NOT FOR PUBLICATION
In the
United States Court of Appeals For the Eleventh Circuit
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No. 25-11187
Non-Argument Calendar
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DARIN WHITCHURCH, JULIE WHITCHURCH, Plaintiffs-Appellants,
versus
MICHAEL DANNY MULKEY, SARAH MULKEY, ROBIN MULKEY, DANIEL MULKEY, MULKEY INC, et al., Defendants-Appellees.
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Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 4:23-cv-00489-RDP
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Before JORDAN, JILL PRYOR, and KIDD, Circuit Judges.
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PER CURIAM:
Darin and Julie Whitchurch hired Michael Daniel Mulkey to build a house for them. They later sued Mulkey, members of his family, and two related companies in federal court. The district court dismissed the lawsuit and denied the Whitchurches leave to file a supplemental complaint that added allegations based on incidents that occurred while the lawsuit was pending. On appeal, the Whitchurches challenge the district court’s orders. After careful consideration, we affirm.
I.
In 2020, the Whitchurches sought to build a house on property they owned in Cedar Bluff, Alabama. They hired Mulkey for the construction project and agreed to pay him on a cost-plus basis —that is, they would pay him the cost of construction plus an additional ten percent. The relationship quickly soured. The Whitchurches say that Mulkey overbilled them by misrepresenting the costs of his materials, labor, and services.
Years of litigation in state and federal courts followed. In this section, we describe the proceedings in the state court lawsuit the Whitchurches filed against Mulkey and his company and then review the proceedings in this federal lawsuit.
A.
In 2021, the Whitchurches, proceeding pro se, sued Mulkey and his company Mulkey, Inc. of Georgia—in Alabama state court.
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They asserted claims for negligence, wantonness, fraud, and conversion . They also brought claims under the federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1962(c), and the Alabama Deceptive Trade Practices Act (“ADTPA”), Ala. Code § 8-19-10. And they asserted that Mulkey was liable under an Alabama statute that makes it a crime to engage in the practice of general contracting without a license, Ala. Code § 34-8-1.
In the state court case, the Whitchurches requested leave to amend to add additional defendants to the case. They sought to add as defendants Robin Mulkey, Mulkey’s wife; Sarah Mulkey, Mulkey ’s daughter; and Daniel Mulkey, Mulkey’s son. 1 They alleged that Robin, Sarah, and Daniel were officers or employees of Mulkey , Inc. The state court denied the request to add these additional defendants. 2 Several of the Whitchurches’ claims in the state court case were dismissed before trial. They moved to voluntarily dismiss their federal RICO claim. The state court granted their motion and dismissed the RICO claim. The state court also dismissed the claim that Mulkey violated Alabama law by engaging in the practice of general contracting without a license. It explained that the claim
1 Throughout this opinion, we refer to Michael Mulkey as “Mulkey.” To avoid
confusion, we refer to the other Mulkey family members by their first names. 2 After the court denied their request to add Robin, Sarah, and Daniel as de-
fendants, the Whitchurches filed a petition for writ of mandamus with the Alabama Supreme Court. The Alabama Supreme Court denied the petition.
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failed as a matter of law because Alabama’s requirement that a person have a license to engage in the practice of general contracting did not apply to the construction of a residence or private dwelling .3 See Ala. Code § 34-8-7(a)(2).
The state court also dismissed the ADPTA claim before trial.
It explained that under Alabama law, the Whitchurches had to elect between pursuing a statutory ADPTA claim and a common law claim for fraud; they could not pursue both. The court concluded that the Whitchurches failed to make a timely election, and it dismissed their ADPTA claim. See Ala. Code § 8-19-15(a) (recognizing that the “civil remedies” available under ADTPA and the “civil remedies available at common law . . . for fraud . . . are mutually exclusive”).
In August 2023, the state case proceeded to trial on the Whitchurches’ negligence, wantonness, fraud, and conversion claims. The jury returned a verdict in favor of Mulkey and Mulkey, Inc., on each claim. The court then issued an order reflecting that the jury had returned a verdict against the Whitchurches on the
3 The state court issued an order that identified this legal issue and directed the
Whitchurches to identify any “legal authority that allows them to maintain this cause of action.” Doc. 57-2 at 2. It warned that if they failed to respond by the court’s deadline, “this claim will be dismissed.” Id. The Whitchurches failed to file a response, and the claim was not presented to the jury. We agree with the district court that this course of proceedings shows that the district court dismissed the claim that Mulkey unlawfully engaged in the practice of general contracting without a license on the merits. “Doc.” numbers refer to the district court’s docket entries.
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claims of negligence, wantonness, conversion, and fraud. After noting the other claims had been dismissed, the state court “enter[ed] a judgment in favor” of Mulkey and Mulkey, Inc. Doc. 57-6 at 1.
After the court entered the judgment, the Whitchurches moved for a new trial and judgment as a matter of law. The state court did not issue a formal order ruling on the motion. When it failed to rule on the motion within 90 days, the motion was deemed denied under Alabama law. See Ala. R. Civ. P. 59.1 (“A failure by the trial court to render an order disposing of any pending postjudgment motion within [90 days] . . . shall constitute a denial of such motion as of the date of the expiration of the period.”); see also Ex Parte Hornsby, 663 So. 2d 966, 967 (Ala. 1995) (recognizing that because a post-trial motion remained “pending, and not ruled upon, for 90 days,” the motion was “denied by operation of law”). The Whitchurches did not file an appeal.
B.
In April 2023—around the time when the state court decided that the Whitchurches could not add Mulkey’s family members as defendants but before the trial in that case—the Whitchurches, again proceeding pro se, filed a new lawsuit in federal court. They named as defendants Mulkey; Robin; Sarah; Daniel ; Mulkey, Inc.; and D. Mulkey, LLC (collectively, the “Mulkey federal defendants”). The initial complaint asserted a federal RICO claim against the Mulkey federal defendants, alleging that they had engaged in a “construction overbilling scheme” that involved padding their invoices on cost-plus contracts. Doc. 1 at 2. The Mulkey
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federal defendants moved to dismiss the action, arguing that the complaint failed to state a claim.
Shortly after the Mulkey federal defendants moved to dismiss , the Whitchurches filed a first amended complaint.4 In the first amended complaint, they continued to assert a federal RICO claim and added state law claims for “misrepresentation and fraud,” violating ADPTA, negligence, and unjust enrichment. Doc. 18 at 16– 17. All the claims arose out of the course of events in which the Mulkey federal defendants allegedly persuaded the Whitchurches to agree to a cost-plus contract and then padded their invoices. After the Whitchurches filed the first amended complaint, the district court denied the motion to dismiss the initial complaint.
The Mulkey federal defendants moved to stay the federal case. They explained that the federal case arose out of the same facts and circumstances as the state court case and that there was an upcoming trial in the state court case. They asked the district court to stay the federal case until the conclusion of the state court action. While the motion to stay was pending, they also moved to dismiss the first amended complaint.5
4 The Whitchurches did not need leave of court to file the first amended com-
plaint because they filed it within 21 days of being served with the motion to dismiss. See Fed. R. Civ. P. 15(a) (providing that “[a] party may amend its pleading once as a matter of course” so long as the amendment is filed no later than “21 days after service” of a motion to dismiss). 5 In addition, each defendant filed an answer to the amended complaint, not-
ing that it had contemporaneously filed a motion to dismiss.
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The district court ordered the federal case stayed “pending the outcome of the State Action.” Doc. 31 at 7. It then “administratively terminated” the motion to dismiss the first amended complaint , noting that the defendants could refile the motion after the stay was lifted. Doc. 32 at 1 (citation modified). The district court lifted the stay in November 2024, which was after the deadline for the Whitchurches to appeal the state court’s judgment. When it lifted the stay, the district court directed that the defendants could refile their motion to dismiss.
After the district court lifted the stay, the Whitchurches filed a motion seeking leave to file a “Second Amended and Supplemental Complaint.” Doc. 54 at 1. They sought to supplement the first amended complaint by adding new allegations arising out of events that occurred at the state court trial. They asserted that the Mulkey federal defendants had “carried out [a] fraud on the state court” and that the attorneys who represented Mulkey and his company participated in the scheme. Doc. 54-1 at 5.
The Whitchurches sought to add as defendants the attorneys and law firms who had defended Mulkey and Mulkey, Inc., in the state court action: Albert Palmour; the Palmour Law Firm, LLC; William Hawkins; and Buttram, Hawkins, & Hooper, LLC (collectively, the “attorney defendants”). In the proposed second amended complaint, the Whitchurches alleged that the predicate acts for the RICO claim included the Mulkey federal defendants and the attorney defendants engaging in obstruction of justice, witness tampering, and destroying and fabricating evidence. They also
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sought to add a claim for “civil rights violations,” alleging that the conduct of the Mulkey federal defendants and the attorney defendants at the state court trial had violated their due process rights. Id. at 24–25.
Around the same time, the Mulkey federal defendants renewed their motion to dismiss the first amended complaint. They argued that res judicata and collateral estoppel barred the Whitchurches’ claims in the first amended complaint and that the first amended complaint failed to state a federal RICO claim. They attached as exhibits to the motion filings from the state court action . The Whitchurches filed a response opposing the motion to dismiss. They attached to their response various filings from the state court action. The Mulkey federal defendants filed a response opposing the motion for leave to file the second amended complaint .
In a thorough order, the district court granted the motion to dismiss the first amended complaint and denied the motion for leave to file a second amended complaint. It carefully reviewed the intricate history of the state and federal litigation.
The district court concluded that res judicata barred the claims in the first amended complaint. 6 It explained res judicata required “(1) a prior judgment on the merits, (2) rendered by a court
6 In the alternative, the district court determined that the misrepresentation
and fraud as well as negligence claims in the first amended complaint should be dismissed because they were barred by collateral estoppel and that the
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of competent jurisdiction, (3) with substantial identity of the parties , and (4) with the same cause of action presented in both actions .” Doc. 69 at 14. (citation modified)
The district court determined that each element was satisfied . First, it concluded that the state court had entered a final judgment on the merits because after the trial, the state court had entered a final judgment that disposed of all the claims in the action. Second, the district court determined that the judgment had been rendered by a court of competent jurisdiction. It noted that the Whitchurches conceded that this element was satisfied.
Third, the district court concluded that there was a substantial identity of the parties in the state and federal cases. It acknowledged that four defendants named in the first amended complaint in the federal action—Robin, Sarah, Danny, and the limited liability company—were not parties to the state court action. But it emphasized that Alabama law, which it was applying, “follow[ed] an expansive definition of privity.” Id. at 16 (citation modified). And the court determined that each of these four defendants was in privity with Mulkey, Inc., which was a defendant in the state court action. It determined that Robin, Sarah, and Daniel were in privity with Mulkey, Inc., because the Whitchurches had alleged that each was an employee of Mulkey, Inc. And the court concluded that Mulkey,
RICO claim should be dismissed for failure to state a claim. Because we conclude that res judicata barred all the claims in the first amended complaint, we do not address whether collateral estoppel barred any claims or whether the first amended complaint stated a RICO claim.
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LLC was in privity with Mulkey and Mulkey, Inc., because the Whitchurches had expressly alleged that Mulkey, LLC was an alter ego of each.
Fourth, the district court determined that the same causes of action were presented in the first amended complaint in the federal action and the state court action. For this inquiry, the court looked at each claim raised in the first amended complaint and asked whether it depended on “substantially the same evidence” as a claim raised in the state court litigation. Id. at 17 (citation modified ).
The court began with the RICO claim in the first amended complaint. It acknowledged that in the state court action, the Whitchurches had initially asserted a RICO claim but voluntarily dismissed it before trial. Even though the Whitchurches had dropped their RICO claim in the state court action, the district court concluded that the same cause of action requirement was satisfied because the RICO claim “would be subject to proof by the same evidence as the conversion claim,” which had been litigated in the state court action. Id. at 18.
The court next considered the Whitchurches’ misrepresentation , fraud, and negligence claims in the first amended complaint. It observed that the exact same claims had been litigated at trial in the state court. Because these claims relied on the same evidence as the parallel claims brought in state court, the district court determined that the same cause of action requirement was satisfied.
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The court then turned to the ADPTA claim in the first amended complaint. Because this claim arose from the “same nucleus of operative facts as [the] claims for fraud and conversion” that were litigated in the state court action, the same cause of action requirement was satisfied. Id. at 19.
The court also considered the unjust enrichment claim in the first amended complaint. It explained that this claim arose from allegations that the Mulkey federal defendants had “overcharg[ed] or wrongfully charg[ed]” the Whitchurches in connection with the construction contract. Id. Because this claim arose from the “same nucleus of operative facts as all four state law claims (wantonness, fraud, negligence, and conversion)” that were tried to the jury in the state court action, the court determined that the same cause of action element was satisfied. Id. at 19–20.
The district court also denied the Whitchurches’ motion for leave to file a second amended complaint. To the extent that the proposed second amended complaint asserted various claims against the federal defendants that arose from the alleged overcharging on the cost-plus construction contract, the court determined that these claims, just like the claims in the first amended complaint, were barred by res judicata and the amendment would be futile.
The district court acknowledged that the proposed second amended complaint also sought to supplement the first amended complaint by raising allegations and asserting claims that arose out of incidents that occurred after the federal lawsuit had been filed.
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The court, in an exercise of its discretion, declined to permit the Whitchurches to supplement. It contrasted the claims asserted in the first amended complaint, which arose out of “operative facts related to residential construction on [the Whitchurches’] home,” with the supplemental claims in the second amended complaint, which “stem[med] from what allegedly occurred during the trial in the State Action.” Id. at 29. Because the supplement was not sufficiently related to the first amended complaint, the court denied the Whitchurches leave to supplement. But it did note that the Whitchurches potentially could assert their supplemental claims in a new lawsuit.
After granting the motion to dismiss the first amended complaint and denying the Whitchurches leave to file the second amended complaint, the district court closed the case. The Whitchurches moved for reconsideration of the dismissal. The district court denied that motion.
This is the Whitchurches’ appeal.
II.
We review de novo a district court’s decision to dismiss an action based on res judicata. Milner v. Baptist Health Montgomery, 132 F.4th 1354, 1357 (11th Cir. 2025). We review for clear error a district court’s factual finding that two parties are in privity for res judicata purposes. Rodemaker v. City of Valdosta Bd. of Educ., 110 F.4th 1318, 1327 (11th Cir. 2024). “Clear error is a highly deferential standard of review.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (citation modified).
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“A factual finding is clearly erroneous when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (citation modified).
We generally review a district court’s decision denying leave to amend a complaint for abuse of discretion. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007).� But we review de novo a district court’s legal conclusion that a “particular amendment to the complaint would be futile.” Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1093–94 (11th Cir. 2017) (citation modified). We also review for abuse of discretion a district court’s denial of leave to supplement a complaint. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). Under an abuse of discretion standard, we will leave undisturbed a district court’s ruling “unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011) (citation modified).
Pro se filings are liberally construed. Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014).
III.
On appeal, the Whitchurches challenge the district court’s decisions to dismiss their first amended complaint and to deny them leave to file the proposed second amended complaint. We address each issue in turn.
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A.
We begin with the dismissal of the first amended complaint.
We agree with the district court that res judicata barred each claim in the first amended complaint.
The doctrine of res judicata, also known as claim preclusion, generally bars the “relitigation of matters . . . that could have been adjudicated in a prior action.” Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d 914, 919 (Ala. 2007) (citation modified). Under Alabama law, 7 the elements of res judicata are: “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction , (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” Kizzire v. Baptist Health Sys., 441 F.3d 1306, 1308–09 (11th Cir. 2006) (citation modified ). If these four elements are met, then any claim that was—or could have been—adjudicated in the earlier action is “barred from future litigation.” Id. at 1309.
We agree entirely with the district court’s res judicata analysis . It carefully reviewed each element required for res judicata, explained why each element was satisfied, and concluded that the doctrine barred the claims in the Whitchurches’ first amended complaint.
7 To determine the preclusive effect of the state court judgment, we look to
Alabama law. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011) (recognizing that when deciding whether to give preclusive effect to state-court judgments under res judicata, a federal court “must apply the rendering state’s law of preclusion”).
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On appeal, the Whitchurches argue that the district court erred in concluding that their claims were barred by res judicata because the state court never entered a final judgment in their case. Not so. After the jury returned its verdict, the state court issued an order that expressly “enter[ed] a judgment in favor of the Defendants .” Doc. 57-6 at 1. The state court acknowledged that the jury’s verdict addressed only the claims for negligence, wantonness, fraud, and conversion. But it explained that the Whitchurches’ other claims had previously been dismissed. Given that the state trial court, in fact, entered a final judgment, we reject the Whitchurches’ challenge.
The Whitchurches also argue that the district court erred in applying res judicata because several of the defendants named in the first amended complaint—Robin, Sarah, Danny, and the limited liability company—were not defendants in the state court action . Thus, they say that the third element of res judicata—identity of the parties—was not satisfied.
We disagree. Alabama permits the application of res judicata when a nonparty is in privity with a party to the earlier action. See Sellers v. Nationwide Mut. Fire Ins. Co., 968 F.3d 1267, 1272 (11th Cir. 2020) (citation modified). Alabama applies an “expansive definition of privity” that covers when a party and nonparty have “an identity of interest in the subject matter of litigation.” Id. (citation modified ). Given the broad standard for privity under Alabama law, the district court did not clearly err when it found that Robin; Sarah;
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Danny; and Mulkey, LLC were in privity with a defendant in the state court action. See Rodemaker, 110 F.4th at 1327.
The Whitchurches also point out that the Mulkey federal defendants raised the defense of res judicata at the motion to dismiss stage. They say that at this stage of the case the district court was limited to considering the pleadings in the federal case and that when it considered additional evidence—that is, the record from the state court action—it improperly converted the motion to dismiss into a motion for summary judgment.8 We see no reversible error. See Starship Enters. of Atlanta, Inc. v. Coweta Cnty., 708 F.3d 1243, 1252 n.13 (11th Cir. 2013) (rejecting similar challenge to res judicata at motion to dismiss stage).
Because the doctrine of res judicata barred each of the claims in the first amended complaint, the district court properly granted the motion to dismiss.
B.
We now turn to whether the district court abused its discretion in denying the Whitchurches leave to file the proposed second
8 The Whitchurches also argue that the district court erred in dismissing their
complaint without giving them an opportunity to file an amended complaint. This argument lacks merit. The record demonstrates that the district court allowed the Whitchurches to amend their pleading once as a matter of course when it permitted them to file the first amended complaint. See Fed. R. Civ. P. 15(a) (permitting a plaintiff to amend her complaint “once as a matter of course”).
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amended complaint, which was a supplemental pleading. As we explained above, the proposed second amended complaint added (1) allegations of misconduct arising out of incidents that occurred during the state court trial and (2) the attorney defendants as parties to the action. We conclude that the district court did not abuse its discretion in denying them leave to supplement.
The Federal Rules of Civil Procedure dictate when a plaintiff may amend or supplement her complaint. Rule 15(a) generally permits a plaintiff to amend her complaint “once as a matter of course.” Fed. R. Civ. P. 15(a). After filing an initial amendment, a plaintiff may amend her complaint “only with the opposing party’s written consent or the court’s leave,” although a court “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
A different provision in Rule 15 addresses when a plaintiff may file a supplemental pleading—that is, one that “set[s] out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). A “court may, on just terms, permit a party to serve a supplemental pleading .” Id.
Rule 15(d) gives a district court discretion to permit a supplemental pleading—that is, a court may permit a party to file a supplemental pleading that adds allegations based on events that occurred after the action was filed. But nothing in Rule 15(d) requires a court to permit a party to file a supplemental complaint. See MSPA Claims 1, LLC v. Kingsway Amigo Ins. Co., 950 F.3d 764, 773– 74 (11th Cir. 2020). (recognizing that the word “may” is permissive).
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We conclude that the district court did not abuse its discretion in denying leave to supplement here. When the district court exercised its discretion not to allow the supplement, it had already concluded that all the claims in the first amended complaint were barred by res judicata and that the supplement was based on events that occurred after the first amended complaint was filed. See Schwarz, 544 F.3d at 1229 (recognizing that a district court does not abuse its discretion in denying a plaintiff leave to file a supplemental pleading that raised “an entirely new theory of recovery” when the plaintiff could raise those “new claims in another lawsuit”). 9 The Whitchurches nevertheless insist that the district court was required to grant them leave to file a supplement. They rely on the Supreme Court’s decision in Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964).
In Griffin, a group of Black school children in Prince Edward County, Virginia, sued their local school board, seeking to integrate the public schools. Id. at 220. The case went to the Supreme Court of the United States, where it was one of the cases resolved in the Supreme Court’s Brown v. Board of Education decision. See 347 U.S. 483, 486 n.1 (1954). The Supreme Court remanded the Griffin case to the district court, directing that the children should be admitted
9 To the extent that the Whitchurches’ proposed second amended complaint
added allegations against the Mulkey federal defendants related to the cost- plus contract, we conclude that the district court properly concluded that the amendment was futile because these claims, just like the ones asserted in the first amended complaint, were barred by the doctrine of res judicata.
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to the public schools “with all deliberate speed.” Griffin, 377 U.S. at 221 (citation modified). But Prince Edward County did not desegregate its schools. Instead, in response to the Supreme Court’s Brown decision, the state of Virginia and Prince Edward County engaged in an elaborate and intentional pattern and practice designed to circumvent the Supreme Court’s decision and deny Black children the right to obtain an equal and integrated public-school education. Id. at 221–24.
All the while, the federal litigation continued. Years later, the plaintiffs sought leave to file a supplemental complaint in which they added new parties and sought injunctive relief. Id. at 224. The district court allowed the plaintiffs to supplement their complaint and later granted injunctive relief. Id.
The case returned to the United States Supreme Court. The defendants argued that the Supreme Court should not reach the merits of the case because the district court had erred in allowing the plaintiffs to file a supplemental complaint that added new parties and relied on events that occurred after the lawsuit was filed. Id. at 226. The Supreme Court rejected this argument. It emphasized that the new allegations arose from “continued, persistent efforts to circumvent our [earlier] holding that Prince Edward County could not continue to operate, maintain, and support a system of schools in which students were segregated on a racial basis.” Id. The Court ultimately affirmed the district court’s judgment and remanded the case to the district court with “directions to enter a decree which will guarantee that these petitioners will get the kind
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of education that is given in the State’s public schools” and noted that “if it becomes necessary to add new parties to accomplish this end, the District Court is free to do so.” Id. at 234.
The Whitchurches say that Griffin is “directly on point.” Appellant ’s Br. 12. Not so. The Supreme Court’s decision in Griffin established that a district court did not abuse its discretion when it allowed the plaintiffs to supplement their complaint to add allegations and claims based on the defendants’ systematic and persistent efforts to thwart the Supreme Court’s earlier holding in the same case that required Prince Edward County to desegregate its schools. Nothing in Griffin tells us that the district court here abused its discretion when, after determining that the claims in the first amended complaint failed, it denied the Whitchurches leave to file a supplement to add additional allegations, new claims, and new defendants based on misconduct that allegedly occurred during the state court trial. Accordingly, we affirm.
AFFIRMED.