                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                                                                                FILED
                                                                      U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                        No. 04-15491                       February 16, 2006
                                                                         THOMAS K. KAHN
                                                                               CLERK
                          D. C. Docket No. 03-14359-CV-DLG

PIONEER METALS, INC.,

                                                            Plaintiff-Appellant,

                                             versus

UNIVAR USA, INC.,
APPERSON CHEMICAL, INC.,
LEE H. MOORE,

                                                            Defendants-Appellees.



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


                                    (February 16, 2006)

Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District Judge.

______________________________
*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by
designation.
PER CURIAM:

       Appellant, Pioneer Metals, Inc. (“Pioneer”) appeals the district court’s

denial of Pioneer’s request for leave to amend its complaint contained in its

Motion to Alter, Amend, or Reconsider the district court’s order dismissing

Pioneer’s complaint for failure to state a claim. Specifically, Pioneer sought leave

to amend its complaint to state a claim under 42 U.S.C. § 9613(f)(3)(B),

Comprehensive Environmental Response, Compensation, and Liability Act

(“CERCLA”) § 113(f)(3)(B).

                                   I. BACKGROUND

       On December 3, 2003, Pioneer filed a complaint against defendants seeking,

among other things, contribution for costs associated with the environmental

clean-up of its property pursuant to 42 U.S.C. § 9613(f), generally. Defendants

filed a motion to dismiss for failure to state a claim contending that an action for

contribution under § 9613(f)(1) requires a separate ongoing or previously

completed action under CERCLA § 106 or § 107. Finding that there was no such

pending or completed action against Pioneer, the district court granted the

defendants’ motion to dismiss without prejudice.1 Pioneer then filed a Motion to



       1
        Since the district court’s order, the Supreme Court has followed the same reasoning in
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004).

                                              2
Amend, Alter or Reconsider the Order of Dismissal pursuant to Fed. R. Civ. P.

59(e), and within said motion sought leave to amend its complaint to assert a claim

of contribution under § 9613(f)(3)(B). The district court denied Pioneer’s motion.

Pioneer then perfected this appeal.

                                      II. ISSUE

      Whether the district court abused its discretion by denying Pioneer’s request

for leave to amend its complaint.

                         III. STANDARD OF REVIEW

      This court reviews an order denying leave to amend a complaint for abuse

of discretion. Spanish Broad. Sys. v. Clear Channel Commc’ns, 376 F.3d 1065,

1077 (11th Cir. 2004). This discretion, however, is severely restricted by Federal

Rule of Civil Procedure 15(a), which the Supreme Court has held allows denial of

a motion to amend only under specific circumstances. Foman v. Davis, 371 U.S.

178, 182 (1962). These “same standards apply when a plaintiff seeks to amend

after a judgment of dismissal has been entered by asking the district court to

vacate its order of dismissal pursuant to Fed. R. Civ. P. 59(e).” Id. at 1077

(quoting Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir. 1988)).




                                          3
                                     IV. DISCUSSION

       Federal Rule of Civil Procedure 15(a) states that leave to amend “shall be

freely given when justice so requires.” Fed. R. Civ. P. 15(a). “[U]nless there is a

substantial reason to deny leave to amend, the discretion of the district court is not

broad enough to permit denial.” Thomas, 847 F.2d at 773 (quoting Dussouy v.

Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981)). “The Supreme Court

has emphasized that leave to amend must be granted absent a specific, significant

reason for denial . . . .” Spanish Broad. Sys., 376 F.3d at 1077(emphasis added).

The permissible reasons that can justify denial of leave to amend include “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 . . .[, and] futility of amendment . . . .” Foman, 371 U.S. at 182.

The justifying reason must be either explicitly declared or apparent. Id. This

court has indicated that it views with great distaste district court denials of

amendments without stated reasons. See Rhodes v. Amarillo Hosp. Dist., 654 F.2d

1148, 1153-1154 (5th Cir. 1981).2 When “ample and obvious grounds for denying




       2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)(en banc), this court
adopted as binding precedent all decisions issued by the Fifth Circuit before the close of business
on September 30, 1981.

                                                4
leave to amend” are present, “[t]he mere absence . . . of articulated reasons for

denial does not indicate an abuse of the court’s discretion.” Id. at 1154.

       In its Motion to Alter, Amend or Reconsider, Pioneer explicitly requested

the court for leave to amend its complaint to state a claim for contribution in

accordance with § 9613(f)(3)(B). We conclude from the record that the district

court abused its discretion by reviewing Pioneer’s request for leave to amend its

complaint as a Motion to Reconsider when the district court had never addressed

the merits of the separate and independent cause of action under subsection

(f)(3)(B).3 The district court failed to apply the standards set forth in Foman for

denying a request for leave to amend a complaint, and thus this court must vacate

the district court’s order and remand for the district court to explicitly apply the

correct standard in reviewing Pioneer’s request.

       Contrary to the defendants’ contentions, the district court did not address

the merits of a claim under subsection (f)(3)(B) in its order granting the

defendants’ motion to dismiss. Pioneer based its initial complaint on § 9613(f)

generally, not pursuant to one specific subsection or the other. However, after a

thorough review of the record, it is apparent to this court that the defendants only



       3
       See Cooper Indus., Inc., 543 U.S. at 584 (holding that subsections (f)(1) and (f)(3) provide
“two express avenues for contribution.”).

                                                5
moved to dismiss Pioneer’s claims under subsection (f)(1), and the district court

only dismissed Pioneer’s claims under subsection (f)(1). The district court’s two

references to subsection (f)(3) in its Order granting the defendants’ motion to

dismiss appeared as a corollary step in the process of considering the validity of

(f)(1) without any assertion as to whether it could be applied to the present case.

Thus, the references are insufficient to indicate that the court ruled on such a

claim.

         The grounds for denial are not apparent or obvious, and the district court’s

finding that Pioneer “used the rehearing mechanism to fine-tune previously made

arguments or raise new arguments that were waived for failure to present them

earlier in his briefs” does not sufficiently articulate that the district court was

denying Pioneer’s request based on futility, or any other permissible reason under

Foman. We need not reach the merits of Pioneer’s (f)(3)(B) claim, but leave that

to the district court to address in the first instance.

                                  V. CONCLUSION

         For the foregoing reasons, we vacate the district court’s order denying

Pioneer’s request for leave to amend its complaint to assert a claim under

subsection (f)(3)(B) and we remand this case to the district court to address

Pioneer’s request in accordance with this opinion.

         VACATED and REMANDED.

                                            6
