0

OK. So, it is a 'given' ..! No rule exist to state that someone dismissed, temporarily until an appeal is made does not receive papers filed in the case. So, when the appeal is filed if the dismissed party(s) want to know what has happened concerning their co-conspirators ... they will have to catchup on their own.

These defendants would obviously be sent the notice of appeal - but would the notice be sent to their home or their last known attorney of "record"?

Are these 'dismissed' defendants "removed" from the style of the complaint?

If the dismissed defendants are removed from the style of the complaint are they later added back when an appeal is perfected?

I appreciate the answers. It would be nice however, if the rules were in a book form.

I realize that this question has 3 questions but they are related. thank you

1

These defendants would obviously be sent the notice of appeal - but would the notice be sent to their home or their last known attorney of "record"?

Notices are sent to the attorney of record unless the attorney of record withdraws from the representation with an order of the court, in which case it is sent to the address of the party set forth in the order allowing the attorney of record to withdraw.

This is partially addressed by FRCP 5(b):

(b) Service: How Made.

(1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party.

(2) Service in General. A paper is served under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there;

(C) mailing it to the person's last known address—in which event service is complete upon mailing;

(D) leaving it with the court clerk if the person has no known address;

(E) sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or

(F) delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery.

(3) Using Court Facilities. If a local rule so authorizes, a party may use the court's transmission facilities to make service under Rule 5(b)(2)(E).

Local rules of court on the entry of appearance and withdrawal of the attorney that vary from district to district further clarify the matter. The federal courts do not have a nationwide equivalent to Colorado Rule of Civil Procedure 121 which sets forth uniform guidelines for how to handle minor procedural matters like this one.

Are these 'dismissed' defendants "removed" from the style of the complaint? If the dismissed defendants are removed from the style of the complaint are they later added back when an appeal is perfected?

The ordinary custom and practice is not to remove a dismissed party from the caption in the absence of a court order regarding the caption to the contrary, although I am not aware of a court rule that mandates this one way or the other. If a new party is joined or the name of a party changes during the course of litigation, the caption is amended. FRCP 10(a) does provide that the caption of pleadings filed after the initial complaint are abbreviated.

(a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.

2
  • Can you speak to how would or could a dismissed defendant be treated (wording, facts, claims, etc) in a Plaintiff's amended complaint? It does not seem right that future complaints would ignore them. – j. howdee Aug 4 '17 at 3:26
  • @j.howdee Only as necessary to tell the rest of the story. Discussing a dismissed defendant gets you no where exact aggravating the judge. – ohwilleke Aug 4 '17 at 4:35

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.