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How to file first amended complaint

Boston, MA |
Filed under: Summons and complaint

I filed a complaint, and received a motion to dismiss from the opposing party. Now I am writing an Opposition to MTD. I have 10 days + 3 business days to do that. At the same time, I realized that I want to amend my complaint. Can I file them together (i.e. opposition to MTD and amended complaint)?

Attorney Answers 3


Yes, you can file both together. It may actually work better in this situation if you address the reasons for the motion to dismiss in your opposition and argue that your amended complaint addresses those issues, if you can, and attach your proposed amended complaint to your opposition to the motion to dismiss/motion to amend the complaint. You may want to consult an attorney for further information or assistance to avoid a dismissal of your complaint. Best of luck.

Please be sure to mark if you find the answer "helpful" or a "best" answer. (It lets us know how we are doing.) Attorney Kremer is licensed to practice in Massachusetts. Please visit her Avvo profile for contact information. In accordance with Avvo guidelines, the following disclaimer applies to all responses given in this forum: The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer.

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You can, and probably should, do both.

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You can file both together and SHOULD file both together. If you do not respond to the motion to dismiss, the Court could grant the motion since there would be no objection/opposition filed.

You have the right to amend your complaint "as a matter of course" within 30 days if a responsive pleading has been filed. A motion to dismiss, however, counts as a responsive pleading , so you should file the following:
1) Opposition to MTD;
2) Amended Complaint; and
3) Motion to Amend Complaint explaining the reasons you want to amend it.

It doesn't sound like you have a lawyer in your case, so the court will be a little more lenient for you, but you should still detail all the reasons you want to amend your complaint just to be safe.

Additionally, if you don't have a lawyer, it may be worth discussing you case with one so you don's miss any potential claims you may have. While you provided no information about your case, I always tell people have a lawyer look over your case, just for an hour, could help you significantly as you move forward in your case.

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I read Massachusetts Civil Procedure Rule 15 and it says that "...a party may amend his pleading only by leave of court or by written consent of the adverse party". So the motion that you mentioned in 3) is leave of court? What does this mean? Another question - will the other party have another chance to file another MTD since I am amending the complaint? Please help...

Alex R. Hess

Alex R. Hess


Leave of Court is just asking the court for permission. A Motion to Amend is your motion asking for "leave of court" to amend your complaint. If you have more in depth questions, please just call my office at (610) 730-9472 and set up an appointment.

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