amend because the first proposed complaint
“alleged [counts] against all or multiple defendants, without identifying what each defendant did
that could plausibly make it liable for the corresponding claim, while other counts d[id] not
sufficiently identify a cause of action.” A review of the first proposed complaint confirms the
district court’s characterization, and Goble has failed to argue otherwise. Similarly, the
magistrate judge denied the second motion to amend because the second proposed complaint
failed to “identif[y] what each defendant did that could plausibly make it liable for the
corresponding claim against it and continue[d] to include causes of action that are not recognized
by governing law. See, e.g., Count[] . . . XIV (‘Obstruction’).” Again, a review of the second
proposed complaint confirms the magistrate judge’s characterization, and Goble has failed to
argue otherwise.
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in her interpretation of the November 19 order. Goble had timely filed a renewed

motion (i.e., Goble’s second motion to amend, which the magistrate judge had

denied), and the November 19 order did not declare that Goble had only one

remaining opportunity to amend. Nonetheless, the magistrate judge’s decision to

deny Goble’s third motion to amend was not an abuse of discretion. See Silva v.

Bieluch, 351 F.3d 1045, 1048 (11th Cir. 2003) (requiring only one opportunity to

amend the complaint before dismissing the complaint with prejudice); Maynard,

342 F.3d at 1287 (“Although ‘leave to amend shall be freely given when justice so

requires,’ a motion to amend may be denied on ‘numerous grounds’ such as ‘undue

delay . . . .’”).

       Second, the magistrate judge denied Goble’s third motion to amend because

Goble failed to demonstrate “good cause” to amend the complaint. Whether the

standard is good cause or the more relaxed Rule 15(a)(2) standard, 5 no reversible

error occurred because “[t]he futility of amending [Goble’s] complaint would have

been appropriate grounds on which to deny the motion to amend.” Jet, Inc. v.

5
  “Good cause” is required to amend the complaint only after the issuance of the scheduling
order. Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the
judge’s consent.”). The district judge did not issue the scheduling order until approximately five
months after the magistrate judge applied the “good cause” standard. (The November 19, 2013
order setting a deadline for Goble to amend the complaint did not constitute a scheduling order,
which is comprehensive order subject to the many requirements of Rule 16(b)(1)–(3).)
Specifically, the magistrate judge applied the “good cause” standard on February 19, 2014, but
the district judge issued the scheduling order on July 18, 2014. Rule 15(a)(2) applies before the
scheduling order is issued. Rule 15(a)(2) states, “[A] party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.”
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               Case: 14-15586        Date Filed: 10/22/2015       Page: 21 of 21


Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir. 1999). Like the first and second

proposed complaints, the third proposed complaint alleges against the United

States only futile claims. (The third proposed complaint alleges no claims against

the SEC.) Specifically, the third proposed complaint alleges against the United

States only conversion, civil conspiracy, gross negligence, and negligence. Like

the comparable claims in the operative complaint, those four claims are futile

under 28 U.S.C. § 2680(a) or (h).6

                                     V. CONCLUSION
       We review only the district court’s denials of the motions to amend and the

district court’s dismissal of the claims against the United States and the SEC.

Goble waived the right to have us review anything else. We AFFIRM the district

court’s dismissals because both the United States and the SEC are immune from

suit on the claims alleged in the complaint. Finally, we AFFIRM the denials of

the three motions to amend because Goble’s three proposed complaints alleged

only futile claims against the United States and the SEC.




6
  In passing, Goble argues that the district court “fail[ed] to give [Goble] a meaningful
opportunity to understand” the orders dismissing his motions to amend. Goble identifies no
instruction that confused him. Further, the district court’s orders contained simple instructions
that Goble refused to follow. For example, Goble ignored the district judge’s instruction that
Goble was “PROHIBITED from naming . . . the SEC . . . [as a defendant] to FTCA claims.”
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