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Patrick, Esq.
Patrick, Esq., Attorney
Category: Personal Injury Law
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Experience:  Attorney with significant personal injury experience
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in a federal lawsuit, i need to notice new defendants in my

Resolved Question:

in a federal lawsuit, i need to notice new defendants in my amended complaint. Does that mean service of process? do i have to do it before i file the motion for leave to file my amended complaint?
Submitted: 11 months ago.
Category: Personal Injury Law
Expert:  Patrick, Esq. replied 11 months ago.
Good evening and thank you for entrusting me to answer your question.

If you are adding new defendants in your lawsuit, then you will need to effect formal service of process upon them as you would any other defendant in a new legal action.

This does not need to be done until after the court has granted your motion for leave to file the amended complaint, as until that point in time the additional defendants have not (and may not ever be) named in your lawsuit.

Pursuant to FRCP 4(m), you will have 120 days (extended if you can show good cause for the delay) to serve the new defendants once the court has granted you leave to amend.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 11 months ago.

awesome answer, thank you. I dont want to take up more of your time, so just need 3 words form you on these last ones in the form of Yes, no, or maybe - i can pick it up from there..thanks again for the helpful response.


 


1) must i file a separate motion to add new defendants, or just include it in this motion for leave?


2) do I need to schedule a hearing? usually they dont want that in this western district of ohio.


3) do i have to include a Proposed order granting motion for leave?

Expert:  Patrick, Esq. replied 11 months ago.
Thank you for your reply. It's my pleasure to assist you further, so do nnot worry about taking up more of my time.

The answers to your questions are as follows:

1) must i file a separate motion to add new defendants, or just include it in this motion for leave?

If you are intending to file a motion for leave to amend other aspects of your complaint, the court should have no problem with you including a request to add additional defendants within the same motion for leave. As a caveat, some courts and judges are very particular and may have diferent requirements--my answer is based only on my personal experience in federal court.

2) do I need to schedule a hearing? usually they dont want that in this western district of ohio.

Pursuant to FRCP 15, plaintiffs only get to amend their complaint "as a matter of right" (meaning without a hearing or motion) under two circumstances--before a reply is served to the initial complaint, or before 20 days have passed since the initial complaint was served.

If either of these exceptions apply, you need not schedule a hearing, you need only submit the paperwork to the court. Otherwise, a motion and hearing must be scheduled and you must explain your reasons for why the request for leave to amend should be granted.

3) do i have to include a Proposed order granting motion for leave?

This depends largely on the local rules. It's usually a good idea to include a proposed order along with a copy of the proposed amended complaint with the amended portions in bold, red, or otherwise highlighted.

Good luck to you.
Patrick, Esq., Attorney
Satisfied Customers: 6739
Experience: Attorney with significant personal injury experience
Patrick, Esq. and other Personal Injury Law Specialists are ready to help you
Customer: replied 11 months ago.

oh man, fantastic answers, much better than the three words..I was absolutely wrong on all three points! this motion would have gotten killed come tomorrow!!! I dont know how ive gotten this case to this point after a year against a dozen wealthy people, but the fight must go on for Goodocity sake!! thank you again...have a great night.

Expert:  Patrick, Esq. replied 11 months ago.
I am glad I was able to be of assistance to you. I wish you the very best of luck in your litigation!

Have a pleasant evening.
Customer: replied 11 months ago.

i forgot, I am adding some defendants, parents of the main defendant who are also partnered with him in one of this companies, who hid assets in a divorce, and funded -and continue to fund- his romp thru the legal system. There is a name for this, something like "parties in fact" or "parties in actuality" or something close that means they belong as named defendants as I found they have conspired with the main . WOuld you know what term i am looking for? thank you

Expert:  Patrick, Esq. replied 11 months ago.
Hmm, no specific term is coming to mind, though you could use "co-conspirators," to describe their relationship to your allegations.

Really, there is no specific term the court will require you to include in your pleadings to establish the liability of a related party.

When pleading a complaint, the U.S. Supreme Court established in Bell Atlantic Corp. v. Twombly that a plaintiff need only include enough facts in their complaint to make it plausible that they will be able to prove facts to support their claims.

So, neglecting to use a particular term to describe the legal relationship between parties in a complaint (assuming such term in this context even exists, because I am not aware of it) would not somehow amount to a legal deficiency in your amended complaint.

I hope this provides some clarification.
Patrick, Esq., Attorney
Satisfied Customers: 6739
Experience: Attorney with significant personal injury experience
Patrick, Esq. and other Personal Injury Law Specialists are ready to help you

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