MEMORANDUM OPINION AND ORDER
W. KEITH WATKINS, Chief District Judge.
Before the court is Plaintiff's pro se Motion for Leave to File Amended Complaint, Motion to Stay Magistrate Recommendation and Memorandum of Law in Support. (Doc. # 47.) The court will construe this document as a motion for leave to file an amended complaint under Fed. R. Civ. P. 15(a). See Fed. R. Civ. P. 8(e); see also Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014) (requiring that "pro se filings" be "liberally construe[d]").
The Eleventh Circuit has made clear that courts should refrain from dismissing pro se complaints for failure to state a claim where a redrafted pleading could plausibly cure the complaint's deficiencies. "Where a more carefully drafted complaint might state a claim, a [pro se] plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part, Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc).1 This rule admits of only two exceptions: "(1) where the plaintiff has indicated that she does not wish to amend her complaint; and (2) where a more carefully drafted complaint could not state a claim and is, therefore, futile." Carter v. HSBC Mortg. Servs., Inc., 622 F. App'x 783, 786 (11th Cir. 2015).
Plaintiff has given no indication that he does not wish to amend his complaint. Rather, the motion before the court today shows just the opposite. (Doc. # 47.) Moreover, Plaintiff's failure to file the motion until after the Magistrate Judge issued his recommendation (Doc. # 46) does not warrant a denial of leave to amend. Cf. Bank, 928 F.2d at 1112 (requiring that leave be granted "where the plaintiff does not seek leave until after the district court renders final judgment . . . and even where the plaintiff never seeks leave to amend in the district court, but instead appeals the district court's dismissal") (citations omitted). Accordingly, Plaintiff's motion for leave to amend may only be denied if amendment would be futile. Carter, 622 F. App'x at 786; see Foman v. Davis, 371 U.S. 178, 182 (1962).
Under the Bank standard, futility of amendment is a high bar. "Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed." Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Where "the issue of futility . . . is close," the court must "err on the side of generosity to the" pro se plaintiff. O'Halloran v. First Union Nat'l Bank of Fla., 350 F.3d 1197, 1206 (11th Cir. 2003); see Bettencourt v. Owens, 542 F. App'x 730, 735-36 (11th Cir. 2013) ("In deciding whether a more carefully drafted pro se complaint might state a claim, i.e., whether an amendment would be futile, we have placed a heavy thumb on the scale in favor of answering that question in the affirmative."). Thus, futility of amendment only justifies denial of leave to amend where "a more carefully drafted complaint could [not] conceivably state a valid claim," O'Halloran, 350 F.3d at 1206, or where it is "scarcely possible" that the pro se plaintiff's amended complaint would state a legally cognizable claim, Silva v. Bieluch, 351 F.3d 1045, 1049 (11th Cir. 2003).
In light of this forgiving standard of review, Plaintiff must get his second bite at the apple. To be sure, Plaintiff's complaint is rife with pleading deficiencies. (See Doc. # 46 at 8-29 (pointing out the complaint's various flaws).) But the majority of Plaintiff's claims are at least colorable, albeit insufficiently pleaded. For example, take Plaintiff's claim of "Retaliation," which the Magistrate Judge construed as "alleg[ing] causes of action for retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act." (Docs. # 1 ¶ 21; 46 at 13.) As written, the complaint fails to allege the elements of the respective causes of action, and therefore fails to state a claim. (See Doc. # 46 at 13-18.) But, conversely, nothing in the complaint shows that a valid claim could not "conceivably" be stated. O'Halloran, 350 F.3d at 1206. It very well may be that Plaintiff "participated in an activity protected by Title VII," "suffered an adverse employment action," and can show "a causal connection between participation in the protected activity and the adverse action." Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir. 2001) (setting out the elements of a cause of action for Title VII retaliation). Looking at the face of the complaint, we simply do not know. And even if the complaint toes the line of "scarce[ ] possib[ility]," Silvia, 351 F.3d at 1049, we must "err on the side of generosity" and grant Plaintiff leave to amend. O'Halloran, 350 F.3d at 1206.
In sum, the flaws in Plaintiff's complaint are largely factual, rather than legal, in nature. (See generally Doc. # 1.) Given the Eleventh Circuit's mandate that "pro se filings" are to be "liberally construe[d]," Winthrop-Redin, 767 F.3d at 1215, and the "heavy thumb on the scale in favor of" granting leave to amend rather than dismissing with prejudice, Bettencourt, 542 F. App'x at 736, it cannot be said that leave to amend should be denied as futile. Thus, because Plaintiff has actively sought to amend his complaint, neither exception to the Banks rule applies here. See Carter, 622 F. App'x at 786. Plaintiff therefore must be given a chance to cure his complaint's deficiencies. Accordingly, it is ORDERED that Plaintiff's motion for leave to file an amended complaint (Doc. # 47) is GRANTED. It is further ORDERED as follows:
1. On or before October 7, 2016, Plaintiff shall file an amended complaint that complies with the Middle District of Alabama's Local Rule 15.1. See M.D. Ala. LR 15.1 ("Any amendment to a pleading, document or other papers, whether filed as a matter of course or upon a motion to amend, must, except by leave of court, reproduce the entire pleading, document or other papers as amended, and may not incorporate any prior pleading, document or other papers by reference.");
2. The pending motions to dismiss (Docs. # 9, 11, 12, 15, 18) are DENIED as moot; and
3. The recommendation of the Magistrate Judge (Doc. # 46) is moot.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
