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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 116817
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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i filed a first amended complaint, but due to a procedural

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i filed a first amended complaint, but due to a procedural issue, it was tentatively struck by the magistrate. Ive fixed the issue now, and am refiling it, albeit with some changes and added parties. Should i call this my Second amended complaint, or since the first one was struck, it is as if it was never filed, and so call this the first? thank you
Thank you for your question and for asking for me. I look forward to working with you.

No, since the first one was stricken, you would call this one your first amended complaint, since the other one was removed from the record as though it was never filed.

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Customer: replied 3 years ago.

the magistrate ordered it struck, but the federal judge has yet to ok it, but i assume for all intense and purposes, since i did not object to the motion to strike, it is struck and can use that title. Thank you

Thank you for the clarification. If there was no objection to striking it, but the district judge has not ordered it yet, I would be on the safe side here to avoid confusion and call it Amended First Amended Complaint (since there were defects the judge told you to correct). This way everyone knows it is a refiling of the first amended complaint that was stricken.
Customer: replied 3 years ago.

thank you so much. I did respond to the motion to strike, but did not specifically object (i was playing it safe in case i couldn't get this one in, i might be able to preserve a right of appeal). This amendment is vastly different than the one that has been ordered struck - with new defendants, and charges. That said, is is still preferable to call it amended first amended? Or. now tha tive given you that extra information, just go with second amended? It does seem to matter, as the magistrate is hoping for a slip up.

If you are changing the whole amended complaint from the first amended complaint and the first one has not yet been officially stricken because of your objection, the court would not throw it out if you called this one Second Amended Complaint to be safe, since the first one has not officially been stricken because you filed the objection. With the additional information you just provided, I would suggest calling it Second Amended Complaint and the court should accept that.
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