Legal Question in Civil Litigation in California

Hello,

I was named as a defendant in a civil complaint (Superior Court - County of Santa Clara, California) but was never served the the complaint/summons.... etc. The plaintiff(s) recently filed amended complaint --- dropping my name as well as others. According to the most recent docket report, those unfortunate souls who are still named in the amended complaint have been served. Question - does the filing of the amended complaint REPLACE the original complaint? In other words, since I'm not named in the Amended complaint, I'm no longer part of the lawsuit (unless they bring me back again). Can I legally ignore the CMC conference since I'm no longer a defendant in the lawsuit?


Asked on 8/12/10, 4:40 pm

3 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Technically the plaintiffs should have dismissed you. But yes, the amended complaint replaces the original. Since your name was removed from it and since you were never served, I think you can presume you are no longer a party. Even if you were still named as a defendant, you would not have to participate in the case unless and until you had been served.

One important caveat: The plaintiffs may have told the court that they served you even if they really didn't. This sometimes happens innocently, as when the papers are served on someone else with the same name. It also sometimes happens due to fraud. Either way, you may want to check the court file to see whether they have filed a proof of service on you. (The docket report you mention is probably correct, but such reports are sometimes incomplete.)

Read more
Answered on 8/17/10, 5:09 pm
Robert F. Cohen Law Office of Robert F. Cohen

I second Mr. Hoffman's suggestion. If the amended complaint omits a defendant who was originally named, it is treated as a voluntary dismissal without prejudice. That means that they could add you again later as a "Doe" defendant, but they'd still have to serve you with process.

Read more
Answered on 8/17/10, 5:24 pm

Mr. Cohen is wrong. Since they clearly know who you are, they can't serve you as a Doe under the current pleading. They would have to obtain leave of court to add you back. Other than that, the previous answers are correct.

Read more
Answered on 8/18/10, 4:16 pm


Related Questions & Answers

More General Civil Litigation questions and answers in California