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    February 20, 2021 Practice Points

    Preserving Error When Amending a Complaint after Claims Have Been Dismissed

    What may be unclear for many attorneys is how to preserve error when amending a complaint after some claims have been dismissed.

    By Monette Davis

    In federal court, Rule 15 of the Federal Rules of Civil Procedure allows a party to amend its pleading only with the opposing party's consent or the court's leave when justice so requires. With this rule, leave to amend a pleading is freely granted. However, what may be unclear for many attorneys is how to preserve error when amending a complaint after some claims have been dismissed.

    This issue is likely to occur more often than one might think. One of the most common ways is when a trial court rules on a motion to dismiss, dismissing multiple causes of action. Another method by the trial court can be to grant the motion to dismiss the incurable cause of action with leave or without leave to amend. For example, a trial court might dismiss an incurable cause of action, giving the plaintiff the right to leave to amend such actions that were in the original complaint.

    Attorneys familiar with Rule 15 are aware that an amended complaint supersedes the original complaint, and thus becomes the active pleading in the case. The Ninth Circuit has a simple rule regarding an attorney's desires to preserve the right to appeal the dismissal of an individual cause of action.

    In Cirino v. Ocwen Loan Servicing, LLC, No. 19-55817 (9th Cir. Aug. 7, 2020) (unpublished), the Ninth Circuit notes that a plaintiff does not have to replead a dismissed cause of action in an amended complaint in order to preserve error. The plaintiff may instead continue its case with the remaining claims.

    Even though the Ninth Circuit’s rule makes waiver unlikely, two noteworthy tips are provided here about preserving error for appeal. First, always have in mind preserving error for appeal. Because jurisdictions may not apply the same rules, and not all rules are as easy to follow as the Ninth Circuit’s rule on preserving error for dismissed claims when amending a complaint, it is important to pay close attention to the claims in the complaint. Second, be sure to include all claims that were originally alleged. This will help plaintiffs avoid the likelihood of claims being dismissed because of the failure to state a specific claim.

    Monette Davis is an attorney with Stone Pigman Walther Wittmann L.L.C. in New Orleans, Louisiana.

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