Let's say a judge issues an order; 'deadline for any defendants to file a motion to dismiss plaintiff's first amended complaint is on xyz date.

Then let's say a defendant files a motion to dismiss plaintiff's first amended complaint and does so 2 days after having received plaintiff's second amended complaint and almost a year after the judge ordered deadline for defendants to file their motion to dismiss.

Then what if a judge issues order a week after motion to dismiss is filed stating the motion to dismiss is moot, however not because it was time barred by previous order setting deadline, but because plaintiff has filed a second amended complaint.

Could the defendant be attempting to maneuver a second chance at a motion to dismiss? If so, what could be done to stop such an abuse?

2 Answers 2


It sounds like the defendant simply screwed up. But, the defendant can now file a motion to dismiss the second amended complaint within the time allowed for filing an answer to the second amended complaint, so it is no big deal.

A judge can, in any case, grant leave to amend most court deadlines for either excusable neglect (under FRCP 6) or for good cause (either under FRCP 6 or FRCP 16 or under the Court's general authority to manage its docket), depending upon the circumstances.

In practice, if the court thinks it can get a case off its docket by considering a fairly simple motion, it will often do so rather than waste time on a trial simply because someone missed a deadline.


Motion to dismiss the first amended complaint is irrelevant after that deadline. However, the plaintiff can certainly submit ANOTHER amended complaint later, to which the defendant could object, not to mention file a motion to dismiss.

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