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I filed an amended complaint that the court ordered be filed.

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I filed an amended complaint...
I filed an amended complaint that the district court ordered be filed. One defendant did file any answer to the original complaint due to lack of process of service. Prior to effecting service, this defendant moved for summary judgment as to the amended complaint 25 days before the amended complaint being filed in the record and service being effected. The defendant waived service after filing summary judgment, prior to the amended complaint being filed. The court granted summary judgment. I moved under Rule 60(b)(4) for an order rendering the granting of summary judgment void due to lack of subject matter jurisdiction and lack of process. The court has repeatedly denied me, and has yet to enter a Rule 54(b) judgment. If I move for a Rule 54(b) certification so the Circuit court can decide, can the district court deny the motion when it ordered this defendant removed from the docket and record? Action is in federal district court.
Submitted: 8 years ago.Category: Legal
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6/17/2010
Lawyer: Richard - Bizlaw, Attorney replied 8 years ago
Richard - Bizlaw
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Satisfied Customers: 10,841
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I am a little confused. One defendant who was not served with the original complaint filed a motion for summary judgment as to the amended complaint before he was served with that complaint is that correct? If you brought the complaint in the district court why would you say the court lacks subject matter jurisdiction to decide the motion for summary judgment? Are you saying you were never served with the motion papers for summary judgment or are you saying that the court could not render judgment on the amended complaint because the defendant had not been served? Was there an order striking the defendant from the case prior to him moving for summary judgment? Did the amended complaint name this defendant as a defendant in the amended complaint?

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Customer reply replied 8 years ago
The court granted dismissal of the [estate] defendant due to no personal rep. of the estate being appointed. Then the court placed the action on the "inactive" docket until and when a rep. of the estate was appointed and ordered an amendment of the complaint and service to be effected upon the personal rep. being named. This Defendant, filed a motion for summary judgment after the personal rep. was appointed, but before the amended complaint was filed in the record, served upon the estate, and service of process was effected. This renders the granting of the estate's motion for summary judgment a nullity, correct?
Lawyer: Richard - Bizlaw, Attorney replied 8 years ago

No it is not a nullity because the estate waived service of process as it could do. So the matter was addressed on the merits. If you lost then you will have to appeal.

 

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

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Customer reply replied 8 years ago

How could it not be a nullity when the motion for summary judgment was filed prior to the amended complaint being filed, process being effected, and waiving process? The court granted summary judgment as to the amended complaint. An amended complaint would have had to be filed and served prior to summary judgment being filed and served.

Lawyer: Richard - Bizlaw, Attorney replied 8 years ago

You said the motion was filed to you serving the amended complaint not that it was filed before the amended complaint. If the only change in amended complaint was to name a personal representative then the substance of the complaint was unchanged and the court could address the merits of the case. Understand a summary judgment is a ruling based on undisputed facts. Unless you can show that the amended complaint in some way is different such that the facts the court found are no longer relevant or over taken by other facts, you lost on the merits and your technical applications to overturn the ruling will be denied as they have been.

 

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

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Customer reply replied 8 years ago
However, doesn't the filing of an amended complaint supercede the original complaint? Therefore, the estate filing it's motion for summary prior to the amended complaint being filed would establish the motion was directed at the original complaint which ceases to exist when the amended complaint was filed. The motion was filed 25 days prior to the amended complaint being filed, service of process being effected, and waiver of process. How could the court find it had subject matter jurisdiction or personal jurisdiction as to the motion? A motion cannot sit in suspension waiting for an amended complaint to be filed?
Lawyer: Richard - Bizlaw, Attorney replied 8 years ago

If the new complaint is identical to the first except that instead of suing the estate you sue the personal representative, there is no substantive difference between the two complaints and the court will not keep a case that deserves to be dismissed on some inconsequential technicality. Whether the original complaint or the amended complaint the result will be the same.

 

This communication is not intended as legal advice. A local attorney should always be consulted for legal advice. No client/attorney relationship is intended or created by this communication.

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Customer reply replied 8 years ago
Relist: Inaccurate answer.
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