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I filed a civil rights complaint in Federal District Court…

Customer Question
I filed a civil rights...
I filed a civil rights complaint in Federal District Court pro se, in forma pauperis.
My complaint was too lengthy and poorly written. It was dismissed without prejudice for failure to state a claim upon which relief could be granted. (before being served on defendants)
The complaint was filed on the last day within the (underlying Virginia) Statute of Limitations.
Can I file a motion for leave to Amend Complaint? If not, what vehicle do i use to refile a more concise pleading? Is the SoL still tolled? I cannot find an answer in the FRCP, but I am untrained, and the answer may be there. Any help?
Submitted: 8 years ago.Category: Legal
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6/22/2010
Lawyer: Law Educator, Esq., Attorney replied 8 years ago
Law Educator, Esq.
Category: Legal
Satisfied Customers: 126,872
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Unfortunately, when a complaint is filed so close to the statute of limitations the dismissal even without prejudice does not toll the statute of limitations and you would have had to have filed the complaint within the appropriate statute of limitations to have had the claim remain viable, which is why it is not in the FRCP. The filing of a complaint which is later dismissed without prejudice tolls the statutory filing period finds little support in the federal courts. It is generally accepted that a dismissal without prejudice leaves the situation the same as if the suit had never been brought, and that in the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending. Bomer v. Ribicoff, 304 F.2d 427 (6th Cir.1962); 5 Moore's Federal Practice p 41.05.

While the limitations period is "tolled" for some purposes upon the filing of a complaint, this notion of tolling is a very limited one. Generally, but for outside influences which may sometimes toll the running of the limitations period (e.g. insanity, minority, etc.) the statute of limitations is not otherwise "interrupted." This is obvious from the doctrine which indicates that dismissals without prejudice operate to leave the parties as if no action had ever been commenced.... If the period of limitations has run by the point of such a dismissal, any new action is generally untimely. Harris v. City of Canton, Ohio, 725 F.2d 371, 376-77 (6th Cir.1984) (citations omitted).

Thus, you would most likely be you of luck here unless you can find some other underlying statute that you can file under.


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Law Educator, Esq.
Category: Legal
Satisfied Customers: 126,872
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Customer reply replied 8 years ago
Thanks for the timely answer.
What would be the appropriate way to re-file, absent a S of L bar?
Lawyer: Law Educator, Esq., Attorney replied 8 years ago
You just file your suit again from the beginning with a new complaint like it had never been filed before.
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