Failure to comply with a granted 12(e) motion

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Failure to comply with a granted 12(e) motion

Postby McChicken » Thu Dec 15, 2016 12:43 am

If a court grants Defendant's 12(e) motion for a more definite statement, and Plaintiff fails to amend within the required time, may the Court dismiss with prejudice?

I think I remember my professor saying something about how the Court may dismiss, but it is not res judicata (Plaintiff can refile). Anybody happen to know the answer?


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Re: Failure to comply with a granted 12(e) motion

Postby cavalier1138 » Thu Dec 15, 2016 8:05 am

I don't know of any specific caselaw to reference, but the rule says "the court may strike the pleading or issue any other appropriate order."

So based on that wording, the general penalty is to strike the pleading, which is effectively dismissing the case without prejudice. The second option certainly leaves the door open for dismissing with prejudice, but I'm guessing that it rarely happens.

I'd ask other people in your class, though, because if your professor talked about a specific standard sanction imposed, then they'll be in the best position to know about it.


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