When Asking For Relief Is Not Enough: Eleventh Circuit Affirms A First Dismissal With Prejudice

A fundamental principle of preservation is that the lower court must have had an opportunity to address an issue before an appellate court will reverse an order based on that issue. In most circumstances, a specific request for relief is sufficient to preserve an issue for appellate review. But the Eleventh Circuit recently confirmed that simply asking for relief is not necessarily enough. 

In Newton v. Duke Energy Florida, 895 F.3d 1270 (11th Cir. 2018), the district court granted the defendants' motion to dismiss a putative class action complaint challenging the Florida Renewable Energy Technologies and Energy Efficiency Act. In opposing the motion, plaintiffs requested that if the district court dismissed, it should grant leave to amend. The district court granted the motion to dismiss, but did so with prejudice. The plaintiffs then moved for reconsideration under Rule 60(b), expressly seeking leave to amend and contending they could cure the complaint's