Subhadra Gunawardana, et vir v. American Veterinary Medical Association, et al.

I.This Court has clarified that waiver is the intentional relinquishment/abandonment of a known right. No federal rule specifies deadlines to object to procedurally defective dispositive motions. In their timely response, Plaintiffs moved to strike Defendants’ motion to dismiss filed five months late without Court’s leave. As the Seventh Circuit held, in direct conflict with this Court’s definition of waivers and greatly departing from the consensus on timeliness, are objections to an untimely dispositive motion “waived” if not presented orally prior to the response deadline? 2.Circuits are sharply divided on how they apply the same standards to dismissals without leave to amend non-futile claims [Federal rules 8, 12(b)(6), 15(a)(2), and 16(b)4; and the Supreme Court’s standards from Foman v Davis and Twombly/Iqbal]. The Seventh and Eighth circuits routinely affirm dismissal without leave to amend non-futile claims, even under circumstances beyond plaintiffs’ control. Whereas the Third and Ninth circuits affirm dismissal with prejudice only in extreme circumstances, routinely allowing amendment with or without request. Therefore, the outcome of the same case would drastically differ based on the circuit. Are some circuits interpreting the standards incorrectly and/or using an incorrect test, and if not, should this Court create a more precise standard for dismissal without leave to amend non-futile claims, to protect litigants with meritorious claims or defenses?