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Topic: OK to amend complaint prior to resolving Motion to Dismiss?

Created on: 09/16/16 05:00 PM

Replies: 2

CHARLES24


Joined: 09/13/16

Posts: 1

OK to amend complaint prior to resolving Motion to Dismiss?
09/16/16 5:00 PM

I have a complaint filed against multiple parties (in their official and individual capacities) in Federal Court. Naturally, their first response was the Motions to Dismiss; many of which would be considered frivolous.

However, they did bring to light several issues with the way our case was initially plead regarding absolute and qualified immunity.

1. The counts against both state agencies and individuals were combined, stating we were seeking both monetary damages and changes to existing policy and procedure to protect against similar violations to other parties in the future.

2. Paragraphs were each too long, with multiple sentences and need to be divided up before they answer.

No answers have been filed yet, so I am free to amend the complaint until the first answer is filed. If I do so before filing a response to their motions to dismiss, do I refer to the amended complaint or the original complaint?

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CHRIS4


Joined: 11/08/13

Posts: 58

RE: OK to amend complaint prior to resolving Motion to Dismiss?
09/21/16 7:26 PM

someone else more qualified should answer.
IMO, if you plan to amend the complaint, the notify the parties in a motion to amend the pleading. Always, notify the parties in a motion so that there are not surprises.
You may need to respond to the motion to dismiss, check with the rules in your court and jurisdiction.
Be advised that the State and officials will file a defense for immunity because this status must be decided before proceeding further. It is a good idea to prepare your response to immunity either for 11th amendment or otherwise.

Please review the statues on qualified and absolute immunity. you should know the difference before filing a response the motion to dismiss.

In regards to your amended complaint, please use simply language because you are not an attorney. One subject, one verb and include all the elements. every cause of action has its elements. review the section of this jurisdiction and follow the guidelines.

This is just my opinion.
good luck
Judicial and Quasi-Judicial Immunity
The judicial defendants argue that they are entitled to judicial immunity from suit. It is well-established that judges enjoy "absolute immunity from suits for money damages for their judicial actions." Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Moreover, § 1983 provides that "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983; see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (per curiam).

"First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 288 (1991).

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PAULA1


Joined: 11/14/16

Posts: 1

amended complaint granted, defendant lied to his verified answer.
12/29/16 1:46 PM

Hello,
Defendant grossly lied to his verified answer and opposed plaintiff pro se motion to amend complaint.
Plaintiff pro se replied to defendant verified answer with reply affidavit and detailed exhibits about defendant and defendant attorney dishonest allegations.

Motion was granted.

Can defendant and his attorney can be held accountable for their false allegations (lies) in their first verified answer? Thank you

Paula

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