OXFORD HOUSE, INC., a Delaware not for profit corporation v. Township of North Bergen, a New Jersey municipal corporation On Appeal from the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-2135
_____________
OXFORD HOUSE, INC.,
a Delaware not for profit corporation,
Appellant
v.
TOWNSHIP OF NORTH BERGEN,
a New Jersey municipal corporation
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:21-cv-19260)
District Judge: Hon. Esther Salas
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 28, 2025
Before: KRAUSE, BIBAS, and MONTGOMERY-REEVES,
Circuit Judges
(Filed: October 24, 2025)

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Stephanie E. Farrell
Nehmad Davis & Goldstein
4030 Ocean Heights Avenue
Egg Harbor Township, NJ 08234
Steven G. Polin
3034 Tennyson Street NW
Washington, DC 20015
Counsel for Appellant
Drew D. Krause
Cheyne R. Scott
Chasan Lamparello Mallon & Cappuzzo
300 Lighting Way
Suite 200
Secaucus, NJ 07094
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Drafting a complaint can be a challenging enterprise.
Plaintiffs often believe that they have set out sufficient factual
allegations to state a claim and commence their lawsuit, only
for a court to tell them otherwise. For this reason, courts that
dismiss a complaint typically set out their reasons for doing so
and then grant leave for a plaintiff to amend and correct their
missteps. Here, the First Amended Complaint filed by Oxford
House failed to state a claim for discrimination, so the District

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Court properly dismissed it. But it did so with prejudice,
reasoning that its earlier denial of Oxford House’s motion for
a preliminary injunction and our own opinion affirming that
order had previously provided Oxford House with notice of the
deficiencies in its complaint, and—as Oxford House had not
corrected those deficiencies in its First Amended Complaint—
amendment would be futile. Seeing it differently, we will
vacate and remand.
I. Factual and Procedural Background1
Appellant Oxford House, Inc. is a Delaware not-for-
profit corporation that helps individuals recovering from
alcoholism and/or substance abuse to find affordable and
supportive living arrangements. As part of this work, Oxford
House arranges leases of single-family homes on behalf of
groups of individuals in recovery so that they may live together
and support one another. Once Oxford House secures the lease,
the new residents take full responsibility for their living
situation, including paying rent and utilities, maintaining the
home, and communicating with their landlord.
In February 2021, Oxford House signed a lease in North
Bergen, New Jersey (the Property). Before the new residents
could move in, however, a Township ordinance required that
1 The following facts are taken from the First Amended
Complaint and are accepted as true for purposes of deciding an
appeal from an order granting a motion to dismiss. See Bah v.
United States, 91 F.4th 116, 119 (3d Cir. 2024).

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they first obtain a Certificate of Continuing Occupancy (CCO)
from the Township’s construction official. See North Bergen,
N.J., Ordinance 460-92 § 3 (Oct. 15, 1992). Issuance of a CCO
is a ministerial act; once an application is submitted and the fee
paid, the construction official “shall issue” a CCO unless the
property is not up to code or its intended use is prohibited by
the Township’s zoning ordinance. Id. § 6.
Oxford House’s realtor submitted an application for a
CCO and sent an email to the Township’s zoning officer with
a document explaining the Oxford House model. But the
zoning officer denied the application, explaining by phone and
email that Oxford House’s intended use of the Property
violated North Bergen’s zoning ordinances. When Oxford
House asked the Township’s attorney what specific zoning
provision was violated, she asserted that the Oxford House
model constituted a “Community Residence” under New
Jersey’s Municipal Land Use Law, N.J. Stat. Ann. § 40:55D-
66.1 (West 2017), and so could only operate in a single-family
dwelling, whereas the Property was a two-family dwelling.
Oxford House emailed back to contest the Township’s
categorization of Oxford Houses as “Community Residences,”
but the Township did not respond.
In October 2021, Oxford House filed this action,
alleging that the Township intentionally misinterpreted the
Municipal Land Use Law as a pretext and that it denied the
CCO application because of the Oxford House residents’ status
as recovering alcoholics and substance abusers. It brought
claims under the New Jersey Law Against Discrimination

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(NJLAD), the Americans with Disabilities Act (ADA), and the
Fair Housing Act, as amended by the Fair Housing
Amendments (FHA), and it sought a preliminary injunction.
The Township filed an Answer to the complaint, raising several
affirmative defenses, and it opposed the requested preliminary
injunction.
The District Court’s first order of business was to
resolve the preliminary injunction motion. After ordering
limited discovery for purposes of that motion, the District
Court denied preliminary injunctive relief in June 2022,
finding that Oxford House failed to establish a likelihood of
success on the merits. Oxford House appealed that order, and
in July 2023 we affirmed for essentially the same reasons. See
Oxford House, Inc. v. Twp. of N. Bergen, 2023 WL 4837835, at
*5-6 (3d Cir. July 28, 2023).
In most cases, the next step after the denial of a motion
for a preliminary injunction would have been for the parties to
proceed with discovery on the path to summary judgment or
trial. Here, however, Oxford House decided on its own
initiative to add a small number of new factual allegations and
to remove the NJLAD claim, so in September 2023 it filed an
amended complaint. Although the First Amended Complaint
did not otherwise make substantive changes to the content of
Oxford House’s asserted claims, the Township, which had filed
an Answer to Oxford House’s original complaint, responded to
the Amended Complaint by filing a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).

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The District Court then granted that motion, holding
that the First Amended Complaint failed to state a claim. It
also denied Oxford House’s request for leave to file a second
amended complaint, explaining that Oxford House had
“already amended its complaint once, after both this Court and
the Third Circuit found that its original [c]omplaint . . . was
insufficient to demonstrate a likelihood of success on the
merits of Plaintiff’s claims” and that “[i]n so ruling, both this
Court and the Third Circuit provided guidance as to what
would be necessary for Plaintiff to sufficiently state a claim.”
J.A. 21-22. Because the First Amended Complaint was largely
unchanged from its original complaint, the District Court
reasoned that any future amendment would be futile. Oxford
House now appeals.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s decision to dismiss for failure
to state a claim de novo, see Doe v. Univ. of the Scis., 961 F.3d
203, 208 (3d Cir. 2020), and its decision denying leave to
amend a complaint for abuse of discretion, see United States
ex rel. Ascolese v. Shoemaker Constr. Co., 55 F.4th 188, 193
(3d Cir. 2022).
III. Discussion
A. The Township’s Post-Answer Motion to
Dismiss

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Before addressing the merits, we first pause to clarify a
point of confusion regarding the filing of a post-answer motion
to dismiss, like the Township’s here. Some district courts
around the country have declined to consider such motions on
the ground that the filing of an answer categorically precludes
a defendant from later challenging the sufficiency of a
complaint. See Power Probe Grp., Inc. v. Innova Elecs. Corp.,
670 F. Supp. 3d 1143, 1146-47 (D. Nev. 2023) (collecting
cases). We disagree.
True, motions raising certain defenses under Rule 12(b)
“must be made before pleading if a responsive pleading is
allowed.” Fed. R. Civ. P. 12(b). But the consequences for
failing to raise such defenses depends on which provision of
Rule 12(b) is later invoked. Filing an answer waives any
unasserted defense under Rule 12(b)(2)-(5), see id. 12(h)(1).
The Rule 12(b)(6) defense of failure to state a claim is different
in that it may be raised “in any pleading allowed or ordered
under Rule 7(a),” “by a motion under Rule 12(c),” or “at trial,”
id. 12(h)(2).
For this reason, other courts—like the District Court
here—have correctly entertained such post-answer motions to
dismiss under Rule 12(b)(6), in effect treating them as if they
were motions for judgment on the pleadings, pursuant to Rule
12(c). See Internet Prods. LLC v. LLJ Enters., Inc., 2020 WL
6883430, at *3 (D.N.J. Nov. 24, 2020) (collecting cases).
Doing so is straightforward and does not prejudice the rights
of any party because the standard is the same under either rule.

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See Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004)
(“There is no material difference in the applicable legal
standards . . . .”).
Notably, we have adopted such an approach for
situations where a defendant files successive Rule 12 motions,
which, like an answer, would otherwise waive any unasserted
defenses under Rule 12(b)(2)-(5). See Leyse v. Bank of Am.
Nat. Ass’n, 804 F.3d 316, 321-22 (3d Cir. 2015). We now
clarify that our reasoning in Leyse applies with equal force in
the context of post-answer motions to dismiss for failure to
state a claim. We will therefore proceed to consider the
Township’s motion, construed as a motion under Rule 12(c).
B. The First Amended Complaint Fails to State a
Claim
In reviewing de novo the District Court’s dismissal of
the First Amended Complaint for failure to state a claim, we
accept as true all factual allegations in the complaint and ask
whether, viewing those facts in the light most favorable to
Oxford House, it is entitled to relief. See Doe, 961 F.3d at 208.
But we disregard “threadbare recitals of the elements of a cause
of action, legal conclusions, and conclusory statements.”
James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir.
2012). At the motion to dismiss stage, “[t]he issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420

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(3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
The First Amended Complaint asserts claims under the
FHA and ADA. The FHA makes it unlawful to “discriminate
in the sale or rental, or to otherwise make unavailable or deny,
a dwelling to any buyer or renter because of a handicap,” or “to
discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling, because
of a handicap.” 42 U.S.C. § 3604(f)(1)-(2). This includes
discriminatory actions taken by public entities, such as the
Township, that have the effect of denying housing to otherwise
qualified individuals with handicaps. See Cmty. Servs., Inc. v.
Wind Gap Mun. Auth., 421 F.3d 170, 176 (3d Cir. 2005). The
ADA, on the other hand, prohibits public entities from
discriminating generally against any “qualified individual with
a disability,” including with respect to housing. 42 U.S.C.
§ 12132. Thus, to prevail on a discrimination claim under
either the FHA or the ADA, Oxford House must ultimately
prove two elements: (1) that the would-be residents have a
“handicap” or a “disability” as those terms are statutorily
defined; and (2) that the Township discriminated against them
on the basis of such handicap or disability. Because the parties
do not dispute that the prospective Oxford House residents are
individuals with handicaps or disabilities under the FHA and
ADA, this appeal concerns only the second element,
discrimination on the basis of disability.

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A plaintiff may prove such discrimination under the
FHA or the ADA using one of three theories: (1) disparate
treatment; (2) disparate impact; or (3) failure to make a
reasonable accommodation. See Wind Gap, 421 F.3d at 176.
The District Court analyzed the First Amended Complaint as
advancing both disparate treatment and disparate impact
theories of discrimination, so we will review both rulings.
1. Disparate Treatment
To establish disparate treatment, a plaintiff must
demonstrate that “some discriminatory purpose was a
motivating factor behind the challenged action.” Wind Gap,
421 F.3d at 177 (citation and quotation marks omitted). At the
pleading stage, this requires a plaintiff to allege “enough facts
to raise a reasonable expectation that discovery will reveal
evidence” of discriminatory intent. Connelly v. Lane Constr.
Corp., 809 F.3d 780, 789 (3d Cir. 2016) (quotation marks
omitted). In evaluating whether the First Amended Complaint
meets that standard—and, later, whether Oxford House was
made aware of any deficiencies at the preliminary injunction
stage—we bear in mind the difference between the pleading
standard Oxford House must satisfy to allege discriminatory
intent and the evidence it might use to prove that intent at trial.
There is more than one way to prove discriminatory intent. The
most straightforward is for a plaintiff to provide direct,
smoking-gun evidence in the form of a defendant’s overtly
discriminatory statements or use of express classifications. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). Such
direct evidence is rare, however, so most plaintiffs rely instead

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on circumstantial evidence, using the framework laid out in
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977). Under that
framework, courts engage in “a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available,” including the “historical background” and the
“specific sequence of events” preceding the challenged
decision, along with testimony and contemporary statements
by decision-makers and whether normal procedures were
followed. Id. at 266-69.
Alternatively, a plaintiff might employ the burden-
shifting framework established in McDonnell-Douglas Corp.
v. Green, 411 U.S. 792 (1973). Under McDonnell-Douglas, a
plaintiff raises a rebuttable presumption of discrimination by
establishing the elements of a prima facie case; that
presumption shifts the burden to the defendant to show that it
had a legitimate, non-discriminatory reason for the challenged
action; and, if the defendant makes that showing, the burden
shifts back to the plaintiff to prove the defendant’s stated
reason was pretextual. See Castleberry v. STI Grp., 863 F.3d
259, 263 (3d Cir. 2017).
At the first step, the specific elements of a prima facie
case vary based on the nature of the discrimination alleged and
the factual circumstances. See Texas Dep’t of Comm. Affs. v.
Burdine, 450 U.S. 248, 254 n.6 (1981). For example, in an
FHA case alleging a refusal to rent, a prima facie case might
require showing that a dwelling remained available after being
denied to a qualified applicant who is a member of a protected

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class, see, e.g., Lindsay v. Yates, 578 F.3d 407, 415-18 (6th Cir.
2009), while in an FHA case alleging a denial of municipal
services, the elements might instead require showing that a
municipality denied services to a member of a protected class
but approved an application for such services from a similarly
situated party not of the plaintiff’s protected class, see, e.g.,
Cooke v. Town of Colo. City, 934 F. Supp. 2d 1097, 1113-14
(D. Ariz. 2013).
As these examples illustrate, the elements of a prima
facie case are not set in stone, nor are they strictly necessary to
prove discriminatory intent; rather, they create an inference of
discrimination “because we presume these acts, if otherwise
unexplained, are more likely than not based on the
consideration of impermissible factors.” Furnco Const. Corp.
v. Water, 438 U.S. 567, 577 (1978). A plaintiff can create that
same inference by pointing to other evidence that, while not
neatly fitting the elements of a particular formulation of a
prime facie case, is nonetheless sufficient to allow a jury to
conclude that unlawful discrimination has occurred. See, e.g.,
Lindsay, 578 F.3d at 416; Budnick v. Town of Carefree, 518
F.3d 1109, 1114 (9th Cir. 2008).
Which of these alternative methods a plaintiff pursues
at trial will depend on the evidence produced during discovery.
See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097
(3d Cir. 1995). For this reason, we do not require plaintiffs at
the pleading stage to identify the specific method of proof on
which they will rely; doing so before discovery has
commenced would “put the cart before the horse.” Connelly,

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809 F.3d at 788. In practice, this means that a plaintiff’s
complaint need not commit her to producing direct evidence of
discriminatory intent or the kind of historical and procedural
evidence necessary to prevail under the Arlington Heights
framework. Similarly, “a complaint need not establish a prima
facie case in order to survive a motion to dismiss,” and courts
do not evaluate the sufficiency of a complaint by undertaking
“a point-by-point consideration of the elements of a prima
facie case.” Id. Instead, a complaint need only set out factual
allegations which, when taken as true, “state a plausible ground
for relief,” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d
Cir. 2009), and support “a reasonable expectation that
discovery will reveal evidence” of unlawful discrimination,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
As the District Court recognized in its decision,
however, even with this low threshold the First Amended
Complaint fails to state a claim of disparate treatment because
it does not support a plausible inference that the Township’s
denial of a CCO was motivated by a discriminatory purpose.
Despite conclusory allegations of discriminatory animus, the
factual allegations are insufficient in four respects.
First, Oxford House alleges that the CCO was denied
because the Township “intentional misapplied” its zoning
ordinances. J.A. 179. Per the First Amended Complaint, the
zoning officer told Oxford House that he denied the CCO
because the intended use violated the zoning ordinances, and
the Township’s attorney later said the specific reason for the
denial was that the Oxford House model qualified as a

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“Community Residence” under the Municipal Land Use Law
and so was prohibited from operating in a two-family dwelling.
According to Oxford House, this was legally incorrect because
the Oxford House model does not fit the statutory definition of
a “Community Residence.” But even if we accepted Oxford
House’s interpretation of the statute, the mere misapplication
of a law does not itself support an inference of discriminatory
intent. There are many reasons why the Township may have
interpreted the statute differently, and the First Amended
Complaint does not offer any facts to support the inference that
the Township’s alleged misapplication of the law was
intentional—that is, motivated by discriminatory animus, as
opposed to innocent error. Simply put, Oxford House does not
offer any facts that support its otherwise conclusory statement
that the Township’s misapplication of the statue was
intentional.
Second, the First Amended Complaint’s allegations
include that there are no other Oxford Houses, sober living
facilities, or rooming and boarding houses in the Township.
Oxford House does not explicitly argue that this allegation
indicates discriminatory intent, but we consider that
interpretation as part of our review. In any case, there are no
allegations that there have been other applications for such
housing or that the Township has taken any action to prevent
or refuse such housing. Standing alone, the absence of similar
housing does not support an inference of discriminatory intent.
Third, the First Amended Complaint alleges that the
zoning officer departed from the Township’s ordinances, which

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required him to “notify[] the applicant in writing specifying the
reason” for the denial of a CCO. North Bergen, N.J. Ordinance
460-92 § 6(f). Instead, the zoning officer allegedly conveyed
the reason—that the proposed use of the property would have
violated the Township’s zoning ordinances—by phone and
directed Oxford House to the Township’s attorney who then
provided a written reason for the denial. But while
“[d]epartures from the normal procedural sequence also might
afford evidence that improper purposes are playing a role” in a
decision, Arlington Heights, 429 U.S. at 267, a complaint must
do more than simply identify a procedural deviation; it must
also allege facts suggesting that the deviation occurred because
of discriminatory intent or that it was taken in order to facilitate
or cover up a discriminatory purpose. See, e.g., Rollerson v.
Brazos River Harbor Navigation Dist., 6 F.4th 633, 640 (5th
Cir. 2021); Fowler v. Sitt, 104 F.4th 770, 788 (10th Cir. 2024),
cert. granted and vacated, 2025 WL 1787695 (remanding to
reconsider in light of United States v. Skrmetti, 145 S. Ct. 1816
(2025)). Here, however, the factual allegations do not suggest
that the zoning officer’s failure to provide written reasons for
the CCO denial was motivated by discriminatory animus, that
this minor departure from usual practices furthered any
discriminatory goal, or that the written explanation coming
from the Township’s attorney rather than the zoning officer
somehow facilitated unlawful discrimination. The zoning
officer had already informed Oxford House over the phone that
the CCO was denied because the proposed use of the property
violated the Township’s zoning ordinances.

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Fourth, the First Amended Complaint alleges that the
zoning officer “admitted” that he did not deny the CCO
application “on the basis that Oxford Houses are ‘community
residences,’” J.A. 177, presumably implying that the attorney’s
subsequent “community residence” rationale was a pretext for
unlawful discrimination. But the complaint does not allege the
zoning officer’s actual reasons for denying the application, nor
does it allege facts supporting the inference that he was
motivated by discriminatory animus. Absent other indicia of
discrimination, the mere fact that the two officials offered
different reasons for the denial does not support an inference
of pretext.
In sum, we agree with the District Court’s thorough and
thoughtful opinion concluding that the First Amended
Complaint does not sufficiently allege facts that suggest the
Township’s actions were motivated by discriminatory intent.
2. Disparate Impact
Unlike disparate treatment claims, which challenge
intentional discrimination, disparate impact claims redress
policies that are “fair in form, but discriminatory in operation.”
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). To
prevail on a disparate impact claim at trial, a plaintiff must
identify a specific, facially neutral policy and then show the
policy produces discriminatory effects, commonly proven
through evidence of significant “statistical disparities” on the
basis of a protected characteristic. Watson v. Ft. Wor. Bank and

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Trust, 487 U.S. 977, 987 (1988); see also Karlo v. Pittsburgh
Glass Works, LLC, 849 F.3d 61, 69 (3d Cir. 2017).
Thus, at the pleading stage for such a claim, the
complaint must first allege that a specific practice or policy has
a discriminatory effect on a protected class, as opposed to a
generalized policy, Meacham v. Knolls Atomic Power Lab’y,
554 U.S. 84, 100 (2008), or a “one-time decision,” Tex. Dep’t
of Hous. and Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576
U.S. 519, 543 (2015), and it must do more than simply allege
the existence of a statistically significant impact on the
protected class, Stouffer v. Union R.R. Co., 85 F.4th 139, 146
(3d Cir. 2023). Rather, the complaint must provide data
“plausibly suggest[ing] that the challenged [policy or] practice
actually has a disparate impact.” Mandala v. NTT Data, Inc.,
975 F.3d 202, 210 (2d Cir. 2020). That data need not be a
perfect methodological fit, see Wards Cove Packing Co., Inc.
v. Atonio, 490 U.S. 642, 651 (1989) (citing N.Y.C. Trans. Auth.
v. Beazer, 440 U.S. 568, 585 (1979)), so long as it plausibly
suggests an actual statistical disparity for members of the
protected class and raises a reasonable expectation that
discovery will reveal methodologically sound statistical
evidence at trial, see Mandala, 975 F.3d at 210.
In this case, the Township argued before the District
Court that the First Amended Complaint pleaded no facts,
statistical or otherwise, in support of a disparate impact claim.
Oxford House did not respond to these arguments in its
opposition, leading the District Court to deem any argument on

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this point forfeited.2 Thus, Oxford House’s arguments as to
disparate impact, raised for the first time on appeal, have not
been properly preserved, and we do not reach their merits. See
Confer v. Custom Eng’g Co., 952 F.2d 41, 44 (3d Cir. 1991).
C. The District Court’s Denial of Leave to
Amend.
Although we agree with the District Court’s dismissal
of the First Amended Complaint, we conclude that dismissal
should have been without prejudice to the filing of a second
amended complaint.
The District Court believed that any amendment would
be futile for two reasons. First, the District Court stated:
[Oxford House] has already amended its
complaint once, after both this Court and the
Third Circuit found that its original Complaint,
in combination with information unearthed in
discovery, was insufficient to demonstrate a
2 While the District Court deemed any opposition by Oxford
House to be “waived,” J.A. 20, we view waiver as the
“intentional relinquishment or abandonment of a known right,”
Johnson v. Zerbst, 304 U.S. 458, 464 (1938), whereas
forfeiture refers to a failure to timely make an argument or
assert a right, see United States v. Dowdell, 70 F.4th 134, 140
(3d Cir. 2023). We therefore consider Oxford House’s failure
to respond to the Township’s disparate impact argument to be
an example of forfeiture.

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likelihood of success on the merits of [Oxford
House]’s claims. In so ruling, both this Court
and the Third Circuit provided guidance as to
what would be necessary for [Oxford House] to
sufficiently state a claim.
J.A. 21-22. It is true that those rulings concluded that Oxford
House’s motion for a preliminary injunction did not
demonstrate a likelihood of success on the merits. But they
both did so based on the evidence uncovered during expedited
discovery on the preliminary-injunction motion, along with the
other preliminary-injunction criteria. See Oxford House, Inc.
v. Twp. of N. Bergen, 2022 WL 2341630, at *5 (D.N.J. June 29,
2022) (“Plaintiff has not adduced sufficient evidence to show
that the prospective residents’ status as handicapped played any
role in Defendant’s denial of the [CCO].”); Oxford House,
2023 WL 4837835, at *5 (“[W]hat Oxford House needs at this
stage is clear evidence supporting the conclusion that it is
reasonably likely to succeed on the merits.”).
In other words, these rulings turned on the sufficiency
of Oxford House’s evidence in support of its preliminary-
injunction motion, not the sufficiency of its original complaint.
And as explained supra, “standards of pleading are not the
same as standards of proof.” Fowler, 578 F.3d at 214 (citing
Phillips v. County of Allegheny, 515 F.3d 224, 246 (3d Cir.
2008)). Because those standards differ, the denial of a
preliminary injunction does not necessarily provide “guidance
as to what would be necessary for [Oxford House] to
sufficiently state a claim.” J.A. 21-22. And here, we are not

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convinced those earlier opinions alerted Oxford House to the
deficiencies in its complaint that we have identified today.
After all, a preliminary injunction is extraordinary relief that is
granted in only limited circumstances. See Am. Tel. & Tel. Co.
v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27
(3d Cir. 1994). Put another way, most cases that are able to
survive a motion to dismiss will not be able to satisfy the
preliminary judgment standard. So the fact that Oxford
House’s preliminary injunction was denied did not necessarily
speak to the sufficiency of its pleading. Rather, Oxford House
was put on notice of the deficiencies in both its original and
First Amended Complaints for the first time by the District
Court’s grant of the motion to dismiss. Thus, amendment
would not be futile on this ground.
Second, the District Court stated that Oxford House
“attached a proposed second amended complaint” to its
supplemental briefing and that, upon reviewing it, the Court
“[did] not find anything in the proposal that indicate[d] that
[Oxford House] will be able to fix the deficiencies described in
[the District Court’s] Opinion.” J.A. 22. It appears, however,
that the document attached to Oxford House’s supplemental
briefing was not a proposed second amended complaint, but a
redline of the First Amended Complaint showing the changes
from the original complaint. So this did not indicate that
amendment would be futile.
Because the District Court denied Oxford House leave
to file a second amended complaint based on its determination
that doing so would be futile, it did not have a chance to

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consider whether Oxford House had demonstrated “good
cause” under Federal Rules of Civil Procedure 16(b)(4) to seek
leave to file a second amended complaint after the deadline for
doing so had passed. See Premier Comput. Sols., LLC v.
UPMC, 970 F.3d 316, 319 (3d Cir. 2020). Nor did it have a
chance to address whether it should have granted leave to
amend sua sponte. See LabMD Inc. v. Boback, 47 F.4th 164,
192 (3d Cir. 2022). We are mindful that Oxford House’s
request for leave to amend was in response to the Township’s
motion to dismiss, which itself was not filed until after the
Court’s deadline for filing an amended complaint had passed,
and that courts in civil rights cases “must offer amendment—
irrespective of whether it is requested—when dismissing a case
for failure to state a claim unless doing so would be inequitable
or futile.” Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). But
because the District Judge here has not had the opportunity to
consider these questions and we have every confidence in our
esteemed colleague, we will remand for the District Court to
address them in the first instance.
IV. Conclusion
For the foregoing reasons, we will affirm the District
Court’s dismissal of the First Amended Complaint, vacate its
order denying leave to amend, and remand for further
proceedings consistent with this opinion.

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