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Dear Customer, thank you for choosing Just Answer. An amended complaint takes the place of the original complaint (it becomes the "operative complaint").
The allegations and causes of action in the original complaint are no longer at issue, the opposing party will respond only to those allegations and causes of action in the amended complaint, and the court will only have those causes of action and amended allegations before it.
Here is an article with links to cases and statutes regarding amended complaints and additional information regarding the basis for an amendment and general principles regarding the same: http://definitions.uslegal.com/o/order-granting-leave-to-amend-complaint/
Can an instrument as evidence not incorporated into the original complaint, but added in the second complaint take the same precedent as if it were in the original complaint, or is there any evidence that must be part of the original complaint in order to qualify?Or let me ask it another way, if the defense allows a new instrument (evidence) in the Amended complaint (an Agreed Order), is it too bad for them to where they cannot complain about that evidence being part of the Amended complaint?
The amended complaint is "operative" - whatever you draft into the amended complaint (allegations and causes of action) will be considered operative for the remainder of the matter. The original complaint is for most intents and purposes no longer relevant.
I'm familiar with Rule 1.190 and appreciate the revisit; but a question came up regarding new evidence that "assigned" a chose in action from one party to another after the original complaint was filed by the assigned party. Defense cites that because that assignment did not exist at the time of the original complaint, that it can't be considered now, even though it was effected prior to the 2nd Amended Complaint, and incorporated therein with Exhibit. It was allowed by agreed order. It was hard to ask this in the beginning of this question without framing the context.
Is the question whether or not you can allege that the claim is now assigned as one of your factual allegations?
This would be done to establish the plaintiff's standing to sue on the claim.
The breached contract was between a corporation that was admin. dissolved, and an individual. The CEO now wishes to sue the individual for breach, and the chose in action was claimed in a Ch-11 that was abandoned by when converted to Ch-7, reverted back to the shareholder. As shareholder the action was filed by the CEO individually, then a formal assignment was done afterward and incorporated into the 2nd amended complaint.
Unfortunately, this is a complex question of fact as there are a couple of issues here: (1) was the assigned party the original plaintiff? (2) is the statute of limitations at issue - meaning was the amendment filed after the statute passed? (3) is the opposing party contesting the filing - I understand you say the matter was stipulated, but I want to confirm?
Please see above.
No SOL issue.
Opposing party moved for dismissal on no standing; contract was with the corporation, and its officer (sole shareholder) can't sue.
The assigned party IS the original plaintiff.
The Court should allow the amended complaint to include the allegation of an assignment based on the assignment contract. The issue here really isn't the pleading, it is whether or not the Court will allow the Plaintiff to cure the defect in standing after the matter has been filed. As there is no prejudice to the opposing party [meaning that even if the court were to reject the pleading and force the plaintiff to file a second action, the second action would still be within the statute of limitations and the court and the parties would only waste significant resources - the language here is "a waste of judicial resources"]. Unfortunately, I do not have the resources at my disposal to do a case law search for the legal citations to find the argument to support any opposition to a demurrer or motion to strike, but the Plaintiff should be allowed to cure this defect, and the factual amendment to the complaint should be permitted.
I presume if the formal assignment WAS after the SOL, then there might be an issue?
The statute of limitations attaches to the claim - the assignment only gives another person the right to pursue that claim.
To the ORIGINAL claim, or the AMENDED?
Here is an example: if there is a breach of contract action (5 yrs written contract), that expires on June 1. The original complaint is filed April 30, it is timely, but the Plaintiff is not the correct party. The party enters an assignment contract with the proper party on May 15, and assuming the court accepts the pleading, an amended complaint is filed on May 20. The amended complaint would be filed without prejudice as the opposing party cannot argue they were prejudiced by the amended complaint. However, if the amendment was filed on June 2, they may argue that the statute of limitations is an issue (This does not mean that they will win, it just means that the argument will be there).
Great. Thanks. It's on Appeal, final steps; will let you know. :--)