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Appeal/Complaint writing resources
In most circumstances, if your opponent files only a Motion to
Dismiss your Original Complaint (NOT an answer), you retain your
right to file a completely different Amended Complaint (within
possible time limits) before the court rules on the Original. Often,
you can learn enough from the opponent's motion to cure all original
defects, and make their motion fail. Once the court rules on their
Motion to Dismiss, your one free right to Amend no longer exists.
Time is of the essence in filing your amended version.
Experienced Appellate Attorney available to write or rewrite your
original complaint or appeal opening brief.
Bob Hirschfeld, JD
PO Box 696, Lukeville AZ 85341
TelMX: 011 52 638 382 0214
nolawyer@nolawyer.com
Useful series of videotaped lectures on self representation:
Tape #1 Civil Procedure, Court Appearance $23.80 postpaid
Tape #2 The Appeal Process $23.80 postpaid
Tape #3 Power and Pitfalls of Federal Court $23.80 postpaid
Tape #4 Preparing for Trial $23.80 postpaid
Tape #5 The Buck Stops Here: US Supreme Ct. $23.80 postpaid
Or all five tapes for $99.00 postpaid
http://www.appealpro.com/lawtapes.html
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In most circumstances, if your opponent files only a Motion to
Dismiss your Original Complaint (NOT an answer),
But a responsive pleading.....
you retain your
right to file a completely different Amended Complaint (within
possible time limits) before the court rules on the Original. Often,
you can learn enough from the opponent's motion to cure all original
defects, and make their motion fail.
If that's the case, the court will dismiss with leave to amend.
Once the court rules on their
Motion to Dismiss, your one free right to Amend no longer exists.
Doesn't the responsive pleading destroy that right anyway?
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A Motion to Dismiss, filed in the absence of an ANSWER to the COMPLAINT, is
NOT
the kind of "responsive pleading" which cuts off your right to Amend without
leave of court. I have many times, in both State and Federal Cases, mooted
the filed-alone
Motion to Dismiss by filing an Amended Complaint. A Responsive Pleading
deals, blow-by-blow,
with the claims and allegations of the original complaint, whereas a Motion
to Dismiss may
deal with peripheral issues, such as validity of service, jurisdictional
defects, etc., without
addressing the merits of the Complaint. Therefore a Motion to Dismiss is NOT
RESPONSIVE
within the meaning of FRCP 15(a) or state rule equivalents, in the manner
that an ANSWER would be.
Robert A. Hirschfeld, JD
http://www.nolawyer.com/lawtapes.html
In most circumstances, if your opponent files only a Motion to
Dismiss your Original Complaint (NOT an answer),
But a responsive pleading.....
you retain your
If that's the case, the court will dismiss with leave to amend.
Doesn't the responsive pleading destroy that right anyway?
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A Motion to Dismiss, filed in the absence of an ANSWER to the COMPLAINT,
is
NOT
the kind of "responsive pleading" which cuts off your right to Amend
without
leave of court.
Got cite?
Also, if amendment would cure the defect, then dismissal is inappropriate.
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Got cite?
Also, if amendment would cure the defect, then dismissal is inappropriate.
I actually did this technique once in a pro se lawsuit. I filed the
Complaint. Then, instead of filing an Answer, the Defendants' lawyers filed
a Motion to Dismiss for Failure to State a Claim Upon which Relief Could be
Granted. In their motion papers, they stated all of the reasons why my
Complaint was deficient and didn't state a valid cause of action.
I read and re-read the Rules of Court and discovered that I could file an
Amended Complaint at any time prior to a responsive pleading being filed by
the Defendants. I looked up "responsive pleading" and discovered that a
Motion to Dismiss is not a responsive pleading.
So, I filed an Amended Complaint, making sure to correct the alleged
deficiencies, and then I filed my response to the Motion to Dismiss. The
Defendants' lawyers went ballistic because then they had to argue why their
Motion to Dismiss the original Complaint should be granted while, at the
same time, there was now an Amended Complaint filed and served. They wrote
all kinds of letters and papers to the Judge and, if I remember correctly,
filed another Motion to Dismiss the Amended Complaint.
In the end, the Judge granted their Motion to Dismiss both the Complaint and
the Amended Complaint. The Defendants had a huge law firm behind them that
cranked out tons of legal paperwork which, in my humble opinion, were just
done to snow and/or intimdate the Judge. Their legal reasoning as the basis
for the dismissal made no sense to me. Their claim was that my Complaint
was a derivative action and didn't conform to the requirements of a
derivative action claim. But, my Complaint was in no way a derivative
action.
I then filed an appeal and won the appeal. The Complaint was re-instated
and went back to the Trial Court the Defendants then had to file an Answer
and proceed with the case. The case was later settled.
So, in my case, the Amended Complaint cured any alleged defect. And,
despite that being done, the dismissal was inappropriate.
It was a real Alice in Wonderland experience for me. I had never done
anything like this before and had to look up the meaning of EVERYTHING when
I started. I didn't even know what a pleading was, let alone a responsive
pleading. But, somehow, I figured out this little loophole or "work around"
in the way the Rules of Court were written.
By the way, I don't recommend doing cases pro se unless you have no other
alternative. In my case, there was no other choice. It was tedious, hard
work, but I learned a lot.
I am not a lawyer.
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STOP TRY TO SELL YOUR FUCKING BULLSHIT INFO U COCKLESS FUCK GO BUY AN
INFOMERSAL SCUMBAG PIECE O SHIT NOW PLEASE DIE AND BURN IN HELL . OH THATS
RIGHT U ARE A LAWTALKIN LIER UR ALLREADY HELL PETTLE UR SHIT ELSE WHERE DICK
Appeal/Complaint writing resources
In most circumstances, if your opponent files only a Motion to
Dismiss your Original Complaint (NOT an answer), you retain your
right to file a completely different Amended Complaint (within
possible time limits) before the court rules on the Original. Often,
you can learn enough from the opponent's motion to cure all original
defects, and make their motion fail. Once the court rules on their
Motion to Dismiss, your one free right to Amend no longer exists.
Time is of the essence in filing your amended version.
Experienced Appellate Attorney available to write or rewrite your
original complaint or appeal opening brief.
Bob Hirschfeld, JD
PO Box 696, Lukeville AZ 85341
TelMX: 011 52 638 382 0214
nolawyer@nolawyer.com
Useful series of videotaped lectures on self representation:
Tape #1 Civil Procedure, Court Appearance $23.80 postpaid
Tape #2 The Appeal Process $23.80 postpaid
Tape #3 Power and Pitfalls of Federal Court $23.80 postpaid
Tape #4 Preparing for Trial $23.80 postpaid
Tape #5 The Buck Stops Here: US Supreme Ct. $23.80 postpaid
Or all five tapes for $99.00 postpaid
http://www.appealpro.com/lawtapes.html
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Experienced Appellate Attorney available to write your appeal.
Bob Hirschfeld, JD
nolawyer@nolawyer.com
PO Box 696, Lukeville AZ 85341
TelMX: 011 52 638 382 0214
http://www.nolawyer.com
Useful series of videotaped lectures on self representation:
Tape #1 Civil Procedure, Court Appearance $23.80 postpaid
Tape #2 The Appeal Process $23.80 postpaid
Tape #3 Power and Pitfalls of Federal Court $23.80 postpaid
Tape #4 Preparing for Trial $23.80 postpaid
Tape #5 The Buck Stops Here: US Supreme Ct. $23.80 postpaid
Or all five tapes for $99.00 postpaid
http://www.nolawyer.com/lawtapes.html
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