Legal Question in Bankruptcy in California

Filed a motion to dismiss

The court told the plaintiff to file an amended adversary proceeding because he didn't state a claim. By the date the amended adversary proceeding was due the plaintiff had not filed it, so I filed a motion to dismiss based on no stated claim and not filing on time. A few days later I received the amended complaint in the mail, but it still hasn't been filed with the court. What should I do? Withdraw my motion to dismiss? Amend my motion to dismiss - do nothing and go to court to see if the judge dismisses the case because of the plaintiff's neglect? Should I still answer the amended complaint?


Asked on 1/31/08, 8:19 pm

1 Answer from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

Re: Filed a motion to dismiss

Check the docket and make sure the amended complaint was not timely filed. If so, then Rule 41(b) of the Federal Rules of Civil Procedure authorizes dismissal "for failure of plaintiff . . . to comply with any order of the court . . ." See Yourish v. California Amplifier, 191 F.3d 383, 386-387 (9th Cir. 1999). However, such dismissal is considered an extreme sanction, and it's up to the court to consider lesser sanctions. See Rule 41(b). Good luck!

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Answered on 2/01/08, 1:39 am


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