                                                         [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                Oct. 16, 2009
                                                             THOMAS K. KAHN
                                 No. 09-11657
                                                                  CLERK
                             Non-Argument Calendar


                    D. C. Docket No. 08-02491-CV-T-26MAP

DAVID BRISSON,
TERRI BARFIELD,
ROBERT ORMORD,
on behalf of themselves and all others
similarly situated,

                                                        Plaintiffs-Appellants,

                                         versus

FORD MOTOR COMPANY,

                                                        Defendant-Appellee.



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


                                (October 16, 2009)

Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.
PER CURIAM:

      This is an appeal from the district court’s order granting defendant Ford

Motor Company’s (“Ford”) motion to dismiss the amended class action complaint.

The amended complaint sought monetary, declaratory, and injunctive relief for

“extreme” and “severe” front end oscillation in Ford’s F-250 and F-350 trucks,

beginning with the 2005 models through the 2007 models. The two-count

complaint was brought under the Magnuson Moss Warranty Act (“MMWA”), 15

U.S.C. § 2301 et seq., alleging breaches of express and implied warranties.

Plaintiffs alleged that the law of Delaware should apply to the warranties;

however, Ford asserted that Florida law should apply. The plaintiffs challenge the

district court’s application of Florida law and complain that the district court did

not grant them an additional opportunity to amend their complaint.

      This court reviews de novo the district court’s grant of a motion to dismiss

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Berman v.

Blount Parrish & Co., Inc., 525 F.3d 1057, 1058 (11th Cir. 2008). Even though

we usually review only for abuse of discretion a district court’s decision to deny

leave to amend a complaint, Jennings v. BIC Corp., 181 F.3d 1250, 1254 (11th

Cir. 1999), when “the denial is based on a legal determination that amendment

would be futile, we review the district court’s decision de novo.” Gonzalez v. City

                                          2
of Deerfield Beach, 549 F.3d 1331, 1332-33 (11th Cir. 2008), petition for cert.

filed, 77 U.S.L.W. 3635 (May 05, 2009) (No. 08-1379).

      After reviewing the record and reading the parties’ briefs, we first conclude

that the district court properly applied federal procedural law and Florida

substantive law in dismissing plaintiffs’ amended complaint. The express

warranty claim was properly dismissed because plaintiffs failed to allege that they

ever presented their vehicles to a Ford dealership for repair or that the Ford

dealership failed to make the repair. See Ocana v. Ford Motor Co., 992 So. 2d

319, 324-25 (Fla. Dist. Ct. App. 2008). We also agree with the district court’s

ruling that plaintiffs’ failure to allege that they experienced a defect within the

warranty period of the three years or 36,000 miles is fatal. The district court

properly dismissed the implied warranty claim because plaintiffs did not allege

privity between themselves and Ford. Ford limited the implied warranty to the

period of the express warranty, as expressly permitted by the MMWA, and

plaintiffs failed to allege that a defect manifested itself or a breach occurred within

that period.

      Finally, we conclude that the district court erred in sua sponte disallowing

plaintiffs’ leave to file a second amended complaint. When it granted Ford’s

motion to dismiss the complaint in this case, the district court on its own, and

                                           3
without allowing the plaintiffs an opportunity to be heard, decided not to allow

them to file an amended complaint. The court said:

      Because counsel for Plaintiffs in this case were also counsel for
      plaintiff in the Ocana [v. Ford Motor Co., 992 So. 2d 319 (Fla. 3d
      DCA 2008] case, the Court can reasonably presume that prior to
      instituting this action on December 16, 2008, they were aware of the
      pleading requirements imposed by the Ocana court in October of
      2008 on plaintiffs seeking to bring a cause of action in Florida under
      the MMWA for breach of an express warranty, that is, a plaintiff
      “must allege and prove that Ford refused or failed to adequately
      repair a covered item.” 992 So. 2d at 324 (emphasis added). Despite
      counsel’s awareness of these pleading requirements, they failed to
      comply with Ocana either in the original complaint or the amended
      complaint. Consequently, the Court will assume that Plaintiffs are
      unable to satisfy the pleading requirements of Ocana so that
      permitting them to file a second amended complaint would be an
      exercise in futility.

R:29 at 8 n.7. The problem with that reasoning is it overlooks the possibility that

the plaintiffs mistakenly thought that the Ocana pleading requirement did not

apply in the circumstances of this case.

      That problem is underscored by the fact that the plaintiffs represent to us in

their brief that if the Ocana requirements do apply in this case, “they can plead the

specific type of vehicle they own, that the defects occurred within 3 years or

36,000 miles and that the Appellee failed to adequately repair the vehicles.” Br. of

Appellants at 41. They assert that they “did purchase the vehicles from authorized

dealerships and the defects did occur within 3 years or 36,000 miles.” Id. In other

                                           4
words, the plaintiffs are ready, willing, and able to plead that they meet the Ocana

requirements, something the district court assumed, without asking, that they

could not do.

      Of course, we have held that “[a] district court is not required to grant a

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is

represented by counsel, never filed a motion to amend nor requested leave to

amend before the district court.” Wagner v. Daewoo Heavy Indus. Amer. Corp.,

314 F.3d 541, 542 (11th Cir. 2002) (emphasis added). The Wagner rule would

apply here if the district court had simply dismissed the complaint in this case

without more, and the plaintiffs had not moved to amend. But that is not what

happened. In the same order that dismissed the complaint, the district court told

the plaintiffs not to bother even attempting to amend because the court was

deciding in advance that they could not do so. See Reply Br. of Appellants at 42.

We decline to hold against the plaintiffs their failure to defy the district court’s

order telling them, in effect, not to file a motion to amend.

      Accordingly, we vacate that part of the district court’s order, finding that

any amendment would be futile, and remand this case with instructions that the

district court give the plaintiffs an opportunity to amend their complaint to comply

with the requirements of the Ocana decision.

      AFFIRMED in part, VACATED in part, and REMANDED.

                                           5
