Hypothetical scenario:

Plaintiff files a complaint having three counts A, B, and C.

Defendant files an answer to counts A & B and moves to dismiss count C for "failure to state a claim."

On Plaintiff's motion, judge grants leave to amend and denies pending motion to dismiss as moot.

Plaintiff files an amended complaint containing counts A and D (D being a new count, B and C having been removed). The language of Count A remains completely unchanged.

Defendant files a new motion to dismiss for failure to state a claim on all counts.

Is the Defendant's decision to challenge count A permitted by FRCP?

It seems at the very least a logical necessity that either the initial answer or the subsequent motion to dismiss must have been filed in violation of Rule 11 because:

I don't see how defendant can initially believe that Count A states a claim and then later decide it does not. I suppose I should add the assumption that they did not come across any new case law during the time interval between pleadings and that the governing law did not change. Rule 11 requires a reasonable inquiry be made into the sufficiency of a plaintiff's complaint, and that no document be filed for an impure purpose. I can't think of any "pure purpose" one would have in filing an answer when a motion for dismissal is warranted. So it leads me to conclude that either the Defendant did not make a reasonable inquiry into Count A before filing an answer, and has wasted both the court and plaintiff's time by not raising Count A's insufficiency initially, or that either the answer or the later motion to dismiss were filed for an impure purpose.


1 Answer 1


According to rule 15a:

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

If you are still within 21 days of when you served your original pleading (or their response, if one was required) then you should still be able to amend your pleading.

If you are outside that window, you may be able to use rule 12(c):

(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

According to rule 12(d), this is not the same as a motion for summary judgement under rule 56 (with all that entails) unless the court has already been presented with matters outside the pleadings.

Your question was about rule 11. I don't think your scenario would violate it. Under rule 11b:

By presenting to the court a pleading... an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances...

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

It doesn't actually say in there that the defense must investigate the sufficiency of the plaintiff's claims (although that's obviously something the defense would ordinarily want to do.) The part about making sure "the claims, defenses, and other legal contentions are warranted..." relates to the claims being made the party in question, not the ones being made by the other party.

I can't think of any "pure purpose" one would have in filing an answer when a motion for dismissal is warranted.

Depending on the circumstances, a party might have good reasons to not make every claim they think they're entitled to make. Perhaps they aren't sure about how the court will rule on their motion to dismiss but like their chances at trial. (Indeed, if it's a certainty the court will dismiss, then perhaps Rule 11 sanctions are in order for the plaintiff, for filing a case that was not at all warranted by the law.) Drafting a motion is time the attorney has to spend, which is an expense for their client, and it may or may not work. But maybe their motion to dismiss Count D uses the same theories as their motion to dismiss Count A, and it's now worth it to make the argument. And maybe now since the court ruled with them on Count C they're more optimistic that the court will also rule in their favor on counts A and D.

If the defense delayed this motion solely to "harass, cause unnecessary delay, or needlessly increase the cost of litigation" then Rule 11 would be violated. But that seems unlikely. Look at the context. They're making a motion on the amended complaint. That's still rather early in the process. Given that a brand new count was added, an earlier motion to dismiss count A would not have resolved the litigation anyway, so there was no real delay caused. The costs for either side have not been significantly increased, either.

Also note the phrases "to the best of the person's knowledge" and "reasonable under the circumstances". The defendant only has 21 days to file a response after being served, and they might not even have an attorney yet when that clock starts. How much inquiry is reasonable in that time frame, especially when responding to a multi-count complaint?

  • Thanks! This actually just happened to me in a 1983 action....but about 6 months into the process. My count A is "deliberate indifference to serious medical needs". I moved for leave to add a new count under title II of the ADA. They then moved to dismiss both counts for failure to state a claim. Something like 100 documents have been filed in this case now. There's nothing they've raised that couldn't have been raised during initial pleading. Very frustrating. Fortunately I think there chances of success are slim.
    – David Reed
    Sep 16, 2019 at 5:05
  • If hundreds of papers have been filed, that does change the equation as far as delay/costs go. But the point that the litigation wouldn't be resolved due to count D being added is still valid.
    – D M
    Sep 16, 2019 at 11:22
  • Somebody upvoted this question and as a result I revisited this answer. I would just mention something I noticed this time around, regarding not requiring the party to "investigate the sufficiency of the plaintiff's claims." It could be argued that even though that is not enumerated in the list, the failure to evaluate whether a complaint states a claim on its face (e.g. not reading it carefully) still violates Rule 11 in that by filing an answer they have certified not only that they believe their defenses are warranted, but that said belief was formed after making a "reasonable inquiry"
    – David Reed
    May 27, 2021 at 11:51
  • Also, to clarify, I am construing your use of the word "investigate" as meaning investigating the legal basis (as opposed to factual basis) of the plaintiffs claims. I agree it would be unreasonable to expect them to investigate whether the factual allegations were true, but that has no bearing on deciding whether to file for dismissal. When considering whether to file to dismiss for failure to state a claim, all that matters is the face of the pleading. You have to assume the factual allegations are true (unless implausible or conclusory).
    – David Reed
    May 27, 2021 at 12:06

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