          Case: 17-10782    Date Filed: 05/24/2018    Page: 1 of 8


                                                     [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10782
                      ________________________


                D.C. Docket No. 8:16-cv-01456-MSS-JSS




ALVIN SEIGER,
by and through his Attorney-In-Fact and Next Friend Marsha Seiger,

                                                 Plaintiff - Appellant,

                              versus

TORRENCE O. PHILIPP,
WEST END PUB, LLC,
a.k.a. West End Pub,

                                           Defendants - Appellees.
                      ________________________

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

                             (May 24, 2018)
            Case: 17-10782       Date Filed: 05/24/2018      Page: 2 of 8


Before TJOFLAT and ROSENBAUM, Circuit Judges, and UNGARO, *
District Judge.

UNGARO, District Judge:

       Plaintiff-Appellant, Alvin Seiger, appeals from an order denying his

motion for leave to file a second amended complaint following the dismissal

of his first amended complaint with prejudice. For the reasons discussed

below, we reverse.

       Background

       In June, 2016, Plaintiff, Mr. Seiger, a disabled individual, through his

wife and next friend, Mrs. Seiger, sued the West End Pub, LLC, and its

owner, Torrence Philipp, for violating Title III of the Americans with

Disabilities Act (“ADA”). Mr. Seiger requires a wheelchair to ambulate,

and he alleged that the Pub was not wheelchair accessible. Mr. Seiger also

suffers from dementia, and Mrs. Seiger holds his durable power of attorney.

       The district court dismissed Mr. Seiger’s initial complaint without

prejudice because he failed to allege that he had knowledge of the premises

or an intent to return there. Before entering the order of dismissal, the court

required Mr. Seiger to answer interrogatories. One of them asked Mr. Seiger

to describe the nature of his disability. His wife responded that her husband


*
 Honorable Ursula Ungaro, United States District Judge for the Southern District of
Florida, sitting by designation.
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“has a neurological disorder that renders him with physical and mental

disabilities . . . . A doctor has rendered him incompetent to handle his legal

affairs.” Additionally, the Court requested that Mrs. Seiger file documents

establishing her legal status as Mr. Seiger’s Next Friend. In response, she

filed a note from Mr. Seiger’s doctor stating that he was “not competent to

handle any personal affairs.”

      The court then held a hearing on the motion to dismiss where Mrs.

Seiger testified that she understood the doctor’s note to mean that Mr. Seiger

was incompetent to handle his legal affairs, but was competent to handle

other matters. Mrs. Seiger elaborated, “I wouldn’t even [use the] term

mentally incompetent. He’s—he knows everybody, he knows me, he knows

where he is and what he is, he is just forgetful. That’s the kind of dementia

he has.”

      After the hearing, the court dismissed the complaint for lack of

standing because it did not allege that Mr. Seiger had knowledge of the

premises or an intent to return. The court explained that Mrs. Seiger could

not aver the personal knowledge and intent of Mr. Seiger even though she

holds his durable power of attorney. The court allowed Mr. Seiger to file an

amended complaint based on the personal knowledge of Mr. Seiger. But the

district court directed that if Mr. Seiger were to file an amended complaint,


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he would also need to simultaneously file updated answers to the court’s

interrogatories.

      In accordance with the court’s directive, Mr. Seiger filed updated

answers to the court’s interrogatories that were substantially similar to the

first responses, but this time, Mr. Seiger signed the responses on his own

behalf. Mr. Seiger also filed an amended complaint. In the amended

complaint, Mr. Seiger alleged that he intended to return to the Pub. But he

also alleged that Mrs. Seiger must “undertake all decisions on [his] behalf.”

The court granted Defendants’ motion to dismiss the amended complaint

with prejudice, explaining that “[t]he likelihood of Mr. Seiger visiting the

Subject Premises is not dependent on Mr. Seiger’s own intention, but rather,

is wholly dependent on Mrs. Seiger’s will.”

      While the motion to dismiss was pending, Mr. Seiger moved for leave

to amend, and he included a proposed second amended complaint. In it, Mr.

Seiger contradicted the first amended complaint and alleged that Mrs. Seiger

made “some decisions on [his] behalf, but not all.” The second amended

complaint also alleged “[d]espite [Mr. Seiger’s] disabilities, on most

occasions, he is still able to articulate his views and thoughts, speak fluidly,

and formulate/express intent to, inter alia, visit an establishment.” In the




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same order dismissing the amended complaint with prejudice, the court

denied the motion to amend, stating:

      Plaintiff’s Motion to File A Second Amended Complaint, (Dkt.
      34), to allege facts directly contrary to facts alleged twice
      before is DENIED. Notably, in support of the demand to allow
      Plaintiff to proceed through a Next Friend and Attorney-In-Fact
      in this matter, Plaintiff filed a doctor’s note that Plaintiff
      described as ‘indicating Alvin Seiger’s incompetency’ in which
      the doctor expressly states that Plaintiff is ‘not competent to
      handle any personal affairs.’ (Dkt. 22, Ex 1)


      Mr. Seiger now appeals that order. He does not argue that the district

court erred in dismissing the amended complaint, but only that it abused its

discretion in denying leave to amend.

      Discussion

      We review a district court’s denial of a motion to file an amended

complaint for abuse of discretion. Green Leaf Nursery v. E.I. DuPont De

Nemours & Co., 341 F.3d 1292, 1300 (11th Cir. 2003). Federal Rule of

Civil Procedure 15 provides that district courts “should freely give leave

when justice so requires.” Fed. R. Civ. P. 15(a)(2). But the court’s

discretion to deny leave is not unfettered. Rather, the court should consider

factors such as “‘undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the


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amendment, and futility of amendment.’” Equity Lifestyle Properties, Inc. v.

Fla. Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th Cir.

2009) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

      Here, the district court did not base its denial of leave to amend on

any of these factors. Instead, the district court denied leave to amend for

two reasons. First, it found the second amended complaint contradicted the

previous two complaints. And second, it pointed to the doctor’s note, which

stated that Mr. Seiger was incompetent to handle any personal affairs.

Neither suffices as a basis for denial of leave to amend.

      As to the first, the Federal Rules do not prohibit contradictory

pleadings. “As a general matter, 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.” Pintado v.

Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (quotation

omitted) (alteration accepted).

      Here, the proposed second amended complaint did not incorporate by

reference the earlier complaints. It would have superseded the previous

complaints and rendered null their contradictory allegations. The district

court thus abused its discretion by denying leave to amend on the basis that

the complaints contradicted each other.


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      As to the second reason—the doctor’s note—it does not provide a

basis to deny leave to amend where, as here, the district court did not

determine that amendment was futile. The court did not, for example,

determine, as a factual matter, that Mr. Seiger lacked standing and dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(1). Although the court

heard evidence about Mr. Seiger’s mental capacity, it neither weighed the

evidence nor made any findings of fact. Rather, it decided the motion to

dismiss under Rule 12(b)(6) and so appears to have concluded that Mr.

Seiger lacked standing as a matter of law based solely on the allegations in

the amended complaint.

      In the second amended complaint, Mr. Seiger alleged that he was able

to form the intent to return to the Pub and that he, in fact, intends to return to

the Pub. These allegations are sufficient to establish standing. See, e.g.,

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1336 (11th Cir. 2013)

(“a plaintiff seeking an injunction under Title III either must ‘have attempted

to return’ to the non-compliant building or at least ‘intend to do so in the

future.’”) (quoting Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)).

Therefore, the court abused its discretion in denying leave to file the second

amended complaint.




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       For these reasons, we reverse the denial of the motion to amend and

remand with instructions to vacate the dismissal with prejudice1 and grant

leave to file the proposed second amended complaint.

REVERSED AND REMANDED.




       1
         Although we necessarily reverse the dismissal to permit leave to amend, we
would reverse the dismissal regardless because it was made with prejudice, and
dismissals for lack of standing are jurisdictional and thus usually made without prejudice.
McGee v. Solicitor Gen. of Richmond Cty., Ga., 727 F.3d 1322, 1326 (11th Cir. 2013)
(per curiam) (“Typically, where standing is lacking, a court must dismiss the plaintiff’s
claim without prejudice.”).
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