A lot depends on whether your first case was dismissed with prejudice or without. If it was dismissed with prejudice, you will not be allowed to raise the same allegations again against any of the same defendants. With regard to the statute of limitations, having filed a similar complaint in the past will not toll the SOL with respect to your claims in the second case. With respect to the defendants having filed only motions to dismiss and not answers, Rule 15 of the FRCP states that a party may amend its pleading once as a matter of course before being served with a "responsive pleading." A motion to dismiss for SOL is considered a responsive pleading, so you would need to move to amend your complaint. However, there is no need to "reference" the earlier complaint in the second complaint, although the information will need to be disclosed in the discovery process. If defendants do not know about it now, you will need to disclose it eventually and they will probably try to use it to get your second complaint thrown out.
The first case was dismissed without prejudice. The law firm that was involved with one of the defendants from the first case is involved again so they know about the first case but their response is due in three days so I don't know if he will mention it, the other two defendants have filed their motions to dismiss but never mentioned it and I know they have all talked to each other so I don't know what to think about that. When you say they might use the first case to get the second case thrown out, do you mean if the first case was dismissed with prejudice?
Yes, my main concern was if the first case was dismissed with prejudice. The other concern would be a concept called "res judicata," which basically means the thing has already been decided. This would only apply if the judge decided to dismiss the case for a reason, rather than just because everyone agreed to dismiss it for now. As I mentioned earlier, the first case does not toll the SOL, but you might want to mention it just to show the judge that most of the defendants, if not all, were on notice of the nature of your complaint against them some time ago. This would be especially true if in their motion they pretended not to know or claimed unfair surprise or something like that.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).