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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26826
Experience:  Began practicing law in 1992
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We filed a complaint, and the defendant sent us their motion

Customer Question

We filed a complaint, and the defendant sent us their motion to dismiss. We filed an amended complaint the day before they sent a Rule 9A package to court saying that we did not send a timely opposition (we did not because we filed an amended complaint). Based on their Rule 9A package our original complaint was dismissed - the judge obviously did not see our amended complaint. However, they sent a motion to dismiss our amended complaint before this ruling. We sent them opposition to their motion to dismiss our amended complaint, and according to Rule 9A they were supposed to send a 9A package to court. They did not do it saying that since the original complaint was dismissed, the whole case is over. My question is: can we request a default for not responding to our amended complaint?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 : Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.
JD 1992 : You can file it but it won't be granted. There is no real need to file an additional Answer or an Amended Answer to an Amended Complaint.
JD 1992 : The courts are extremely strict as far as default judgments and extremely lenient on what constitutes an Answer.
Customer: I am not sure i understand.... I am not looking to file an amended answer, but was wondering if I could file a request for default....
JD 1992 : I'm sorry I wasn't clearer. You can file the Request for Default Judgment but it isn't likely to be granted. There is no need to amend an answer or file another one just because the Plaintiff's amend their petition. You only amend an answer if something changed in your answer.
Customer: I am still confused...Sorry...We are the Plaintiffs, and we filed an amended complaint, which is just sitting there without any move. The other party is saying that since your original complaint was dismissed, they are not going to send a rule 9A package that contains their MDT our amended complaint and their opposition to this motion.
Customer: sorry -- our opposition to their MTD
JD 1992 : Did the judge dismiss the case? If so, did you move to get it reinstated?
Customer: yes to both. We filed a motion to reconsider (our original complaint) and it is in the works now. But we submitted our amended complaint BEFORE the original was dismissed. Is it still active? Can we ask for default judgement on it?
JD 1992 : If the judge dismissed the case then your pleadings aren't active.
JD 1992 : Did the defendant file an answer to your original complaint?
Customer: They filed a motion to dismiss our original complaint. Instead of filing the opposition, we filed the first amended complaint. But we filed it in court the day before their Rule 9A package was filed where they asked to dismiss the case for not receiving our opposition (which the judge did). But the amended complaint was already filed by then!
JD 1992 : I understand that but of the judge granted the Motion to Dismiss then your case is dismissed, regardless of what you filed.
JD 1992 : Did the Defendant file an answer to your original complaint?
Customer: No, there was no answer, just a motion to dismiss (which is not a responsive pleading according to Rule 7A, that's why our amended complaint was filed properly).
Customer: So I guess, the judge made a mistake?
JD 1992 : Probably so, since your Amended Complaint was on file. However, since he signed the order to dismiss then the case isn't active and you can't get a default judgment. If you can get it reinstated and they didn't file an answer at all then you can ask for a default judgment.
JD 1992 : What they should have done is file an Answer subject to and without waiving their motion to dismiss.
Customer: So we file a motion to reconsider, and they (of course) filed an opposition, which we sent as a Rule 9A package to court. We are waiting for the decision. But my concern is if the judge already made a mistake once, she won't admit it, and will rule against us....what are our options then?
Customer: sorry - we filed already a motin to reconsider
JD 1992 : You would then have to appeal.
Customer: so let me see if I understand it correctly: Even though our amended complaint was filed properly, it is not active since our original was dismissed (though wrongly).
JD 1992 : Correct
Customer: What is your experience is the situations like this? have you ever seen that the judge overturned her/his own decisions?
JD 1992 : Sure, it happens all the time. Most judges would rather correct a bad decision now than be overturned by the Court of Appeals.
Customer: So if we have to file an appeal, it is a whole new story and is done in a different court? we are in MA Supreme COurt now
JD 1992 : Correct.
Customer: well, i guess we just have to wait and see.....what is your general are of law? are you in MA?
Customer: area
JD 1992 : No, I'm not in MA. My practice area was trial law, I just consult now.
Customer: oh, ok....well, thank you very much for yoru help.
JD 1992 : You're very welcome.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26826
Experience: Began practicing law in 1992
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