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richanne96, Attorney
Category: Personal Injury Law
Satisfied Customers: 343
Experience:  Attorney in private practice in Phoenix, AZ
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I filed a federal case (ERISA) and need to know if a previous

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I filed a federal case (ERISA) and need to know if a previous case involving the same allegations and some of the same defendants needs to be referenced in the complaint (if so, I'll have to file an amended complaint) The first case was filed about two years ago and voluntarily dismissed by my attorney in a different jurisdiction. Second, can I file an amended complaint as a matter of course if the defendants have only filed motions to dismiss and not answers? Part of the motion to dismiss is based on SOL and the first case was without question timely, so can that be used to toll the SOL?

richanne96 :

A lot depends on whether your first case was dismissed with prejudice or without. If it was dismissed with prejudice, you will not be allowed to raise the same allegations again against any of the same defendants. With regard to the statute of limitations, having filed a similar complaint in the past will not toll the SOL with respect to your claims in the second case. With respect to the defendants having filed only motions to dismiss and not answers, Rule 15 of the FRCP states that a party may amend its pleading once as a matter of course before being served with a "responsive pleading." A motion to dismiss for SOL is considered a responsive pleading, so you would need to move to amend your complaint. However, there is no need to "reference" the earlier complaint in the second complaint, although the information will need to be disclosed in the discovery process. If defendants do not know about it now, you will need to disclose it eventually and they will probably try to use it to get your second complaint thrown out.


The first case was dismissed without prejudice. The law firm that was involved with one of the defendants from the first case is involved again so they know about the first case but their response is due in three days so I don't know if he will mention it, the other two defendants have filed their motions to dismiss but never mentioned it and I know they have all talked to each other so I don't know what to think about that. When you say they might use the first case to get the second case thrown out, do you mean if the first case was dismissed with prejudice?

richanne96 :

Yes, my main concern was if the first case was dismissed with prejudice. The other concern would be a concept called "res judicata," which basically means the thing has already been decided. This would only apply if the judge decided to dismiss the case for a reason, rather than just because everyone agreed to dismiss it for now. As I mentioned earlier, the first case does not toll the SOL, but you might want to mention it just to show the judge that most of the defendants, if not all, were on notice of the nature of your complaint against them some time ago. This would be especially true if in their motion they pretended not to know or claimed unfair surprise or something like that.

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