I need procedural help (from an expert in Massachusetts). Here it is: 1. We filed a complaint. 2. The defendant sent us a motion to dismiss 3. We filed the First Amended Complaint directly in court (March 28th) and sent it to defendant (they received it on March 29th). 4. The defendant filed a Rule 9A package saying that we did not send an opposition to their motion to dismiss, so the case should be dismissed. They sent it to court on March 28th before they received our amended complaint, and it was filed on the 29th. 5. They sent us a motion to dismiss our amended complaint on April 8. 6. On April 16 we received a letter from the court that their motion to dismiss our original complaint was granted (since no opposition was sent). From our conversation with the court clerk it became obvious that the judge did not see our amended complaint when she ruled on the motion to dismiss our original complaint. I guess it somehow got in a different pile.... 7. So we filed a motion to reconsider saying that the amended complaint supersedes the original. 8. We also sent the defendant our opposition to their MTD our AMENDED complaint. 9. The defendant sent us their Opposition to our Motion to Reconsider, and we filed it all together as a 9A rule package. 10. The defendant never sent a rule 9A package with our opposition to their MTD to our Amended complaint. 11. We sent them a motion to strike to their motion to dismiss our amended complain due to non-compliance with rule 9A. 12. They sent us a letter saying that since the original complaint was dismissed they did not have to send a package and that our motion to strike is moot. Our motion for reconsideration is still pending in court. I have two questions: i thought that if the amended complaint is filed, then the original becomes moot even if it is dismissed. Am I wrong? Can I write a letter to the judge explaining that she ruled to dismiss our original complaint not knowing that the amended was filed and that it was a clerical error?
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Paul, thank you for your answer. I know about this rule, however, please see this (from Reporter's Note to Rule 15A)
Because a motion is not considered a pleading within the meaning of Rule 15 (see Rule 7(a)), Federal Rule 15(a) if read literally, would permit a plaintiff to amend his pleading, without leave of court, even after the Court had granted a motion to dismiss or a motion for summary judgment.
This was also confirmed in Stoppel v. Henry et al
I would appreciate your opinion on that matter.
OK, am I correct now to assume that motion to dismiss is not a responsive pleading and we had a right to file an amended complaint?
In any case, we file a motion to reconsider, which is in the works now. Should we also file a motion to vacate the dismissal (or the motion to reconsider is enough)?
Also, i heard that i can write a letter to the judge explaining that this was a clerk's error. Is this something that is normally done?
Yes, the amended complaint was filed on March 28, and dismissal was granted on April 16th. from what you wrote I understand that i should not write another motion to vacate since I already filed a motion to reconsider? Is this correct?
Another question that I had in my original message: i thought that if the amended complaint is filed, then the original becomes moot even if it is dismissed. Am I wrong here?
You said: "Once the amended complaint is filed and served that is the new complaint and the old one is no longer valid" - this is true even if it was dismissed?
But this is exactly where the problem is. The other party sent us a motion to dismiss our AMENDED complaint (April 8), we sent them our opposition to their MTD (April 17). On April 16 we received a letter dismissing our ORIGINAL complaint. So the other party did not send a Rule 9A package to the court (with their MTD to our amended complaint and our opposition to their MTD) as they were supposed to saying that the original complaint was dismissed and the whole thing is over.
That's what I thought...Well, the question is what I should do now since the other party refused to send a Rule 9A package with our opposition to their MTD. How do I let the court know that they refused to send a package?
I mentioned that we send them a motion to strike their dismissal for non-compliance with rule 9A, and they simply sent us a letter saying that your original was dismissed and you're done...this is not a proper response to a motion to strike, as I understand. Since everything in MA is done according to this rule 9A package, should I now send this package to court saying that we did not receive an opposition to our motion to strike?
Thank you, XXXXX XXXXX guess, my last question is - do I mention in my cover letter to court everything that we discussed (that a motion is not a pleading, that the amended complaint was filed before the dismissal and the amended complaint was never dismissed, etc)? Usually, cover letters are short...but where then do I list all these reasons?
And the very last question - why do I even care to reconsider the original complaint if it is moot?
I just realized something - Since they never sent a rule 9A package but they sent a Notice of filing a MTD, the court does not know about their MTD to our amended complaint and our opposition...It looks like the only thing that the court has is our amended complaint.
thank you Paul, I appreciate your help.
Paul, i need to ask for your help again - this in relation to my question from 2013 2:50 PM EST.
The other party is saying that they never filed an MTD to our amended complaint because the original was dismissed and they consider the whole case over. So as it stays right now the court only has our amended complaint filed. The court doesn't have their MTD or our opposition or our motion to strike for non-compliance with rule 9A package to which we did not receive any opposition either...What do we do? Do we ask for hearing? What should be the next step? What happens to complaints that just sit in court...? thank you
Do i file this motion in a usual format (i.e. send it to the opposing party and wait for their opposition)? Do I specify exactly what default judgement I am seeking or this is understood?
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