WISDOM, Circuit Judge:
This case requires us to determine (1) the propriety of denying the plaintiff a third opportunity to amend his complaint one week before trial and (2) the sufficiency of a complaint alleging violations of Louisiana unfair competition law. The questions require us to explore Louisiana antitrust law and to determine when and to what extent the Federal Rules of Civil Procedure require a plaintiff to choose a theory and articulate it specifically. We conclude that the liberal federal pleading rules require that the plaintiff receive another opportunity to state his complaint. We conclude also that Louisiana antitrust law recognizes the cause of action asserted by the plaintiff.
The plaintiff, John W. Dussouy, Jr., an insurance salesman, alleged that a customer requested him to obtain insurance for a home that she and her husband were about to purchase. Dussouy issued a binder on Travelers Insurance Company, but the lawyer representing the lender, Gulf Coast Investment Corporation, informed Dussouy that the binder was unsatisfactory to Gulf Coast. The customer then obtained a policy from Allstate Insurance Company.
Dussouy filed an action in Louisiana state court against Gulf Coast and Allstate, alleging a conspiracy in restraint of trade in violation of La.Rev.Stat.Ann. § 51:121 et seq. (West 1965) and a tortious interference with Dussouy's business in violation of La.Civ.Code Ann. art. 2315 (West 1979). Basing jurisdiction on diversity of citizenship, the defendants removed the action to the federal district court for the Eastern District of Louisiana. There, they moved for a more definite statement of the facts under rule 12(e), Fed.R.Civ.Pro. The magistrate granted the motion, and the plaintiff amended his complaint, alleging further facts tending to show a conspiracy between Gulf Coast and Allstate as well as further facts supplementing its allegation of tortious interference. The defendants responded with a motion to strike the complaint for failure to allege the conspiracy with sufficient particularity. Although the magistrate denied the motion to strike, he did order the plaintiff to state more specifically the facts alleged to establish the conspiracy. The plaintiff amended the complaint a second time.
On appeal, the plaintiff urges us to reverse the trial court on any of three theories. First, he urges that the trial judge abused his discretion in refusing leave to amend. Second, the plaintiff asserts that, under Louisiana law, a corporation can conspire with its employees and, therefore, his complaint, without further amendment, is sufficient to state a cause of action under La.Rev.Stat.Ann. § 51:121 et seq. Finally, noting that an action for tortious interference with business under La.Civ.Code Ann. art. 2315 requires no combination or conspiracy, he argues that his complaint as it stands states a cause of action under that provision. Agreeing in substantial part with the plaintiff, we reverse.
I. Should the trial court have permitted the plaintiff to amend his complaint?
Rule 15(a), Fed.R.Civ.Pro., governs amendments to pleadings.
At the outset, we note that the court's task of reviewing this case would have been lighter if the trial judge had given reasons for denying the plaintiff's motion to amend. Although the absence of an explanation of the denial need not always result in reversal, Rhodes v. Amarillo Hospital District, 5 Cir. 1981, 654 F.2d 1148, the reasons would have to be readily apparent, particularly in view of the liberal position of the federal rules on granting amendments. Fed.R.Civ.Pro. 15(a); see generally Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226 (1962); Hilgeman v. National Insurance Co. of America, 5 Cir. 1977, 547 F.2d 298, 303. We find no such obvious reasons here.
In our review of the trial court's exercise of discretion, rule 15(a), of course, provides the starting point. "Discretion" may be a misleading term, for rule 15(a) severely restricts the judge's freedom, directing that leave to amend "shall be freely given when justice so requires". It evinces a bias in favor of granting leave to amend.
The types of reasons that might justify denial of permission to amend a pleading include undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, and undue prejudice to the opposing party. A court may weigh in the movant's favor any prejudice that will arise from denial of leave to amend. E. g., Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230, 9 L.Ed.2d at 226; Bamm v. GAF, 5 Cir. 1981, 651 F.2d 389, 391. That consideration arises only if there are substantial reasons to deny the amendment. Otherwise, rule 15(a) requires the trial judge to grant leave to amend whether or not the movant shows prejudice. Finally, it is appropriate for the court to consider judicial economy and the most expeditious way to dispose of the merits of the litigation. See Zenith Radio v. Hazeltine Research, 401 U.S. 321, 329, 91 S.Ct. 795, 801, 28 L.Ed.2d 77, 87 (1971); Summit Office Park v. United States Steel, 5 Cir. 1981, 639 F.2d 1278, 1286 (Wisdom, J., dissenting); Lone Star Motor Import v. Citroen Cars, 5 Cir. 1961, 288 F.2d 69; see generally Fed.R.Civ.Pro. 1.
On first consideration, it might appear that Dussouy did delay unduly and that granting leave to amend would prejudice Gulf Coast, for the amendment was proposed after dismissal of the action at the pre-trial conference and one week before the trial date. But mere passage of time need not result in refusal of leave to amend; on the contrary, it is only undue delay that forecloses amendment. Amendment can be appropriate as late as trial or even after trial; see 6 C. Wright & A. Miller, Federal Practice and Procedure § 1488 (1971); see also Fed.R.Civ.Pro. 15(b). Instances abound in which appellate courts on review have required that leave to amend be granted after dismissal or entry of judgment. For instance, in Foman v. Davis, the plaintiff alleged breach of an oral contract. When the district court dismissed on the basis of the defendant's argument that the Statute of Frauds rendered the contract unenforceable, the plaintiff moved to vacate the dismissal and to amend to sue in quantum meruit. The Supreme Court required that the amendment be permitted even though it changed the theory of the case. 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); accord, Bamm v. GAF, 5 Cir. 1981, 651 F.2d 389; Lone Star Motor Import v. Citroen Cars, 5 Cir. 1961, 288 F.2d 69; Sherman v. Hallbauer, 5 Cir. 1972, 455 F.2d 1236.
The final factor relating to the movant's conduct is whether he has repeatedly failed to cure deficiencies by amendments previously allowed. Although Dussouy did fail to cure the deficiencies in his original complaint with his first amendment, his second amendment solved the problem. The current deficiencies perceived by the trial court arise out of Dussouy's changed theory of the case upon his discovery that Allstate did not conspire with Gulf Coast; they are not simply a continuation of the deficiencies at issue in the initial challenges to Dussouy's complaint. Dussouy cannot be said to have repeatedly failed to cure this perceived deficiency.
In addition to the movant's conduct, we must consider the possible prejudice to Gulf Coast. We foresee no substantial prejudice arising from granting the motion to amend. The pleadings as they stand have given Gulf Coast adequate notice of the transactions at issue; although the other parties to the alleged conspiracy have changed, the challenged conduct of Gulf Coast is essentially the same as that challenged in the initial pleadings. Of course, should the new theory necessitate reiteration of discovery proceedings, Gulf Coast would be prejudiced. But the trial court can avoid any prejudice from that source, for it has discretion to tax the costs of the repeated discovery proceedings against Dussouy. See Bamm v. GAF, 5 Cir. 1981, 651 F.2d 389, 392 n.5.
Finally, we look at the question from the perspective of the court. The overriding consideration appears in rule 1, which directs that "[t]hese rules.... shall be construed to secure the just, speedy and inexpensive determination of every action". Fed.R.Civ.Pro. 1. Denial of the motion for leave to amend violates that directive. If the plaintiff cannot amend, his proper recourse is to file a new action alleging a conspiracy between Gulf Coast and its lawyers. Assuming, as counsel at oral argument conceded, that there is no res judicata
II. Did the plaintiff's second amended complaint state a claim sufficient to withstand the motion to dismiss?
Our disposition of the appeal of the denial of leave to amend will require remand of this case for trial. At trial, the plaintiff may still wish to proceed on the theories that he argues are reflected in his second amended complaint and, he urges, state cognizable claims under Louisiana law. Consequently, it is necessary for us to examine the dismissal of the second amended complaint.
A. Tortious interference with business.
Paragraph X of the plaintiff's original complaint alleged a tortious interference with business. Allstate directed its motion for a more definite statement in part to that allegation, and the plaintiff amended that paragraph. Originally Paragraph X read:
In response to the motion for a more definite statement, the plaintiff filed the following statement:
In its brief, Gulf Coast contends that the amended complaint supersedes the original complaint, so that tortious interference
The question then becomes whether the plaintiff can prove any set of facts under which he is entitled to recover for tortious interference. See McLain v. Real Estate Investment Board, 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80, 84 (1957). Article 2315 of the Louisiana Civil Code provides the general authority for recovery for damages arising from offenses and quasi offenses: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." The Louisiana Supreme Court has recognized a cause of action arising under article 2315 for tortious interference with business. Graham v. St. Charles St. Railroad, 47 La.Ann. 1656, 18 So. 707 (1895).
Contrary to the suggestion in Gulf Coast's brief, we conclude that conspiracy is not an element of the cause of action under article 2315 for tortious interference with business. In Graham itself, there was no allegation of conspiracy. There, the foreman of a railroad threatened to discharge all employees who dealt with the plaintiff. Noting the malicious motivation, the court held that the plaintiff could recover damages from the foreman even though ordinarily an employer is free to select his employees as he pleases. See also Deon v. Kirby Lumber, 162 La. 671, 111 So. 55 (1926); W. Prosser, Handbook of the Law of Torts § 130 (4th ed. 1971). An individual, regardless of his motive, has an absolute right to refuse to deal with another. See, e. g., McGee v. Collins, 156 La. 291, 100 So. 430, 435 (1924); Joslyn v. Manship, 238 So.2d 20 (La.App.1970), writ refused, 256 La. 883, 239 So.2d 541 (1970). The right to influence others not to deal, however, is not as broad. See Graham v. St. Charles St. Railroad, 47 La.Ann. 1656, 18 So. 707 (1895); Lewis v. Huie-Hodge Lumber, 121 La. 658, 46 So. 685, 687 (1908) (dictum); Joslyn v. Manship, 238 So.2d 20, 24 (La.App.1970), writ refused, 256 La. 883, 239 So.2d 541 (1970); Restatement (Second) of Torts §§ 766B, 767 (1979); see generally Developments in the Law — Competitive Torts, 77 Harv.L.Rev. 888, 926-27 (1964). In that situation, Louisiana law protects the businessman from "malicious and wanton interference", permitting only interferences designed to protect a legitimate interest of the actor.
Gulf Coast's argument that, to take the case outside the area of absolute right, Dussouy must show a conspiracy, misreads the cases.
B. Conspiracy in restraint of trade.
To establish a conspiracy in restraint of trade in violation of La.Rev.Stat.Ann. § 51:121 et seq. (West 1965), the plaintiff must, of course, establish a conspiracy. The second amended complaint concededly alleges no conspiracy between Gulf Coast and any third party. Nevertheless, we hold the complaint sufficient to state a claim under La.Rev.Stat.Ann. § 51:121 et seq.; in certain circumstances a corporation can conspire with its employees.
There are, however, strong arguments against the Nelson Radio rule. The original purposes of the rule attributing agents' acts to a corporation were to enable corporations to act, permitting the pooling of resources to achieve social benefits and, in the case of tortious acts, to require a corporation to bear the costs of its business enterprise. But extension of the rule to preclude the possibility of intracorporate conspiracy does not serve either of these goals. See Note, Intracorporate Conspiracies under 42 U.S.C. § 1985(c), 92 Harv.L.Rev. 470, 477-78 (1978); see generally Note, Intracorporate Conspiracies under 42 U.S.C. § 1985(c): The Impact of Novotny v. Great American Savings & Loan Association, 13 Ga.L.Rev. 591, 602-03 (1979). Some courts have found this reasoning persuasive when dealing with problems outside the federal antitrust area. For instance, in Novotny v. Great American Savings & Loan Association, 3 Cir. 1978, 584 F.2d 1235 (en banc), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Third Circuit, although it did not consider whether the corporation could be a party to the conspiracy, held that the officers and directors of a single corporation could be liable for conspiracy under 42 U.S.C. § 1985(c). Similarly, a corporation can be convicted of criminal charges of conspiracy based solely on conspiracy with its own employees. United States v. Consolidated Coal Co., 424 F.Supp. 577 (S.D.Ohio 1976); see Novotny v. Great American Savings & Loan Association, 3 Cir. 1978, 584 F.2d 1235, 1258 (en banc) (dictum), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). In these situations, the action by an incorporated collection of individuals creates the "group danger" at which conspiracy liability is aimed, and the view of the corporation as a single legal actor becomes a fiction without a purpose. See id.; Note, Intracorporate Conspiracies under 42 U.S.C. § 1985(c), 92 Harv.L.Rev. 470, 478-80 (1978). Also, courts have fashioned an exception to the rule that a corporation cannot conspire with its employees: when the officers of a corporation act for their own personal purposes, they become independent actors, who can conspire with the corporation. See Johnston v. Baker, 3 Cir. 1971, 445 F.2d 424; R. Eickhoff, Fletcher Cyclopedia of the Law of Private Corporations §§ 4884, 5032.1 (1978).
Nor is our conclusion changed by the plaintiff's failure to state specifically in the complaint that Gulf Coast conspired with its own employees. The form of the complaint is not significant if it alleges facts upon which relief can be granted, even if it fails to categorize correctly the legal theory giving rise to the claim. See Robertson v. Johnston, 5 Cir. 1967, 376 F.2d 43, 44; see also Hildebrand v. Honeywell, 5 Cir. 1980, 622 F.2d 179, 181. Examining the allegations of the complaint, we find actions by Gulf Coast that would support recovery under La.Rev.Stat. § 51:121 et seq. if performed by a conspiracy; an allegation of a conspiracy is implicit because Gulf Coast necessarily acts with its employees. The entire complaint, then, states an actionable claim under La.Rev.Stat. § 51:121 et seq. The trial court may require the plaintiff to state that claim with greater particularity, but we reiterate: where the plaintiff may assert a valid claim, even if inartfully stated, the liberal approach of the federal rules requires that the plaintiff be given the opportunity to state his claim and to have it considered on the merits at trial or on motion for summary judgment.
REVERSED AND REMANDED.
A shift in the burden is more likely to occur if the trial court has disposed of the case on the merits, as in the case of summary judgment or judgment after a full trial. Then, the concerns of finality in litigation become more compelling, and the litigant has had the benefit of a day in court, in some fashion, on the merits of his claim. See, e. g., id.; Freeman v. Continental Gin, 5 Cir. 1967, 381 F.2d 459, 469-70; cf. Griggs v. Hinds Junior College, 5 Cir. 1977, 563 F.2d 179 (per curiam) (granting leave to amend is especially appropriate when trial court has dismissed the complaint for failure to state a cause of action). Nevertheless, there is no blanket rule that denial of leave to amend after summary judgment is always appropriate. E. g., Sherman v. Hallbauer, 5 Cir. 1972, 455 F.2d 1236.
Joslyn v. Manship, 238 So.2d 20 (La.App.1970), writ refused, 256 La. 883, 239 So.2d 541 (1970), does not change our conclusions. There, the plaintiffs alleged that the defendants capriciously refused either to recognize them as advertising agents or to deal with them. As a result, a client, who had purchased television time from the defendants through the plaintiffs, ceased dealing with the plaintiffs and dealt directly with the defendants. The court refused to allow recovery on a theory of tortious interference with business, stating that there is an absolute right to refuse to deal, even if the motivation is malicious. For several reasons, though, we do not think that this case supports Gulf Coast's position. First, the court in Joslyn proceeded to allow recovery on an unjust enrichment theory. Had it been faced with the prospect of no recovery at all for the plaintiffs, it might have held differently on the claim of tortious interference. Second, the court apparently agreed with the principle that there can be liability for maliciously influencing third parties but did not perceive the situation as one implicating the problem of influencing third parties, for, after recognizing that there is an absolute right maliciously to refuse to deal, the court stated "one can not always, from such motives, influence another person to do the same without incurring legal liability". Id. at 24. Finally, even if Joslyn did recognize an absolute right maliciously to influence third parties not to deal with another, we would be hesitant to recognize the decision of a lower court that the Louisiana Supreme Court refused to consider and that did not explicitly reject past Louisiana Supreme Court decisions as superseding those earlier decisions, particularly when those earlier decisions are in accord with the majority view, see Restatement (Second) of Torts §§ 766B, 767 (1979).