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In a Federal Court civil action where an Amended Complaint

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In a Federal Court civil action where an Amended Complaint has been filed with a Motion for Leave to Amend that has been denied, is there a procedure for withdrawing the Amended Complaint, or is its filing and the Court's order denying it too late for a procedural withdrawl that would allow changes the Court might allow in a subsequent Amendment?
Submitted: 11 months ago.
Category: Legal
Expert:  John replied 11 months ago.
Hi, My name is XXXXX XXXXX I’m happy to assist you with your question today.

There is no way to withdraw a motion that has already been ruled on. Motions may only be withdrawn with consent of the court and opposing party, but that is before the court has issued an order on the matter.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

John, Attorney
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Customer: replied 11 months ago.

There is a still unruled upon Motion to Amend a previous Order, or clarify it, which pertains to the Amended Complaint that was filed. There was 15 days allowed for all parties to respond prior to the Court's ruling on that Motion. My follow up question would be, filing the Amended Complaint BEFORE the disposition of this other Motion would have been inappropriate procedure? Meaning, that regardless of a previous deadline to file an Amended Complaint, as long as this intervening Motion to Amend the Order was responded to by the Defense and ruled upon by the Court, procedure would dictate an Amended Complaint could not be timely admitted until that Motion was ruled on?

Expert:  John replied 11 months ago.
Michael,

Yes, filing (or attempting to file) the amended complaint while there was a motion pending on it would not be appropriate and I'm doubtful the court would even let it be filed....or in any event the other party would successfully object to its entry pending the motion. Or if it was entered the court may strike it after ruling on the motion.

Hope this helps. Let me know if I may be of further assistance.
John, Attorney
Category: Legal
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Customer: replied 11 months ago.

John, not to belabor this, but my specifying procedure here, or lack of it, was because the Court in its ruling to Deny the Leave to Amend made no mention of the Motion filed only a couple days before to clarify its prior Order. In fact, the Court dismissed citing that its instructions of allowing an amended complaint were not followed, and it was those very instructions that was challenged. I would have thought (not trying to read into the mind of a lifetime appointed Judge) that he would have stated the leave to amend was out of order. It's as if he didn't recognise what the court docket shows as "All parties have until [15 days] to file a response." Does the unresolved Motion toll the deadline originally set by the court to file an Amended Complaint (by this 15 days plus disposition)? (I know these Judges can do pretty much anything they want; and they're often more mysterious than Jesus.)

Expert:  John replied 11 months ago.
Courts often times will rule well before the briefing schedule or oral argument is completed. Their view is that they allow briefing to assist them in making a decision. But, if they think they've heard enough, they'll just go ahead and rule. It's disappointing when it happens...it's happened to me...because you believe you have relevant points to make in further briefing or oral argument. But the court always has complete authority to rule on a matter before it; even on its own volition.
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Customer: replied 11 months ago.

Does the unresolved Motion to reconsdier and/or amend its previous toll the deadline originally set by the court to file an Amended Complaint?

Expert:  John replied 11 months ago.
No, a motion to reconsider does not toll the deadline unless the court otherwise granted a tolling for that reason or an extension in time.
John, Attorney
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Customer: replied 11 months ago.

The Court enters an Order giving Plaintiff 20 days to file an Amended Motion. Two days before that deadline, Plaintiff files a Motion for the Court to reconsider or clarify some ambiguity to the Order. The Court docket reflects that all parties have 15 days to respond to that Motion. Two days later the Plaintiff timely files an Amended complaint that skirted what the Court stipulated (added a new count), and the Court denied Leave to Amend, citing that very reason as beyond its prior order's instructions. The Motion to Clarify, reconsider and/or Amend still hangs in the air, and if the Court found the points raised in it, by the Plaintiff, had merit, then the Amended complaint's new count would be accepted.


QUESTION: Since the time directed by the Court for the Plaintiff to file an Amended complaint has passed, since the Amended complaint that was filed on time was denied, is it now futile to file anything else before the response time of the Motion lapses and the Court rules on that; or does the time given for responses to this pending motion allow for filing another amended complaint that comports more to what the Judge's original instructs required? (No new counts.) I'm asking as a matter of procedure when a Motion is hanging in the air, un-ruled upon.

Expert:  John replied 11 months ago.
Michael,

Yes give it a try. To be sure I'm not at all sure the judge will consider it. But because your matter seems to be more an issue of not following some specific procedure rather than the court finding that the amendement is not sunstantively valid, it would seem you could cure the procedural violation by re-filing and finally get a ruling on te merits of your argument.

Hope this helps. Thanks.
John, Attorney
Category: Legal
Satisfied Customers: 2912
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Customer: replied 11 months ago.

Since posing my question, I decided to do a Motion for EOT until he rules on the pending Motion, and in my EOT I note that I will promptly file a new Amended Motion based on his clarification of the Order. It also puts him on the spot to reveal his disposition, since an EOT does not prejudice the Defense, and under the circumstances of the un-ruled Motion, gives me the opportunity to tailor make it as it needs to be based on his disposition. If he shoots down the EOT, then nothing else I file will fly very far. Unless you can think of something. Thanks.

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