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Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11701
Experience:  25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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Andrea: Thank you for your very long, detailed answer last

Resolved Question:

Andrea:
Thank you for your very long, detailed answer last time. Over all you have given me the best service on "justanswer".

Here's my latest two related questions:

In my civil suit the federal district court first removed it from Florida state court where I had wanted it to stay. Next they dismissed my case with prejudice without my having a hearing.
I'm in the process of appealing to the Atlanta federal appellate court.

I've two related questions:

(1) I sent the defendants attorney a list of my issues about 12 days ago.
Can I bring up new issues I've just thought off? I suppose I'll have to report my new issues to the defendants lawyer, as I was required before to send her a list of issues I was to raise in compliance with rule 10(b)(3)(A).
My concern here stems from federal appellate rule 10(b)(3)(A);

"(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement; "

I'm hoping the words "issues that the appellant intends to present" means I might present other issues that I discover later, since "intends" is not the same as "will." I would hope I can add new issues I discover as long as I make an additional disclosure to the defendants (appellee) attorney.

(2) One such new issue I'd like to bring up is the district court stated it did not need to rule on the merits of the case to dismiss it at the complaint stage before there was even a hearing.
Then at the end they dismissed the case with prejudice. My legal dictionary defines dismissal with prejudice and then states it is usually done in a case where there has been adjudication on the merits.
So it seems to me the district court implied it was ruling only on the complaint to justify the dismissal but then turned around and did a dismissal with prejudice which is unusual if the merits of the case have not been looked at.

Here are the district court words I'm talking about:

"I. STANDARD OF REVIEW
"A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. See Milburn v. United States, 734 F.2d 762"

Then at the end the district court further states:

" This Case is DISMISSED WITH PREJUDICE.
The Clerk of Court is directed to CLOSE this case. "

While my Legal Terms dictionary says:
"Dismissal with prejudice. Usually an adjudication upon the merits that acts as a bar to further action..."

So to summarize, (1) Can I add new issues at this early stage of the appeals process?

And (2) Is it useful to raise the issue that the district court seems to be pushing the envelope on dismissal with prejudice while implying it's not judging the merits of my case?

Thanks, Phil
Submitted: 1 year ago.
Category: Legal
Expert:  Andrea, Esq. replied 1 year ago.

Hi, again and thank you for requesting me,

 

In Answer to your questions,

 

1. The Rule you are referring to means that you have to state all the issues you intend to present to the US Court of Appeals. However, if I were in your position, I would include the other issues also because the worst that can happen is that the Court of Appeals tells you that it will not hear them because they were not stated and submitted within the 14 days as prescribed by the Rules;

 

2. I agree with you. What the District Court said is ambiguous and confusing. However, that is why you are appealing. Even if the District Court dismissed your case with prejudice, that does not preclude you from raising that issue on appeal and having the Court of Appeals review the dismissal. Submit a statement that the District Court did not try the case on the merits. If the Court of Appeals says that you did not state a cause of action in your Complaint, then ask the Court of Appeals to allow you to file an "Amended Complaint" in the District Court,

 

_____________________________________________________________________

 

 

Please be kind enough to rate Excellent Service" so that I receive credit for assisting you,

 

Bonus and Positive Feedback on survey is very much appreciated,

 

ANDREA

 

 

Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11701
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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