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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92536
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I have a rather complicated situation and I need procedural

Customer Question

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?

Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

I am afraid that from your description of what took place, it appears that under MA Rule 15a, it sounds like you did not properly file your amended complaint, which means the judge cannot consider it.

Under MA Rule 15a:

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

This means that once the defendant filed their motion to dismiss, which was a responsive pleading in the case, you could not just file an amended complaint as you did, you needed to either get consent of the defendant or permission of the court to file the amended complaint and as such the judge could not consider your amended complaint even if they wanted to do so.

If the judge did not dismiss your original complaint with prejudice, then you would have to seek to start over and file your new complaint and go from the beginning. I am afraid that if the judge did dismiss your complaint with prejudice, then your right to file again is over.



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Customer: replied 1 year ago.

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


http://delawaretrialpractice.foxrothschild.com/delaware-superior-court/in-the-matter-of-stoppel/


I would appreciate your opinion on that matter.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

The MA rule comments explain:

The circumstances are: (1) the pleading is one with respect to which a responsive pleading is permitted (see Rule 7(a)) and no responsive pleading has yet been served; or (2) the pleading is one to which no responsive pleading is permitted (see Rule 7(a)) and the action has not yet been placed on the trial calendar. In the first case, no time limit is imposed; in the second, amendment must take place within 20 days after service of the original pleading.

If this is the case in your situation, which I was not clear on the way the dates were explained, then the case law you should be looking to is Keene Lumber v. Levanthal, which is cited approvingly in the MA comments to their version of Rule 15, which states you have the right to one amendment, without leave of court, even though the defendant has filed a motion to dismiss the complaint.

Thus, you need to file a motion to vacate the dismissal based on the fact that the amendment was filed BEFORE the dismissal was granted and as such under the MA rule and interpreting case law of that rule the amended complaint is allowed without leave of the court.
Customer: replied 1 year ago.

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?

Expert:  Law Educator, Esq. replied 1 year ago.
Just as long as your amended complaint was filed BEFORE the dismissal was granted, you are correct. You cannot just write a letter to the judge, you have to do everything in court as a formal motion with notice to the other party. You should file the motion to vacate/reconsider (all filed as one motion) with your grounds that the dismissal should be vacated (as by asking the court to vacate you are in a sense asking them to reconsider the dismissal of the case.
Customer: replied 1 year ago.

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?

Expert:  Law Educator, Esq. replied 1 year ago.
That is correct, if you already submitted your motion to reconsider you can either amend that one or let it go as it is.

Once the amended complaint is filed and served that is the new complaint and the old one is no longer valid.
Customer: replied 1 year ago.

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.

Expert:  Law Educator, Esq. replied 1 year ago.
The issue is just what you are arguing. You are arguing that the amended complaint was filed before a dismissal and in that case the old complaint was no longer valid, the new complaint was the valid complaint.

If the original complaint was the only complaint dismissed, then the amended complaint should still be valid and that one you filed an opposition to their motion to dismiss on and the dismissal of the original complaint should be a moot issue if the amended complaint was filed in time because that is the valid complaint and the dismissal of the original complaint should not impact the amended complaint you filed.
Customer: replied 1 year ago.

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?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You would file a motion to quash/strike their motion to dismiss for failure to file the 9A package as required by the statute. Their response is improper if the amended complaint was filed before the dismissal and the amended complaint was never dismissed.
Customer: replied 1 year ago.

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?

Expert:  Law Educator, Esq. replied 1 year ago.
All of that regarding the legal consideration of what is a motion etc. has to be in your objection to the MTD. You can briefly mention in your cover letter you are seeking to dismiss and/or strike their motion to dismiss because of those reasons and do not expound on them in the cover letter, that should all be expounded on in the motion/objection itself.

You do not care if the original complaint was dismissed as long as the amended complaint is still active.
Customer: replied 1 year ago.

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.

Expert:  Law Educator, Esq. replied 1 year ago.
If they filed the MTD and not the package, it is ground to strike their MTD though.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 92536
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 10 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

thank you Paul, I appreciate your help.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you.
Customer: replied 1 year ago.

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

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. Sorry for the delay, we have been having technical issues with the site that have prevented us from responding.

As you filed your amended complaint in time, your amended complaint should still be valid, as we discussed. You are going to have to file a motion in the court if they do not answer your amended complaint for a default judgment on your amended complaint based on their failure to answer. This will force the court to hold a hearing and rule on the validity of your amended complaint and this will get the case moving again.
Customer: replied 1 year ago.

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?

Expert:  Law Educator, Esq. replied 1 year ago.
You would file the motion for default for them failing to answer the timely filed amended complaint, you would send a copy to the opposing party, they have a right to oppose and the court will set a hearing date. In the default, you would specify they have failed to answer a timely filed amended complaint and as such you are entitled to judgment in your favor by default.
Customer: replied 1 year ago.
Paul, I am a bit confused...I read Mass.R.Civ.P.55 and it looks like I just have to file a request with the court clerk. This would mean that I don't really file a motion (by sending it to the other party), but just bring it to the clerk and file it there. This means however, that I don't present any of the reasons that we discussed, and just ask for default judgement. Please advice. Appreciate your help.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Everything you file is filed through the clerk of court and you send notice to the other party. There is a certificate of service that you have given notice to the other party on what you filed. The motion for entry of default still has to state you are entitled to default based on failure to submit an answer to your complaint.

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