When can an amended complaint be filed?

[artbhill]

What is the name of your state (only U.S. law)? North Carolina

I filed an initial civil complaint which was serviced on January 7, 2011 for FCRA violations and Fraud. The defendant has not yet filed an answer. Can I file my first amended complaint prior to an answer being filed without leave of court or consent from opposing party? Or can I wait for an answer and file and amended complaint without leave of court or consent of other party?

 

[latigo]

Once as a matter of course at any time before a responsive pleading is served. Or if the pleading is one to which no response is permitted and the case has not been placed on the trial calendar, at any time within 30 days after the original has been served. NCRCP Rule 15.

You say that you are prosecuting a cause of action grounded on allegations of fraud and doing it in pro per? That’s pretty heavy stuff for a layperson to tackle.

 

[artbhill]

Thanks for your reply.

Yes, it's grounded in fraud, but multiple willful violations of FCRA. They've done this over a course of years continously and refused to stop...I really had no choice and noticed some changes after the complaint was served. I know it's not what I know but what I can prove in court. It helps to have irrefutable evidence of fraud in any case. It's a good thing I do have such evidence. It's against Equifax by the way....so this is a David and Goliath scenario.

Again, thanks for your response.

 

[!CuriousGeorge!]

NC is one of the few notice pleading states, not a fact pleading state (its a plaintiff's dream state really).

So why do you want to amend your complaint? To add further counts?

 

[latigo]

Thanks for your reply.

Yes, it's grounded in fraud, but multiple willful violations of FCRA. They've done this over a course of years continously and refused to stop...I really had no choice and noticed some changes after the complaint was served. I know it's not what I know but what I can prove in court. It helps to have irrefutable evidence of fraud in any case. It's a good thing I do have such evidence. It's against Equifax by the way....so this is a David and Goliath scenario.

You say “irrefutable evidence of fraud”?

Irrefutable evidence nor not, I would be interested in hearing your authoritative explanation of how noncompliance with the Fair Credit Reporting Act can amount to actionable fraud when the civil remedies for noncompliance are provided under Sections 616 and 617 of the Act.

And how do you intend to show that you have suffered actual damages, which are by the way limited to $1,000?

If in setting the maximum compensation for actual damages suffered and providing a civil remedy Congress didn’t intend to make those remedies EXCLUSIVE, then you’d better come up a convincing legal argument that you are free to pursue an independent common law remedy (fraud) with no limitation on a damage award.! But I don’t think that you can.

Then you say that this has been going on for a number of years. If so, then where does you lawsuit sit with respect to Section 618 “limitation of actions”?

Are you aware that you could end up paying Equifax’s legal costs?

 

[artbhill]

Sorry, you misunderstood or I put fraud and FCRA violations together in my reply. Violations of FCRA had nothing to do with fraud and are independant of that. I understand the limitations on damages for FCRA violations (willful and/or negligent) and no violation outside of the statute of limitations would be pursued...only willful violations are pursued and only those within the statute of limitations. Fraud was from 2008 "bait and switch scam" and again in November 2010. I'm just simply tired of filing the BBB complaints against Equifax. I have no choice. Believe me, I understand the risks. I know it's hard as an attorney to understand what it feels like from my position. Attorney's live in a world of law and statutes...so they're pre-equipped to deal with issues legally themselves....hell, it could only take a letter from an attorney to make a difference. But a common person, it's a totally different story...the odds are always stacked against us. Risk is my last option. I'd hope Congress didn't just create a bunch of laws so that companies like Equifax can violate those laws as long as they didn't cause actual (monetary) damages....as there'd be no deterent at all if that were the case.

Thanks for your response.

 

[artbhill]

Case removed to Federal Court on Feb. 9, 2011

This case was removed to federal court 33 days after being served. Filed motion to remand days after removal. They falsified the date they were served in the notice of removal to get the case removed after they waited until the last minute to remove the case. After defendant was served amended complaint from state court and while the case was already in federal court, the filed an amended notice of removal based on the amended complaint.. They had one shot at removal, so their second attempt at removal when the case was removable on it's face based on the first complaint is not valid as federal law governing removal is strictly constued.

So if the case removable (Federal Question) on it's face when the first complaint was served, could they attempt to remove the case again while it's pending a remand order and base the amended notice of removal on an amended complaint which didn't provide a new basis for removal? I only added puntive damages for fraud and more facts to the amended complaint and removed injunct./declar. claim. Ironically, magistrate wrote order and recommendation contending the amended notice of removal was valid....previous orders I've found addressing the same issue by the same magistrate do not...remanding cases due to failure of defendant to removal cases within 30 days of having knowledge of removability of case.
I just find it interesting. Pro se doesn't equal complete ignorance of the laws....at least for some anyway. Still waiting on remand order...

 

[Sophistry]

This is a complicated procedural issue. It appears you filed a complaint in the state court; they filed a notice of removal; you filed an amended complaint in the state court while the federal court was considering the merits of removing the original complaint; and the federal magistrate issued his report recommending that Amended Notice was valid.

As far as the initial 30 day requirement, have you checked Rules 5 and 6 of the FRCP and the local rules for the district court you are in? I believe the rules allow a couple of extra days if filed electronically (on ECF/CM/PACER). I could be wrong but the 3 days sounds right. However, the rules are very tricky (holidays, last day ends on a saturday, etc)

Is your motion to remand still pending? Did they file a response? What was the basis of your motion - that it was filed more than 30 days after service?

 

[artbhill]

Response

I actually filed the amended complaint in State Court before removal. The last day they could have removed was Feb 7 (31st day on Monday...maybe Sunday Feb 6 since removal was filed electronically). I filed amended complaint on Feb 7 in state court.

Yes, remand is based on untimely removal (more than 30 days after service)...the intial complaint was served on January 7, 2010. Not counting that day, the strict time period of 30 days begins to tick away.