Futility. Plaintiff contends that Xxxxxxxxx’s breach of fiduciary duty counterclaims are futile. An amendment is futile where it “would not withstand a motion to dismiss.” Shoshone Indian Tribe of the Wind River Reservation v. United States, 71 Fed. Cl. 172, 176 (2006). The party seeking leave “must proffer sufficient facts supporting the amended pleading that the claim could survive a dispositive pretrial motion.” Kemin Foods, X.X. x. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1354-55 (Fed. Cir. 2006); see also Dotcom Assocs. I, LLC v. United States, 112 Fed. Cl. 594, 598-99 (2013).
Futility. Xxxxxxx argues that the motion for leave to amend should be denied because the three proposed amendments to the complaint are futile. (D.I. 190 at 11–18) Xxxxxxx argues the additional claims in the amended complaint fail to state a claim under Fed. R. Civ. P. 12(b)(6). (Id.) The standard for assessing the futility of an amendment under Fed. R. Civ. P. 15(a) is the same standard of legal sufficiency applicable under Fed. R. Civ. P. 12(b)(6). City of Cambridge Ret. Sys.
Futility. The Court now moves to Xxxxxxxx’x contention that permitting the proposed amended complaint would be futile because it would not survive a motion to dismiss. The Court begins with Xxxxxxxx’x argument that Xxxxxxx lacks standing to bring a derivative claim on behalf of Plant 64 DCMC before turning to the viability of each claim in the amended complaint.
Futility. “An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Xxxxxxxxx v.
Futility. [11] In United States x. Xxxxxxx, we concluded that Native Americans charged with violating the Eagle Act could make an as-applied challenge to the Act’s permit- ting system without applying for permits if they demonstrated that ‘‘it would have been futile ... to apply for permits.’’ 297 F.3d 1116, 1121 (10th Cir.2002) (en banc). Citing our decision in Xxxxxxx, the dis- trict court here found ‘‘futility in the appli- cation process.’’ Gov’t App. 190. On this basis the court concluded that the Eagle Act, without an effective permitting sys- tem, substantially burdened Mr. Xxxxxx’s religion in a manner more restrictive than is necessary. Examining the record and reviewing this conclusion de novo, see Xxxx, 466 U.S. at 501, 508, 104 S.Ct. 1949, we disagree. While the district court cited Xxxxxxx in making its finding of ‘‘futility,’’ it also acknowledged that it was really deciding a fundamentally different issue than arose there. In Xxxxxxx, the defendants were not members of a federally recognized tribe, and were therefore explicitly forbid- den from applying because ‘‘the application itself require[d] certification of member- ship.’’ 297 F.3d at 1121; see 50 C.F.R. § 22.22(a)(5). In other words, it was legal- ly futile for them to apply because they were legally ineligible. In contrast, Mr. Xxxxxx, who is a member of a federally recognized tribe, ‘‘does not have the same impediment.’’ Gov’t App. 190. He is xx- xxxxx eligible for a permit, and so far as we know may receive one if he applies. The district court nonetheless concluded that it was ‘‘clear’’ from the record that Mr. Fri- day would not have received a permit if he had applied for one, even though he is legally eligible: The Defendant and the tribal members testifying on his behalf were not aware of the possibility of obtaining a permit to take an eagle. The statute expressly contemplates a permitting process for the taking of eagles for Indian religious purposes, relying on the Secretary of the Interior to implement regulations to make this accommodation to our Native Americans. Yet, testimony at the hear- ing revealed that as recently as 2003, the Secretary had not delegated the au- thority to process fatal take permits for Indian religious purposes. The evidence is that prior to 2003, only four such applications were submitted—three were issued and one denied Al- though the Fish and Wildlife Service utilizes outreach programs in an attempt to increase the understanding of its Re- pository progr...
