If you can’t sue someone under one legal theory, renaming it won’t help. The Sixth Circuit recently held that, because there is no separate cause of action for breach of good faith and fair dealing in Ohio, a plaintiff without a live breach of contract claim can’t add a claim for breach of good faith.

Kellee Kendell sued Phoenix Health Care Services for breach of contract, claiming that Phoenix had never paid her what they promised in her written contract. Phoenix countered that after she signed the contract Kendell had verbally agreed to a pay cut then took the lowered pay for seven years. The Southern District of Ohio granted summary judgment to Phoenix and the Sixth Circuit affirmed.

Of course, a court ordinarily won’t enforce a verbal agreement to change a written contract—that’s the parole evidence rule. But the Sixth Circuit (effectively) did enforce the verbal agreement instead of the written contract, observing that “when a party acts in a manner that misleads another and causes prejudice to that party, she is estopped from bringing legal claims contrary to her conduct.” And “although Kendell assert[ed] that she and Phoenix argued about her pay . . . she does not dispute that she affirmatively approved of her pay every two weeks for seven years . . . .”

Since Kendell couldn’t bring a breach-of-contract claim, she also couldn’t bring a breach-of-good-faith claim:  Ohio courts treat a claim for breach of the duty of good faith and fair dealing as a breach of contract claim not an independent cause of action. Kendell’s breach of good faith was just a breach of contract going by a fake name. Since Kendell couldn’t bring any breach of contract claims, her amendment was futile.

Read the opinion here.

There’s a short opinion recently out of the Southern District of Ohio that neatly highlights the rule that when a case is removed to federal court, the federal court cannot extend any order issued by the state court if that order would not have been allowed under the federal rules of civil procedure.

Total Quality Logistics, an Ohio company that brokers freight, sued Covar Brokerage, a competitor, and several of TQL’s former employees in Clermont County common pleas for violating non-compete agreements. The state court granted TQL’s ex parte motion for a temporary restraining order. Covar then removed the case to the Southern District of Ohio under federal diversity jurisdiction. TQL asked the federal court to extend the restraining order. But the federal court held that it couldn’t extend the restraining order because the original motion couldn’t have been granted under the federal rules.

Under Federal Rule of Civil Procedure 65(b), a federal court can only grant an ex parte motion for a restraining order if the moving “attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” (It’s worth noting that Ohio’s rules have the same requirement.) But the motion granted by the Clermont County court didn’t have that certification because TQL hadn’t made any effort to give Covar notice. TQL’s attorney explained at the state court hearing that he didn’t sent notice because Covar tends to respond by filing their own restraining orders in different state courts to stop the Ohio court proceedings.

The Southern District held that TQL’s explanation at the hearing would not have complied with Rule 65(b)’s written certification requirement. And “[o]nce a case has been removed to federal court, its course is to be governed by federal law, including the Federal Rules of Civil Procedure.” Because the original state-court order could not have been granted under the federal rules, the federal court didn’t have the power to extend that order.

Read the decision here.

If you’re fighting a motion to dismiss should you start by filing an opposition or amending your complaint? That’s one question raised by the Ninth Circuit’s recent decision in a decade-long water-rights dispute between the Navajo Nation and the Department of the Interior. The Tribe sued the federal government in 2003 to challenge water delivery guidelines issued by Interior for the Colorado River. The Tribe alleged that these guidelines violated the National Environmental Policy Act (NEPA for us lawyers) and the federal government’s tribal trust duties. After a decade of fruitless settlement talks, the district court dismissed the Tribe’s claims for lack of standing then denied the Tribe’s motion for leave to amend its complaint to fix the standing problems. The Ninth Circuit affirmed.

There is plenty in this opinion to talk about (starting with the Ninth Circuit’s analysis of standing for NEPA cases) but let’s focus on one part: the denial of the Tribe’s motion to amend its complaint. A motion to amend a complaint is made under Rule 15 and leave to amend is “freely give[n].” But after judgment has been entered then a Rule 15 motion can only be made after judgment has been reopened. And when the district court dismissed the Tribe’s complaint—without granting leave to amend—the district court also entered final judgment. So the Tribe moved for relief from judgment under Rule 60(b)(6), which allows a court to grant relief for “any other reason that justifies relief.”

It’s not easy to win a Rule 60(b)(6) motion—judges don’t like deciding cases more than once. And the Ninth Circuit reviewed the district court’s decision for abuse of discretion, the most deferential standard of review. (I wrote about how this standard changes the appellate calculus here.)

Now the Tribe had already amended its complaint twice—first to update the pleading after a decade of settlement talks* and then to voluntarily strike one of its claims. Those amendments had nothing to do with standing but the Ninth Circuit pointed to them as solid support for the district court’s decision: The Tribe “had ample opportunity at those junctures to address the deficiencies in its pleading—deficiencies which . . . the defendants had identified in their motions to dismiss.”

The double hurdle of a Rule 60(b) standard and abuse of discretion review was never going to be easy to overcome, but the Ninth Circuit’s decision still seems somewhat underbaked. When a plaintiff is hit with a Rule 12(b) motion to dismiss, their lawyer will consider amending the complaint instead of defending the complaint. Fair enough—this happens. But the Ninth Circuit’s decision tips the balance a bit towards amendment without explaining why that’s a better balance. On top of that, a plaintiff in the Ninth Circuit is going to hesitate before amending any part of their complaint without strengthening the rest of their claims. Litigation should end, but encouraging plaintiffs to tinker with their complaint during the lawsuit seems like an odd way to keep that ending in sight.

Here’s the Ninth Circuit’s decision.

* I’m taking “amended” at its face value here—Rule 15(d) allows a “supplemental” pleading to cover “any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.”

When you’re working with the Federal Rules of Civil Procedure you will notice a recurring theme: Timing is everything. The Sixth Circuit has issued a decision in a case that teaches two useful lessons about timing, discovery, and summary judgment: You can file a Rule 12(b)(6) motion to dismiss before discovery but if it uses affidavits and other evidence it might not remain a motion to dismiss. And if it doesn’t remain a motion to dismiss, an opposing counsel who knows the rules has a powerful weapon to defeat what’s now your newborn motion for summary judgment.

Vicki Moore, director of the Shelby County Animal Care Coalition, sued Shelby County, Kentucky, in state court alleging the county had broken federal and state law by wiping a county-run animal shelter’s surveillance videos. Shelby County removed to federal court, then—before any discovery—moved for summary judgment. The district court granted the motion and dismissed Moore’s claims with prejudice. Moore appealed and the Sixth Circuit reversed and remanded, holding that the district court shouldn’t have granted summary judgment before discovery.

Now you might have asked why the district court ruled on summary judgment before discovery instead of on a motion to dismiss. It’s not a small difference—dismissal for failure to state a claim often ends with leave to amend the complaint but summary judgment ends the case. Doesn’t summary judgment only happen after at least some discovery? Well, usually, yes. But a district court may rely on documents outside the pleadings on a Rule 12(b)(6) motion to dismiss as long as the judge converts the motion to dismiss to a motion for summary judgment. (There are some documents that won’t trigger this but that’s another article.) It’s not discretionary: If your opposing counsel files a motion to dismiss that comes with evidence as well as briefing, and the court decides it will read that evidence and use it in the ruling, then your opposing counsel has just converted that motion to summary judgment. That’s not quite what happened here—Shelby County submitted affidavits and properly filed a motion for summary judgment instead of a motion to dismiss—but it’s why the court’s ruling was on summary judgment even though discovery hadn’t started, much less ended.

The Sixth Circuit’s opinion turns on this procedural oddity and gives some attention to part of Rule 56 that lawyers should never overlook in cases facing summary judgment before discovery. Federal Rule of Civil Procedure 56(b) allows you to file for summary judgment “at any time,” yes, even before discovery begins. But Rule 56(d) allows you to defend against summary judgment by explaining that “for specified reasons, [the defending party] cannot present facts essential to justify its opposition . . . .” Not having had any discovery is a pretty good reason why you can’t defend against summary judgment.

Rule 56(d) does allow the court to grant an early summary judgment, but the Sixth Circuit held that, in this case, the district court abused its discretion: “[A]lthough [the Sixth Circuit] has upheld cases grating summary judgment prior to discovery . . . such cases are extraordinary and not the norm. . . . Common sense dictates that before a district court tests a party’s evidence, the party should have the opportunity to develop and discover the evidence.” Moore had explained that she needed discovery to defend against summary judgment, and the Sixth Circuit held that the district court should have given her the chance to have that discovery. Now the case goes back to the district court. Something tells me that we’ll see another round of summary judgment though—but this time with the facts. Until then, the Sixth Circuit’s opinion is here.