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Federal Rules of Civil Procedure (FRCP) QUESTION #3690
Question 1
A plaintiff files a complaint in federal court. 15 days after being served, the defendant files a motion to dismiss for failure to state a claim under Rule 12(b)(6). While this motion is pending, the plaintiff wants to amend the complaint to fix the defects. Does the plaintiff need leave of court?
  • Yes, once a Rule 12 motion is filed, the right to amend as a matter of course is lost.
  • No, a party may amend its pleading once as a matter of course within 21 days after service of a motion under Rule 12(b).✔️
  • Yes, unless the defendant stipulates to the amendment in writing.
  • No, a plaintiff has an absolute right to amend up until the trial begins.
Correct Answer Explanation
Rule 15(a)(1)(B) allows a party to amend its pleading once as a matter of course within 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.