Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1989)

MEMORANDUM^* 

United Union of Roofers, Waterproofers, and Allied Trades, Local No. 40 (the "Union") appeals the district court's order dismissing its action and refusing to accept its first amended complaint for filing. The Union, acting as the representative of its members, had filed a complaint seeking adjudication of liability on a payment bond issued by appellees Safeco Insurance Company and Hartford Fire Insurance Company ("Safeco"), as surety. This appeal involves the questions whether the Union has standing to assert the rights of its members who seek payment of past wages from a payment bond issued by Safeco, and whether the court abused its discretion by refusing to accept the Union's first amended complaint for filing. We affirm the district court's order denying the Union standing to assert the rights of its members, and we dismiss the appeal concerning the first amended complaint.

* On May 26, 1988, the Union filed this action in the district court on behalf of those union members who performed labor for a subcontractor, A-Plus Roofing, on a public works project in Kings County, California. The Union alleged that A-Plus failed to pay union members the wages to which they were entitled under Cal.Civ.Code Sec. 3247. That statute requires the posting of a payment bond in order to guarantee payment of proper wages to laborers employed on public works projects. The Union sought to enforce payment of a surety and payment bond issued by defendants-appellees Safeco Insurance Company and Hartford Fire Insurance Company, in which A-Plus was principal.

On September 19, 1988, Safeco moved to dismiss. First, Safeco argued that the Union lacked standing to bring this action. Specifically, Safeco contended that the Union failed to satisfy the third element of the associational standing test as articulated in Hunt v. Washington State Advertising Commission, 432 U.S. 333, 343 (1977). Second, Safeco argued that the court should dismiss the action for failure to join A-Plus as an indispensable party under Fed. R. Civ. P. 12(b). Finally, defendants urged dismissal for plaintiff's failure to comply with the ninety-day notice requirement of California Civil Code Sec. 3091.

On December 13, 1988, the district court granted Safeco's motion to dismiss. The court, citing Judge Jensen's opinion in the virtually identical case of United Union of Roofers v. Insurance Corp. of America, No. 89-15068 (oral argument for which appeal was heard concurrently with this case), held that the Union lacked standing for failure to satisfy the third element of the test for associational standing established by Hunt, 432 U.S. at 343, in that the participation of each of the individual Union members who alleged that he or she did not receive proper wages from A-Plus would be required for resolution of the case. Because the court dismissed the action on the basis of plaintiff's lack of standing, it declined to address the other two issues raised by Safeco.

On December 15, 1988, a final judgment was entered dismissing the case. On December 21, 1988, the Union attempted to file its first amended complaint with the district court. This amended complaint was rejected for filing, but no order or statement was issued explaining the reason for the rejection. The Union apparently learned of the court's refusal to accept the amended complaint from a letter from Safeco's counsel to Judge Henderson dated December 28, 1988, a copy of which was sent to the Union. That letter stated, in pertinent part: "Since there is nothing to amend in this action given the dismissal, Defendants will not be filing any response to the Amended Complaint in this action. This was confirmed with your law clerk on Tuesday, December 27, 1988."

On January 6, 1989, the Union sent a letter to Judge Henderson disagreeing with what the Union believed to be Judge Henderson's ruling. The union asserted that it was free to amend as a matter of course because no responsive pleading had been filed. The letter cited case law supporting its contentions and concluded by stating:

Please advise me if the court desires further discussion or has any questions or comments regarding the above. Upon further communication from the court, plaintiff shall take appropriate action as necessary, including the refiling of the First Amended Complaint or an appeal of the Court's action in this matter.

There is nothing in the record indicating any further communications with the district court or any orders by the court.

On January 13, 1989, the Union filed a notice of appeal. The Union contends that the district court erred in its determination that the Union lacks standing in its associational capacity to bring this action. The Union also argues that the district court abused its discretion in refusing to accept the Union's first amended complaint for filing.

II

For the reasons stated in our published opinion in the companion case, United Union of Roofers v. Insurance Corp. of America, No. 89-15068, which raises the identical standing issue, we affirm the district court's order denying the Union associational standing to assert the rights of its members.

III

The Union contends that the district court abused its discretion by not accepting the first amended complaint for filing. We disagree.

Fed. R. Civ. P. 15(a) provides that a party may amend a complaint once "as a matter of course" before a responsive pleading is served. After that, the "party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Thus, "after a brief period in which a party may amend as of right," leave to amend lies "within the sound discretion of the trial court." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).

By the time the Union attempted to file its first amended complaint, it no longer had the right to amend as a matter of course. Where a final judgment is entered following dismissal of an action, the plaintiff no longer has the right to amend the complaint as a matter of course. Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987); see also Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984); Worldwide Church of God, Inc. v. California, 623 F.2d 613, 616 (9th Cir. 1980). The Union's situation falls squarely within this rule, since it attempted to amend its complaint on December 21, after the entry of a final judgment on December 15.

Under these circumstances, any amendment could have been made only by leave of court. A denial of a motion to amend is reviewed for abuse of discretion. Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir. 1984). However, our review of the rejection of the Union's first amended complaint is hampered by the fact that there is no final order from the court regarding the proffered amended complaint.

Although it is clear that the Union's attempt to amend was rejected, it is unclear from the record whether the rejection was made by Judge Henderson or by the Clerk's office. The Union concedes that it was unaware that its attempt at amendment had been rejected until December 29, 1988, when it received a copy of the letter from defendants' counsel to Judge Henderson.

The January 6 letter sent by the Union to Judge Henderson merely disagrees with a ruling the Union believed Judge Henderson had made. Moreover, the Union's assertion that it was free to amend as a matter of course because no responsive pleading had been filed was incorrect.

There is nothing in the Union's letter that can be construed as a motion to amend the Judgment under Rule 59(e), Fed. R. Civ. P., or a motion for relief from the Judgment under Rule 60, Fed. R. Civ. P. The Union was incorrect in its assertions and did not ask for any specific relief, therefore, there was no reason for Judge Henderson to respond. Thus, it is unclear from the record whether Judge Henderson ever faced the question whether the Union should be granted leave to amend.

Because the district court did not rule on any specific request that would have allowed the court to grant the Union leave to amend, there is no final order from which the Union can appeal. Accordingly, there is no final order that is subject to review, and we dismiss the Union's appeal of the district court's refusal to accept the first amended complaint.

IV

On the basis of the reasoning contained in our published opinion in United Union of Roofers v. Insurance Corp. of America, No. 89-15068, we affirm the district court's holding that the Union fails to meet the requirements for associational standing.

We find that the Union's appeal of the district court's refusal to accept its first amended complaint is not based on a final appealable order. Therefore, we dismiss this part of the Union's appeal.

AFFIRMED.