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What does it mean when a motion to dismiss is granted and the order does not specify "'with' or 'without' leave to amend?"

San Luis Obispo, CA |
Filed under: Litigation

Defendant's motion to dismiss was granted because I messed up on a procedural issue, but judge did not specify with or without leave to amend. Does this mean that as a Plaintiff, I could sue the Defendant again if I fix my complaint against the defendant as suggested by the court?

Attorney Answers 3


Your posting is missing key facts to be able to answer, such as why did the court grant dismissal? What is the procedural issue that you messed up? Was this state or U.S. District Court? Also, how long ago was this dismissal entered? What motion was this that caused entry of dismissal?

Robert Stempler (please see DISCLAIMER below)

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This is a state court case. The court asked defendant's counsel to obtain more information and submit by a certain date. Defendant's counsel filed the information, and I was supposed to file an answer, but court did not specify how much time I had to answer, or maybe I was supposed to research how much time I had to reply? Because of my inadvertent silence and illness, court entered the order 10 days after defendant's counsel filed the ordered information. The court said that because of my silence, the court assumes that I am acting in bad faith. I disagree. The motion was a "Motion to Dismiss for failure to file a Timely Amended Complaint." The order was entered yesterday.


I agree with Attorney Stempler. You need to clarify and provide more information in order to obtain a correct response to your question(s).

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.

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I would need to know much more specific facts relating to your issue to be able to provide good advice. However, for informational purposes, if this was the first / original complaint that was dismissed, and the court did not specify that you do not have leave to amend, I would immediately file you amended complaint in compliance with the issues raised by the motion that prevailed against your original complaint. Courts generally should and do give litigants several chances to properly plead a complaint before dismissing it without leave to amend or with prejudice. This is especially true if the plaintiff is not represented by an attorney. I would recommend you contact an attorney immediately and get that amended complaint filed as soon as possible in case you have a chance of being able to cure the defects that the defendant and court found in your complaint.

This response is not a substitute for the advice of an attorney. The facts of your personal situation, along with your states’s specific laws and changes in the law that may have occurred after the question or response at issue took place. It is therefore HIGHLY ADVISABLE to consult an attorney before finalizing any documents, taking any actions, or making any decisions. It is recommended that where an issue involving the law or use, interpretation, or application thereof is involved, that the user consult an attorney prior to the final decision or commencement of any legal action. Reading the foregoing response/information constitutes the readers' consent and acknowledgment that no legal advice is herein provided and no attorney-client relationship is in anyway created between reader and responding person.

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