[CLC-Discussion] CLC Discussion: Can you amend a complaint once as a matter of right but add a new Plaintiff? Without permission?

[Bruce Partington]

I think the amendments are permissible as a matter of right, but since Defendant did not respond or appear to the new complaint before the amended one was filed, the defendant has to be re-served with a summons and proper/formal service.  

 

 

Bruce D. Partington

Clark Partington

bpartington at cphlaw.com <mailto:bpartington at cphlaw.com> 

Direct: 850-432-1399

Fax: 850-432-7340

*Board Certified in Construction Law

 

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Michael R. Romm, P.A.
Sent: Monday, February 24, 2014 1:30 PM
To: CLC Discussion RPPTL Discuss
Subject: [CLC-Discussion] CLC Discussion: Can you amend a complaint once as a matter of right but add a new Plaintiff? Without permission?

 

Thanks to all of the attorneys who responded and offered to co-counsel.  I will be in touch...New Question to the group:

 

Perry Plaintiff files suit against David Defendant and serves a one count complaint for declaratory relief (Chapter 86) complaining that he never "sold" the car to David Defendant but instead he only leased it to David Defendant and asks the Court to declare him the owner.  Service is achieved with a summons on David on February 1, 2014.

 

On February 7, 2014 an amended complaint is filed  and "served by mail/email" upon Dana Defendant (who is pro se)  but this new complaint has two significant differences from the original complaint:  

 

(1)  Perry Plaintiff sold his interest in the car to Perry's sister - Cherry Plaintiff after the suit was filed and the new complaint is a two count complaint where Cherry Plaintiff (as the new owner) is suing David Defendant for declaratory relief asking the Judge to declare that she is the owner of the car because her brother Perry really did own the car when he sold it to her; and

(2)  Perry Plaintiff files a new count II which is breach of lease claiming that he did not sell the car to Dana Defendant but he had only leased it to her before he gave his car away to his sister; and he now claims that Dana Defendant breached the lease; 

 

Here are my two questions:





1.    since the new complaint has a completely new theory and a completely new added Plaintiff, doesn't it have to be served with a summons?  Also, since the car was sold after the original complaint was filed, isn't the new Plaintiff (the sister) actually a person who has moved to intervene in the lawsuit without permission? Shouldn't the court first grant permission to amend and then require service by summons?  Do I move to dismiss or quash?





  the rule that says "a party" may amend once as a matter of right without leave of court" I believe that the rule is referring to Perry Plaintiff who was the original party.....Cherry Plaintiff was never a party so I think she can't file an amended anything until she first gets permission to join in on the fun...and her complaint must be SERVED WITH A SUMMONS.





Anybody want to take a stab at this??????  

 

Michael Romm

Michael R. Romm, P.A.

4660 North University Drive

Lauderhill, FL 33351

Phone: (954) 603-7700 (new number)

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EMAIL:  mromm at rommlaw.com <mailto:mromm at rommlaw.com> 

 

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