Tenth Circuit: Leave to Amend May Be Denied as Futile Where Proposed Pleading Remains Time-Barred, Rule 8 Deficient, or Legally Defective—Even After an Earlier Rule 8 Strike

1. Introduction

In Moyer v. Murray (10th Cir. July 1, 2026) (nonprecedential order and judgment), pro se plaintiff Gregory Ashley Moyer appealed a case-ending order denying him leave to file a second amended complaint. The suit arose out of a long-running Oklahoma divorce and child-custody dispute culminating in the suspension of Moyer’s visitation rights in 2017. In 2025, he sued a wide array of defendants—state judges, attorneys, law firms, public entities, prosecutors, sheriffs, school and police entities, and a former employer— alleging constitutional, statutory, and state-law violations connected to the custody proceedings and related events.

The key appellate issues were procedural and pleading-focused: whether the district court improperly acted sua sponte in denying leave to amend as futile, whether the case could be dismissed when some defendants had not appeared, whether default and judicial notice arguments revived the case, and whether the district court’s analysis was sufficiently individualized.

2. Summary of the Opinion

The Tenth Circuit affirmed. Applying de novo review to the futility determination, the court held that the district court did not err in denying leave to amend because the proposed second amended complaint would still be subject to dismissal (as time-barred, inadequately pleaded under Rule 8, or facially failing to state a claim). The panel also rejected Moyer’s arguments that (i) dismissal was improper because some defendants had not appeared, (ii) he was entitled to default judgment against the Oklahoma Attorney General, (iii) judicial notice should have been granted of certain public statements, and (iv) the district court exhibited bias.

Separately, the panel issued an explicit warning: filings citing nonexistent cases violate the Tenth Circuit’s rules and can warrant sanctions, including dismissal.

3. Analysis

3.1 Precedents Cited

  • Thornton v. Tyson Foods, Inc., 28 F.4th 1016, 1021 (10th Cir. 2022)
    Role: Supplies the governing standard of review: the Tenth Circuit reviews de novo a district court’s conclusion that leave to amend would be futile. This elevated scrutiny mattered because Moyer framed the denial as procedurally unfair, but the appellate court independently assessed futility.
  • Jefferson Cnty. Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999)
    Role: Provides the core futility definition: “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” The panel used this rule to center the appeal on whether the proposed second amended complaint still triggered dismissal grounds (limitations, failure to state a claim, and Rule 8 defects).
  • Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)
    Role: Recognizes that sua sponte dismissal can be appropriate where a complaint fails to state a claim and amendment cannot cure. The panel relied on this principle to reject the argument that courts may only raise jurisdictional issues on their own initiative, while also noting that, procedurally, the district court’s reasoning largely mirrored already-filed motions to dismiss.
  • Wilhelm v. Cont'l Title Co., 720 F.2d 1173, 1176-77 (10th Cir. 1983)
    Role: Establishes the Tenth Circuit’s rule that 42 U.S.C. § 1985(3) does not protect against disability discrimination. The district court dismissed Moyer’s § 1985(3) theory on that basis; on appeal, Moyer did not meaningfully challenge the reasoning, leading to abandonment.
  • Johnson v. Spencer, 950 F.3d 680, 703 n.7 (10th Cir. 2020)
    Role: Used to support abandonment/waiver doctrine: claims not argued as error on appeal are treated as abandoned. This allowed the panel to dispose of the § 1985(3) issue without revisiting its merits.
  • Yan v. State Bar of Texas, No. 24-10543, 2025 WL 2759560 (5th Cir. Sept. 29, 2025) (unpublished)
    Role: Invoked by Moyer to argue non-finality when not all defendants are addressed. The Tenth Circuit distinguished it: unlike Yan, no defendant had answered and, critically, the operative complaint had been struck; without leave to amend, nothing remained to adjudicate.
  • United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
    Role: Cited regarding judicial notice. The panel explained that Ahidley concerns judicial notice of certain publicly filed court records, not treating an attorney general’s editorial or opinion piece as an “indisputable” adjudicative fact under Fed. R. Evid. 201.
  • Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010)
    Role: Rejects bias claims based solely on adverse rulings. This neutralized Moyer’s “favoritism” argument absent evidence of extrajudicial bias.
  • Grant v. City of Long Beach, 96 F.4th 1255, 1257 (9th Cir. 2024)
    Role: Referenced (along with Fed. R. App. P. 38 and 10th Cir. R. 46.5(C)) to underscore that sanctions can be imposed for improper filings. Here, the improper conduct was citation to a nonexistent case, violating 10th Cir. R. 46.5(B)(2).

3.2 Legal Reasoning

  1. Futility governs the outcome once Rule 8 strikes and leave-to-amend is sought.
    The district court first struck the first amended complaint under Rule 8(a) because it was unintelligible (“not even the most attentive of readers could figure out who did what to whom”). It then provided a pathway forward: Moyer could move for leave to amend. When he did, the court evaluated the proposed second amended complaint and denied leave as futile—finding pervasive time bars, facial failures to state claims, and continued Rule 8 “inscrutability.” On appeal, the panel applied the Jefferson Cnty. futility standard and affirmed.
  2. The “sua sponte” label did not carry the day because the reasoning largely tracked existing dismissal arguments.
    Moyer argued the district court exceeded narrow sua sponte authority by raising deficiencies without briefing. The panel responded in two moves: (i) it reiterated from Brereton that sua sponte dismissal can be proper where defects are incurable; and (ii) it emphasized the case’s procedural posture—the district court’s futility analysis “almost entirely tracked” arguments already made in the defendants’ earlier motions to dismiss (which had been mooted only because the pleading was struck under Rule 8).
  3. Abandonment doctrine streamlined appellate review.
    The panel identified only one claim dismissed on a ground not previously presented: the § 1985(3) claim, rejected under Wilhelm v. Cont'l Title Co.. Because Moyer did not argue misunderstanding or legal error on appeal, the court treated the claim as abandoned under Johnson v. Spencer.
  4. Non-appearance by some defendants did not preclude final judgment once no operative complaint existed.
    Distinguishing Yan v. State Bar of Texas, the panel reasoned that after the first amended complaint was struck, defendants had no obligation to answer. Final judgment followed the denial of leave to amend—there was no surviving operative complaint, so non-appearance did not create an unadjudicated claim preventing finality.
  5. Default and qualified immunity theories fail when the operative pleading is gone.
    Moyer argued for default judgment against Attorney General Gentner Drummond and contended default would affect other defendants’ qualified immunity. The court rejected the premise: the Attorney General did appear and filed a motion to dismiss, and, regardless, striking the first amended complaint mooted any default question because “there was no longer an operative complaint.”
  6. Judicial notice is limited to “adjudicative facts,” not persuasive commentary.
    Invoking Fed. R. Evid. 201 and United States v. Ahidley, Moyer sought notice of an editorial/opinion piece. The panel held that Ahidley did not support treating such material as judicially noticeable facts establishing “corruption,” and found no error.
  7. Bias claims require more than disagreement with rulings.
    Under Bixler v. Foster, adverse rulings do not demonstrate judicial bias. The panel found Moyer’s allegations fell into “tardy appearance” and “rulings against him” buckets—neither showed bias.
  8. Integrity of legal citations is sanctionable.
    The panel highlighted that multiple motions cited a nonexistent case, “United States v. Tittsworth, 630 F.3d 1029 (10th Cir. 2011),” and warned that fabricated citations violate 10th Cir. R. 46.5(B)(2) and can warrant sanctions, including dismissal (citing Grant v. City of Long Beach, Fed. R. App. P. 38, and 10th Cir. R. 46.5(C)). While no sanction issued here, the admonition is unusually direct and broadly addressed to all litigants.

3.3 Impact

  • Strengthening gatekeeping at the leave-to-amend stage. The decision reinforces that when a court invites a motion for leave to amend after a Rule 8 strike, it may still deny leave promptly if the proposed pleading remains defective—especially where the defects are legal (limitations, missing elements) or structural (continued Rule 8 opacity).
  • Finality despite unserved or non-appearing defendants after a pleading is struck. The opinion clarifies, in practical terms, that once the operative complaint is gone, the litigation posture shifts: unserved/non-appearing defendants do not prevent a final judgment following denial of leave to amend.
  • Limits on using judicial notice to “prove” misconduct narratives. The panel’s treatment of Rule 201 underscores that judicial notice is not a vehicle for importing argumentative materials (e.g., editorials) as “facts.”
  • Explicit warning on fabricated citations. The court’s warning—paired with references to sanction authority—signals heightened sensitivity to citation integrity, including in pro se filings. Future litigants should expect strict enforcement where fabricated authorities appear.

4. Complex Concepts Simplified

Rule 8(a) (Pleading clarity)
Federal pleadings must give fair notice of who did what and why the plaintiff is entitled to relief. If a complaint is so confusing that the court cannot tell “who did what to whom,” it can be dismissed or struck.
Leave to amend & “futility”
Courts often allow amendments, but not when the new version would still be dismissed—for example, because it’s too late (time-barred), still unclear (Rule 8), or missing required legal elements.
Sua sponte
Action taken by a court on its own initiative. Courts can sometimes dismiss or deny relief without a motion if the defect is clear and cannot be cured.
42 U.S.C. § 1985(3)
A civil conspiracy statute addressing conspiracies to deprive equal protection. In this circuit, it does not reach disability discrimination (per Wilhelm v. Cont'l Title Co.).
Judicial notice (Fed. R. Evid. 201)
A narrow doctrine allowing courts to accept certain facts as true without proof when they are not reasonably disputable (e.g., some public court records). It does not generally cover opinions, editorials, or contested conclusions.
Default judgment
A remedy when a defendant fails to respond to an operative complaint. If there is no operative complaint (because it was struck or dismissed), default is typically moot.
Final judgment & appellate jurisdiction
Appellate courts usually can only review “final” decisions resolving the case. If claims against a defendant remain unaddressed, finality can be lacking. Here, finality existed because no operative complaint remained after leave to amend was denied.

5. Conclusion

Moyer v. Murray affirms a pragmatic but strict approach to post–Rule 8 litigation: when a complaint is struck for unintelligibility and the plaintiff seeks leave to amend, courts may deny leave as futile if the proposed amendment remains time-barred, legally deficient, or still fails Rule 8’s basic clarity requirement—even if the denial occurs before additional briefing. The decision also clarifies that non-appearing defendants do not defeat finality when no operative complaint exists, rejects expansive uses of judicial notice, and delivers a pointed warning that fabricated citations can trigger sanctions.