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Can Plaintiff Pro Se Mail Amended Complaint to Opposing Counsel?

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Paul84

Member
What is the name of your state (only U.S. law)? New York, Federal case.

Opposing counsel for defendants made a formal appearance and filed a motion to dismiss my original verified complaint and a memo of law supporting his motion. I filed a response memo of law in opposition to his motion with reference to a forthcoming amended verified complaint that would provide more details on my complaint but not change the original causes of action. He now plans to withdraw his memo of law and has asked the judge in a letter for permission to do so. Via email I told the counsel I would consent to that withdrawal, although the judge wants a formal faxed letter from me saying the same, which I will provide.

Question: to serve the amended complaint via regular mail to the counsel, as a pro se plaintiff, can I mail it directly to the counsel? Or do I still need some other adult over 18 years of age to do the mailing?
 


tranquility

Senior Member
You should keep related questions in the same thread. There is certainly background here that is valuable. Don't start new threads for different questions. All service needs to be done by another than the parties of the case. Even an attorney will have the secretary mail it and fill out proof of service.
 

Paul84

Member
What is the name of your state (only U.S. law)? New York, Federal case.

Opposing counsel for defendants made a formal appearance and filed a motion to dismiss my original verified complaint and a memo of law supporting his motion. I filed a response memo of law in opposition to his motion with reference to a forthcoming amended verified complaint that would provide more details on my complaint but not change the original causes of action. He now plans to withdraw his memo of law and has asked the judge in a letter for permission to do so. Via email I told the counsel I would consent to that withdrawal, although the judge wants a formal faxed letter from me saying the same, which I will provide.

Question: to serve the amended complaint via regular mail to the counsel, as a pro se plaintiff, can I mail it directly to the counsel? Or do I still need some other adult over 18 years of age to do the mailing?
Okay, sorry. More detail: this counsel waived service of the original complaint, and I filed that waiver form with the Pro Se Office. Now can I still mail the amended complaint directly? I don't have a secretary and do not want to involve anyone else in this.
 
W

Willlyjo

Guest
What is the name of your state (only U.S. law)? New York, Federal case.

Opposing counsel for defendants made a formal appearance and filed a motion to dismiss my original verified complaint and a memo of law supporting his motion. I filed a response memo of law in opposition to his motion with reference to a forthcoming amended verified complaint that would provide more details on my complaint but not change the original causes of action. He now plans to withdraw his memo of law and has asked the judge in a letter for permission to do so. Via email I told the counsel I would consent to that withdrawal, although the judge wants a formal faxed letter from me saying the same, which I will provide.

Question: to serve the amended complaint via regular mail to the counsel, as a pro se plaintiff, can I mail it directly to the counsel? Or do I still need some other adult over 18 years of age to do the mailing?
What you need to do is file the amended complaint with the proper court and then you can send a copy of the amended complaint to the defendants. You must have someone over the age of 18 send the copy.

It certainly would have been better if you would have amended your Complaint and filed it concurrently with your Opposition Papers. This may have rendered their motion moot, saving you some time and extra work.

I'm curious though...if you filed Opposition Papers, didn't you also serve copies through the mail like you were suppose to do? If so, didn't you know such papers had to be served through the mail by a person over the age of 18 and not a party to the action?
 
W

Willlyjo

Guest
Okay, sorry. More detail: this counsel waived service of the original complaint, and I filed that waiver form with the Pro Se Office. Now can I still mail the amended complaint directly? I don't have a secretary and do not want to involve anyone else in this.
If Defendant's Counsel waives service of documents through the mail by someone over the age of 18 and not a party to your action, then yes, you can continue to send copies of documents to Defendants yourself. This does indeed sometimes happen where such waiver is filed with the Court allowing documents being sent directly from one party to the other.

You must file the Amended Complaint with the Court before sending a copy to the Defendants.
 

Ohiogal

Queen Bee
You should keep related questions in the same thread. There is certainly background here that is valuable. Don't start new threads for different questions. All service needs to be done by another than the parties of the case. Even an attorney will have the secretary mail it and fill out proof of service.
The bolded is not true. Attorneys are NOT parties to the case. They represent parties. Additionally, pro se litigants can do some service themselves by using the mail and mailing what is appropriate to be served by mail.
 

Paul84

Member
If Defendant's Counsel waives service of documents through the mail by someone over the age of 18 and not a party to your action, then yes, you can continue to send copies of documents to Defendants yourself. This does indeed sometimes happen where such waiver is filed with the Court allowing documents being sent directly from one party to the other.

You must file the Amended Complaint with the Court before sending a copy to the Defendants.
Thank you all very much for your prompt replies. Several months ago, the judge approved my use of the court's Electronic Filing System (ECF), which has been very helpful because I live overseas. However, the ECF Local Rules don't allow for uploading one document--an Amended Complaint, which must go instead as paper copy to the Pro Se Office (for Pro Se plaintiffs).

Just to clarify, I need to wait until the paper copy of this Amended Complaint reaches the Pro Se Office and wait until they file it (ie to the ECF) BEFORE mailing the Amended Complaint to Defendants' counsel? Then I send in an Affidavit of Service saying I mailed the Amended Complaint to counsel? By the way, this counsel has asked the judge for permission to receive the Amended Complaint via email service, which I will agree to, but again, I must wait until the Pro Se Office files the document before doing such an emailing?
 

tranquility

Senior Member
The bolded is not true. Attorneys are NOT parties to the case. They represent parties. Additionally, pro se litigants can do some service themselves by using the mail and mailing what is appropriate to be served by mail.
I agree. But, do you want to be called to testify? (Here, we're dealing in federal court. Rule 5 and 25 FCRP.)
 

Paul84

Member
I agree. But, do you want to be called to testify? (Here, we're dealing in federal court. Rule 5 and 25 FCRP.)
Am not sure I understand your point, Tranquility. For this case, I plan to make one trip to New York, if necessary: to present my arguments to a jury, at which time I would also testify. Does that answer your question?
 

tranquility

Senior Member
I was replying to Ohiogal who is a practicing attorney who made a good distinction. An attorney is not a party. They could serve. They don't because they don't want to be called to testify about service if there is a question. Also, because I believe she practices family law, which is usually in state court, I pointed out that federal rules may not be the same as state.

Even though FRCP 5 and 25 do not list anything other than "service", you still go by the requirements of FRCP 4 as to who can serve. I think the other FRCP only are there to show other allowed methods.
 

Paul84

Member
Timing ?: Filing of Amended Complaint, Emailed to Lawyer, ECF of Cert of Service

What you need to do is file the amended complaint with the proper court and then you can send a copy of the amended complaint to the defendants. You must have someone over the age of 18 send the copy.

It certainly would have been better if you would have amended your Complaint and filed it concurrently with your Opposition Papers. This may have rendered their motion moot, saving you some time and extra work.

I'm curious though...if you filed Opposition Papers, didn't you also serve copies through the mail like you were suppose to do? If so, didn't you know such papers had to be served through the mail by a person over the age of 18 and not a party to the action?
Do I need to wait for my mailed copy of an Amended Complaint to reach the Pro Se Office BEFORE serving it via email to Defendants' counsel, who has made formal appearance and agreed to accept electronic service? At some point I need to use the Electronic Court Filing (ECF) for uploading the Certificate of Service (for the Amended Complaint) but am unsure about the timing for these 3 documents. Which should be first, second, third? Or does it not matter? By the way, the Amended Complaint is the only document, for which the Court does not allow ECF and it must arrive in paper form at the Pro Se Office.
 
W

Willlyjo

Guest
Do I need to wait for my mailed copy of an Amended Complaint to reach the Pro Se Office BEFORE serving it via email to Defendants' counsel, who has made formal appearance and agreed to accept electronic service? At some point I need to use the Electronic Court Filing (ECF) for uploading the Certificate of Service (for the Amended Complaint) but am unsure about the timing for these 3 documents. Which should be first, second, third? Or does it not matter? By the way, the Amended Complaint is the only document, for which the Court does not allow ECF and it must arrive in paper form at the Pro Se Office.
Yes, you should make sure your Amended Complaint is filed before serving it through the mail on the Defendants. Anything you serve via the electronic service, should be in the order that you received such items that need responses to.
 

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