Eric Clopper v. President & Fellows of Harvard College, et al.

The District Court dismissed with prejudice Plaintiff-Appellant Eric Clopper’s Complaint on the 15th day after service of a Federal Rule of Civil Procedure (“Rule”) 12(b) Motion. Rule 15(a)(1)(B) provides Clopper with an absolute right to file an amended Complaint within 21 days of service of the 12(b) motion. The lower courts did not directly address Clopper’s due process right under Rule 15(a) to amend his Complaint once as a matter of course. Instead, the en banc Panel noted that Clopper did not “demonstrate that, had he been allowed to amend his complaint . . . he would have been able to set out one or more valid causes of action.” More important, the record demonstrates that: • Clopper presented the 7 viable amendments acknowledged by the District Court to the First Circuit Panel; • The First Circuit recognized 7 additional viable amendments, while dismissing the appeal for failing to raise a substantial question of law; • After Clopper presented all 14 separate viable amendments, the 4-judge en banc Panel held that Clopper did not show how he could have amended his Complaint to state a claim. This legal error and factual inconsistency begs the following question: 1. Did the District Court, the First Circuit Panel and the en banc Panel violate the procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution embodied in Rule 15(a) when it deprived Clopper his right to one amendment within 21 days of the service of the Rule 12(b) Motion?