Engle Cases 4432 Individual Tobacco v. Various Tobacco Companies (767 F.3d 1082, 2014)

TJOFLAT, Circuit Judge:

These consolidated appeals are yet another chapter in the ongoing tobacco litigation that began as a class action in Florida courts more than two decades ago and has since swollen the federal docket with thousands of individual cases. Today we are asked to decide the fate of 588 personal injury cases filed on behalf of purportedly living cigarette smokers who, as it turns out, were dead at the time of filing (a group we shall call the “predeceased plaintiffs”), 160 loss of consortium cases filed on behalf of spouses and children of these predeceased plaintiffs, and two wrongful death cases filed more than two years after the decedent-smoker’s death. These cases all suffered from various patent defects. As any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim; under Florida law, a loss of consortium claim is “derivative in nature and wholly dependent on [the injured party’s] ability to recover,” Faulkner v. Allstate Ins. Co., 367 So.2d 214, 217 (Fla.1979); and claims brought pursuant to the Florida Wrongful Death Act are subject to a two-year limitations period, Fla. Stat. § 95.11(4)(d). Plaintiffs’ counsel sought leave from the District Court to amend the complaints in these cases to fix these defects. For reasons we will discuss in detail, the District Court denied those requests and accordingly dismissed these cases.

Despite the thousands of pages of briefing to the District Court and to this court, the root of the problem in all these cases is simple. Back in 2008, when these cases were originally filed, the law firm that brought them didn’t have the time or resources required to fully investigate all the complaints (the firm in question filed claims on behalf of over 4,000 individuals). As a result, problem after problem cropped up once the District Court started going through the inventory of cases: there were personal injury claims filed on behalf of deceased smokers, wrongful death claims filed by “survivors” of smokers who were still living, cases filed as a result of “clerical errors,” multiple cases filed for the same person, cases filed for people the law firm had no contact with, claims that had already been adjudicated by another court, cases filed for people who didn’t want to pursue a lawsuit, and claims filed long after the relevant limitations period had run. Over and over, plaintiffs’ counsel explained that these problems were the result of the unique logistical difficulties involved in managing so many individual lawsuits. And over and over the District Court reminded counsel that a lawyer’s responsibilities to the court are not diluted even by an ocean of claims.

The defects that led to today’s consolidated appeals all stem from counsel’s failure to obtain accurate information regarding whether or when certain smokers died. The problems came to light in early 2012—■ four years after the cases were filed—after the court ordered that each plaintiff submit answers to a basic questionnaire that asked, among other things, if the smoker whose injuries or death formed the basis for the lawsuit was alive and, if not, when he or she died. Once the completed questionnaires revealed that hundreds of claims were invalid as filed, plaintiffs’ counsel sought leave to amend their defective pleadings to add legal claims and factual allegations that should have appeared in the original complaints and, in some cases, to substitute in a new party who should have been the named plaintiff from the beginning. The District Court denied counsel’s requests because, among other reasons, these problems could have been avoided if counsel had properly investigated the claims, and even if that lack of diligence were somehow excusable, counsel failed to inform the court that so many complaints were defective. Having denied counsel’s motions for leave to amend and substitute parties, the court dismissed these facially invalid complaints.

After hearing oral argument and considering the parties’ briefs in each of these consolidated appeals, we find the District Court to have acted within its discretion when it denied plaintiffs’ counsel’s motions to amend and substitute. Accordingly, we affirm the court’s dismissals of all these cases.

In part I of this opinion, we briefly describe the state-court proceedings and the facts leading up to the filing of these cases. In part II, we march through the lengthy proceedings in the District Court and describe the District Court orders dismissing each category of cases. In parts III through V we give our reasons for affirming the District Court’s dismissal of each category. And we conclude in part VI.

I.

Twenty years ago, a small group of plaintiffs 'sued the major United States tobacco companies in the Circuit Court of Dade County, Florida, seeking damages for injuries allegedly caused by smoking cigarettes. A class was eventually certified to include “all Florida citizens and residents” “and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” See R.J. Reynolds Tobacco Co. v. Engle (“Engle I”), 672 So.2d 39, 40, 42 (Fla.3d Dist.Ct.App.1996) (alteration and quotation marks omitted). To manage the litigation, the trial court crafted a three-phase plan. In Phase I the jury decided certain foundational facts— for example, “that smoking causes some, but not all, of the diseases in issue,” “that cigarettes containing nicotine are addictive,” and “that the defendants had engaged in unspecified conduct that rose to a level that would permit a potential award or entitlement to punitive damages.” Liggett Grp. v. Engle (“Engle II ”), 853 So.2d 434, 443 (Fla.3d Dist.Ct.App.2003) (quotation marks omitted). In Phase II, the same jury decided that the tobacco defendants were liable for the class representatives’ injuries and awarded compensatory damages totaling $12.7 million. Engle v. Liggett Grp. (“Engle III ”), 945 So.2d 1246, 1257 (Fla.2006). The jury also awarded $145 billion in punitive damages for the entire class during Phase II. Id. According to the plan, in Phase III new juries would separately decide liability and compensatory damages for each of the estimated 700,-000 class members, and the class-wide punitive award would be divvied up among the successful class members. Id. at 1258.

Phase III never happened. After Phases I and II, the tobacco defendants appealed. For reasons not relevant today, the Florida District Court of Appeal, Third District, decertified the class and reversed the class-wide punitive damages award. Engle II, 853 So.2d at 450, 456. The Florida Supreme Court granted certiorari review and held that class certification was appropriate for Phases I and II, but not for Phase III, in which “individualized issues such as legal causation, comparative fault, and damages predominate.” Engle III, 945 So.2d at 1268. Because (most of) the jury’s Phase I findings pertained to issues common to all class members, the Supreme Court decertified the class but held that “[cjlass members can choose to initiate individual damages actions and the Phase I common core findings ... will have res judicata effect in those trials.” Id. at 1269. The Florida Supreme Court gave class members one year from the date its mandate issued to file their individual lawsuits—a period that ended on January 11, 2008.

The cases before us today are “Engle progeny cases.” They were filed within Engle Ill’s one-year savings period by lawyers at The Wilner Firm of Jacksonville, Florida. Back in 1996—-when the Engle class action was just winding up— Mr. Norwood Wilner tried one of the first successful smoker cases against a tobacco company. Naturally, Mr. Wilner’s firm was inundated with potential clients. Throughout the mid-1990s, thousands of people contacted the firm to express interest in suing tobacco companies. According to Mr. Wilner, his law firm undertook the representation of some 3,000 living smokers and surviving family members of deceased smokers. Mr. Wilner figured that most of these clients were Engle class members, and so he just collected names and waited for the class action to run its course.

As we now know, in the years it took Engle to wind its way through state court, Mr. Wilner lost contact with many of his clients. When the Florida Supreme Court decided Engle III in 2006, he attempted to track them down, but he had trouble locating all of them. As the one-year period came to a close, he was still unable to contact some (undisclosed) portion. Nevertheless, he decided to file suit on behalf of all his “clients,” whether he was able to reestablish contact or not.

Thus, in January 2008, The Wilner Firm filed 17 multi-plaintiff complaints in the Circuit Court for Duval County, Florida. Each complaint alphabetically listed approximately 220 plaintiffs; some complaints alleged wrongful death claims for all 220 plaintiffs, others alleged personal injury claims for all the plaintiffs. Both types parroted the original Engle complaints, presenting counts for strict liability, breach of warranty, fraudulent concealment of the health effects of smoking, civil conspiracy to do the same, negligence, and loss of consortium. The allegations were highly generalized. For example, the personal injury complaints alleged that the named plaintiffs “suffer[ed] from a tobacco related illness” or were “married to a smoking plaintiff who suffered from a tobacco related illness,” but did not provide more details of the smokers’ injuries or even designate which of the 220 named plaintiffs were “smoking Plaintiffs” and which were “consortium Plaintiffs.” See, e.g., Bradshaw v. R.J. Reynolds Tobacco Co., no. 3:08-cv-149, Doc. 2, ¶¶ 1.3-1.4 (M.D.Fla. Feb. 12, 2008). Similarly, the wrongful death complaints alleged that the plaintiffs’ decedents “died of their tobacco related illnesses” and the survivors and estates “suffered damage and injury including medical and funeral expenses, loss of support and services, mental pain and suffering, interest and expenses,” but did not give any plaintiff-specific information or even a date of death for the deceased smokers. See, e.g., id., ¶¶ 1.3, 11.1 (Feb. 12, 2008). Mr. Wilner filed 27 similarly organized multi-plaintiff complaints in the United States District Court for the Middle District of Florida, encompassing the claims of 660 total plaintiffs. Apparently acting in an abundance of caution, Mr. Wilner also filed duplicate state-court actions for each of these 660 individuals.

Mr. Wilner chose to list his “nonrespon-sive clients” as plaintiffs in the personal injury complaints. That decision, coupled with his failure to include dates of death in the wrongful death complaints, sowed the seeds for the present appeals.

II.

A.

Shortly after Mr. Wilner’s en masse'fil-ing, the tobacco defendants removed the 17 state-court cases to the Middle District of Florida, relying on the Class Action Fairness Act of 2005 (“CAFA”), Pub.L. No. 109-2, 119 Stat. 4. After removal, the District Court had before it 44 multi-plain-tiff cases, which included the claims of 4,432 named plaintiffs. The plaintiffs in each case promptly moved the District Court to remand their case. The defendants opposed their motions and, at the same time, moved the court pursuant to Rule 16(c) of the Federal Rules of Civil Procedure to determine the preclusive effect, if any, the Engle Phase I jury findings would have on the litigation of the plaintiffs’ claims.

The District Court ruled on the respective motions in two of the 44 cases. In an order dated August 28, 2008, the court held that the Phase I findings could not be used to establish any element of the plaintiffs’ claims, but it “reserve[d] judgment on whether the findings may have any other preclusive effect.” Brown v. R.J. Reynolds Tobacco Co., 576 F.Supp.2d 1328, 1348 (M.D.Fla.2008). And in an order dated August 29, 2008, the court denied the plaintiffs’ motion to remand. See Cooper v. R.J. Reynolds Tobacco Co., 586 F.Supp.2d 1312, 1323 (M.D.Fla.2008). Following these two orders, the District Court entered an order in each of the 44 cases deferring its ruling on any motions pending in those cases until the parties had an opportunity to seek appellate review of its August 28 and 29 orders.

Both sides requested that the District Court certify its August 28 order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and the court granted the certification. The plaintiffs sought leave in this court to appeal the August 29 order pursuant to 28 U.S.C. § 1453(c). While the parties were awaiting this court’s decision on whether to review the August 28 and 29 orders, they jointly requested the District Court to stay further proceedings in all 44 cases until this court decided whether to review either of the two orders and, if it granted review, until it rendered a decision. On October 29, 2008, the District Court granted the joint motion and entered an order staying further proceedings in the cases.

This court denied plaintiffs leave to appeal the August 29 order, but granted the parties leave to appeal the August 28 order. The details of that appeal, which this court decided in 2010, are not relevant to today’s cases. See Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010) (vacating the District Court’s August 28 order and remanding for further proceedings to determine (a) the scope of factual issues decided by the Phase I jury and (b) which elements of the Engle progeny claims, if any, are established by those facts).

While the plaintiffs’ appeal from the August 28 order was pending, the District Court created an individual case for each of the 4,432 plaintiffs. The 4,432 cases were given separate docket numbers. The docket entries indicated that the case had only one plaintiff—all of the tobacco companies remained named as defendants in each case. The court did not require plaintiffs’ counsel to file a new complaint in each of those cases at that time.

The District Court also created a master docket to deal with case-management issues and other matters common to all of the cases. The court had been working with the parties from the start to come up with a plan for managing the 4,432 cases. As a short-term solution to at least stem the tide, the parties suggested that the court keep the stay order in place indefinitely in most of the cases, only “activating” a small batch at a time. The idea was to proceed with a handful of representative cases instead of marching forward with all 4,432 at the same time—thus giving the parties and the court the opportunity hammer out many of the contested issues that would crop up in all of the cases. The court agreed and thus left the stay order in place in all but a dozen cases of the parties’ joint choosing.

But the court wasn’t satisfied with chipping away at the mountain a handful at a time; it sought additional ways to shorten the otherwise hundred-year task of trying the cases even in batches. Mr. Wilner helped by asking the court to dismiss 499 cases without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. These 499 cases were part of the 660 The Wilner Firm originally filed in both federal and state court (the “dual-filed cases”); Mr. Wilner decided that the firm would rather litigate the cases in state court, and the District Court gladly accommodated his request. During a status conference held in December 2010, Mr. Wilner also indicated that some portion of the firm’s cases was likely no longer viable because the plaintiffs had died without leaving any heirs. During the same hearing, defense counsel informed the court that other cases were due to be dismissed because the plaintiffs had already tried their claims against the tobacco companies.

The District Court tried to get a handle on how many non-viable cases were sitting on its docket, but neither side could give it an informed estimate during the hearing. Therefore, in an omnibus order issued following the hearing, the court instructed the parties “to carefully and individually review each of the roughly 3800 remaining cases to determine which of those cases [was] presently due to be dismissed (whether because a case has already been tried in state court, because a plaintiff has died leaving no heirs, or otherwise)” and which cases should be consolidated to pair loss of consortium cases with their associated personal injury case. Doc. 42, at 7-8. Upon completing this review, the parties were ordered to file “a certification that the party has reviewed each individual case.” Id. at 8.

The District Court also ordered the parties to “redouble their efforts” to identify procedures to streamline the litigation and cut down the number of cases that would ultimately need to be tried. Among their docket-management suggestions, the defendants requested that The Wilner Firm provide the following information, based on client interviews, to help weed out nonviable cases:

1. Whether the named Plaintiff is alive (and, Defendants would request, still wishes to pursue the action).

2. Whether, if the named Plaintiff has died, there is an heir with proper legal authority (and desire) to pursue the lawsuit.

3. Whether there is a viable consortium claim that must be paired with the original action.

Doc. 48, at 2. Mr. Wilner balked at the suggestion that his law firm contact its clients to gather this information—citing the time and resources required and the likelihood that the information would quickly become outdated as more plaintiffs died over time. Thus, he stated the firm’s intention to comply with the court’s order by just reviewing the information the firm already had in its files. See Doc. 61, at 3 (“[W]e have individual files for each plaintiff we represent, and we will make a good faith effort to screen each case for information contained within the file that suggests the case is not a viable one for reasons such as those described in the Court’s order.”).

Not long thereafter, Mr. Wilner filed the certification required by the omnibus order. Having “reviewed each individual case in counsel’s files,” he sought to voluntarily dismiss 136 more of the dual-filed cases under Rule 41(a)(2) of the Federal Rules of Civil Procedure (so his firm could litigate these individuals’ claims in state court); he sought leave to withdraw as counsel in 332 cases that “involve for the most part clients who have not been in contact with the undersigned or have claims that the undersigned cannot prosecute”; he sought to “administratively close” 118 docketed cases that were the result of a “clerical error on behalf of plaintiffs’] counsel,” and he sought to consolidate around 500 consortium eases with their associated smokers’ cases. See Doc. 114, at 1-3.

The tobacco defendants filed their own list of cases to be dismissed for different reasons. They identified 25 cases in which the plaintiff had previously opted out of the Engle class; 30 claims that had already been resolved by another court (and at least one that Mr. Wilmer himself had tried to verdict); 125 cases that were duplicates of another federal case; and 250 that had duplicates pending in state court. See Doc. 113. Relying on the fact that The Wilner Firm had culled hundreds of cases based only on a review of its files— including 332 plaintiffs with whom the firm had lost contact—the defendants asked the court to order The Wilner Firm to send questionnaires (at the defendants’ expense) to the firm’s clients to assess the viability of the remaining 2,700 or so cases. Doc. 128, at 4-5.

Given clear indication from both sides that the docket was bloated with hundreds of non-viable cases—and that The Wilner Firm wanted to withdraw from over 300 cases and simply leave them sitting on the court’s docket—the District Court dismissed the cases the parties agreed should not proceed, ordered the parties to prepare a consolidated list of additional cases to be dismissed, and suspended all other filings in the master docket until it had a chance to address in another hearing the inflated docket and The Wilner Firm’s motion to withdraw as counsel in 332 of the cases. The first round of cuts resulted in more than 700 cases being dismissed and around 500 being consolidated—bringing the number of cases down to around 2,700.

During this same time period, the District Court appointed a Temporary Special Master to work with the parties to hasten the ultimate disposal of all the Engle cases. With the parties’ input, the Special Master came up with several case-management recommendations. His first short-term goal was to identify and categorize triable cases. To accomplish that, the court needed more information about the cases still pending: “successful case management, aggregation, or consolidation of these cases depends on more knowledge of the number, location, and characteristics of the individual cases and the isolation and dismissal of those that are not legally viable.” Doc. 147, at 14. Based on his discussions with the parties, the Special Master believed that “neither side has any real grasp of the composition of the universe of cases”; “[cjounsel know next to nothing about more than 90% of this action,” though “[t]he parties agree that a number of the inactive cases are not viable for one or more reasons.... ” Id. at 38. To fill this information gap, the Special Master recommended that he send questionnaires to each plaintiff to gather basic information about the plaintiffs case.

Plaintiffs’ counsel—which now included attorneys from the firm Lieff Cabraser Heimann & Bernstein, LLP, of San Francisco—objected to the Special Master’s proposed questionnaire and his belief that they knew “next to nothing” about their eases. They assured the District Court that questionnaires weren’t needed “because counsel already possess the vast majority of this data, and are working diligently to fill in all gaps.” Doc. 158, at 15. They explained that there was “ongoing and routine communications by telephone, mail, in person meetings, and electronic communications, between plaintiffs’ counsel and the plaintiffs.” Id. at 14. And they assured the court that the information the Special Master sought “will not result in a substantial reduction in the number of cases”; “[s]uch winnowing has already occurred,” and so “there is no longer any sizeable group of cases ripe for dismissal.” Id. at 14-15 (quotation marks omitted).

In a hearing conducted in June 2011, the District Court sought an explanation for all the non-viable cases that The Wilner Firm and the defendants had already identified, and it sought the parties’ input on how to go about identifying the non-viable cases that almost certainly remained on the docket. The court was concerned that Mr. Wilner had simply filed cases based on a list of smokers compiled in the 1990s, without making any effort to investigate the basic facts underlying the claims or ensure that his firm’s “clients” were willing and able to prosecute a lawsuit in 2008. Mr. Wilner explained that he had filed suit on behalf of “some” people whom he had been “historically in contact with”—that is, not in contact with during the Engle III savings period—but he assured the court that “[m]ost of them we were in contact [with] shortly after” he filed suit on their behalf. Doc. 171, at 7. The 332 cases in which he was seeking to withdraw as counsel were the only cases involving individuals with whom he hadn’t been able to reestablish contact.

Still concerned, the court asked Mr. Wil-ner, point blank, “are you telling us that you have—that you are in direct contact with all of the remaining plaintiffs that are still pending in these cases?” Id. To which Mr. Wilner replied, somewhat cryptically, “Yes, your Honor, within the possibilities of being able to express that because you can’t talk to everybody at once.” Id. So the court followed up, “within the last six months, all but the 332 that are identified in that motion have expressed that they are willing and able to proceed with these claims? Is that your representation to the Court?” Id. at 8-9. Mr. Wilner replied, ‘Tes, absolutely.... [W]e are in constant contact with them.” Id. at 9. Later in the hearing, the court asked again, “if you had to sign a Rule 11 complaint today on behalf of each one of these smokers who has a case that you can certify under Rule 11 [of the Federal Rules of Civil Procedure], how many people would that be?” Id. at 29. Mr. Wilner’s response: “Twenty-eight hundred and whatever the last two digits are,” id.—in other words, in all of the supposedly viable cases remaining on the District Court’s docket.

The court also addressed plaintiffs’ counsel’s opposition to the Special Master’s questionnaires. As part of this discussion the court explained, more than once, the need for accurate information regarding the number and type of viable claims and its frustration that plaintiffs’ counsel didn’t seem to possess this very basic information, even though more than two years had passed since filing. Obviously the court wanted to purge the docket of non-viable claims, but it was just as important for purposes of streamlining the adjudication of the legitimate claims that the court have a handle on the basic characteristics of those claims:

[W]e need to figure out what’s the total constellation of lawsuits that we have? How can we divide them up in terms of do we have cases that have living people, we have death cases with survivors, we have death cases with no survivors? All of those, as you know, have—I mean, the elements of damage are going to be different with respect to each, and we are trying to figure out a way that we can triage these things and marshal them so that we can deal with them; and, frankly, we need some help, and we don’t feel like we are getting it.

Doc. 171, at 17.

[I]t would be really useful if we knew, in looking at these claims, which ones are living people, which ones are claims with survivors, which ones are claims with survivors with—I doubt there are any with minor children, based on the time periods we are talking about, but if there are, what are those claims, and which are the cases we are dealing with no intangible claims but just economic losses.

That would be hugely helpful for us in terms of being able to try to figure out how and where and when we are going to get these cases tried.

Id. at 37.

In response to the court’s request for more information, Mr. Wilner explained that his firm, now with the assistance of Lieff Cabraser Heimann & Bernstein, was in the process of collecting the information the Special Master sought and would provide it to the court soon. That wasn’t good enough; in light of the problems that had surfaced from the parties’ first review of the docket, the court told Mr. Wilner, though not in so many words, that it no longer trusted him. And so the court asked plaintiffs’ counsel how long it would take them to distribute and collect questionnaires. Mr. Wilner’s co-counsel—Ms. Kathryn Barnett of Lieff Cabraser, who had been put in charge of compiling data on each plaintiffs case—answered that three months would be plenty of time since they were in contact with all their clients and in the process of gathering the information sought by the Special Master. After some dickering during and after the hearing, the parties and the court agreed to the form of the questionnaire, that it would be completed under oath, and that plaintiffs’ counsel would collect the responses and submit them to the court with a Rule 11 certification attached. See Doc. 218, at 5. The court eventually issued an order in August 2011, which gave plaintiffs’ counsel three months to submit the questionnaires (and approximately five months from the June hearing).

Plaintiffs’ counsel mailed questionnaires to 2,661 unique addresses, yet by the November 2011 deadline, they had submitted only 1,724 to the Special Master. They asked for more time, explaining to the court that they were now putting on a full-court press—mailings, phone calls, emails, and door-to-door visits—to try to reach all their clients and obtain completed questionnaires from them. See Doc. 359. In light of all that had already transpired, including plaintiffs’ counsel’s repeated assurances that they were in “constant contact” with all the plaintiffs, the court denied their request to extend the deadline, though it did afford counsel the opportunity to submit late questionnaires upon a showing of good cause. See Doc. 379.

In the meantime, the Special Master compiled data on the 1,724 questionnaires that counsel submitted on time. A number of problems cropped up; for example, 521 personal injury plaintiffs had been dead at the time of filing—some for quite a long time; 66 wrongful death actions were brought on behalf of “survivors” of a smoker who was still alive; 64 wrongful death cases involved deceased smokers with no survivors; and 39 wrongful death cases involved smokers who died more than two years before the Engle class action was filed (as noted, Florida’s wrongful death statute has a two-year limitations period, Fla. Stat. § 95.11(4)(d)). See Doc. 503, at 7-14. These problems and others led the Special Master to conclude that even “the current universe of 1,700 cases [in which questionnaires were returned] is still inflated to an unknown extent by (1) less than enthusiastic or capable plaintiffs and (2) weak, even nonviable, claims.” Id. at 4.

For today’s purposes, we only focus on two of these problems: the predeceased personal injury plaintiffs and the decedent-smokers who died more than two years before Engle was filed. It is worth noting before we proceed that the questionnaire process culled hundreds more cases from the District Court’s docket, including over 1,000 in which no questionnaire was ever submitted, even after the court twice allowed plaintiffs’ counsel to submit late questionnaires.

B.

In response to the Special Master’s findings, the tobacco defendants moved to dismiss the 521 personal injury cases involving predeceased plaintiffs and the 39 wrongful death cases involving smokers with dates of death more than two years before Engle was filed (for a convenient shorthand, these smoker-decedents died before May 5, 1992). For ease of discussion, we will recount the parties’ arguments and the court’s reasons for dismissing each category separately, beginning with the smokers who died more than two years before the Engle class action was filed.

1.

The defendants moved to dismiss the 39 wrongful death cases as time-barred. See Doc. 581. Their argument was simple: the two-year limitations period in the Florida Wrongful Death Act expired before Engle began, and so the Engle proceedings did not toll the limitations period. Thus, when the claims were filed in 2008, they were untimely.

Plaintiffs’ counsel conceded that the limitations period had not been tolled by the Engle class action; however, they contended that the doctrines of fraudulent concealment, equitable tolling, or equitable estop-pel were available in these wrongful death cases. The original complaints did not mention any of these legal theories but did contain allegations that the defendants had concealed the health effects of smoking. From those allegations, plaintiffs’ counsel argued that the original complaints “allege^] sufficient predicate facts to establish both tolling and estoppel.” Doc. 590, at 9. Plaintiffs’ counsel did not carefully explain how those allegations fit into their proffered legal theories; instead, it would appear that they simply threw out a few doctrines and hoped that one would stick. Boiled down, their argument was that the defendants covered up the health effects of smoking, and as a result, the plaintiffs shouldn’t be held to the normal two-year period for filing a wrongful death suit. For convenience, we will refer to plaintiffs’ counsel’s theories for avoiding the statutes of limitations bars collectively as “equitable tolling.”

As another basis to preserve some of these cases, plaintiffs’ counsel argued that, in cases in which the decedent-smoker died after May 5, 1990, the four-year limitations period applicable to survival actions, Fla. Stat. § 95.11(3), had not run by the time Engle began. The original complaints did not allege survival claims though, only wrongful death claims. Nevertheless, plaintiffs’ counsel argued that “the complaints contain sufficient allegations to raise alternative survival theories,” and so “Defendants should have been on notice that Plaintiffs intended to allege alternative survival claims.... ” Doc. 590, at 12.

In the alternative to both arguments— that is, if the District Court determined that the original complaints failed to contain sufficient factual allegations to establish equitable tolling or a survival claim— plaintiffs’ counsel asked that they be allowed to amend the complaints to remedy these shortcomings. They did not come forward with any proposed amendments at that time, though.

2.

On November 26, 2012, the District Court issued an order dismissing 37 of the 39 wrongful death cases. The court concluded that the original complaints’ allegations—that the defendants covered up the health effects of smoking—-were not sufficient to establish equitable tolling. Likewise, the court found that the complaints clearly alleged only wrongful death claims and therefore that plaintiffs’ counsel could not rely on the longer limitations period applicable to survival actions.

The court declined to grant plaintiffs’ counsel leave to amend, citing multiple reasons. First, the request for leave to amend was only presented in plaintiffs’ counsel’s response memorandum to the defendants’ motion to dismiss. Doc. 835, at 18 n. 15 (citing Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir.2009) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”)). Second, Plaintiffs’ counsel did not “set forth the substance of the proposed amendment or attach a copy of the proposed amendment,” as required. Id. (quoting Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.1999)). Third, Plaintiffs’ counsel “do not claim to have new information [regarding the defendants’ conduct that would have entitled them to equitable tolling] that they could not have alleged at the time the complaints were filed,” and they “had years after the smokers died ... to learn what caused the deaths” (and thus whether to file wrongful death claims or survival claims). Id. at 18. And fourth, “Defendants would be unduly prejudiced by the addition of these claims, at this stage of this already protracted litigation, particularly when they have been raised in the face of a statute of limitations defense.” Id. at 19. Therefore, the court concluded that “any amendment would either be futile or unjustified and would cause undue prejudice to Defendants.” Id.

3.

Plaintiffs’ counsel did not appeal this November 2012 order. The order is relevant to these appeals because the District Court later granted plaintiffs’ counsel leave to submit 170 questionnaires received after the November 2011 deadline. See Doc. 604, at 5; Doc. 927, at 4. The late questionnaires revealed two more smoker-decedents who died before May 5, 1992. The defendants moved to dismiss these two wrongful death cases based on the court’s unappealed November 2012 order. Docs. 933, 937. Plaintiffs’ counsel opposed the motion. They incorporated their previous arguments into their response memorandum with some modifications to bolster their request for leave to amend; to wit, plaintiffs’ counsel styled their responsive filing as a “cross-motion” and included in it the proposed amendments that, they claimed, entitled them to equitable tolling. Plaintiffs’ counsel did not include in their proposed amendments any new survival claims.

On June 17, 2013, the District Court rejected plaintiffs’ counsel’s old and new arguments and dismissed the two wrongful death cases. Doc. 1101. The court adopted the reasoning from its November 2012 order to reject counsel’s recycled arguments. Addressing plaintiffs’ counsel’s new arguments, the court wrote, “The specific allegations Plaintiffs now seek to add in order to establish fraudulent concealment tolling, equitable estoppel, or equitable tolling do not change the Court’s analysis.” Id. at 3. Plaintiffs’ counsel appealed this second order (appeal no. 13-12901), which we consolidated with their appeals from the court’s orders described in the following section.

C.

1.

Turning now to the 521 personal injury cases involving predeceased plaintiffs: the defendants sought dismissal of these cases on the theory that

the 521 ‘personal injury’ actions were nullities on the day they were filed in 2008, were nullities a few days later when the final ‘savings’ period expired on all Engle Progeny claims, and are still nullities today.... [T]he only legally possible result is the dismissal of those filings—filings which conferred no jurisdiction on this Court and likewise provide no basis for any amendment to assert a different claim or ‘substitution’ of a new plaintiff to assert claims that were time-barred, even under the extended limitations period, more than four years ago.

Doc. 582, at 5.

In response, plaintiffs’ counsel urged the court to reject the defendants’ nullity theory as an anachronism and instead give them 120 days to seek leave to amend in these cases to substitute in personal representatives of the deceased smokers’ estates and allege wrongful death or survival claims. See Doc. 589. Plaintiffs’ counsel cited to Rules 15 and 17 of the Federal Rules of Civil Procedure to require such an opportunity.

Along with their response, plaintiffs’ counsel submitted a sworn declaration by Mr. Wilner, in which he described the circumstances that led him to file suit on behalf of 521 dead people. He explained: In the late-1990s, his firm represented over 3,000 smokers or their families. All of these clients “were signed into contractual agreements giving the firm latitude as to the appropriate method to preserve and advance their claimfs] against the cigarette companies.” Doc. 589-1, at 1. By the time Engle III came down, his firm “had successfully remained in contact with most but not all of these clients,” though “some had been lost to follow up.” Id. at 2. His firm was unable to reestablish contact with some portion of these individuals by the time the savings period ran out, but he decided that it was his “professional duty to make protective filings on behalf of these clients,” so he simply filed personal injury claims on behalf of the party who had contacted his firm back in the '90s. Id. After he filed suit, he kept trying to track down his nonresponsive clients, and eventually “efforts to locate survivors were successful in all but a few cases, and those survivors ratified the filings nunc pro tunc.” Id. Obviously, when he located the survivors of his nonresponsive clients, he learned that these clients were nonrespon-sive because they had died; however, he did not seek to amend the complaints or otherwise inform the court that these personal injury plaintiffs were deceased because “the cases were stayed immediately after filing upon agreement of the parties,” and so “efforts to amend the pleadings to reflect the status of the deceased were stayed as well.” Id. at 3.

The court heard argument regarding the predeceased plaintiffs’ cases in June 2012. During the hearing, which Mr. Wilner did not attend, the court openly questioned many of the statements in his declaration and pressed Mr. Wilner’s co-counsel—Ms. Elizabeth Cabraser, of Lieff Cabraser—for more information. In light of the fact that Mr. Wilner hadn’t had any recent contact with these “clients” when he filed claims on their behalf in 2008, the court found it highly unlikely that he had any authorization to file suit or that he had investigated the validity of these claims. Moreover, the court pointed out, a number of the predeceased plaintiffs had died before Mr. Wil-ner even started collecting tobacco clients-a group that Mr. Wilner’s declaration had not even mentioned. Ms. Cabraser didn’t have any answers for the court; she explained that she hadn’t been around back then and so she just stood on Mr. Wilner’s (incomplete) declaration.

The court also doubted that plaintiffs’ counsel had really tracked down and received authorization “nunc pro tunc ” from these predeceased plaintiffs’ survivors. In fact, the court asked Ms. Cabraser if the attorneys had only learned of all these predeceased plaintiffs once they received responses to the questionnaires; her reply: “I don’t know.” Doc. 677, at 62. As for the suggestion that the stay—which the court left in place at the parties’ request to help manage the mass of cases—absolved plaintiffs’ counsel of any obligation to fix their mistakes in a timely manner or otherwise inform the court that in 521 of the cases they had pled the wrong cause of action and named the wrong plaintiff, the court tersely responded, “Really?” Id. at 59. And addressing plaintiffs’ counsel’s request that they now be allowed to go back and fix all their mistakes, the court had this to say:

These cases were filed, clearly, with no authorization from the client, with no compliance with Rule 11, with no good faith inquiry into whether or not there was a viable basis for a claim, and now the Court is being asked under the purview of Rule 15 to somehow allow you to amend and relate back to a pleading that was filed on behalf of someone that was long dead and never authorized the institution of the action somehow under the rubric of doing justice and putting the Court in the position of [“]how can you not allow these people to have a claim brought on their behalf[?”]

It’s an untenable situation, Miss [Cabra-ser], that you are asking the Court to occupy....

Id. at 59-60. Despite these voiced misgivings, the court did not immediately rule on the defendants’ motion to dismiss.

A few months later, while the defendants’ motion to dismiss was still pending, the defendants also moved for a Rule 11 inquiry into plaintiffs’ counsel’s filing and maintenance of these 521 cases. See Doc. 813. In response, Mr. Wilner came forward with more information—much of which was inconsistent with his earlier sworn declaration.

In his “Verified Response” to the defendants’ Rule 11 motion, Mr. Wilner explained that in the 1990s his firm interviewed around 6,000 smokers or family members of smokers, many of whom provided “information sufficient for us to believe that such client wanted us to act on their behalf should circumstances deem it advisable.” Doc. 822, at 4. He further explained: because “[t]here is normally no need to monitor individual class members” during the pendency of a class action, the Florida Supreme Court’s decertification of the class and authorization of individual lawsuits “imposed a unique and exigent circumstance on the few firms, including ours, whose last contacts with these class members could well be decades old.” Id. at 4-5. Thus, during the Engle III savings period, The Wilner Firm had to scramble to track down everyone on the list of “clients” it compiled in the mid-'90s. His firm tried “mailing, calling, visits to last addresses, talking to neighbors, [and] other methods,” but some undisclosed portion didn’t respond before the Engle III deadline. Id. at 5-6. Obviously The Wil-ner Firm didn’t know “whether the non-response was due to death, illness, changing addresses, entering a nursing home, being unwilling to proceed, or some other reason,” so, “[i]n the absence of re-contact, [it] evaluated each claim based on the information on hand,” and filed suit if there was a cognizable claim. Id. at 6-7.

After The Wilner Firm filed suit on behalf of an undisclosed number of nonre-sponsive individuals, it successfully contacted “many” of them “within a few months after the filing deadline.” Id. at 8. Of the nonresponsive clients who turned out to be dead, 339 survivors were successfully contacted by mid-2008—in time for The Wilner Firm to submit claims to the Engle Trust Fund on their behalf. The firm continued its efforts to reach the remaining nonresponsive clients, and eventually survivors were identified for all of the 500-plus predeceased plaintiffs; these survivors are the ones who completed the court-ordered questionnaires. Thus, of the claims brought on behalf of predeceased clients, The Wilner Firm was aware of “most but not all” that were “mis-styled” before the questionnaire process. Id. at 9. Mr. Wilner decided not to bring that “mis-styling” to the court’s attention because the cases were stayed; instead, he planned to file an amended complaint in each case after the court lifted the stay in that particular case. Id. at 8-9.

Along with the Verified Response, Mr. Wilner submitted summary data from his firm’s files showing the date of death for each smoker and dates of contact between his firm and smokers or their survivors. In most eases, the last date of contact The Wilner Firm had with the predeceased plaintiffs was in the late-'90s—nearly a decade before lawsuits were filed on these individuals’ behalf. See Doc. 822-1. In all but a handful of cases, The Wilner Firm had not heard from its “clients” for over five years by the time Mr. Wilner filed suit. And in around 100 cases, the smoker died before the last date of contact listed in Mr. Wilner’s data, meaning, presumably, that The Wilner Firm had been in contact with these deceased smokers’ survivors and knew that the smokers had died. Mr. Wilner’s explanation for his firm’s filing of personal injury claims on behalf of these smokers: “an error of unknown origin,” which “could have occurred through data entry error, mis-communication between our firm and the person providing the information, a misunderstanding on behalf of the person ..., or for any number of reasons that can never be determined.” Doc. 822, at 13-14.

2.

On January 22, 2013, the District Court entered an order granting the defendants’ motion to dismiss the 521 cases identified by the Special Master. The court gave multiple reasons. First, it agreed with the defendants that “a lawsuit filed in the name of a deceased individual is a nullity over which this Court has no jurisdiction.” Doc. 925, at 5. The court recognized that, “under certain circumstances when the proper cause of action is alleged but the plaintiff lacks capacity, or where the plaintiff dies after the complaint has been filed, substitution and amendment may be proper under Rules 17, 25, or 15.” Id. at 9. But, because plaintiffs’ counsel filed personal injury actions that were never viable, “no substitution or amendment can save these claims”; “the proper course would have been to file either wrongful death or survival claims before the expiration of the Engle savings period.” Id. at 9 & n. 7.

In the alternative, the court explained that even if the personal injury cases were not nullities ab initio, plaintiffs’ counsel still couldn’t substitute in the decedents’ personal representatives because Rule 17 “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Id. at 9 (quoting Fed.R.Civ.P. 17, Advisory Comm. Notes, 1966 Amend.). The court clearly did not find Mr. Wilner’s 521 mistakes to be understandable:

[T]he Florida Supreme Court ... decer-tified the Engle class action and gave individuals a one-year period, ending on January 11, 2008, in which to file lawsuits. In doing so, the supreme court gave counsel for the plaintiffs a year to further investigate the claims and, at the very least, to determine the status of their clients, including whether their clients were still alive and interested in pursuing the action. Mr. Wilner acknowledges in his declaration that these cases were “protective filings” on behalf of clients who could not be located and whose status was unknown. However, whether counsel undertook any significant effort during that year to confirm the status of their clients remains unestablished in the record. The filing of personal injury claims on behalf of these 521 individuals who were already dead (some had been dead for many years) suggest counsel may not have.

Id. at 10.

Moreover, Mr. Wilner’s failure to inform the court for over four years that he had so many invalid cases sitting on the docket—while the court took pains to winnow the docket and catalog the viable cases— further weighed against his request to change the parties and claims in over 500 cases. In fact, the court noted, rather than bringing the defective complaints to its attention, counsel continually reassured the court that all remaining cases were viable and that they were in constant contact with all remaining plaintiffs. And yet, when the Special Master reviewed the questionnaires, 521 plaintiffs turned out to be dead (and hundreds more never submitted questionnaires). That the court had issued a stay order in those cases “did not prevent counsel from inquiring into the status of their clients and bringing any change in status to the Court’s attention.” Doc. 925, at 11. As a matter of fact, plaintiffs’ counsel had filed several such motions in stayed cases, seeking to substitute in personal representatives for smoker-plaintiffs who died after filing. Thus, the court concluded, “[e]ven assuming arguendo that, given this unique situation, the Court could have relieved Plaintiffs from their improper filings, Plaintiffs and their counsel lost any claim to such consideration when they did not timely alert the Court to the problem. Plaintiffs slept on whatever rights they may have had to amend their complaints and file in the name of the proper parties.” Id. at 12.

The court ordered that the personal injury cases be dismissed with prejudice. It reserved jurisdiction over the cases “for the limited purpose of making further inquiry and addressing the circumstances of the filing of these cases, as well as any Rule 11 implications.” Id. at 11 n. 8. The list of cases to be dismissed, which had been compiled by the Special Master and attached to the defendants’ motion to dismiss, listed 521 names and docket numbers corresponding to the predeceased smokers and their personal injury cases. See Docs. 503-5, 582-1, 925-1. Listed alongside 132 of these personal injury cases were names and docket numbers corresponding to loss of consortium cases maintained by the spouses of these predeceased plaintiffs. Neither the parties nor the Special Master specifically mentioned the 132 loss of consortium cases, nor did plaintiffs’ counsel object to their dismissal. The court’s order also did not independently explain its dismissal of the consortium cases.

3.

Plaintiffs’ counsel filed a timely appeal from the January 2013 order (appeal no. 13-10839). In their opening brief, they asked this court to (1) reverse the District Court’s dismissal of the 521 personal injury cases filed on behalf of predeceased plaintiffs, (2) grant plaintiffs’ counsel leave to file a Rule 60(b) motion in the District Court to allow the court to correct its “mistake” in dismissing the 132 consortium cases, and (3) grant “a limited remand” to allow the District Court to reinstate three cases in which the named plaintiff-smoker had in fact been alive at the time of filing (a fact that plaintiffs’ counsel apparently discovered after taking their appeal). In their reply brief, they identify four more such cases.

While this appeal was pending, the District Court discovered and dismissed 67 more personal injury cases brought on behalf of predeceased plaintiffs and 40 more loss of consortium cases that derived from a personal injury case involving a predeceased plaintiff. Most of these cases came to light after the court granted plaintiffs’ counsel leave to submit the 170 late questionnaires. Upon defendants’ motion, the court dismissed the 67 personal injury cases for the reasons given in its January 2013 order. Doc. 1101. (This is the same order, issued in June 2013, in which the court dismissed the two wrongful death cases involving dates of death before May 5, 1992—which also cropped up after the court allowed plaintiffs’ counsel to submit the late questionnaires.) Like the list of cases attached to the January 2013 order, the list of cases attached to the June 2013 order included three consortium case numbers paired with the corresponding personal injury case. See Doc. 1101-1. Plaintiffs’ counsel again did not object to the dismissal of the consortium cases. We consolidated plaintiffs’ counsel’s appeal from the June 2013 order (no. 13-12901) with their appeal from the January 2013 order (no. 13-10839).

The remaining 37 loss of consortium cases were identified during an audit of the docket, conducted by the parties and the Special Master at the court’s request, to identify any cases that were due to be dismissed based on orders already issued by the court. See Doc. 975. These 37 consortium cases were derivatives of personal injury cases dismissed by the January 2013 order—they hadn’t been paired together before that order. The defendants sought to administratively close the cases because they had effectively been dismissed by the court’s January 2013 order. See Doc. 1012, at 2. Because plaintiffs’ counsel indicated their intention to oppose such action, the defendants also argued (1) that the loss of consortium cases were wiped out by Florida’s wrongful death statute upon the death of the smoker—meaning the only viable cause of action was a wrongful death case brought by the decedent’s survivors (which should have been filed back in 2008); and (2) in the alternative, the consortium cases were barred by the statute of limitations because the Engle class representatives had not alleged independent consortium claims and, therefore, the limitations period had not been tolled by the Engle class action or the Engle III savings period.

Plaintiffs’ counsel did not oppose the dismissal of 12 of the 37 consortium cases. Doc. 1020, at 1 n. 1. As for the remaining 25, plaintiffs’ counsel argued that the cases were independently viable, even though the personal injury cases they were associated with had been dismissed, because “these complaints were filed by living persons who had capacity to sue.” Id. at 1. Yet plaintiffs’ counsel apparently agreed that these plaintiffs could not pursue standalone loss of consortium claims because they sought leave to amend the complaints to allege wrongful death claims or survival claims (ostensibly to be maintained by these 25 plaintiffs in their capacity as the personal representatives of the decedents’ estates). They did not propose such amendments at that time; rather, they stated their intention to “allege additional facts that would establish a sufficient basis for alternative wrongful death and survival claims.” Id. at 6. As for the defendants’ argument that the limitations period was not tolled by the Engle class action, plaintiffs’ counsel explained that the Engle III court never said that “spouses of Engle class members should not be allowed to proceed with claims for loss of consortium,” and therefore, counsel asserted, the Engle class action tolled the limitations period for such consortium claims. See Doc. 1020, at 5 (emphasis added).

On August 16, 2013, the District Court issued an order dismissing the loss of consortium cases as time barred. Doc. 1130. The court explained: The Engle class representatives did not bring standalone loss of consortium claims. “The plain language of the class definition was limited to living smokers and the survivors of deceased smokers”—not “ ‘spouses,’ ‘children,’ or ‘family members’ of the smokers.” Id. at 4. And “though derivative of and dependent on the injured plaintiffs ability to recover, loss of consortium claims are ‘separate and distinct’ under Florida law ..., as they are ‘brought on behalf of a separate party and may be maintained in situations where the injured party has not been joined.’ ” Id. at 6 (quoting Ruffo v. R.J. Reynolds Tobacco Co., No. 07-30292 CA 24, ¶ 8, 2012 WL 9507901 (Fla.llth Jud. Cir. Apr. 30, 2012)). Thus, “[b]ecause they were not included in the Engle case and are distinct claims, tolling hy the Engle savings period does not apply to save the Plaintiffs’ loss of consortium claims.” Id. at 7. Because the original consortium claims were untimely, any amendment to those claims (even if it related back under Rule 15(c)) would also be untimely; thus the court denied plaintiffs’ counsel’s request for leave to amend as futile.

In closing, the court discussed its earlier unexplained dismissal of the 132 consortium cases in its January 2013 order as follows:

The Court does not rely on the fact that the January 22, 2013 Order dismissed some consortium claims in reaching] the determinations reflected [by] this Order. Rather, dismissing all consortium cases is proper for the reasons stated above. However, it is inaccurate for either side to suggest that they either affirmatively moved to dismiss those consortium cases or specifically argued against dismissal in briefing the initial motion to dismiss.

Doc. 1130, at 12.

Plaintiffs’ counsel filed a timely appeal from this August 2013 order (appeal no. 13-14302), which we consolidated with their appeals from the January 2013 and June 2013 orders.

D.

The table below summarizes the District Court’s orders we review in these eonsoli-dated appeals.

We begin by discussing the 588 personal injury eases, then the 160 loss of consortium cases, and lastly the 2 wrongful death cases.

III.

As explained, the District Court gave a few reasons for dismissing the 588 personal injury cases involving predeceased plaintiffs: (a) the personal injury claims are nullities and thus not subject to amendment or a substitution of the plaintiff; (b) even if the claims weren’t nullities, Rule 17 does not enable plaintiffs’ counsel to substitute in personal representatives for all of the predeceased smokers because they had not shown that Mr. Wilner’s 588 mistakes were understandable; and (c) even if plaintiffs’ counsel could have substituted in new plaintiffs and amended the allegations shortly after filing, their attempts to do so four years later, and only after the court-ordered questionnaires revealed all the predeceased smokers, came far too late.

It is uncontested that the personal injury cases were properly dismissed— whether nullities ab initio or not—if the complaints cannot now be amended to substitute in the personal representatives of the decedents’ estates and allege wrongful death claims or survival claims on their behalf. Because we find the court’s decision to deny leave to amend to be eminently reasonable, we need not consider whether a personal injury claim brought on behalf of a deceased individual has any legal effect, such that it can later be amended.

We begin with the Federal Rules of Civil Procedure that govern the amendment of pleadings and substitution of parties and then explain our reasons for affirming the District Court’s application of those rules.

A.

Rule 15 allows parties to amend their pleadings once within a short time after the filing of responsive pleadings, and after that, “only with the opposing party’s written consent or the court’s leave,” which “[t]he court should freely give ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). The thrust of Rule 15(a) is to allow parties to have their claims heard on the merits, and accordingly, district courts should liberally grant leave to amend when “the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Nevertheless, a motion for leave to amend may appro