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Thursday, November 02, 2006

Rule 12 Motions to Dismiss Are Not Responsive Pleadings

Yes, you read the title of this post correctly. Rule 12 motions to dismiss are not responsive pleadings for purposes of Rule 15 amendments to complaints (of course, we are talking about the Tennessee Rules of Civil Procedure here).

Why is this important? It's important because a lot of lawyers (myself included, until recently) think that you can't file an amended complaint without the other side's permission or leave of the court if a motion to dismiss is pending (Rule 15 allows an amended complaint to be filed any time before a repsonsive pleading is filed). This is simply not the case. Adams v. Carter Cnty. Mem'l Hosp., 548 S.W.2d 307, 309 (Tenn. 1977) (stating that a motion is not a responsive pleading); Vincent v. CNA Ins. Co., No. M2001-02213-COA-R9-CV, 2002 WL 31863290, at *5 n.4 (Tenn. Ct. App. 2002) (also stating that a motion to dismiss is not a responsive pleading).

1 comment:

Marc said...

Tony:

The post is 9 years old but is still on point. I am glad my browser was able to find your very intelligent and thoughtful observation about Rule 12 motions. I have seen this several times in my practice and never thought to amend the complaint (throwing a curveball to the Defense).

Thanks!