Terrence Stevens v. Plumbers and Pipefitters Local 219, et al

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 20-10976
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-00561-TWT

TERRENCE STEVENS,

Plaintiff-Appellant,

versus

PLUMBERS AND PIPEFITTERS LOCAL 219, et al.,

Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 18, 2020)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
Terrence Stevens, proceeding pro se, appeals the dismissal of his amended
complaint alleging wrongful denial of pension and annuity benefits. Because the
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district court correctly determined that Stevens waived the right to amend his
complaint, we affirm.
I
Terrence Stevens worked in the plumbing and pipefitting industry as a
member of the United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry, Local Union No. 219 of the United States and
Canada, AFL-CIO (“Local 219”). In 1981, Stevens suffered an injury on the job
that left him partially disabled, and, in 1985, he ended his relationship with Local
219. In 2012, Stevens applied for pension and annuity benefits with the
administrator of Local 219’s pension and annuity funds. However, Stevens
discovered that his pension payments were much lower than what he expected, and
he also learned that he would not receive any annuity payments.
Stevens filed a pro se complaint against eighteen defendants, including
Local 219, the Local 219 Pension and Annuity Funds, the board of trustees for
those funds, various individual trustees, the third-party administrator of the
Pension Fund, and PNC Vested Interest, which Stevens alleged managed the
Annuity Fund’s assets. He brought claims under the Employee Retirement Income
Security Act of 1974 (“ERISA”) and 42 U.S.C. § 1983 for violations of his civil
rights, and alleged a “scheme . . . to deny [Stevens] retirement benefits.” The
district court dismissed Stevens’s ERISA claims without prejudice and granted
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leave to amend. But with regard to Stevens’s section 1983 claim, the court
dismissed it with prejudice. The court reasoned that section 1983 “provides a
remedy against persons who, acting under the color of state law, deprive the
injured party of his rights under federal law,” and here the various defendants were
neither “arms of the state” nor “act[ing] under the color of state law.”
Instead of first amending his ERISA claims, Stevens appealed the district
court’s order to this Court. Before affirming the district court’s order dismissing
his section 1983 claim with prejudice, this Court considered whether that order was
final and appealable such that we had jurisdiction. Stevens v. Plumbers &
Pipefitters Local 219, 812 F. App’x 815, 818 (11th Cir. 2020) (per curiam)
(unpublished). The panel observed that although an order dismissing a complaint
with leave to amend is not final until the time allowed for amendment expires, a
plaintiff can waive the right to amend by appealing the order before the time to
amend expires. Id. The appeal renders the order final. Id. Stevens’s panel held
that “[b]y appealing the district court’s dismissal of his complaint before filing an
amended complaint, Stevens caused the district court’s dismissal order to become a
final, appealable order.” Id. “[A]s a consequence . . . , Stevens waived his right to
amend his ERISA claims.” Id.
While Stevens’s appeal was pending in this Court, he amended his
complaint, and the defendants again moved to dismiss. The district court
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dismissed the complaint because “prior to filing his Amended Complaint,
[Stevens] appealed the Court’s dismissal of his Section 1983 claim” and “[b]y
doing so, [he] treated the dismissal of the ERISA claims as final and waived his
right to amend.” This is Stevens’s appeal of that ruling.
II
We review de novo a district court’s order granting a Rule 12(b)(6) motion
to dismiss. Cisneros v. Petland, Inc., 972 F.3d 1204, 1210 (11th Cir. 2020).
When a district court dismisses a complaint with leave to amend, the court’s
order ordinarily becomes final and appealable when the time for amendment
expires. Garfield v. NDC Health Corp., 466 F.3d 1255, 1260 (11th Cir. 2006).
Nevertheless, a “plaintiff need not wait until the expiration of the stated time in
order to treat the dismissal as final, but may appeal prior to the expiration of the
stated time period.” Schuurman v. Motor Vessel “Betty K V”, 798 F.2d 442, 445
(11th Cir. 1986) (per curiam). By appealing, a plaintiff “waives the right to later
amend the complaint.” Id. This rule avoids “the possibility of uncertainty as to
whether the dismissal of a complaint constitutes a final judgment,” and also limits
a plaintiff’s ability to “manipulate the rules.” Id. at 445–46.
Our Court previously applied this waiver rule in Stevens’s first appeal. We
held that his appeal “caused the district court’s dismissal order to become a final,
appealable order,” thereby “waiv[ing] [Stevens’s] right to amend his ERISA
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claims.” Stevens, 812 F. App’x at 818. Under the “law of the case” doctrine, this
holding is “binding in all subsequent proceedings in the same case in the trial court
or on a later appeal.” This That & the Other Gift & Tobacco, Inc. v. Cobb County,
439 F.3d 1275, 1283 (11th Cir. 2006) (per curiam) (quotation marks omitted). The
law of the case doctrine “bars relitigation of issues that were decided either
explicitly or by necessary implication.” Id. (quotation marks omitted). And the
law of the case doctrine binds us for questions of law unless (1) “since the prior
decision, new and substantially different evidence is produced, or there has been a
change in the controlling authority,” or (2) “the prior decision was clearly
erroneous and would result in a manifest injustice.” Id. (quotation marks omitted).
Stevens has not argued that we are excused from applying the law of the
case doctrine. We are otherwise aware of no reason why we would not be bound
by this Court’s holding from his first appeal. Under the first prong of This That &
the Other, our Court has not changed its waiver rule since we decided Stevens’s
first appeal earlier this year. See, e.g., Bourassa v. Dozier, ___ F. App’x ___, 2020
WL 6122755, at *2 n.1 (11th Cir. Oct. 19, 2020) (per curiam) (unpublished)
(“Bourassa has waived any right to amend by appealing the dismissal order.”).
Under the second prong, our prior holding was not clearly erroneous. The district
court gave Stevens leave to amend his ERISA claims, but he appealed to this Court
on April 12, 2019 before he filed his amended complaint on April 29. Applying
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the waiver rule, Stevens forfeited the right to amend his complaint. Schuurman,
798 F.2d at 445.
The law of the case doctrine makes our prior holding from Stevens’s first
appeal binding upon us. The district court correctly dismissed the amended
complaint on the ground that Stevens waived the right to amend.
AFFIRMED.
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