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Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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At the risk of annoying Justanswer for re-asking a question,

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At the risk of annoying Justanswer for re-asking a question, I need a little hand holding on the question of filing the amended complaint that you answered yesterday. Facts: if the 1st defendant's motion to dismiss was filed on 6/19 and I theoretically have 14 days to respond, my response was due yesterday. Also using the 6/19 filing date as the trigger point for filing an amended complaint as a matter of course within 21 days, that would need to be filed by 7/9 correct? and if I file the amended complaint by 7/9 I don't need to even bother responding to the motion(s) to dismiss???

RayAnswers :

Thanks for your follow up.It is never a problem to ask an additional question.

RayAnswers :

You do not have to respond to his motion to dismiss.That is optional here the court wold rule on it as opposed to your amended complaint.So amending this timely as you suggest by 7/9 is a good idea.You can still also try to file a response here, it never hurts but is not mandatory that you do so.

RayAnswers :

You do have to amend your complaint timely here under the FRCP I gave you in our prior discussion.

RayAnswers :

Since time may be a problem here filing your amended complaint as soon as you can may be your priority to avoid any chance of dismissal.

RayAnswers :

If you can amend here and correct your pleadings the court should deny his motion as it is no longer a valid objection as your complaint is now in compliance.

RayAnswers :

Remember this rule allows you to amend here ..

RayAnswers : Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

(b) Amendments During and After Trial.

(1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

(2) Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

RayAnswers :

Please let me know if you have more follow up.I appreciate the chance to help.


I was in the process of responding to the motion even though it would be a day late and beg for understanding since I am pro se, but I got to a point where I needed to address some issues that would change from the complaint to the amended complaint and didn't know if I should address those issues as pertaining to the original complaint or the amended complaint. The way I read the rule, I have 21 days after a motion to amend so that would be Tuesday. Just wondering if I should just forget about responding to any of the motions to dismiss (response to the 1st was due yesterday, 2nd is due Monday and 3rd is due 7/16) and just get the amended complaint in.

RayAnswers :

I would work on the amended complaint first and see if there is any time left.Prioritizing is a great idea.You have to get the amended complaint in here to keep it from being dismissed.

RayAnswers :

Thanks for letting me help you.I appreciate the chance and there are no dumb questions.


Is there any value to responding to the motions? I don't want to screw anything up but I also don't want to waste any time on something that won't matter

RayAnswers :

If time permits it is always a good idea to respond.But its a matter of time here.If only have limited time given your situation spend it first on amending.There is value in doing both but if you have to pick one then spend time on amending complaint.

RayAnswers :

And remember if it gets dismissed here you can refile it, the dismissal is likely without prejudice.

RayAnswers :

You would have to pay the filing fees but other than that you can refile another new suit if you have to and reserve.

RayAnswers :

I wish you the best.I appreciate the chance to help.Have a great fourth.

RayAnswers :

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This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

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