                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 APR 2, 2010
                               No. 09-11049                      JOHN LEY
                           Non-Argument Calendar                   CLERK
                         ________________________

                     D. C. Docket No. 08-81054-CV-KAM


CHARLOTTE TAYLOR,

                                                               Plaintiff-Appellant,

                                    versus

ADDIE L. GREENE, in official capacity as
Chairperson of the Palm Beach
County Board of County Commissioners,
JEFF KOONS, in official capacity as Vice Chair of
the Palm Beach County Board of County Commissioners, et al.,

                                                          Defendants-Appellees.
                           _____________________

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

                                (April 2, 2010)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Charlotte Taylor appeals from the district court’s dismissal, with prejudice,

of her pro se civil complaint, which was filed pursuant to the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et. seq. On appeal, Taylor argues the

district court erred when it denied as futile her request to file an amended

complaint. Specifically, she argues she had the right to file an amendment as a

matter of course, pursuant to Fed. R. Civ. P. 15, because the defendants had not yet

filed a responsive pleading.

      A district court’s denial of a motion to amend a complaint is reviewed for an

abuse of discretion, although the underlying legal conclusion of whether a

particular amendment to the complaint would be futile is reviewed de novo.

Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005). A party may

amend its pleading once, as a matter of course, before being served with a

responsive pleading. Fed. R. Civ. P. 15(a)(1). For the purposes of this Rule, a

motion to dismiss is not considered a responsive pleading. Fortner v. Thomas, 983

F.2d 1024, 1032 (11th Cir. 1993). Although the futility of a proposed amended

complaint can be a justifiable reason for denying leave to amend, see Moore v.

Baker, 989 F.2d 1129, 1131 (11th Cir. 1993), we have held, “[w]hen the plaintiff

has the right to file an amended complaint as a matter of course. . . the plain

language of Rule 15(a) shows that the [district] court lacks the discretion to reject



                                           2
the amended complaint based on its alleged futility,” Williams v. Bd. of Regents of

Univ. Sys. of Georgia, 477 F.3d 1282, 1292 n.6 (11th Cir. 2007).

      The record in this case demonstrates Taylor sought to amend her complaint

after the defendants filed a motion to dismiss. Because a motion to dismiss is not

considered a responsive pleading for Rule 15 purposes, see Fortner, 983 F.2d at

1032, Taylor had the right to amend her complaint as a matter of course, see

Williams, 477 F.3d at 1292, n.6. Thus, the district court lacked the discretion to

reject her amended complaint based on alleged futility. Id.

      VACATED AND REMANDED.




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