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To clarify - should the new party's name be added directly on the cover/title page, or is it left as it is but moves to add the new party in the content of the amendment?

This is in NY state, civil court. This would be an amendment by right.

And a couple of additional questions: 1. While there is a motion to dismiss pending, does there need to be a separate response to the motion or would the amendment itself suffice? 2. Can the amendment be made without having served the additional defendant? and if not, since service may take much longer, how should the court be notified so that the right to amend as a matter of course is not relinquished?

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Should the new party's name be added directly on the cover/title page, or is it left as it is but moves to add the new party in the content of the amendment?

Ordinarily a motion to amend could carry the old caption and the amended complaint with the new caption would be attached. IIRC, you file a motion to amend, or at least some sort of cover pleading even when you amend by right.

  1. While there is a motion to dismiss pending, does there need to be a separate response to the motion or would the amendment itself suffice?

It is never wise to fail to respond to a motion to dismiss. At a minimum, one ought to respond with a pleading that says that the motion is moot because the amended complaint addresses the issue, but not all issues raised in a motion to dismiss (e.g. lack of standing or lack of jurisdiction or bad service or bad venue), can be addressed with an amended complaint, so it may be necessary to address the merits.

  1. Can the amendment be made without having served the additional defendant? and if not, since service may take much longer, how should the court be notified so that the right to amend as a matter of course is not relinquished?

The amendment happens first and service of process happens second.

  • Thank you that's very helpful. on the point of improper service - how would it be pleaded in the response to motion to dismiss - must the improper service (was mailed to wrong address) be rectified first and with new proof of service attached? But that would mean serving the original complaint.. – cardoza Oct 14 '17 at 20:34
  • @cardoza A plaintiff files a complaint and fails to serve it properly, but a defendant somehow gains actual knowledge. A defendant can file a motion to dismiss the claims against him for bad service (service by mail in and of itself is frequently improper per se). A response admitting the original bad service and attaching a new proper proof of service of the old complaint or new complaint could be attached, or one could ask for leave of the court for additional time to correct the bad service of process for good cause. – ohwilleke Oct 14 '17 at 20:41
  • One more related question - if the movant made a factual false claim in the motion to dismiss, in response, is it ok to include documentary evidence to the contrary or just need to state the point? – cardoza Oct 15 '17 at 4:09
  • @cardoza There isn't one answer to that. In a motion to dismiss for failure to state a claim also known as a demeurrer, all points stated in the Complaint are taken a true. In a motion to dismiss on other grounds evidence can be presented by affidavit and must be rebutted in kind by affidavit including affidavits that authenticate documents. – ohwilleke Oct 15 '17 at 22:46

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